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Proof of Facts in Civil Cases 12
RICHARD L. MILLER II Novack and Macey LLP Chicago
The contribution of Fred Lane, Scott D. Lane, and Stephen I. Lane to prior editions of this chapter is gratefully acknowledged.
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I. Introduction
A. [12.1] Scope of Chapter B. [12.2] Definition of Evidence C. [12.3] Types of Evidence D. [12.4] Sources of Evidentiary Rules E. Materiality, Relevancy, and Competency 1. [12.5] In General 2. [12.6] Materiality 3. [12.7] Relevancy 4. [12.8] Competency 5. [12.9] Federal Rules of Evidence 6. [12.10] Evidence Admitted for Limited Purpose
II. Burden of Proof
A. [12.11] Definition B. Determining Who Has the Burden of Proof 1. [12.12] In General 2. [12.13] Comparative Negligence 3. Examples a. [12.14] Absence of Consideration b. [12.15] Agency c. [12.16] Execution of an Instrument d. [12.17] Intoxication e. [12.18] Payment for Goods Received f. [12.19] Cost of Medical Care g. [12.20] Undue Influence on a Testator h. [12.21] Privilege i. [12.22] Competency To Testify j. [12.23] Res Ipsa Loquitur C. Meeting the Burden of Proof 1. [12.24] Stipulations 2. [12.25] Admissions 3. [12.26] Evidence Produced by the Opponent 4. [12.27] Violation of Statute, Ordinance, or Regulation as Basis for Negligence D. [12.28] Quantity of Proof Necessary E. [12.29] Burden of Proceeding or Going Forward with Evidence
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III. Judicial Notice
A. [12.30] In General B. [12.31] Categories 1. [12.32] Matters of Common Knowledge 2. [12.33] Matters Capable of Verification 3. [12.34] Legal Materials C. [12.35] Effect and Presentation of Matters for Judicial Notice
IV. Presumptions and Inferences
A. [12.36] In General B. [12.37] Inferences C. [12.38] Presumptions 1. Examples of Presumptions a. [12.39] Fraud or Undue Influence b. [12.40] Negligence of Bailee c. [12.41] Physical or Mental Condition d. [12.42] Absence of Person e. [12.43] Ownership of Vehicle f. [12.44] Loss of Society g. [12.45] Safety of Products h. [12.46] Superior Rights Doctrine i. [12.47] Loss or Destruction of Will 2. [12.48] Varying Approaches to Rebutting the Presumption 3. [12.49] Presumptions in Illinois D. [12.50] Failure To Produce Evidence or a Witness E. [12.51] Circumstantial Evidence
A. [12.52] Definition B. [12.53] Importance of Demonstrative Evidence C. [12.54] Admission and Exclusion of Demonstrative Evidence D. Examples of Admissible Demonstrative Evidence 1. [12.55] Original Evidence (Real) 2. [12.56] Objects and Models Prepared for Trial (Demonstrative Evidence in Narrow Sense)
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E. Examples of Inadmissible Demonstrative Evidence 1. [12.57] Misleading Evidence 2. [12.58] Cumulative Evidence 3. [12.59] Instrumentality of Injury 4. [12.60] Comparison of Handwritings or Signatures
VI. Opinions and Conclusions
A. [12.61] Opinion Overview B. Lay Opinions and Conclusions 1. [12.62] Foundation of Opinion 2. Examples of Admissible Lay Opinions a. [12.63] Speed b. [12.64] Mental Condition c. [12.65] Intoxication d. [12.66] Summaries of Observation e. [12.67] Ultimate Issue f. [12.68] State of Health C. Expert Opinions and Conclusions 1. [12.69] Expert Qualifications 2. [12.70] Disclosure of Opinion Evidence 3. [12.71] Admissibility of Expert Opinion Evidence 4. Examples of Admissible Expert Opinions a. [12.72] Causation b. [12.73] Point of Impact c. Accident Reconstruction (1) [12.74] Speed of vehicle (2) [12.75] Reconstruction testimony d. [12.76] Financial Experts e. [12.77] Future Risk of Harm and Lost Chance Doctrine f. [12.78] Ultimate Issue g. [12.79] Psychologist’s Opinion as to Future Dangerousness 5. Examples of Inadmissible Expert Opinions a. [12.80] Hedonic Damages b. [12.81] Police Officers’ Opinions as to Accidents c. [12.82] Expert’s Opinion as to What He or She Would Have Done d. [12.83] Expert’s Opinion as to Meaning of Statute 6. [12.84] Example of When Expert Opinion Is Not Necessary 7. [12.85] Expert Opinion Based on a Hypothetical Question 8. [12.86] Expert Opinion Based on Inadmissible Evidence 9. [12.87] Acceptance of Scientific Evidence: Frye vs. Daubert Standards
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I. INTRODUCTION
A. [12.1] Scope of Chapter
This chapter gives a trial lawyer a basic understanding of proof issues that commonly arise in civil cases. It addresses the nexus between evidence and proof; that is, the manner in which a party to litigation provides an adequate amount of evidence to prevail on a contested matter. For a greater understanding of any of these issues, counsel should delve further into caselaw and secondary sources.
B. [12.2] Definition of Evidence
“Evidence” has been defined as “[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.” BLACK’S LAW DICTIONARY, p. 635 (9th ed. 2009). Similarly, it has been described as “any matter of fact which is furnished to a legal tribunal [other than by reasoning or a reference to what is noticed without proof] as the basis of inference in ascertaining some other matter of fact.” James B. Thayer, Presumptions and the Law of Evidence, 3 Harv.L.Rev. 141, 142 (1889). Evidence includes all of the means by which any alleged matter of fact is established or disproved. County Treasurer v. First National Bank of Lake Forest, 87 Ill.App.2d 133, 230 N.E.2d 571 (2d Dist. 1967).
C. [12.3] Types of Evidence
There are two types of evidence: direct and circumstantial. Direct evidence is evidence offered to prove a proposition based on the truth of the specific fact offered. Examples of direct evidence include the testimony of a witness that he or she saw the decedent sign the will or that he or she heard the defendant’s car tires squeal prior to the accident.
Circumstantial evidence, on the other hand, is offered to prove a proposition based on an inference arising from the truth of the specific fact offered. An example of circumstantial evidence is testimony that a piece of fabric identical to that of an automobile accident victim’s jacket was found on the grill of the defendant’s car. This testimony raises the inference that the defendant’s car collided with the automobile accident victim. See also §§12.51 – 12.60 below (discussing circumstantial and demonstrative evidence).
These two types of evidence can be further distinguished as being oral, real, or demonstrative. As its name implies, oral evidence is evidence given by word of mouth. Demonstrative evidence is supplied by writings, documents, or objects. Some authors and courts refer to both real evidence and demonstrative evidence as “demonstrative evidence.” As explained below, however, the terms have different meanings.
Real evidence involves the production of some physical, tangible object that had a direct part in the incident. For instance, the allegedly defective seat belt in a product liability action constitutes real evidence. When the jury is viewing such a tangible thing, it is viewing real
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evidence. The trier of fact may, by the direct use of its senses, determine facts about these objects. The admission of real evidence is determined by weighing its probative value against its potential for unfair prejudice.
Demonstrative evidence is any physical, tangible object that is created for use at trial. Examples of demonstrative evidence include models, photographs, diagrams, drawings, charts, and other aids. However, the key to the use of demonstrative evidence is a showing that its use will help the trier of fact to better understand the testimony. Bachman v. General Motors Corp., 332 Ill.App.3d 760, 776 N.E.2d 262, 267 Ill.Dec.125 (4th Dist.2002). See also Michael H. Graham, CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §401.2 (10th ed. 2010) (CLEARY AND GRAHAM’S).
D. [12.4] Sources of Evidentiary Rules
The law of the forum generally determines the admissibility of evidence since rules of evidence are considered procedural in nature. However, on occasion, standards of admissibility that manifest a strong public policy may be regarded as substantive. See Jack B. Weinstein, The Uniformity-Conformity Dilemma Facing Draftsmen of Federal Rules of Evidence, 69 Colum.L.Rev. 353 (1969).
Rules of evidence may be found in various places. For example, Illinois’ Dead-Man’s Act, 735 ILCS 5/8-201, governs the admissibility of statements made by a decedent in the trial of any action in which any party sues or defends as the representative of a deceased person. But the Illinois Supreme Court Rules also address the admission of evidence including, for instance, business records. S.Ct. Rule 236. Finally, rules of evidence can be found in judicial decisions from Illinois appellate and supreme courts.
The rules of evidence are generally applicable in all civil actions, legal or equitable, and in many contested administrative proceedings. In certain proceedings, such as arbitration, the rules of evidence are often relaxed. For example, S.Ct. Rule 90(c) provides that certain documents are presumptively admissible at mandatory arbitration hearings without foundation or other proof.
E. Materiality, Relevancy, and Competency
1. [12.5] In General
The evidentiary concepts of materiality and relevancy aid in understanding the tests used by a court to determine whether evidence offered by a party should be considered by the trier of fact. Evidence is “material” if it relates to some subject matter that is in the case. Evidence is “relevant” if it tends to resolve an issue that is material to the case. If evidence does not move the proceedings toward a conclusion, it should not be admitted. If evidence does not help the trier of fact determine the answers to factual issues, it should not be admitted. Additionally, if evidence is introduced only to unfairly prejudice the fact-finder for or against a party, it should not be admitted.
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Through discovery prior to trial, each party to a civil case should know the identity of the witnesses who will testify, the testimony that will be adduced, and the documents that will be offered into evidence. S.Ct. Rule 213 provides a means for obtaining information regarding lay and expert witnesses. Rule 213(i) imposes an affirmative and continuing duty to disclose that which was unknown previously. Careful investigation of the issues and the available proof during discovery should clarify which witnesses, testimony, and documents will be relevant and material.
Motions in limine before trial also serve to limit the issues at trial. See Scott D. Lane et al., ILLINOIS MOTIONS IN LIMINE (2008 – 2009). In the event a motion in limine is denied, the moving party must object at the time the evidence is offered at trial to preserve the issue on appeal. Ford v. Herman, 316 Ill.App.3d 726, 737 N.E.2d 332, 249 Ill.Dec. 942 (5th Dist. 2000); York v. El-Ganzouri, 353 Ill.App.3d 1, 817 N.E.2d 1179, 288 Ill.Dec. 529 (1st Dist. 2004). Opposing counsel must also remember that a motion in limine, successful or unsuccessful, does not preserve issues for review on appeal. People v. Escobar, 168 Ill.App.3d 30, 522 N.E.2d 191, 118 Ill.Dec. 736 (1st Dist. 1988); Micklos v. Highsmith, 149 Ill.App.3d 779, 500 N.E.2d 1154, 103 Ill.Dec. 83 (3d Dist. 1986).
A party that loses a motion in limine must challenge the motion in limine at trial by making an offer of proof about the excluded evidence and get a ruling on the issue. Failure to do so waives the issue of whether the evidence was properly excluded. Ely v. National Super Markets, Inc., 149 Ill.App.3d 752, 500 N.E.2d 120, 102 Ill.Dec. 498 (4th Dist. 1986); In re Leona W., 228 Ill.2d 439, 888 N.E.2d 72, 320 Ill.Dec. 855 (2008) (waiver on appeal due to failure to make offer of proof); Jones v. DHR Cambridge Homes, Inc., 381 Ill.App.3d 18, 885 N.E.2d 330, 319 Ill.Dec. 59 (1st Dist. 2008) (insufficient offer of proof).
Courts vary as to the required form of an offer of proof. The safest and always proper method is to make a formal offer of proof that consists of questions to the witnesses outside the presence of the jury. This is the preferable method when the witness is available to answer questions in court. Mulhern v. Talk of the Town, 138 Ill.App.3d 829, 486 N.E.2d 383, 93 Ill.Dec. 282 (2d Dist. 1985); People v. Andrews, 146 Ill.2d 413, 588 N.E.2d 1126, 167 Ill.Dec. 996 (1992).
Some trial lawyers make blanket objections during trial by saying, “I object, Your Honor. That question seeks an answer that is irrelevant, immaterial, and incompetent.” No attempt is made to distinguish among the three concepts. However, should counsel fail to enter a specific objection, any error may be waived on appeal. See Janisco v. Kozloski, 261 Ill.App.3d 963, 634 N.E.2d 1104, 199 Ill.Dec. 750 (3d Dist. 1994). The discussion in §§12.6 – 12.10 below clarifies these concepts.
2. [12.6] Materiality
The terms “material” and “relevant” were, to a considerable extent, previously “used interchangeably, and evidence that was objected to as immaterial was likely also to be objected to as irrelevant.” CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §401.1, p. 154. See also O’Brien v. Walker, 49 Ill.App.3d 940, 364 N.E.2d 533, 7 Ill.Dec. 372 (1st Dist. 1977). However, the terms have slightly different meanings. CLEARY AND GRAHAM’S §401.1, p. 141.
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To meet the test of “materiality,” the evidence offered must address questions, propositions, or issues involved in the subject matter of the lawsuit. The test of materiality is governed by the substantive law, which dictates the elements of the dispute, and the pleadings, which determine which of those elements are in dispute. Thus, the “material issues” in the case are framed. For example, in a suit in which the defendant’s wife is an eyewitness to a car accident, it is material to produce evidence of the fact of her death to show why she is not testifying. It is immaterial to produce evidence of the cause of her death, for such evidence has no bearing on the issues in the lawsuit. LeMaster v. Burns, 130 Ill.App.2d 918, 266 N.E.2d 114 (5th Dist. 1971).
3. [12.7] Relevancy
Evidence is relevant when it tends to prove or disprove a material issue in the case and when it is logically connected to the disputed issues raised by the pleadings. In People v. Monroe, 66 Ill.2d 317, 362 N.E.2d 295, 297, 5 Ill.Dec. 824 (1977), Illinois adopted Federal Rule of Evidence 401, which states that evidence is relevant if (a) “it has any tendency to make a fact more or less probable than it would be without the evidence” and (b) “the fact is of consequence in determining the action.” The facts (or circumstances) asserted must logically support the inference for which they are offered.
The crux of relevancy is probability. Are the proposed facts more probably true or more probably not true in light of the evidence offered? If the evidence has probative value, it should be received (absent some exclusionary principle) because it tends to move the trial along toward the resolution of disputed propositions. See People v. Shannon, 206 Ill.App.3d 310, 564 N.E.2d 198, 151 Ill.Dec. 221 (4th Dist. 1990) (in aggravated battery case, velocity of object used in attack was circumstantial evidence of intent); Cochran v. Great Atlantic & Pacific Tea Co., 203 Ill.App.3d 935, 561 N.E.2d 229, 148 Ill.Dec. 923 (5th Dist. 1990) (lease and testimony pertaining to lease irrelevant in establishing common-law duty of lessee).
Fed.R.Evid. 402 provides:
Relevant evidence is admissible unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible
This rule is applied in conjunction with Fed.R.Evid. 403, which provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
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Stated another way, relevant evidence is subject to some rule of exclusion, such as being hearsay or privileged. A court may prevent an excessive amount of time being spent on evidence that has small probative value. Similarly, a court may exclude evidence that may unduly arouse jury feelings of hostility, prejudice, or sympathy and thereby turn the jury’s attention from the key issues in the case. Ultimately, if the court determines that the evidence is relevant but of small probative value, the court in its discretion may rule it inadmissible.
4. [12.8] Competency
As it relates to evidence, the term “incompetent” means that the evidence is not admissible and that the jury must not receive the evidence for its consideration because of some established rule. For example, even though certain evidence may be material and relevant, the Dead-Man’s Act, hearsay, or the best-evidence rule may require that it be excluded.
The concept of competency may also refer to the ability of a witness to testify — either generally or to a specific fact at issue. For instance, a witness whose vision was obstructed may be considered incompetent to testify to what he or she believed occurred based on sight. At the same time, competency might be established by proof of the ability to observe by hearing. Regardless of its materiality and relevancy to a specific fact at issue, if the witness is incompetent, his or her testimony will not be allowed in evidence.
While the common law held many persons to be incompetent to testify, the current attitude is to regard all persons as competent witnesses subject, however, to the discretion of the trial court insofar as infants and mentally disabled persons are concerned. Those factors that previously rendered a person incompetent (e.g., a party’s interest or conviction for an infamous crime) now go to credibility, not competency. See 735 ILCS 5/8-101. Although past practice has, on occasion, included jury instructions addressing the credibility of witnesses, the current Illinois Pattern Jury Instructions recommend that no such instruction be given. Illinois Pattern Jury Instructions — Civil No. 4.01, et seq. (2011) (I.P.I. — Civil).
The modern, enlightened attitude has been codified in the Dead-Man’s Act. The emphasis has shifted from a presumption of incompetency of that witness’ testimony, in cases brought by or against a decedent’s estate, to a presumption of competency with stated exceptions. In re Estate of Gruske, 179 Ill.App.3d 675, 534 N.E.2d 692, 128 Ill.Dec. 510 (3d Dist. 1989) (people of mature age presumed mentally competent).
5. [12.9] Federal Rules of Evidence
As noted in §12.7 above, Fed.R.Evid. 401, 402, and 403 provide the guidelines with respect to relevancy issues in federal practice. The Federal Rules of Evidence do not deal with the materiality aspect of evidence. “Materiality” is included in the definition of “relevancy.”
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6. [12.10] Evidence Admitted for Limited Purpose
Evidence that is improper for one purpose may be admitted for another. Golden v. Kishwaukee Community Health Services Center, Inc., 269 Ill.App.3d 37, 645 N.E.2d 319, 206 Ill.Dec. 314 (1st Dist. 1994) (evidence of insurance admissible to show bias of expert witness in medical malpractice case); Herzog v. Lexington Township, 167 Ill.2d 288, 657 N.E.2d 926, 212 Ill.Dec. 581 (1995) (evidence of postaccident remedial measures not admissible to prove negligence but may be admissible to prove ownership or control of property). Accord Fed.R.Evid. 105. Pursuant to Fed.R.Evid. 703, facts or data relied on by an expert are admitted for the limited purpose of explaining the basis of the expert’s opinion and not for their truth. However, evidence that was received for a limited purpose should not be considered for any other purpose. I.P.I. — Civil No. 3.07. See also Fed.R.Evid. 105.
II. BURDEN OF PROOF
A. [12.11] Definition
In a criminal case, the state must prove its case beyond a reasonable doubt. However, in a civil case, the party with the burden of proof (generally, the plaintiff) is required to convince the trier of fact only that the proposition or propositions on which he or she has the burden of proof are more probably true than not true. See I.P.I. — Civil No. 21.01.
Occasionally, lawyers and judges will say that a party must prove a case or affirmative defense by a “preponderance of the evidence.” There are hundreds of common-law cases that define “burden of proof” in terms of preponderance of the evidence or “greater weight of the evidence.” In a trial, the burden of proof is discussed during the court’s instructions to the jury. At that point, the jury is usually told that its members “must be persuaded, considering all the evidence in the case, that the proposition on which [the plaintiff] has the burden of proof is more probably true than not true.” Id.
The phrase “more probably true than not true,” rather than the phrase “preponderance of the evidence,” is said to be more comprehensible and to have greater significance to a group of laypeople who are trying to determine the truth of the matters in issue. Counsel must be careful not to mischaracterize the plaintiff’s burden. Statements in a closing argument that minimize the burden of proof may constitute reversible error. Bugno v. Mt. Sinai Hospital Medical Center, 201 Ill.App.3d 245, 559 N.E.2d 1, 147 Ill.Dec. 1 (1st Dist. 1990).
B. Determining Who Has the Burden of Proof
1. [12.12] In General
Generally, the party who creates an issue by raising material allegations in a pleading carries the burden to prove those allegations. If, at the end of the trial, there is no evidence tending to prove an issue, the party who has the burden of proof on the issue will lose as to that issue. The
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party will also lose the case if the issue on which the party fails in his or her burden of proof is indispensable to the recovery or defense. For example, when a plaintiff alleges that the defendant was negligent in one or more specific acts or omissions, the plaintiff is charged with the burden of adducing sufficient evidence to sustain the burden of proof on that proposition. Menestrina v. St. Louis National Stock Yards, 278 Ill.App. 342 (4th Dist. 1935).
When specific allegations are raised by the plaintiff in his or her pleadings, the fact that the defendant denies the allegations in his or her answer does not shift the burden of proof to the defendant to disprove the plaintiff’s allegations. However, if the defendant, in his or her answer, makes allegations that constitute an affirmative defense, both the plaintiff and the defendant will have a burden of proof. The plaintiff will have the burden of proof as to the original allegations, and the defendant will have the burden of proof as to the allegations of the affirmative defense. City of Chicago v. Elmhurst National Bank, 35 Ill.App.2d 383, 183 N.E.2d 171 (1st Dist. 1962).
2. [12.13] Comparative Negligence
In 1981, with the Supreme Court’s decision in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981), Illinois joined those jurisdictions that subscribed to the “pure” form of comparative negligence. Since the adoption of Alvis, Illinois plaintiffs no longer need to plead their freedom from contributory negligence. The burden is now on defendants to plead and prove a plaintiff’s comparative negligence as an affirmative defense. See I.P.I. — Civil Nos. B21.02, B21.02.01, B21.02.02, B21.03, B21.04; Casey v. Baseden, 111 Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531 (1986); D.C. v. S.A., 178 Ill.2d 551, 687 N.E.2d 1032, 227 Ill.Dec.550 (1997). See also Patel v. Brown Machine Co., 264 Ill.App.3d 1039, 637 N.E.2d 491, 201 Ill.Dec. 902 (1st Dist. 1994) (while plaintiff was repairing trim press, plaintiff’s fingers were severed after press was turned on accidentally).
Further, Alvis abolished the common-law defense of contributory negligence, which barred a plaintiff from recovering for his or her injuries if the plaintiff’s own negligence contributed to the accident, and adopted the doctrine of comparative negligence, which serves to reduce a plaintiff’s damages by the percentage of fault attributed to him or her. Thereafter, the legislature modified and codified the comparative negligence defense.
In 1986, the Illinois legislature amended §§2-1107.1 and 2-1116 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., and abolished “pure comparative fault.” As a result, when a plaintiff is found to be more than 50 percent at fault, the defendant is not liable and the plaintiff is barred from recovering damages. Comparative fault of 50 percent or less results in a diminution of damages in proportion to the amount of fault attributable to the plaintiff. Section 2-1116(c) of the Code of Civil Procedure states:
In all actions on account of death, bodily injury or physical damage to property in which recovery is predicated upon fault, the contributory fault chargeable to the plaintiff shall be compared with the fault of all tortfeasors whose fault was a proximate cause of the death, injury, loss, or damage for which recovery is sought. The plaintiff shall be barred from recovering damages if the trier of fact finds that
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the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any economic or non-economic damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff. 735 ILCS 5/2-1116(c).
See also Johnson v. Johnson, 386 Ill.App.3d 522, 898 N.E.2d 145, 325 Ill.Dec. 412 (1st Dist. 2008).
Since Alvis, supra, the Illinois Supreme Court has found comparative fault applicable in strict product liability settings but only to reduce an award when the “fault” constitutes an assumption of the risk or misuse. A plaintiff’s conduct that is “negligent” but unrelated to assumption of risk or misuse is not admissible and will not reduce the plaintiff’s damages award. See Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 454 N.E.2d 197, 73 Ill.Dec. 337 (1983); Simpson v. General Motors Corp., 108 Ill.2d 146, 483 N.E.2d 1, 90 Ill.Dec. 854 (1985). See also Besse v. Deere & Co., 237 Ill.App.3d 497, 604 N.E.2d 998, 178 Ill.Dec. 475 (3d Dist. 1992) (plaintiff was injured operating corn picking combine).
In Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill.2d 429, 593 N.E.2d 522, 170 Ill.Dec. 633 (1992), the Illinois Supreme Court held that due to the qualitative difference between simple negligence and willful and wanton conduct, a plaintiff’s negligence cannot be compared with a defendant’s willful and wanton conduct. However, in Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), the same court held that a plaintiff’s negligence may be compared to a defendant’s willful and wanton misconduct when the misconduct is merely reckless as opposed to intentional. See also Murray v. Chicago Youth Center, 224 Ill.2d 213, 864 N.E.2d 176, 309 Ill.Dec. 310 (2007).
Comparative fault is applicable to wrongful-death cases when the decedent committed suicide. Hobart v. Shin, 185 Ill.2d 283, 705 N.E.2d 907, 235 Ill.Dec. 724 (1998). In Hobart, the Illinois Supreme Court held that a decedent’s contributory fault could be raised as an affirmative defense in an action brought by the estate of a patient who committed suicide while being treated for mental health problems. The court further held, however, that a jury cannot consider the issue of contributory fault when the patient was so mentally ill that he or she was incapable of being at fault. When this defense is raised, an instruction should be given indicating that the jury is to evaluate the decedent’s actions in light of his or her diminished capacity. Id.
3. Examples
a. [12.14] Absence of Consideration
Though a negative assertion, a party who seeks to avoid a contract by alleging absence of consideration has the burden of proving the allegation. American Nat. Bank of Mt. Carmel v. Woolard, 342 Ill. 148, 173 N.E. 787 (1930).
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b. [12.15] Agency
A party alleging that the driver of a motor vehicle was the agent of the owner of the vehicle has the burden of proving the agency relationship. Anderson v. Boy Scouts of America, Inc., 226 Ill.App.3d 440, 589 N.E.2d 892, 168 Ill.Dec. 492 (1st Dist. 1992) (burden of proving agency and scope of authority on party seeking to charge alleged principal); Plooy v. Paryani, 275 Ill.App.3d 1074, 657 N.E.2d 12, 212 Ill.Dec. 317 (1st Dist. 1995) (whether taxi driver was agent of corporation was question of fact); Pyskaty v. Oyama, 266 Ill.App.3d 801, 641 N.E.2d 552, 204 Ill.Dec. 328 (1st Dist. 1994) (agency relationship between physician and emergency service established by circumstantial evidence).
c. [12.16] Execution of an Instrument
A party claiming under a written instrument has the burden of proving not only the existence of the instrument but also the proper execution of the document. Whipple v. Carrico, 305 Ill. 164, 137 N.E. 84 (1922). See also Ulrich v. Glyptis, 79 Ill.App.2d 447, 224 N.E.2d 581 (2d Dist. 1967).
d. [12.17] Intoxication
A party who seeks to avoid the obligations imposed by executing a document while intoxicated has the burden of proving his or her intoxication. Brown v. Moore, 407 Ill. 618, 95 N.E.2d 856 (1950).
e. [12.18] Payment for Goods Received
A party alleging that he or she made tender of payment for goods in an action for specific performance of a contract has the burden of proving his or her tender of payment. Gladstone v. Warshovsky, 332 Ill. 376, 163 N.E. 777 (1928).
f. [12.19] Cost of Medical Care
A plaintiff can present evidence of the amounts that his or her healthcare providers initially billed for services rendered, as opposed to the significantly reduced rates negotiated and paid by his or her insurance carrier. A party seeking the admission into evidence of a bill that has not been paid can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered, and the usual and customary charges for such services. Arthur v. Catour, 216 Ill.2d 72, 833 N.E.2d 847, 295 Ill.Dec. 641 (2005). See also Wills v. Foster, 229 Ill.2d 393, 892 N.E.2d 1018, 323 Ill.Dec. 26 (2008) (Medicare and Medicaid payments)
g. [12.20] Undue Influence on a Testator
A party contesting a will on the ground that there was undue influence exercised over the testator has the burden of proving the charge. Lake v. Seiffert, 410 Ill. 444, 102 N.E.2d 294 (1951). See also In re Estate of Lemke, 203 Ill.App.3d 999, 561 N.E.2d 350, 149 Ill.Dec. 72 (5th Dist. 1990); In re Estate of Veronico, 78 Ill.App.3d 379, 396 N.E.2d 1095, 33 Ill.Dec. 371 (1st Dist. 1979).
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h. [12.21] Privilege
A party who claims a privilege has the burden of proving the facts that establish its existence. Hyams v. Evanston Hospital, 225 Ill.App.3d 253, 587 N.E.2d 1127, 167 Ill.Dec. 512 (1st Dist. 1992); Jaffee v. Redmond, 518 U.S. 1, 135 L.Ed.2d 337, 116 S.Ct. 1923 (1996) (patient- psychotherapist); Buckman v. Columbus-Cabrini Medical Center, 272 Ill.App.3d 1060, 651 N.E.2d 767, 209 Ill.Dec. 589 (1st Dist. 1995) (attorney-client); Exline v. Exline, 277 Ill.App.3d 10, 659 N.E.2d 407, 213 Ill.Dec. 491 (2d Dist. 1995) (insured-insurance company).
Thorough discovery before trial should identify any claims of privilege and the basis for such claims that might be asserted at trial. S.Ct. Rule 201(n) provides:
When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.
i. [12.22] Competency To Testify
Every person is presumed competent to testify, and the burden is on the party challenging competency to show that the witness is incompetent. Clark v. Otis Elevator Co., 274 Ill.App.3d 253, 653 N.E.2d 771, 210 Ill.Dec. 576 (1st Dist. 1995). See also §12.8 above.
j. [12.23] Res Ipsa Loquitur
In a res ipsa loquitur action, the plaintiff bears the burden of proving that the occurrence is one that ordinarily does not occur in the absence of negligence and that the defendant had the exclusive control of the instrumentality that caused the injury. If these elements are established, the facts of the occurrence show prima facie evidence of the defendant’s negligence. Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill.App.3d 812, 789 N.E.2d 394, 273 Ill.Dec. 494 (1st Dist. 2003).
C. Meeting the Burden of Proof
1. [12.24] Stipulations
If the parties agree, they can stipulate to the truthfulness of an allegation. When a stipulation is entered into, the party having the burden of proving the allegation will not need to present any evidence in support of the allegation. See Brelie v. Klafter, 336 Ill. 175, 168 N.E. 315 (1929).
2. [12.25] Admissions
As a general rule, a statement of fact that has been admitted in a pleading is a judicial admission and is binding on the party making it. A defendant’s failure to deny in his or her answer an allegation made in a plaintiff’s complaint constitutes an admission of the allegation.
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735 ILCS 5/2-610(b). Judicial admissions are not evidence and need not be introduced as evidence at trial. Rather, judicial admissions are formal concessions in the pleadings in the case or stipulations by a party or its counsel that have the effect of withdrawing a fact from issue and dispensing entirely with the need for proof of that fact. Knauerhaze v. Nelson, 361 Ill.App.3d 538, 836 N.E.2d 640, 296 Ill.Dec. 889 (1st Dist. 2005).
In contrast to judicial admissions, evidentiary admissions must be entered into evidence and are always subject to contradiction or explanation. An admission in an unverified pleading signed by an attorney is binding on the party as a judicial admission. However, once a pleading has been amended, an admission made in an unverified original pleading can be used only as an evidentiary admission and not as a judicial admission. However, original verified pleadings will remain binding as judicial admissions even after the filing of an amended pleading unless the amended pleading discloses that the original pleading was made through mistake or inadvertence. Id.
Admissions of an opponent’s allegations may obviate the necessity of proof regarding the allegations admitted. For a statement to qualify as a party admission, the party offering the statement must establish either that the declarant was a party or, if an agent or an employee of a party, that the statement was made about a matter over which the declarant had actual or apparent authority and that the declarant spoke by virtue of that authority as an agent or an employee. Jenkins v. Dominick’s Finer Foods, Inc., 288 Ill.App.3d 827, 681 N.E.2d 129, 224 Ill.Dec. 147 (1st Dist. 1997).
A party’s burden of proof on a proposition is met when the opposing party admits the proposition in his or her pleading. This constitutes a judicial admission for purposes of that cause of action, and the admission is conclusive as to the matter admitted. See Roti v. Roti, 364 Ill.App.3d 191, 845 N.E.2d 892, 301 Ill.Dec. 27 (1st Dist. 2006) (allegations in party’s complaint constitute binding judicial admission). To confirm, once a proposition has been admitted by a verified pleading, it cannot be withdrawn by amending the pleading. Beccue v. Rockford Park District, 94 Ill.App.2d 179, 236 N.E.2d 105 (2d Dist. 1968); American States Insurance Co. v. National Cycle, Inc., 260 Ill.App.3d 299, 631 N.E.2d 1292, 197 Ill.Dec. 833 (1st Dist. 1994) (party who admits allegations in answer cannot contradict those admissions by introducing subsequent contradictory deposition testimony or affidavits). Admissions obtained in this manner should be admitted into evidence, published to the trier of fact, and, of course, argued during summation.
A party may make a judicial admission in a discovery deposition. Furniss v. Rennick, 286 Ill.App.3d 318, 676 N.E.2d 8, 221 Ill.Dec. 668 (3d Dist. 1997) (admissions of deceased deponent admissible), aff’d sub nom. In re Estate of Rennick, 181 Ill.2d 395 (1998); Pryor v. American Central Transport, Inc., 260 Ill.App.3d 76, 629 N.E.2d 1205, 196 Ill.Dec. 361 (5th Dist. 1994); Overcast v. Bodart, 266 Ill.App.3d 428, 639 N.E.2d 984, 203 Ill.Dec. 425 (4th Dist. 1994) (defendant’s deposition testimony admissible even after defendant dies); Steiner Electric Co. v. NuLine Technologies, Inc., 364 Ill.App.3d 876, 847 N.E.2d 656, 301 Ill.Dec. 646 (1st Dist. 2006). The general rule provides that in order to qualify as a judicial admission, the statement must be clear, unequivocal, and within the party’s personal knowledge. Further, the party must provide
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deliberate testimony relating to a concrete fact rather than an inference or an uncertain summary. Arnold v. Consolidated R.R., 227 Ill.App.3d 600, 592 N.E.2d 225, 169 Ill.Dec. 738 (1st Dist. 1992); Boyd v. United Farm Mutual Reinsurance Co., 231 Ill.App.3d 992, 596 N.E.2d 1344, 173 Ill.Dec. 465 (5th Dist. 1992).
Once made, an admission during a discovery deposition cannot be contradicted by affidavit in a motion for summary judgment. Therefore, a counteraffidavit does not place in issue material facts that were removed from contention by an admission. James v. Ingalls Memorial Hospital, 299 Ill.App.3d 627, 701 N.E.2d 207, 233 Ill.Dec. 564 (1st Dist. 1998). An admission may also be made through answers to interrogatories. Renshaw v. Black, 299 Ill.App.3d 412, 701 N.E.2d 553, 233 Ill.Dec. 703 (5th Dist. 1998) (attorney admitted in both answers to interrogatories and answer to complaint that she had missed statute of limitations).
An admission by a party made extrajudicially or during his or her testimony is an evidentiary admission. An evidentiary admission, while not binding on the admitting party, is weighed by the jury in determining whether a proposition on which the opposing party has the burden of proof is more probably true than not true. Pearson v. Sutterlin, 91 Ill.App.2d 99, 234 N.E.2d 101 (1st Dist. 1968); Misch v. Meadows Mennonite Home, 114 Ill.App.3d 792, 449 N.E.2d 1358, 70 Ill.Dec. 754 (4th Dist. 1983); Trapkus v. Edstrom’s Inc., 140 Ill.App.3d 720, 489 N.E.2d 340, 95 Ill.Dec. 119 (3d Dist. 1986); Matich v. Gerdes, 193 Ill.App.3d 859, 550 N.E.2d 622, 140 Ill.Dec. 737 (4th Dist. 1990).
An effective discovery technique for obtaining admissions is a request for admission of fact pursuant to S.Ct. Rule 216. The Supreme Court has held that the purpose of the rule is not to discover ordinary facts, but rather to establish some of the material facts in a case prior to trial to avoid the necessity of formal proofs at trial. P.R.S. International, Inc. v. Shred Pax Corp., 184 Ill.2d 224, 703 N.E.2d 71, 234 Ill.Dec. 459 (1998). A party’s failure to respond to a request for admission of fact can result in a judicial admission even when the requested admission relates to ultimate facts. Id.
Even an inadequate response to a request to admit may result in an admission. In Robbins v. Allstate Insurance Co., 362 Ill.App.3d 540, 841 N.E.2d 22, 298 Ill.Dec. 879 (2d Dist. 2005), the court affirmed the trial court’s grant of summary judgment for the insurer because the insured’s unsworn responses to the insurer’s request for admissions were inadequate under S.Ct. Rule 216. Therefore, the facts set forth in the request were deemed admitted. The court further held that the insured’s failure to comply with the requirements of S.Ct. Rule 216 could not be excused due to the fact that the insured represented himself pro se. But see Troyan v. Reyes, 367 Ill.App.3d 729, 855 N.E.2d 967, 305 Ill.Dec. 451 (3d Dist. 2006) (defendant allowed to amend her response to plaintiff’s requests to admit even though defendant had improperly objected to requests). See also Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 875 N.E.2d 1065, 314 Ill.Dec. 778 (2007) (court may permit late filing of response to request to admit and may consider “mistake, inadvertence, or attorney neglect” in doing so).
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Statements made by a party’s expert are not admissions. Expert witnesses are independent contractors and not agents of the parties who call them. Taylor v. Kohli, 162 Ill.2d 91, 642 N.E.2d 467, 204 Ill.Dec. 766 (1994); Kraft General Foods v. Industrial Commission, 287 Ill.App.3d 526, 678 N.E.2d 1250, 223 Ill.Dec. 119 (2d Dist. 1997). However, answers to interrogatories may be used for impeachment of an expert witness, even when the attorney for the party and not the expert witness has signed the answers to interrogatories. York v. El-Ganzouri, 353 Ill.App.3d 1, 817 N.E.2d 1179, 288 Ill.Dec. 529 (1st Dist. 2004).
Admissions made by counsel during opening statement or closing argument can bind the client and may constitute proof of the fact admitted. Williams v. Cahill, 258 Ill.App.3d 822, 629 N.E.2d 1175, 196 Ill.Dec. 331 (3d Dist. 1994) (statements by attorney in closing argument may constitute admissions); Lowe v. Kang, 167 Ill.App.3d 772, 521 N.E.2d 1245, 118 Ill.Dec. 552 (2d Dist. 1988) (admission of liability found when counsel for defendant acknowledged during closing argument that defendant was at fault). In fact, motions for a directed verdict after opening statement have been granted in rare circumstances. See Cherny v. Fuentes, 271 Ill.App.3d 1071, 649 N.E.2d 519, 208 Ill.Dec. 463 (1st Dist. 1995). See also Kulchawik v. Durabla Manufacturing Co., 371 Ill.App.3d 964, 864 N.E.2d 744, 309 Ill.Dec. 503 (1st Dist. 2007) (party bound by admission of its attorney in unverified pleading that case has settled).
3. [12.26] Evidence Produced by the Opponent
Juries are commonly instructed that they may consider all the evidence in the case without regard to which party produced it. I.P.I. — Civil No. 1.01[4]. For example, when a defendant has the burden of proving an affirmative defense concerning a plaintiff’s intoxication at the time of a collision, the defendant may sustain the burden with the plaintiff’s testimony. Thus, defense counsel could rely on the plaintiff’s own testimony on direct that, shortly prior to the collision, he or she consumed a fifth of bourbon.
4. [12.27] Violation of Statute, Ordinance, or Regulation as Basis for Negligence
A violation of a statute, ordinance, rule, or regulation is not negligence per se. The violation constitutes only prima facie evidence of negligence. Batteast v. Wyeth Laboratories, Inc., 137 Ill.2d 175, 560 N.E.2d 315, 148 Ill.Dec. 13 (1990); Pharr v. Chicago Transit Authority, 123 Ill.App.3d 205, 462 N.E.2d 753, 78 Ill.Dec. 634 (1st Dist. 1984); Wilson v. Missouri Pacific R.R., 169 Ill.2d 170, 661 N.E.2d 282, 214 Ill.Dec. 428 (1996) (plaintiff’s violation of railroad safety rule was evidence of plaintiff’s contributory negligence in action under Federal Employers’ Liability Act (FELA), 45 U.S.C. §51, et seq.); First Springfield Bank & Trust v. Galman, 299 Ill.App.3d 751, 702 N.E.2d 1002, 234 Ill.Dec. 348 (4th Dist. 1998) (truck driver’s violation of parking ordinance), rev’d on other grounds, 188 Ill.2d 252 (1999).
Such evidence may be rebutted by a showing that under all the facts and circumstances of the case, the party who was guilty of the violation acted reasonably. Carey v. J.R. Lazzara, Inc., 277 Ill.App.3d 902, 661 N.E.2d 413, 214 Ill.Dec. 559 (1st Dist. 1996). In other words, a violation of a statute, ordinance, or regulation is but one factor for the trier of fact to consider in determining the issue of negligence. See I.P.I. — Civil Nos. 60.00 and 60.01.
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Even when there is a violation of a statute, ordinance, or regulation, the plaintiff still must prove that the violation was a proximate cause of the injuries claimed. Stafford v. Borden, 252 Ill.App.3d 254, 625 N.E.2d 12, 192 Ill.Dec. 52 (1st Dist. 1993) (service station attendant’s violation of statutes and regulations regarding dispensing of gasoline was not proximate cause of fire and, therefore, did not constitute prima facie evidence of negligence).
D. [12.28] Quantity of Proof Necessary
There is no general rule setting the quantum of evidence necessary to meet a party’s burden of proof. The amount of proof required will depend on the type of allegation or the character of the issue to be proved. It has been said that no amount of evidence based on speculation, guess, or conjecture is sufficient to sustain a party’s burden of proof. Tygett v. Penry, 344 Ill.App. 427, 101 N.E.2d 442 (4th Dist. 1951).
The issue of causation has frequently been attacked as an inherently speculative area of proof in personal injury and workers’ compensation cases. Expert opinions are frequently introduced that an event “might” or “could” have caused the condition for which suit has been brought. See Mark D. Howard, Proving Causation with Expert Opinion: How Much Certainty is Enough?, 74 Ill.B.J. 580 (1986). See Hawn v. Fritcher, 301 Ill.App.3d 248, 703 N.E.2d 109, 234 Ill.Dec. 497 (4th Dist. 1998).
Traditionally, objections have been made that an expert’s opinion based on possibilities is speculative and, therefore, inadmissible. While an expert may not guess, conjecture, or surmise as to a possible cause for injury, an expert can testify in terms of possibilities or probabilities as long as the opinion is based on a reasonable degree of certainty. Wojcik v. City of Chicago, 299 Ill.App.3d 964, 702 N.E.2d 303, 234 Ill.Dec. 137 (1st Dist. 1998) (diabetic patient’s treating physician’s cross-examination testimony that it was possible that I.V. fluid infiltrated into patient’s arm was admissible in medical malpractice action; physician may testify to what might or could have caused injury).
In Holton v. Memorial Hospital, 176 Ill.2d 95, 679 N.E.2d 1202, 223 Ill.Dec. 429 (1997), the Supreme Court held that damages that are to occur in the future require proof only that they will actually or even probably occur within a reasonable degree of certainty. To sustain the burden of proving other, more difficult causes of action — for example, an action to establish an oral gift — unambiguous and unequivocal proof may be required. Rothwell v. Taylor, 303 Ill. 226, 135 N.E. 419 (1922).
To sustain the burden of proving an action contrary to a strong legal presumption — for example, an action to declare a child illegitimate — may require proof that is “conclusive.” Sugrue v. Crilley, 329 Ill. 458, 160 N.E. 847, cert. denied, 49 S.Ct. 20 (1928). See §12.36 – 12.51 below. In Collins v. Collins, 47 Ill.App.3d 258, 361 N.E.2d 787, 791, 5 Ill.Dec. 464 (1st Dist. 1977), the court held that “[a]lthough a husband is presumed to be the father of a child born to his spouse during marriage . . . the presumption is rebuttable and can be overcome by clear and conclusive evidence.” [Citations omitted.]
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E. [12.29] Burden of Proceeding or Going Forward with Evidence
The burden of proof always remains with the party who is asserting the claim or affirmative defense to be proved. The burden of proof never shifts from one party to another. Heiser v. Chastain, 6 Ill.App.3d 552, 285 N.E.2d 601 (2d Dist. 1972); Schaffner v. Chicago & North Western Transportation Co., 161 Ill.App.3d 742, 515 N.E.2d 298, 113 Ill.Dec. 489 (1st Dist. 1987), aff’d, 129 Ill.2d 1 (1989). After the party having the burden of proof has produced sufficient evidence to create a prima facie case, the opponent has the burden of producing evidence to rebut, contradict, or impeach the evidence.
The burden at this point is often called “the burden of persuasion,” “the burden of meeting plaintiff’s (or defendant’s) case,” or “the burden of going forward with the evidence.” No matter which phrase is selected, it must be emphasized that the burden of proof as to the material allegations made by either party remains with the asserting party. That is, ultimately, the party with the burden of proof continues to have the obligation of persuading the trier of fact that the proposition on which he or she has the burden of proof is more probably true than not true. Caley v. Manicke, 29 Ill.App.2d 323, 173 N.E.2d 209 (2d Dist. 1961), rev’d on other grounds, 24 Ill.2d 390 (1962); Board of Trade of City of Chicago v. Dow Jones & Co., 108 Ill.App.3d 681, 439 N.E.2d 526, 64 Ill.Dec. 275 (1st Dist. 1982), aff’d, 98 Ill.2d 109 (1983); Heman v. Jefferson, 136 Ill.App.3d 745, 483 N.E.2d 537, 91 Ill.Dec. 191 (4th Dist. 1985); Elliott v. Koch, 200 Ill.App.3d 1, 558 N.E.2d 493, 146 Ill.Dec. 530 (3d Dist. 1990).
III. JUDICIAL NOTICE
A. [12.30] In General
The court may allow some facts to be admitted as evidence without formal proof because they are deemed to be of common and general knowledge and are well established and known within the trial court’s jurisdiction. Carrizales v. Rheem Manufacturing Co., 226 Ill.App.3d 20, 589 N.E.2d 569, 168 Ill.Dec. 169 (1st Dist. 1991) (holding improper trial court’s taking notice of fact that fuel-energized devices use outside air to sustain themselves). The procedure by which the court recognizes these facts is called “judicial notice.”
The law assumes that the court is at least as knowledgeable as the ordinary person within its jurisdiction. Therefore, the law permits the court to eliminate the necessity of formally pleading or proving the existence of certain facts by taking judicial notice of those facts. The judge and jury may act on these facts without proof because the facts are already “known.” See Cook County Department of Environmental Control v. Tomar Industries, Division of Polk Brothers, 29 Ill.App.3d 751, 331 N.E.2d 196 (1st Dist. 1975).
A trial judge rarely takes judicial notice of facts sua sponte. However, when a judge does so, a party should be given a fair opportunity to rebut the evidence admitted. When the court takes judicial notice of facts, the attorneys may refer to the facts and the reasonable inferences therefrom in closing arguments. Judicial notice eliminates the necessity of formal proof in several categories. See §§12.31 – 12.34 below.
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B. [12.31] Categories
Evidence presented by way of judicial notice can be classified as: (1) matters of common knowledge; (2) matters capable of verification; and (3) legal materials. See §§12.32 – 12.34 below.
1. [12.32] Matters of Common Knowledge
The court may take judicial notice of matters of widely known data, such as
a. dates (Falkeneau Construction Co. v. Ginley, 131 Ill.App. 399 (1st Dist. 1907));
b. seasons and holidays (Saarela v. Hoglund, 198 Ill.App. 485 (1st Dist. 1916));
c. navigability of certain rivers (Brockschmidt v. Sanitary Dist. of Chicago, 260 Ill. 502, 103 N.E. 243 (1913)); and
d. heavy rainfalls in certain localities during certain seasons of the year (Elser v. Village of Gross Point, 223 Ill. 230, 79 N.E. 27 (1906)).
See also People v. Nischt, 23 Ill.2d 284, 178 N.E.2d 378 (1961) (court took judicial notice in murder case of widespread newspaper publication that human remains were not found in city dump).
2. [12.33] Matters Capable of Verification
Although not widely known, matters that may be readily and authoritatively verified may be judicially noticed, such as
a. geographical facts (Sublette Exchange Bank v. Fitzgerald, 168 Ill.App. 240 (2d Dist. 1912));
b. historical events (McCoy v. World’s Columbian Exposition, 186 Ill. 356, 57 N.E. 1043 (1900), aff’g 87 Ill.App. 605 (1st Dist. 1899));
c. days and dates (People v. Duyvejonck, 337 Ill. 636, 169 N.E. 737 (1929));
d. crime conditions (Harrison v. Civil Service Commission of City of Chicago, 1 Ill.2d 137, 115 N.E.2d 521 (1953), rev’g 347 Ill.App. 405 (1st Dist. 1952));
e. the accident rate of young drivers (Western States Mutual Automobile Insurance Co. v. May, 18 Ill.App.2d 442, 152 N.E.2d 608 (1st Dist. 1958), overruled on other grounds, Fourniotis v. Woodward, 63 Ill.App.2d 79, 211 N.E.2d 571 (1st Dist. 1965));
f. speed and distance (Thomas v. Price, 81 Ill.App.3d 542, 401 N.E.2d 651, 36 Ill.Dec. 810 (3d Dist. 1980));
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g. the absence of horse-drawn vehicles in urban areas (City of Chicago v. Newberry Library, 7 Ill.2d 305, 131 N.E.2d 60 (1955));
h. the distance a car travels at a specific rate of speed (Cates v. Kinnard, 255 Ill.App.3d 952, 626 N.E.2d 770, 193 Ill.Dec. 460 (3d Dist. 1994));
i. public records (Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill.App.3d 935, 694 N.E.2d 1021, 230 Ill.Dec. 743 (3d Dist. 1998)); and
j. life expectancy tables even though no actuary or other expert was called to explain the tables (Sherman v. City of Springfield, Illinois, 111 Ill.App.2d 391, 250 N.E.2d 537 (4th Dist. 1969)); see also Danzico v. Kelly, 112 Ill.App.2d 14, 250 N.E.2d 801 (1st Dist. 1969)).
The court should not take judicial notice of documents that contain inadmissible evidence. Vincent v. Williams, 279 Ill.App.3d 1, 664 N.E.2d 650, 216 Ill.Dec. 13 (1st Dist. 1996) (court erred in taking judicial notice of police report that contained hearsay statements of witnesses to occurrence).
3. [12.34] Legal Materials
Legal materials may be judicially noticed. 735 ILCS 5/8-1001, et seq. Such materials include local ordinances, public laws, and rules of court. See also Island Lake Water Co. v. LaSalle Development Corp., 143 Ill.App.3d 310, 493 N.E.2d 44, 97 Ill.Dec. 562 (2d Dist. 1986) (judicial notice of village ordinances). Courts can take judicial notice of their state’s statutes and constitutional provisions (American Federation of State, County & Municipal Employees, Council 31, AFL-CIO v. County of Cook, 145 Ill.2d 475, 584 N.E.2d 116, 164 Ill.Dec. 904 (1991)) and of ordinances (Ralls v. Village of Glendale Heights, 233 Ill.App.3d 147, 598 N.E.2d 337, 174 Ill.Dec. 140 (2d Dist. 1992)). Counsel should provide the judge with a copy of any ordinance or law of which the court is asked to take judicial notice.
C. [12.35] Effect and Presentation of Matters for Judicial Notice
When judicial notice is taken of a matter, the matter is no longer in controversy and is made a part of the record. No contrary evidence may be presented. Nicketta v. National Tea Co., 338 Ill.App. 159, 87 N.E.2d 30 (1st Dist. 1949). Still, the fact that a given item is properly subject to judicial notice does not, by itself, guarantee its admissibility into evidence. A proper foundation must be laid as to the relevancy, competency, and materiality of the evidence.
When the proposed evidence consists of official records or copies of such records, the court may take judicial notice of the official who prepared the documents and his or her signature. The foundation proof is unnecessary with respect to an instrument that proves itself. Prescott v. Fisher, 22 Ill. 390 (1859). See 735 ILCS 5/8-1001, et seq. Although this proof may not be required, certification or testimony of the official who prepared the records as to their authenticity
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and accuracy might be psychologically effective and might avoid unnecessary entanglements with the court and opposing counsel. See Fred Lane and Scott Lane, LANE’S GOLDSTEIN TRIAL TECHNIQUE (3d ed. 2006).
Counsel desiring judicial notice to be taken should make a statement similar to the following at the time for introduction of evidence:
Your Honor, plaintiff requests that the court take judicial notice of the official United States Weather Bureau Report for the month of January 2002.
See 735 ILCS 5/8-1001, 5/8-1003, 5/8-1007; Fed.R.Evid. 201. Fed.R.Evid. 201(f) provides: “In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.”
IV. PRESUMPTIONS AND INFERENCES
A. [12.36] In General
The terms “inferences” and “presumptions” are often confused. For the purposes of this chapter, inferences are permissible factual relationships between facts proved and facts concluded, and presumptions are compelling legal relationships between these same types of facts.
B. [12.37] Inferences
The difference between an inference and a presumption is relative easy to identify in practice. A defendant in a wrongful-death case may defeat a plaintiff’s claim simply by offering evidence of his or her own careful habits. I.P.I. — Civil No. 10.08 provides, in part:
If you decide there is evidence tending to show that the [decedent] [plaintiff] [defendant] was a person of careful habits, you may infer that he was in the exercise of ordinary care for his own safety [and for the safety of others] at and before the time of the occurrence, unless the inference is overcome by other evidence. [Emphasis added.]
This is an inference in operation. The jury is advised that they “may” infer due care. It is a permissible factual relationship between a fact proved (careful habits) and a fact inferred (due care at a particular time and place) that is submitted to the jury.
If this inference were a true presumption (which it is not), that instruction would read:
If you decide there is evidence tending to show that the [decedent] [plaintiff] [defendant] was a person of careful habits, you must infer that he was in the exercise of ordinary care for his own safety [and for the safety of others] at and before the time of the occurrence, unless the inference is overcome by believable evidence.
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In short, if the relationship of proved fact A to concluded fact B were a presumption, the law would compel the finding of due care. See also Taitt v. Robinson, 266 Ill.App.3d 130, 639 N.E.2d 893, 203 Ill.Dec. 334 (5th Dist. 1994) (inference that son had implied consent of father to drive his truck precluded summary judgment).
Res ipsa loquitur applies when the cause of an injury is shown to be under the management of the defendant and the nature of the accident itself affords adequate evidence of negligence. The plaintiff bears the burden of proving that the occurrence is one that ordinarily does not occur in the absence of negligence and that the defendant had exclusive control of the instrumentality that caused the injury. Under the doctrine of res ipsa loquitur, the facts of the occurrence show prima facie evidence of the defendant’s negligence if these elements are established. In other words, if the elements of res ipsa loquitur are satisfied, an inference of negligence is raised against the defendant. Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill.App.3d 812, 789 N.E.2d 394, 273 Ill.Dec. 494 (1st Dist. 2003).
C. [12.38] Presumptions
A presumption is a substitute for evidence. The presumption, unlike other evidence, cannot be rejected by the jury because it arises as a matter of law — assuming the underlying facts that provide the basis for the presumption are established. For example, there is a presumption that a letter that has been properly addressed and mailed has been received. Only if the jury finds that the letter has not been either properly addressed or mailed may it conclude that the letter has not been received.
A presumption supplies a fact that is otherwise unproved. If evidence that contradicts the presumption is admitted, the presumption is rebutted or “destroyed.” When the presumption is rebutted, it “bursts like a bubble.” The jury is then no longer forced to accept the presumption and may derive any inference it wants from the evidence.
Now contrast presumptions and inferences in another setting. As indicated, there is a presumption that a letter duly mailed is received by the addressee. Meyer v. Krohn, 114 Ill. 574, 2 N.E. 495 (1885); Stefan v. State Farm Mutual Automobile Insurance Co., 284 Ill.App.3d 727, 672 N.E.2d 1329, 220 Ill.Dec. 317 (5th Dist. 1996). Assume a case in which the plaintiff is obliged to prove notice to the defendant and the defendant denies notice. How does the plaintiff vendee prove the notice? The plaintiff proves that he mailed the letter of notice, and a presumption arises that the defendant received the letter of notice.
What is the difference between that presumption and an inference? If the relationship between the mailing and the receipt of the letter were only an inference that the jury might draw, it would still be incumbent on the plaintiff, upon the introduction of proof of mailing, to persuade the jury that the defendant received the notice. The burden of persuasion would remain on the plaintiff. However, because the relationship between the mailing and the receipt of the letter is a presumption, the plaintiff will prevail on that issue as a matter of law. The jury should be instructed that if they find that the letter was duly mailed, they must find that the defendant was notified.
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Presumptions are often referred to as “conclusive” or “rebuttable.” Actually, a so-called “presumption” that cannot be rebutted by evidence is not a presumption at all. It is a substantive rule of law and should be regarded and referred to as such. All presumptions can be rebutted by evidence. See §§12.39 – 12.47 below.
1. Examples of Presumptions
a. [12.39] Fraud or Undue Influence
There is a presumption that when a fiduciary relationship exists and one party benefits by virtue of the fiduciary status, fraud or undue influence exists. The fiduciary carries the burden of rebutting this presumption by clear and convincing evidence. In re Estate of DeJarnette, 286 Ill.App.3d 1082, 677 N.E.2d 1024, 222 Ill.Dec. 490 (4th Dist. 1997).
b. [12.40] Negligence of Bailee
The proof of delivery of goods to a bailee and the fact of their subsequent damage give rise to a presumption that the loss was occasioned by the negligence of the bailee. Chalet Ford, Inc. v. Red Top Parking, Inc., 62 Ill.App.3d 270, 379 N.E.2d 88, 19 Ill.Dec. 573 (1st Dist. 1978).
c. [12.41] Physical or Mental Condition
There is a presumption that a condition (physical, health, or mental), once established, continues for a reasonable period of time. Peters v. Peters, 376 Ill. 237, 33 N.E.2d 425 (1941). For example, if a policyholder has a claim under a disability insurance policy and establishes his or her illness at a point in a time line, there is a presumption that the illness continues for a reasonable period of time.
d. [12.42] Absence of Person
Seven years’ absence without tidings raises a presumption that the absent person is dead. Stevenson v. Montgomery, 263 Ill. 93, 104 N.E. 1075 (1914); Estate of Morrison v. Rosewell, 100 Ill.App.3d 891, 427 N.E.2d 363, 56 Ill.Dec. 283 (1st Dist. 1981), aff’d, 92 Ill.2d 207 (1982); In re Estate of King, 304 Ill.App.3d 479, 710 N.E.2d 1249, 238 Ill.Dec. 147 (2d Dist. 1999).
e. [12.43] Ownership of Vehicle
There is a presumption that a vehicle is operated by its owner. If ownership of the car is established, there is a presumption that the owner operated it. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804 (1956); Tolefree v. March, 99 Ill.App.3d 1011, 425 N.E.2d 1247, 55 Ill.Dec. 74 (1st Dist. 1981). There is also a presumption that the driver of an automobile that is owned by another is the agent of the other and that the operator was driving the vehicle in the course and scope of the agency. Parrino v. Landon, 8 Ill.2d 468, 134 N.E.2d 311 (1956); Ritter v. Taucher, 65 Ill.App.3d 464, 382 N.E.2d 343, 22 Ill.Dec. 23 (1st Dist. 1978).
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f. [12.44] Loss of Society
In Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984), the Supreme Court held that parents may recover for the loss of a minor child’s society in an action brought under the Wrongful Death Act, 740 ILCS 180/0.01, et seq. The court further held that there would no longer be a presumption of loss of earnings on the death of a child but concluded that parents would be entitled to a presumption of pecuniary injury as a result of the loss of a child’s society. The loss is compensable in a wrongful-death action even in the case of a stillbirth, as an unborn fetus may be recognized as a “person” under the Act. Seef v. Sutkus, 145 Ill.2d 336, 583 N.E.2d 510, 164 Ill.Dec. 594 (1991).
In Simmons v. University of Chicago Hospitals & Clinics, 247 Ill.App.3d 177, 617 N.E.2d 278, 187 Ill.Dec. 70 (1st Dist. 1993), aff’d, 162 Ill.2d 1 (1994), a $1.6 million award for the death of a child who died minutes after birth was held to be not excessive. The court has also found that the presumption of pecuniary injury for loss of society of a child applies to children who have reached the age of majority. Ballweg v. City of Springfield, 114 Ill.2d 107, 499 N.E.2d 1373, 102 Ill.Dec. 360 (1986).
In In re Estate of Finley, 151 Ill.2d 95, 601 N.E.2d 699, 176 Ill.Dec. 1 (1992), the Supreme Court held that a sibling may recover for the loss of society of a deceased brother or sister under the Wrongful Death Act. However, there is no presumption of loss of society, and such damages must be proved.
g. [12.45] Safety of Products
A product is presumed to be reasonably safe if it has been “specified” or “required” by a state or federal statute or a state or federal regulatory body. 735 ILCS 5/2-2103.
h. [12.46] Superior Rights Doctrine
Under the superior rights doctrine, a presumption exists that a parent has a superior right to custody of his or her children. In re Estate of Webb, 286 Ill.App.3d 99, 675 N.E.2d 192, 221 Ill.Dec. 285 (1st Dist. 1996).
For several other examples of presumptions, see Lee Hugh Goodman, ILLINOIS TRIAL EVIDENCE §601 (16th rev. ed. 2002).
i. [12.47] Loss or Destruction of Will
When a last will and testament, after its execution, is retained by the testator and cannot be found upon his or her death, a presumption exists that the will has been destroyed by the testator animo revocandi, i.e. with an intent to revoke it. The presumption is subject to rebuttal by circumstances that tend to show the contrary. The burden is on the individual seeking to probate such a will to prove that it was unrevoked at the testator’s death.
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The court should consider the following factors in determining whether the presumption has been rebutted: (1) statements by the testator that he or she did not intend to revoke the will; (2) evidence that the testator entertained a kind and loving attitude toward the proposed beneficiary under the will up to the time of death; and (3) evidence of other individuals’ access to the will prior to death. In cases that raise the issue of whether some person has unlawfully destroyed a missing will, however, it will not be presumed that a missing will has been destroyed by any other person, without the knowledge or authority of the testator, even when such a person may have had the motive and opportunity. In re Estate of Phillips, 359 Ill.App.3d 114, 833 N.E.2d 895, 295 Ill.Dec. 689 (1st Dist. 2005).
2. [12.48] Varying Approaches to Rebutting the Presumption
How does the party against whom a presumption is invoked avoid it? The party can attack the basic fact — for example, the basic fact of ownership of a subject vehicle. If the fact-finder finds that a party is not the owner, then there is no basis for an inference or presumption to be drawn.
The party can also attack the inferred or presumed fact. For example, the party can admit that he or she is the owner of the car but deny operating the car. If the party takes the latter approach and challenges the presumed fact, he or she could testify, “I didn’t drive the car. Smith drove the car that day. I loaned it to my friend, Smith.”
The consequences of attacking the inferred or presumed fact vary. One group of decisions holds that when the person against whom the presumption is invoked introduces any evidence (or some evidence) contrary to the presumed fact, the presumption vanishes, bursts, disappears, and is no longer in the case irrespective of the credibility of the contradictory testimony.
A second group of decisions holds that if the party against whom the presumption is invoked introduces substantial evidence contrary to the presumed fact, the presumption disappears and is no longer in the case.
A third group of decisions holds that the presumption remains in the case until the fact-finder finds that the nonexistence of the presumed fact is as probable as the existence of the presumed fact. A balancing process is employed, and if the scales are balanced, the fact-finder is instructed to find against the presumed fact.
A fourth group of decisions holds that the presumption prevails until the fact-finder is persuaded as to the nonexistence of the presumed fact. For example, in the hypothetical situation regarding the operation of the car, the presumption not only serves to create the plaintiff’s prima facie case, but it also imposes on the defendant the burden of persuading the jury that he or she did not operate the car.
Notice that with inferences, the plaintiff always has the burden of persuasion. The inference takes the plaintiff to the jury, but the plaintiff must persuade the jury of the truth of the inference. On the other hand, with a presumption, the burden may be cast on the defendant to persuasively overcome the presumption.
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3. [12.49] Presumptions in Illinois
The Illinois Supreme Court has noted:
“A presumption is not evidence, and cannot be treated as evidence. It cannot be weighed in the scale against evidence. Presumptions are never indulged in against established facts. They are indulged in only [in lieu] of facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely.” . . . However, where there is an absence of evidence to the contrary, the Prima facie case created under the presumption will support a finding. [Emphasis added.] [Citations omitted.] Diederich v. Walters, 65 Ill.2d 95, 357 N.E.2d 1128, 1131 – 1132, 2 Ill.Dec. 685 (1976), quoting Coal Creek Drainage & Levee Dist. v. Sanitary Dist. of Chicago, 336 Ill. 11, 167 N.E. 807, 816 (1929).
See also Robert S. Hunter, TRIAL HANDBOOK FOR ILLINOIS LAWYERS (CIVIL) §34.4 (7th ed. 1997).
There are Illinois cases that state that when it appears that A owned a vehicle operated by B, there is a presumption that B was A’s agent, acting in the course and scope of his or her employment. However, I.P.I. — Civil No. 50.07 reads in part:
If you decide that the automobile being driven by [driver’s name] was owned by the defendant, you may infer from such evidence that [driver’s name] was acting as the agent of the owner and within the scope of his authority, unless you find that inference is overcome by other believable evidence. [Emphasis added.]
I.P.I. — Civil No. 50.08 deals with a situation in which there is no dispute as to the basic fact of ownership. It reads in part:
At the time of the occurrence, the automobile being driven by [driver’s name] was owned by the defendant and [driver’s name] was the employee of the defendant. You may infer from this fact that [driver’s name] was acting within the scope of his authority, unless you decide that the inference is overcome by other believable evidence. [Emphasis added.]
If the relationship between ownership and agency were a presumption in the sense under discussion here, the instruction would read, “You must infer . . .” or, “You must find that he was the agent of the defendant unless you were persuaded to the contrary.” Accordingly, it can be concluded only that while the Illinois cases have spoken of this relationship as a presumption, it has been treated as an inference. Indeed, Illinois cases frequently speak of “rebuttable presumptions” and use this nomenclature interchangeably with inferences.
In Wright v. Autohaus Fortense, Inc., 129 Ill.App.3d 422, 472 N.E.2d 593, 595 – 596, 84 Ill.Dec. 633 (4th Dist. 1984), the court described the operation of rebuttable presumptions:
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The rule in Illinois is that “a rebuttable presumption may create a prima facie case as to [a] particular issue . . . and thus has the practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption.” [Diederich, supra, 357 N.E.2d at 1130] However, “once evidence is introduced contrary to the presumption, the bubble bursts and the presumption vanishes.” [Franciscan Sisters Health Care Corp. v. Dean, 95 Ill.2d 452, 448 N.E.2d 872, 877, 69 Ill.Dec. 960 (1983)] . . . [T]he amount of evidence required to rebut the presumption is not determined by any fixed rule, but it must be “sufficient to support a finding of the nonexistence of the presumed fact.” Graham, Presumptions in Civil Cases in Illinois: Do They Exist?, 1977 S.Ill.U.L.J. 1, 24. [Citations omitted.]
See also People ex rel. Daley v. Nine Thousand Four Hundred & Three Dollars, 131 Ill.App.3d 188, 476 N.E.2d 80, 86 Ill.Dec. 904 (1st Dist. 1985).
An examination of Illinois decisions leaves substantial doubt as to how Illinois reviewing courts will treat presumptions. Compare Kavale v. Morton Salt Co., 329 Ill. 445, 160 N.E. 752 (1928), Sutherland v. Guccione, 8 Ill.App.2d 201, 131 N.E.2d 130 (1st Dist. 1955), and Bielunski v. Tousignant, 17 Ill.App.2d 359, 149 N.E.2d 801 (2d Dist. 1958), with McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708 (1967), Brill v. Davajon, 51 Ill.App.2d 445, 201 N.E.2d 253 (1st Dist. 1964), and Flynn v. Vancil, 89 Ill.App.2d 368, 232 N.E.2d 473 (3d Dist. 1967), rev’d, 41 Ill.2d 236 (1968). Each relationship must be individually analyzed. For an excellent overview of the subject, see Michael H. Graham, Presumptions in Civil Cases in Illinois: Do They Exist?, 1977 S.Ill.U.L.J. 1.
As for criminal cases, a true presumption cannot exist because it would unconstitutionally shift the burden of persuasion and/or production to the defendant. For the burdens and effect of presumptions in civil actions, see Fed.R.Evid. 301 and 302.
D. [12.50] Failure To Produce Evidence or a Witness
Closely related to presumptions and inferences is the rule that if a party fails to submit evidence or call a witness that is available to him or her, the jury can infer that the evidence or testimony was not favorable to that party. I.P.I. — Civil No. 5.01; Jenkins v. Dominick’s Finer Foods, Inc., 288 Ill.App.3d 827, 681 N.E.2d 129, 224 Ill.Dec. 147 (1st Dist. 1997) (plaintiff failed to produce at trial photographs taken of injuries); Liebert Corp. v. Mazur, 357 Ill.App.3d 265, 827 N.E.2d 909, 293 Ill.Dec. 28 (1st Dist. 2005) (party’s destruction of evidence resulted in presumption that evidence was unfavorable); Fontana v. TLD Builders, Inc., 362 Ill.App.3d 491, 840 N.E.2d 767, 298 Ill.Dec. 654 (2d Dist. 2005) (party failed to produce check that existed and was under party’s control). To avoid this inference, one may give notice of abandonment of a witness and avoid a missing witness instruction by giving the opposing party notice a reasonable time before trial. Taylor v. Kohli, 162 Ill.2d 91, 642 N.E.2d 467, 204 Ill.Dec. 766 (1994). But see Natalino v. JMB Realty Corp., 277 Ill.App.3d 270, 660 N.E.2d 138, 213 Ill.Dec. 881 (1st Dist. 1995) (withdrawal of physician as expert one week before trial required use of I.P.I. — Civil No. 5.01).
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Still, a failure-to-produce instruction is not appropriate when the evidence or testimony is merely cumulative. Wilkerson v. Pittsburgh Corning Corp., 276 Ill.App.3d 1023, 659 N.E.2d 979, 213 Ill.Dec. 633 (4th Dist. 1995); Montgomery v. Blas, 359 Ill.App.3d 83, 833 N.E.2d 931, 295 Ill.Dec. 725 (1st Dist. 2005) (I.P.I. — Civil No. 5.01 instruction not appropriate when party failed to call expert witness at trial when testimony was cumulative). Additionally, a party may not be entitled to the missing witness instruction due to the absence of the opposition’s expert when the complaining party could have subpoenaed the witness (i.e., when the expert is equally available to both sides). Lisowski v. MacNeal Memorial Hospital Ass’n, 381 Ill.App.3d 275, 885 N.E.2d 1120, 319 Ill.Dec. 440 (1st Dist. 2008).
I.P.I. Civil — No. 5.01 provides:
If a party to this case has failed [to offer evidence] [to produce a witness] within his power to produce, you may infer that the [evidence] [testimony of the witness] would be adverse to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The [evidence] [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have [offered the evidence] [produced the witness] if he believed [it to be] [the testimony would be] favorable to him.
4. No reasonable excuse for the failure has been shown. [Emphasis added.]
What constitutes a reasonable excuse for the failure to produce evidence depends on the specific facts of a case and often turns on whether the loss was due to the deliberate fault of a party or events beyond a party’s control. Peterson v. Ress Enterprises, Inc., 292 Ill.App.3d 566, 686 N.E.2d 631, 226 Ill.Dec. 848 (1st Dist. 1997) (allegedly defective spare tire on car lost or stolen while vehicle was being stored in impound lot). See also Lee Hugh Goodman, ILLINOIS TRIAL EVIDENCE §601 (16th rev. 2002).
The loss or destruction of evidence may lead to more severe penalties than the giving of I.P.I. — Civil No. 5.01. Whether the loss of evidence results from willfulness, bad faith, or simply fault, sanctions are appropriate. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 49 L.Ed.2d 747, 96 S.Ct. 2778 (1976). In Marrocco v. General Motors Corp., 966 F.2d 220 (7th Cir. 1992), the court upheld a directed verdict when the plaintiff unintentionally and inadvertently lost evidence that was key to the lawsuit and that was the subject of a protective order. See also Shimanovsky v. General Motors Corp., 271 Ill.App.3d 1, 648 N.E.2d 91, 207 Ill.Dec. 635 (1st Dist. 1994); Heinrich v. Mitchell, 357 Ill.App.3d 1017, 830 N.E.2d 658, 294 Ill.Dec. 246 (1st Dist. 2005) (“take nothing” judgment entered as discovery sanction as result of party failing to preserve evidence). In this context, it should be noted, however, that the absence
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of the subject product in a product liability action is not necessarily fatal to the cause of action. Braverman v. Kucharik Bicycle Clothing Co., 287 Ill.App.3d 150, 678 N.E.2d 80, 222 Ill.Dec. 673 (1st Dist. 1997) (bicyclist who lost helmet and was injured during race alleged that helmet was defectively designed).
In some circumstances, a party may present evidence of the opposition’s late or inadequate disclosures during discovery. This conduct is itself evidence that indicates a consciousness of guilt, about which the jury is entitled to know. LeMaster v. Chicago Rock Island & Pacific R.R., 35 Ill.App.3d 1001, 343 N.E.2d 65 (1st Dist. 1976).
Another option is for a party to bring a claim based on spoliation. In Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 652 N.E.2d 267, 209 Ill.Dec. 727 (1995), the Supreme Court declined to recognize a new tort of negligent spoliation of evidence on the basis that doing so was unnecessary because injured parties already had a cause of action for negligent spoliation of evidence under existing negligence law. Jones v. O’Brien Tire & Battery Service Center, Inc., 322 Ill.App.3d 418, 752 N.E.2d 8, 256 Ill.Dec. 463 (5th Dist. 2001); Babich v. River Oaks Toyota, 377 Ill.App.3d 425, 879 N.E.2d 420, 316 Ill.Dec. 353 (1st Dist. 2007). See ILLINOIS CAUSES OF ACTION: TORT ACTIONS, Ch. 25 (IICLE®, 2011); Richard L. Miller II and Kristen Werries Collier, Avoiding the Innocent Spoliation of Evidence, 24 CBA Rec., No. 4, 40 (May 2010).
E. [12.51] Circumstantial Evidence
Everyone relies on logical inferences drawn from incomplete observations. Jurors are permitted to use the same processes to draw conclusions from the evidence presented at trial. Circumstantial evidence may supply the proof of facts that are not directly observed. I.P.I. Civil — No. 3.04 provides:
A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. [For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside.] Circumstantial evidence is entitled to the same consideration as any other type of evidence.
As long as the conclusions drawn from the circumstantial evidence follow logically and directly from the evidence, the circumstantial evidence is admissible for the same purposes as direct evidence. Stojkovich v. Monadnock Building, 281 Ill.App.3d 733, 666 N.E.2d 704, 217 Ill.Dec. 35 (1st Dist. 1996) (cause of fall down elevator shaft established by circumstantial evidence); Mort v. Walter, 98 Ill.2d 391, 457 N.E.2d 18, 75 Ill.Dec. 228 (1983) (defendant driver’s negligence in striking child on bicycle established by circumstantial evidence when there were no eyewitnesses); Pyskaty v. Oyama, 266 Ill.App.3d 801, 641 N.E.2d 552, 204 Ill.Dec. 328 (1st Dist. 1994) (agency may be established by circumstantial evidence). Expert opinion testimony does not constitute circumstantial evidence. Campbell v. Wagner, 303 Ill.App.3d 609, 708 N.E.2d 539, 236 Ill.Dec. 953 (4th Dist. 1999).
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While the proximate cause element of a negligence action may be established through the presentation of circumstantial, rather than direct, evidence, the conclusion or inference that arises from the circumstantial evidence must be one that can reasonably be drawn. Proximate cause cannot be based on inferences that are speculative in nature and can be established only when there is a reasonable certainty that the acts caused the injury. The mere possibility of a causal connection is insufficient to raise the requisite inference of fact.
V. DEMONSTRATIVE EVIDENCE
A. [12.52] Definition
In its broadest sense, demonstrative evidence consists of physical materials and objects that may be admitted into evidence or used so that the trier of fact may, by direct use of the senses, determine facts about these things (real evidence) or be helped to a better understanding of testimony (demonstrative). A foundation must be laid indicating that the evidence will aid the jury in understanding the testimony or other evidence before demonstrative evidence will be allowed. See also §12.3 above.
B. [12.53] Importance of Demonstrative Evidence
People remember far more of what they see than what they only hear. Hence, effective trial lawyers make constant use of evidence that can be viewed in open court by the jury as well as taken with them into the jury room during deliberations. For a jury, seeing is often believing. One can describe a sandcastle to a young boy who has never seen one, but until a castle is built for him on the beach, his concept of a castle may differ from reality. Similarly, a doctor can describe the manner in which the human spine is built, but until the jury panel views the spine and the narrowed disc spaces on X-ray films, the jury may be singularly unimpressed with the nature and extent of a spinal injury. See Melvin M. Belli, MODERN TRIALS (2d ed. 1982).
C. [12.54] Admission and Exclusion of Demonstrative Evidence
The allowance of the use of demonstrative evidence rests in the sound discretion of the trial judge. Smith v. Ohio Oil Co., 10 Ill.App.2d 67, 134 N.E.2d 526 (4th Dist. 1956); Behles v. Chicago Transit Authority, 346 Ill.App. 220, 104 N.E.2d 635 (1st Dist. 1952); Lowe v. Norfolk & Western Ry., 124 Ill.App.3d 80, 463 N.E.2d 792, 79 Ill.Dec. 238 (5th Dist. 1984). Of course, the court’s discretion can be abused either in the receipt or the exclusion of demonstrative evidence.
Today, trial lawyers have numerous opportunities to demonstrate and explain facts to the jury through the use of physical objects, such as graphs, charts, skeletons, X-ray films, animations, and motion pictures. The same general tests that apply to all evidence are applied in determining whether the demonstrative material should be admitted into evidence or used.
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Opposing counsel will often object to demonstrative evidence on the basis that it tends to prejudice the jury in favor of the party presenting the evidence. This objection is not valid, however, since it is counsel’s duty as an advocate to present all the material and relevant evidence that may prejudice the jury to draw those factual conclusions necessary to sustain a verdict for counsel’s client.
More appropriate objections include:
1. The evidence is immaterial or irrelevant.
2. The evidence will confuse the jury with regard to facts already in evidence.
3. The evidence is being offered to unduly arouse the emotions of the jury, and its probative value is outweighed by its potential for undue prejudice.
4. The evidence is cumulative.
The admission or exclusion of demonstrative evidence lies in the sound discretion of the trial judge. Because the types of evidence vary so greatly, there is no one rule for determining which demonstrations will be admitted. However, examples may be found that may be relied on as precedent. See §§12.55 – 12.60 below.
D. Examples of Admissible Demonstrative Evidence
1. [12.55] Original Evidence (Real)
Physical, tangible evidence actually involved in the transaction is known as “real” evidence. For example, the jury may direct its attention to a knife blade found inside a packaged turkey, a hammer with a chipped head, or a piece of extruded steel. The authenticity of the object must be established for the evidence to be admissible.
In medical malpractice cases, the defendant’s records may be used as demonstrative evidence. These records also constitute real evidence and may contain admissions by one or more of the defendants that may also be used as substantive evidence. Moreover, medical records are admissible as business records in accordance with S.Ct. Rule 236. See §12.86 below.
The court may also permit the jury to view injuries. In one case, the plaintiff was permitted to take off his clothes to exhibit a rupture. Chicago & Alton R.R. v. Clausen, 70 Ill.App. 550 (2d Dist. 1896), aff’d, 173 Ill. 100 (1898). In another, the plaintiff was allowed to exhibit the stump of his leg as well as the artificial limb. Darling v. Charleston Community Memorial Hospital, 50 Ill.App.2d 253, 200 N.E.2d 149 (4th Dist. 1964), aff’d, 33 Ill.2d 326 (1965), cert. denied, 86 S.Ct. 1204 (1966). While it could be argued that the display of a limb stump was for emotional impact only, the court concluded that the purpose of the demonstration was to aid the jury in better understanding the nature and extent of the injury.
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The liberal allowance of the exhibition of injuries appears to be the norm in Illinois. Hedrich v. Borden Co., 100 Ill.App.2d 237, 241 N.E.2d 546 (1st Dist. 1968); Burnett v. Caho, 7 Ill.App.3d 266, 285 N.E.2d 619 (3d Dist. 1972); Foster v. Devilbiss Co., 174 Ill.App.3d 359, 529 N.E.2d 581, 124 Ill.Dec. 600 (1st Dist. 1988). Although it may be permissible to display a graphic injury live to a jury, there is a danger that jurors may be offended. One should always weigh the jurors’ sensitivities against the benefit that might be gained by actually displaying an injury. Photographs of an injury are often satisfactory and less offensive.
Photographs of a decedent may be admitted to prove the nature and extent of the injuries and the force needed to inflict them. They can also be used to show the position, condition, and location of the body. If the photographs are relevant, the photographs are admissible unless their nature is so prejudicial that their value is outweighed by the prejudicial effect. Of course, admissibility of the photographs is in the discretion of the trial judge. People v. Bowman, 357 Ill.App.3d 290, 827 N.E.2d 1062, 293 Ill.Dec. 181 (1st Dist. 2005).
There is no clear rule that photographs depicting minimal damage to a post-collision vehicle are automatically admissible to prove the extent of a plaintiff’s bodily injury or lack thereof. Thus, courts must engage in a case-by-case analysis in order to determine whether the admission of such photographs is an abuse of discretion. Baraniak v. Kurby, 371 Ill.App.3d 310, 862 N.E.2d 1152, 1158, 308 Ill.Dec. 949 (1st Dist. 2007). Even without expert testimony, photographs of a vehicle showing minor damage may be admissible to establish the force involved in the collision. Jackson v. Seib, 372 Ill.App.3d 1061, 866 N.E.2d 663, 310 Ill.Dec. 502 (5th Dist. 2007). See also Fronabarger v. Burns, 385 Ill.App.3d 560, 895 N.E.2d 1125, 324 Ill.Dec. 410 (5th Dist. 2008) (no abuse of discretion when trial court allowed admission of vehicle photographs without expert testimony because photographs relevant to prove plaintiff’s injury more or less probable — jury did not need expert to assist them).
2. [12.56] Objects and Models Prepared for Trial (Demonstrative Evidence in Narrow Sense)
The list of potential objects that can be prepared for trial is endless. In an action involving an allegedly defectively manufactured hoist cable, the court allowed a model displaying pieces of cable with each piece representing a state of development in the manufacture of the cable. Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 187 N.E.2d 425 (1st Dist. 1963), aff’d in part, rev’d in part on other grounds, 31 Ill.2d 69 (1964).
A chart that sets out an itemization of damages in final argument has been allowed. Barreto v. City of Waukegan, 133 Ill.App.3d 119, 478 N.E.2d 581, 88 Ill.Dec. 266 (2d Dist. 1985). Submitting a memorandum to the jury that broke down the plaintiff’s claimed damages was found to be proper because the memorandum was based on evidence presented at trial. Allison v. Stalter, 251 Ill.App.3d 127, 621 N.E.2d 977, 190 Ill.Dec. 524 (4th Dist. 1993). A hand-drawn diagram of an accident scene showing the intersection where the accident occurred has been found admissible. Burke v. Toledo, Peoria & Western R.R., 148 Ill.App.3d 208, 498 N.E.2d 682, 101 Ill.Dec. 358 (1st Dist. 1986).
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Working models of machinery and mock-ups are admissible in evidence when their admission tends to further clarify a subject or question in issue. Sherman v. City of Springfield, Illinois, 111 Ill.App.2d 391, 250 N.E.2d 537 (4th Dist. 1969). A courtroom demonstration showing that a three-year-old could reach the blades of a machine was held to be within the discretion of the trial court. Yassin v. Certified Grocers of Illinois, Inc., 150 Ill.App.3d 1052, 502 N.E.2d 315, 104 Ill.Dec. 52 (1st Dist. 1986). A skeleton was allowed to be used to demonstrate spiral fracture causation. Flanagan v. Redondo, 231 Ill.App.3d 956, 595 N.E.2d 1077, 172 Ill.Dec. 407 (1st Dist. 1992) (as modified on denial of rehearing).
The defendant was allowed to introduce a videotape of a different, but same model, tractor turning a corner years after the accident in a case involving a death following the overturning of a tractor at the same location. Barth v. International Harvester Co., 160 Ill.App.3d 1072, 513 N.E.2d 1088, 112 Ill.Dec. 479 (1st Dist. 1987). In another case, video animation depicting the spread of an infection similar to the one for which the plaintiff was at risk was allowed. Dillon v. Evanston Hospital, 199 Ill.2d 483, 771 N.E.2d 357, 364, 264 Ill.Dec. 653 (2002).
Day-in-the-life videos are demonstrative evidence whose purpose is to illustrate a party’s life at the time of trial. They are admissible if a foundation is laid by someone having personal knowledge of the filmed object and that the video is an accurate portrayal of that. Donnellan v. First Student, Inc., 383 Ill.App.3d 1040, 891 N.E.2d 463, 475, 322 Ill.Dec. 448 (1st Dist. 2008) (court precluded use of defendant’s surveillance video because of risks of unreasonable prejudice due to obstructions to view and editing).
Additional examples of demonstrative exhibits include graphs, maps, photographs, motion pictures, X-ray films, and miniature mechanical devices. A lawyer will sometimes object to materials and models prepared for trial on the basis that they are not the “best evidence” of the object sought to be exhibited and that the actual instrument must be brought to court. However, the best-evidence rule is limited to writings. See CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §1001, et seq.
E. Examples of Inadmissible Demonstrative Evidence
1. [12.57] Misleading Evidence
In a medical malpractice action based on a failure to diagnose a child’s brain aneurysm, the trial court was held to have had discretion to exclude documentary evidence consisting of charts purporting to show diagnostic tests performed on the child during a hospital stay when language on the charts was misleading as to whether diagnostic tests were performed on any given day. Papas v. Fronczak, 249 Ill.App.3d 42, 618 N.E.2d 878, 188 Ill.Dec. 308 (1st Dist. 1993).
In Spyrka v. County of Cook, 366 Ill.App.3d 156, 851 N.E.2d 800, 303 Ill.Dec. 613 (1st Dist. 2006), it was held that video animation should not have been admitted as demonstrative evidence because it was prejudicial and confusing by appearing to reenact the actual incident.
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2. [12.58] Cumulative Evidence
In a case brought by the estate of a shooting victim, the First District upheld the trial court’s denying the estate’s use of overhead slides that were cumulative of a physician’s testimony. Simmons v. City of Chicago, 118 Ill.App.3d 676, 455 N.E.2d 232, 74 Ill.Dec. 202 (1st Dist. 1983).
3. [12.59] Instrumentality of Injury
In a case in which the issue of damages involved the plaintiff’s lifting a heavy bowling ball subsequent to the occurrence of which she complained, the court refused to admit the bowling ball into evidence. The court felt the ball had been adequately described by testimony and that its introduction into evidence would be of no measurable value to the jury. Behles v. Chicago Transit Authority, 346 Ill.App. 220, 104 N.E.2d 635 (1st Dist. 1952).
4. [12.60] Comparison of Handwritings or Signatures
In Shinn v. Settle, 222 Ill.App. 463 (4th Dist. 1921), a defendant was not permitted to introduce into evidence an instrument signed by him in order to prove that the signature in issue was not his.
VI. OPINIONS AND CONCLUSIONS
A. [12.61] Opinion Overview
An orderly and efficient trial of a case is conducted by limiting the testimony of lay witnesses to facts within their knowledge. Consistent therewith, a jury generally must draw its own conclusions from the facts presented by way of the evidence. Hence, absent the application of the exception for lay opinions, a lay witness may not express a belief, supposition, or personal thought concerning a matter of fact to be presented to or decided by a jury. Village of Marissa v. Jones, 327 Ill. 180, 158 N.E. 389 (1927).
If opinions could be expressed by nonexpert witnesses on ultimate conclusions of fact, the job of the jury would diminish to one of deciding a case based on those opinions that sounded most logical or those witnesses who made the best presentation. It has been said that opinions given by witnesses on ultimate questions of fact are an “invasion of the province of the jury.” Gillette v. Healy Subway Construction Corp., 329 Ill.App. 263, 67 N.E.2d 887, 889 (1st Dist. 1946), aff’d, 396 Ill. 619 (1947). See §§12.69 – 12.87 below for a discussion of expert opinions.
While the older caselaw tends to admit opinion evidence only as an exception to the general rule of exclusion, there is a trend toward freely admitting relevant opinion evidence. Compare Illinois Steel Co. v. McNulty, 105 Ill.App. 594 (1st Dist. 1903), with State Farm Mutual Automobile Insurance Co. v. Short, 125 Ill.App.2d 97, 260 N.E.2d 415 (5th Dist. 1970). Any question concerning the basis for the witness’ opinion becomes a matter of the credibility of the witness.
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When seeking to diminish the credibility of such an opinion, counsel may attack the basis of the opinion. But see Robinson v. Greeley & Hansen, 114 Ill.App.3d 720, 449 N.E.2d 250, 70 Ill.Dec. 376 (2d Dist. 1983). It should be noted, however, that expert opinions may be given without stating their basis pursuant to Fed.R.Evid. 705 and Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill.Dec. 308, cert. denied, 102 S.Ct. 140 (1981). (Fed.R.Evid. 703 and 705 and Wilson are discussed more fully in §12.86 below.)
B. Lay Opinions and Conclusions
1. [12.62] Foundation of Opinion
The basis of a lay witness’ opinion may be twofold. First, what opportunity did the lay witness have to observe the situation about which he or she is testifying? Second, what are the actual facts that came to the witness’ attention at that time, or at a later date, on which the witness based his or her opinion? See Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill.App.3d 444, 818 N.E.2d 713, 288 Ill.Dec. 778 (1st Dist. 2004) (lay witness opinion excluded when insufficient foundation to show witness had personal knowledge).
Fed.R.Evid. 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
To strengthen the credibility of a lay witness’ opinion, counsel should ensure that the witness be as specific as possible in showing an ability to observe and a personal knowledge of facts on which the opinion is based.
2. Examples of Admissible Lay Opinions
a. [12.63] Speed
A witness may give an opinion as to the speed in miles per hour of a moving vehicle if the witness has had an opportunity to observe the vehicle. The witness may even testify that the vehicle was moving “fast” or “slow.” Hester v. Goldsbury, 64 Ill.App.2d 66, 212 N.E.2d 316 (1st Dist. 1965); Watkins v. Schmitt, 172 Ill.2d 193, 665 N.E.2d 1379, 216 Ill.Dec. 822 (1996). However, the witness may be cross-examined regarding what, in his or her opinion, is fast or slow.
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b. [12.64] Mental Condition
A witness may offer an opinion as to the soundness of a testator’s mental condition if the witness had sufficient opportunity to observe the testator. Butler v. O’Brien, 8 Ill.2d 203, 133 N.E.2d 274 (1956); Bailey v. Clark, 203 Ill.App.3d 1017, 561 N.E.2d 367, 149 Ill.Dec. 89 (5th Dist. 1990).
c. [12.65] Intoxication
A witness who has observed the condition and conduct of a party may render an opinion as to the party’s intoxication at the time of an occurrence. Again, this opinion is admissible on some showing that the witness had an opportunity to observe the party and indicia of intoxication. Schneider v. Kirk, 83 Ill.App.2d 170, 226 N.E.2d 655 (2d Dist. 1967); Sandburg-Schiller v. Rosello, 119 Ill.App.3d 318, 456 N.E.2d 192, 74 Ill.Dec. 690 (1st Dist. 1983).
d. [12.66] Summaries of Observation
When it is difficult to explain the conditions perceived and the opinion is one that persons are generally capable of making, comprehending, and understanding, a nonexpert witness may summarize sensory perceptions or express an opinion based on observation. People v. Harbold, 220 Ill.App.3d 611, 581 N.E.2d 132, 163 Ill.Dec. 181 (1st Dist. 1991), cert. denied, 115 S.Ct. 1254 (1995). See also CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §701. For example, a lay witness may give opinion testimony on matters such as speed, size, weight, and color. Id.; People v. Canity, 100 Ill.App.3d 135, 426 N.E.2d 591, 55 Ill.Dec. 445 (2d Dist. 1981).
e. [12.67] Ultimate Issue
Generally, a lay witness may testify only to the facts observed and is precluded from rendering opinions as to the ultimate issue in the case. City of Evanston v. City of Chicago, 279 Ill.App.3d 255, 664 N.E.2d 291, 215 Ill.Dec. 894 (1st Dist. 1996). However, in one case, a lay witness (the plaintiff) was allowed to give the opinion that the driver of a truck “could have definitely stopped” before he hit the plaintiff. Scheibel v. Groeteka, 183 Ill.App.3d 120, 538 N.E.2d 1236, 1245, 131 Ill.Dec. 680 (5th Dist. 1989).
f. [12.68] State of Health
A witness may testify as to an opinion of the plaintiff’s state of health before and after the injury when the opinion is based on observation and on some personal knowledge of the plaintiff’s condition. Bobalek v. Atlass, 315 Ill.App. 514, 43 N.E.2d 584 (1st Dist. 1942). This testimony may provide proof of the causal relationship between an event and an injury. An inference is raised of such a relationship when the injury occurs close in time to the event.
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When such an inference is raised, it may not be necessary to provide expert medical testimony on the issue of causation. For example, if an individual suffers a severe laceration after a motor vehicle collision, it is not necessary to present medical testimony that the collision caused the laceration. In most cases, however, it is more effective to use expert medical testimony if it is available.
C. Expert Opinions and Conclusions
1. [12.69] Expert Qualifications
Juries are often asked to form conclusions from the factual testimony of lay witnesses and documents. However, many trials involve the presentation of facts in fields of knowledge related to some scientific or technical area in which an expert could provide helpful testimony. Fed.R.Evid. 702 provides in part:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Thus, witnesses with special skills and training may testify as to opinions drawn from the facts of the case. This is the role of the expert witness.
The degree of expertise required of a witness by the court will vary according to the type of case, the issues, and the testimony involved. Baty v. Baty, 83 Ill.App.3d 113, 403 N.E.2d 747, 38 Ill.Dec. 516 (3d Dist. 1980); Lockett v. Board of Education for School District No. 189, 198 Ill.App.3d 252, 555 N.E.2d 1055, 144 Ill.Dec. 536 (5th Dist. 1990). A scientist who has three college degrees in chemistry and engineering may be eminently qualified as an expert in a product liability case. So, too, a witness with a high school education who has labored for many years as an estimator of damage in an automobile body repair shop may be equally qualified as an expert in his or her field.
As stated in Somers v. Quinn, 373 Ill.App.3d 87, 867 N.E.2d 539, 547, 310 Ill.Dec. 848 (2d Dist. 2007):
A person will be allowed to testify as an expert if his experience and qualifications afford him knowledge that is not common to laypersons and where his testimony will aid the trier of fact in reaching its conclusions. . . . “There is no predetermined
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formula for how an expert acquires specialized knowledge or experience and the expert can gain such through practical experience, scientific study, education, training or research.” [People v. Miller, 173 Ill.2d 167, 670 N.E.2d 721, 730, 219 Ill.Dec. 43 (1996).] “[F]ormal academic training or specific degrees are not required to qualify a person as an expert; practical experience in a field may serve just as well to qualify him.” [Lee v. Chicago Transit Authority, 152 Ill.2d 432, 605 N.E.2d 493, 504, 178 Ill.Dec. 699 (1992)]. [Citation omitted.]
But see Alm v. Loyola University Medical Center, 373 Ill.App.3d 1, 866 N.E.2d 1243, 310 Ill.Dec. 641 (1st Dist. 2007) (pathologist lacked qualifications to testify regarding treatment by plastic surgeons and anesthesiologist).
Licensure is one of many factors that a trial court must weigh in determining whether a witness may testify as an expert. Thompson v. Gordon, 221 Ill.2d 414, 851 N.E.2d 1231, 303 Ill.Dec. 806 (2006) (engineers do not necessarily have to be licensed in Illinois to testify as experts). However, a license in the field at issue is not required to testify as an expert.
2. [12.70] Disclosure of Opinion Evidence
Supreme Court Rule 213 distinguishes between “lay witnesses,” “independent expert witnesses,” and “controlled expert witnesses.” That rule provides in part:
(f) Identity and Testimony of Witnesses. Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:
(1) Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.
(2) Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.
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(g) Limitation on Testimony and Freedom to Cross-Examine. The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.
Without making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness. This freedom to cross- examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.
* * *
(i) Duty to Supplement. A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.
* * *
(k) Liberal Construction. This rule is to be liberally construed to do substantial justice between or among the parties. S.Ct. Rule 213.
3. [12.71] Admissibility of Expert Opinion Evidence
An expert’s opinion or conclusion is subject to the same tests of materiality and relevancy as all other evidence. However, there are other limitations on an expert’s opinion. The subject matter of the opinion must be of such a technical nature as to be beyond the knowledge and experience of the ordinary person. People v. Raines, 354 Ill.App.3d 209, 820 N.E.2d 592, 289 Ill.Dec. 816 (4th Dist. 2004) (trial court properly barred expert’s testimony that defendant did not intend to shoot since defendant did not argue that testimony was necessary to explain evidence beyond common knowledge of jury).
If the court determines that the expert’s opinion is one that could be drawn by the jurors from common experience, the opinion is inadmissible. Gillette v. City of Chicago, 396 Ill. 619, 72 N.E.2d 326 (1947). Also, the witness must be properly “qualified” as an expert by specialized knowledge, skill, or experience in the field involved so that it appears that his or her opinion will aid the trier of fact in arriving at a just conclusion. Thompson v. Gordon, 221 Ill.2d 414, 851 N.E.2d 1231, 303 Ill.Dec. 806 (2006).
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In order for a witness to be able to give expert testimony, the witness must be qualified as an expert with respect to the specific matter involved. The court may in its discretion determine whether a witness is competent to testify as an expert after hearing evidence as to the witness’ education, experience, knowledge, learning, observation, reading, skill, study, or training that is superior to that of the ordinary person. These qualifications must be superior with respect to the particular matter or subject and of such character as to be entitled to be received as expert.
There is no need to present such a witness to the court for “certification” as an expert unless an objection is made to his or her qualification. Obviously, before expert testimony is admitted, the offering party should demonstrate that the area of inquiry requires the employment of scientific, technical, or other principles that remove it from the ken of the average juror. Sansonetti v. Archer Laundry, Inc., 44 Ill.App.3d 789, 358 N.E.2d 1142, 3 Ill.Dec. 457 (1st Dist. 1976).
In order to testify as an expert on the standard of care in a given school of medicine, a witness must be licensed in that school of medicine. Once the fact of such license has been established, it lies within the sound discretion of the trial court to determine if the witness is qualified to testify as an expert regarding the standard of care. Garley v. Columbia LaGrange Memorial Hospital, 351 Ill.App.3d 398, 813 N.E.2d 1030, 286 Ill.Dec. 337 (1st Dist. 2004).
With respect to standard of care issues, the expert’s opinion cannot be based on literature that was first published after the time of the occurrence complained of. In Nelson v. Upadhyaya, 361 Ill.App.3d 415, 836 N.E.2d 784, 297 Ill.Dec. 53 (1st Dist. 2005), a medical negligence case, the appellate court rejected a defense argument that such literature merely interpreted earlier material. The court reasoned that the doctors at the time of the occurrence could not have referred to the material when they were actually in a position to interpret the literature to decide how to treat their patient.
In medical negligence cases, physicians may not testify to the standard of care applicable to nurses, as they lack the same licensure. Sullivan v. Edward Hospital, 209 Ill.2d 100, 806 N.E.2d 645, 282 Ill.Dec. 348 (2004). “A physician, who is not a nurse, is no more qualified to offer expert, opinion testimony as to the standard of care for nurses than a nurse would be to offer an opinion as to the physician standard of care.” 806 N.E.2d at 658, citing Dolan v. Galluzzo, 77 Ill.2d 279, 396 N.E.2d 13, 16, 32 Ill.Dec. 900 (1979).
In order for an expert physician to be competent to testify, two foundational requirements must be met: (a) the physician must be a licensed member of the school of medicine about which he or she proposes to testify; and (b) the expert witness must show that he or she is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in either the defendant physician’s community or a similar community. Garley, supra.
While experts will be required to establish minimum certifying qualifications before they are permitted to testify on standard of care issues, licensure is not always required. An engineer need not be licensed in Illinois to render expert opinions, although the fact of licensure may go to the weight of the testimony given. Thompson v. Gordon, 356 Ill.App.3d 447, 827 N.E.2d 983, 293 Ill.Dec. 102 (2d Dist.), appeal granted, 216 Ill.2d 736 (2005).
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4. Examples of Admissible Expert Opinions
a. [12.72] Causation
A physician or surgeon may give an opinion based on a reasonable degree of medical certainty as to whether the condition from which a patient is suffering was caused by the occurrence of which he or she is complaining. See Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill.2d 236, 166 N.E.2d 582 (1960); Norman v. American National Fire Insurance Co., 198 Ill.App.3d 269, 555 N.E.2d 1087, 144 Ill.Dec. 568 (5th Dist. 1990). The threshold “reasonable degree of certainty” has even allowed opinions phrased in terms of “possibilities” to be offered. Redmon v. Sooter, 1 Ill.App.3d 406, 274 N.E.2d 200 (2d Dist. 1971); Carter v. Johnson, 247 Ill.App.3d 291, 617 N.E.2d 260, 187 Ill.Dec. 52 (1st Dist. 1993); Plooy v. Paryani, 275 Ill.App.3d 1074, 657 N.E.2d 12, 19, 212 Ill.Dec. 317 (1st Dist. 1995) (as long as opinion was not pure speculation, fact that expert failed to use phrase “within a reasonable degree of medical certainty” was of no consequence); Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362 Ill.App.3d 357, 839 N.E.2d 558, 298 Ill.Dec. 235 (1st Dist. 2005) (expert’s opinion regarding causation phrased in terms of “more likely than not” was not speculative and was therefore admissible).
In fact, even when there is less than a one-percent chance that a plaintiff’s injury was caused by the negligence of the defendant, this factor is just another to be considered by the jury. Bombagetti v. Amine, 254 Ill.App.3d 817, 627 N.E.2d 230, 194 Ill.Dec. 114 (1st Dist. 1993). However, an expert opinion in a product liability case involving a defective inner tube that indicated nothing more than the mere possibility that the inner tube was improperly installed was held to be insufficient, and summary judgment for the defendant was proper. Sanchez v. Firestone Tire & Rubber Co., 237 Ill.App.3d 872, 604 N.E.2d 948, 178 Ill.Dec. 425 (3d Dist. 1992).
An expert may render an opinion regarding proximate causation based in part on the plaintiff’s deposition testimony. Zavala v. Powermatic, Inc., 167 Ill.2d 542, 658 N.E.2d 371, 212 Ill.Dec. 889 (1995) (expert’s opinion regarding causation in drill press product liability case was based on plaintiff’s deposition, engineering reports, inspection, and testing and did not constitute speculation).
b. [12.73] Point of Impact
A police officer may give an opinion on the point of impact between two vehicles if the officer investigated the scene immediately after the occurrence and if his or her knowledge and experience as an investigating officer are of sufficient breadth and length. Thomas v. Cagwin, 43 Ill.App.2d 336, 193 N.E.2d 233 (2d Dist. 1963).
c. Accident Reconstruction
(1) [12.74] Speed of vehicle
An accident reconstruction expert may be qualified to express an opinion regarding the speed of vehicles at impact. Miller v. Pillsbury Co., 33 Ill.2d 514, 211 N.E.2d 733 (1965). It should be noted, however, that when there are witnesses to an occurrence who are capable of estimating
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speed, the expert opinion may not be allowed since such matters are generally within the ken of the average juror. Rinesmith v. Sterling, 293 Ill.App.3d 344, 687 N.E.2d 1191, 227 Ill.Dec. 709 (4th Dist. 1997).
(2) [12.75] Reconstruction testimony
While reconstruction testimony may not be allowed when there are credible eyewitnesses available to explain the circumstances, accident reconstruction testimony may still be used to supplement eyewitness testimony as long as such testimony is needed to explain scientific principles to a jury and enable it to make factual determinations. Kimble v. Earle M. Jorgenson Co., 358 Ill.App.3d 400, 830 N.E.2d 814, 294 Ill.Dec. 402 (1st Dist. 2005). The presence of eyewitness testimony does not amount to an absolute bar to expert reconstruction testimony. Instead, the court looks to whether, in addition to eyewitness testimony, expert reconstruction testimony would be needed to explain scientific principles to a jury and enable it to make factual determinations.
Expert reconstruction testimony is proper, even when there is an eyewitness, if what the expert offers is “knowledge and application of principles of science beyond the ken of the average juror.” 830 N.E.2d at 823, quoting Zavala v. Powermatic, Inc., 167 Ill.2d 542, 658 N.E.2d 371, 374, 212 Ill.Dec. 889 (1995). Evidence is “beyond the ken” of the average juror when it involves knowledge or experience that a juror generally lacks. Rinesmith v. Sterling, 293 Ill.App.3d 344, 687 N.E.2d 1191, 227 Ill.Dec. 709 (4th Dist. 1997). See also Ahmed v. Pickwick Place Owners’ Ass’n, 385 Ill.App.3d 874, 896 N.E.2d 854, 324 Ill.Dec. 778 (1st Dist. 2008) (expert reconstruction testimony proper if information beyond ken of average juror).
When a reconstruction expert conducts an experiment to ascertain speed for the purpose of determining how much time a motorist had to avoid a collision, the experiment will be incompetent unless the expert duplicates essential conditions existing at the time of the accident that gave rise to the litigation. First Midwest Trust Co. v. Rogers, 296 Ill.App.3d 416, 701 N.E.2d 1107, 233 Ill.Dec. 833 (4th Dist. 1998) (abuse of discretion to admit reconstruction testimony when experiment was conducted under conditions that varied significantly from those at time of accident). See also Robles v. Chicago Transit Authority, 235 Ill.App.3d 121, 601 N.E.2d 869, 176 Ill.Dec. 171 (1st Dist. 1992); Magna Bank of McLean County v. Ogilvie, 235 Ill.App.3d 318, 601 N.E.2d 1091, 176 Ill.Dec. 393 (1st Dist. 1992).
d. [12.76] Financial Experts
Financial experts may testify as to the content of complicated financial records as it is unreasonable to expect a jury to examine such documents and arrive at accurate computations. The jury is then free to balance the expert testimony in reaching its verdict. People v. Albanese, 102 Ill.2d 54, 464 N.E.2d 206, 79 Ill.Dec. 608, cert. denied, 105 S.Ct. 268 (1984).
When a proper foundation is laid, an expert may be allowed to testify regarding a plaintiff’s earning capacity. Shaheen v. Advantage Moving & Storage, Inc., 369 Ill.App.3d 535, 860 N.E.2d 375, 307 Ill.Dec. 721 (1st Dist. 2006).
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e. [12.77] Future Risk of Harm and Lost Chance Doctrine
In Anderson v. Golden, 279 Ill.App.3d 398, 664 N.E.2d 1137, 216 Ill.Dec. 209 (3d Dist. 1996), a medical negligence case, the plaintiff was entitled to present evidence of increased risk of future harm as a result of a physician’s negligence even though there was less than a 50- percent chance that the harm would occur. The Anderson court held that the courts should allow compensation for increased risk of future injury as long as it can be shown to a reasonable degree of medical certainty that a defendant’s wrongdoing created the increased risk.
In Dillon v. Evanston Hospital, 199 Ill.2d 483, 771 N.E.2d 357, 264 Ill.Dec. 653 (2002), the court followed Anderson and held that the claimant could recover for an increased risk of future injury even if the risk was improbable. The jury must be instructed that the increased risk must be based on evidence and not speculation and that the size of the award has to reflect the probability of occurrence. The court provided a complex formula to accomplish this goal.
In Foley v. Fletcher, 361 Ill.App.3d 39, 836 N.E.2d 667, 296 Ill.Dec. 916 (1st Dist. 2005), the court noted that the plaintiff’s physicians did not specify the level of increased risk the plaintiff faced or the probability of injuries. Therefore, the court held that the degree of risk was not proven within a reasonable degree of medical certainty and vacated an award of $1 million for increased risk of future injury.
In Holton v. Memorial Hospital, 176 Ill.2d 95, 679 N.E.2d 1202, 223 Ill.Dec. 429 (1997), the court held that when a plaintiff’s chance of recovery or survival is lessened by malpractice, the plaintiff should be able to present evidence that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery.
f. [12.78] Ultimate Issue
An expert’s opinion that embraces an ultimate issue is no longer objectionable as invading the province of the trier of fact. Van Holt v. National Railroad Passenger Corp., 283 Ill.App.3d 62, 669 N.E.2d 1288, 218 Ill.Dec. 762 (1st Dist. 1996) (expert’s opinion in Federal Employers’ Liability Act action that facility failed to provide safe place to work). In abolishing the ultimate issue rule, the Illinois Supreme Court noted that the expert opinion need not be accepted. See Miller v. Pillsbury Co., 33 Ill.2d 514, 211 N.E.2d 733 (1965); Merchants National Bank of Aurora v. Elgin, Joliet & Eastern Ry., 49 Ill.2d 118, 273 N.E.2d 809 (1971); City of Evanston v. City of Chicago, 279 Ill.App.3d 255, 664 N.E.2d 291, 215 Ill.Dec. 894 (1st Dist. 1996); People v. Raines, 354 Ill.App.3d 209, 820 N.E.2d 592, 289 Ill.Dec. 816 (4th Dist. 2004); Jackson v. Seib, 372 Ill.App.3d 1061, 866 N.E.2d 663, 310 Ill.Dec. 502 (5th Dist. 2007).
g. [12.79] Psychologist’s Opinion as to Future Dangerousness
A psychologist’s opinion regarding an individual’s future dangerousness is generally admissible without application of the Frye test (Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)) when the opinion is based on clinical observation or personal experience and not a novel
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scientific methodology. People v. Taylor, 335 Ill.App.3d 965, 782 N.E.2d 920, 270 Ill.Dec. 361 (2d Dist. 2002), vacated on other grounds, 214 Ill.2d 548 (2005); In re Steven E., 341 Ill.App.3d 294, 792 N.E.2d 408, 275 Ill.Dec. 177 (2d Dist. 2003).
5. Examples of Inadmissible Expert Opinions
a. [12.80] Hedonic Damages
Hedonic damages are those that “attempt to compensate for the loss of the pleasure of being alive.” BLACK’S LAW DICTIONARY, p. 446 (9th ed. 2009). An economist’s expert testimony on the value of hedonic damages is inadmissible. This testimony lacks the required scientific reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). Ayers v. Robinson, 887 F.Supp. 1049 (N.D.Ill. 1995). In Fetzer v. Wood, 211 Ill.App.3d 70, 569 N.E.2d 1237, 155 Ill.Dec. 626 (2d Dist. 1991), the court recognized a cause of action for the loss of enjoyment of life but ruled that expert testimony on the subject would not assist the trier of fact to understand or determine the issue.
b. [12.81] Police Officers’ Opinions as to Accidents
In some circumstances, a police officer may not be permitted to express an opinion of speed at impact. Deaver v. Hickox, 81 Ill.App.2d 79, 224 N.E.2d 468 (4th Dist. 1967). For a discussion of the reluctance to accept opinions of police officers as accident reconstruction experts, see Augenstein v. Pulley, 191 Ill.App.3d 664, 547 N.E.2d 1345, 138 Ill.Dec. 724 (5th Dist. 1989).
c. [12.82] Expert’s Opinion as to What He or She Would Have Done
Testimony by an expert regarding what he or she would have done differently than defendant doctor is irrelevant. Walski v. Tiesenga, 72 Ill.2d 249, 381 N.E.2d 279, 21 Ill.Dec. 201 (1978); Ayala v. Murad, 367 Ill.App.3d 591, 855 N.E.2d 261, 305 Ill.Dec. 370 (1st Dist. 2006). However, a medical expert’s personal practices may be relevant to that expert’s credibility, particularly when those practices do not entirely conform to the expert’s opinions as to standard of care. Schmitz v. Binette, 368 Ill.App.3d 447, 857 N.E.2d 846, 306 Ill.Dec. 447 (1st Dist. 2006); Bergman v. Kelsey, 375 Ill.App.3d 612, 873 N.E.2d 486, 313 Ill.Dec. 862 (1st Dist. 2007).
d. [12.83] Expert’s Opinion as to Meaning of Statute
An expert may not render a legal opinion as to the meaning of a statute. LID Associates v. Dolan, 324 Ill.App.3d 1047, 756 N.E.2d 866, 258 Ill.Dec. 592 (1st Dist. 2001); In re Objections to Tax Levies of Freeport School District No. 145, 372 Ill.App.3d 562, 865 N.E.2d 361, 310 Ill.Dec. 37 (2d Dist. 2007) (expert precluded from providing legal opinion regarding statute but may interpret term included in industry standard).
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6. [12.84] Example of When Expert Opinion Is Not Necessary
The plaintiff was not required to present expert testimony with regard to her claim for negligent infliction of emotional distress as a result of the defendant physician leaving her to remain in the delivery room with her partially delivered, dead infant. Thornton v. Garcini, 382 Ill.App.3d 813, 888 N.E.2d 1217, 321 Ill.Dec. 284 (3d Dist. 2008).
7. [12.85] Expert Opinion Based on a Hypothetical Question
A hypothetical question based on facts in evidence of which an expert has no personal knowledge is the means by which opinion testimony is elicited from the expert witness. Even here, a proper evidentiary foundation must be laid concerning the witness’ qualifications to form an opinion.
The hypothetical question is posed to the witness in the form of facts that the witness is asked to assume are true. Generally these facts should be in evidence and in the record at the time the hypothetical question is posed. However, if counsel represents that certain facts will be supplied later in the trial, the court may allow a hypothetical question to include facts not yet in evidence. Eckels v. Halsten, 136 Ill.App. 111 (1st Dist. 1907); Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 658 N.E.2d 450, 212 Ill.Dec. 968 (1995).
The hypothetical question should include those facts in evidence that support counsel’s theory of the case even though the facts themselves may be in dispute. Leonardi, supra; Granberry v. Carbondale Clinic, S.C., 285 Ill.App.3d 54, 672 N.E.2d 1296, 220 Ill.Dec. 284 (5th Dist. 1996). It is not a proper objection to a question that certain unfavorable disputed evidence has not been included. Wirth v. Industrial Commission, 57 Ill.2d 475, 312 N.E.2d 593 (1974). However, the hypothetical question must not omit an unfavorable undisputed fact in evidence. Christianson v. City of Chicago Heights, 103 Ill.App.2d 315, 243 N.E.2d 677 (1st Dist. 1968); Pritchett v. Steinker Trucking Co., 108 Ill.App.2d 371, 247 N.E.2d 923 (4th Dist. 1969). The opponent may insist that the unfavorable undisputed fact be included in the question or may develop the fact during cross-examination. Leonardi, supra.
Hypothetical questions are frequently used in trials involving issues of the cause or extent of personal injuries. The hypothetical question is usually put to a physician who has not examined or treated the plaintiff, with the doctor being asked to assume the truth of all the facts in evidence concerning the occurrence. The question includes the medical history of the plaintiff, the injury of which the plaintiff is complaining, and other medical testimony in evidence.
At the end of the hypothetical question, the doctor is asked, for example, whether, assuming all facts to be true, he or she has an opinion based on a reasonable degree of medical certainty as to whether the injury of which the plaintiff is complaining might or could have been (or was) caused by the actions of the defendant (or whether the injury of which the plaintiff is complaining is permanent). If the doctor replies, “Yes,” he or she is then asked to offer an opinion and the basis for it.
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Hypothetical questions may be used on direct or cross-examination. Id.; Lecroy v. Miller, 272 Ill.App.3d 925, 651 N.E.2d 617, 209 Ill.Dec. 439 (1st Dist. 1995) (defendant physician entitled to answer hypothetical questions pertaining to how he could have treated patient had patient returned as physician requested). They may also be used prior to trial to defeat motions for summary judgment. Johnson v. Owens-Corning Fiberglass Corp., 284 Ill.App.3d 669, 672 N.E.2d 885, 220 Ill.Dec. 68 (3d Dist. 1996).
The need for hypothetical questions has diminished over the years. However, the use of hypotheticals should not be discarded as they can offer an additional opportunity to present counsel’s version of the facts to the fact-finder. See Mielke v. Condell Memorial Hospital, 124 Ill.App.3d 42, 463 N.E.2d 216, 79 Ill.Dec. 78 (2d Dist. 1984); Schuchman v. Stackable, 198 Ill.App.3d 209, 555 N.E.2d 1012, 144 Ill.Dec. 493 (5th Dist. 1990).
8. [12.86] Expert Opinion Based on Inadmissible Evidence
Fed.R.Evid. 703 governs the basis on which an expert may form an opinion and provides in part:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
In 1981, this rule was adopted by the Illinois Supreme Court in Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill.Dec. 308, cert. denied, 102 S.Ct.140 (1981).
The adoption of Rule 703 permits an expert to base an opinion on facts or data that are inadmissible as long as they are of a type reasonably relied on by the expert in his or her practice. Rule 703 does not create an exception to the hearsay rule. The facts or data relied on by the expert are not admitted for the truth. Rather, they are admitted for the limited purpose of explaining the basis of the expert’s opinion. Giraldi v. Community Consolidated School District #62, 279 Ill.App.3d 679, 665 N.E.2d 332, 216 Ill.Dec. 272 (1st Dist. 1996); Groce v. South Chicago Community Hospital, 282 Ill.App.3d 1004, 669 N.E.2d 596, 218 Ill.Dec. 453 (1st Dist. 1996) (testimony as to content of letter admissible to explain basis of opinion and not for establishing truth of matter asserted in letter).
Once an expert opinion has been offered into evidence, the adverse party may impeach the opinion or the basis for the opinion during cross-examination. Coffey v. Hancock, 122 Ill.App.3d 442, 461 N.E.2d 64, 77 Ill.Dec. 677 (3d Dist. 1984). An expert may be cross-examined with respect to material reviewed by the expert but on which the expert does not rely. Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 658 N.E.2d 450, 212 Ill.Dec. 968 (1995); Halleck v. Coastal Building Maintenance Co., 269 Ill.App.3d 887, 647 N.E.2d 618, 207 Ill.Dec. 387 (2d Dist. 1995); Jager v. Libretti, 273 Ill.App.3d 960, 652 N.E.2d 1120, 210 Ill.Dec. 144 (1st Dist. 1995).
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At the same time that the Illinois Supreme Court adopted Fed.R.Evid. 703, it also adopted Fed.R.Evid. 705. Wilson, supra. This rule now provides:
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
This change in the law spawned many important decisions in the 1980s and thereafter.
Medical records and reports prepared by nontestifying physicians may be relied on by expert physicians testifying to opinions based on the records. People v. Pitts, 104 Ill.App.3d 451, 432 N.E.2d 1062, 60 Ill.Dec. 163 (1st Dist. 1982); Perschall v. Metropolitan Life Insurance Co., 113 Ill.App.3d 233, 446 N.E.2d 570, 68 Ill.Dec. 664 (4th Dist. 1983); People v. Lyles, 106 Ill.2d 373, 478 N.E.2d 291, 87 Ill.Dec. 934, cert. denied, 106 S.Ct. 171 (1985); Barrar v. Clark, 136 Ill.App.3d 715, 483 N.E.2d 630, 91 Ill.Dec. 284 (3d Dist. 1985); People v. Wright, 111 Ill.2d 128, 490 N.E.2d 640, 95 Ill.Dec. 787 (1985), cert. denied, 107 S.Ct. 1327 (1987).
Although, under Wilson, expert witnesses may testify to their opinions based on records, treatises, or other material not in evidence, those materials are not necessarily admissible. Fornoff v. Parke Davis & Co., 105 Ill.App.3d 681, 434 N.E.2d 793, 61 Ill.Dec. 438 (4th Dist. 1982) (learned treatise was not allowed as substantive evidence to prove issue of fact); Schuchman v. Stackable, 198 Ill.App.3d 209, 555 N.E.2d 1012, 144 Ill.Dec. 493 (5th Dist. 1990) (medical expert not allowed to read from articles); Bailey v. City of Chicago, 116 Ill.App.3d 862, 452 N.E.2d 680, 72 Ill.Dec. 427 (1st Dist. 1983) (medical records compiled by other, nontestifying individuals on which expert relied remained inadmissible hearsay evidence on direct examination; however, information was usable as basis for opinion); Martin v. Zucker, 133 Ill.App.3d 982, 479 N.E.2d 1000, 88 Ill.Dec. 980 (1st Dist. 1985) (contents of nurse’s note not allowed to be read to jury since nurse did not testify to establish foundation and defendant did not rely on note in his testimony even though defense expert relied on note in forming his opinion).
Physicians may rely on deposition testimony of other physicians, pharmacists, and the plaintiff in forming an opinion. Hatfield v. Sandoz-Wander, Inc., 124 Ill.App.3d 780, 464 N.E.2d 1105, 80 Ill.Dec. 122 (1st Dist. 1984); Wingo v. Rockford Memorial Hospital, 292 Ill.App.3d 896, 686 N.E.2d 722, 226 Ill.Dec. 939 (2d Dist. 1997). Also, physicians may rely on medical records to offer opinions on the extent of an injury. People v. Chrisos, 142 Ill.App.3d 747, 492 N.E.2d 216, 97 Ill.Dec. 13 (5th Dist. 1986).
In Melecosky v. McCarthy Brothers Co., 141 Ill.App.3d 84, 489 N.E.2d 1115, 95 Ill.Dec. 387 (4th Dist.), rev’d, 115 Ill.2d 209 (1986), the appellate court held that non-treating physicians consulted in anticipation of trial could not rely on the plaintiff’s subjective statements as to his physical complaints in rendering an expert opinion. The Supreme Court reversed, adopting the reasoning of Wilson and the Advisory Committee Notes on Fed.R.Evid. 703. The Advisory Committee Notes acknowledged that the adoption of Fed.R.Evid. 703 and 705 was designed to bring judicial practice into line with the practice of experts themselves when they are not in court so that facts or data that would normally be relied on by experts in the field could be used. The Supreme Court held that such statements may be relied on by a non-treating physician expert in arriving at an expert medical opinion.
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The fact that an expert based an opinion on a report with which he did not entirely agree goes to the credibility of the opinion but does not render the opinion inadmissible. Gordon v. Chicago Transit Authority, 128 Ill.App.3d 493, 470 N.E.2d 1163, 83 Ill.Dec. 743 (1st Dist. 1984).
Statements made in a medical record cannot be used to show how an accident occurred since the change of law under Wilson was confined to the medical aspects of medical records. Guerrero v. City of Chicago, 117 Ill.App.3d 348, 453 N.E.2d 767, 72 Ill.Dec. 892 (1st Dist. 1983); Mazur v. Lutheran General Hospital, 143 Ill.App.3d 528, 493 N.E.2d 62, 97 Ill.Dec. 580 (1st Dist. 1986). However, they may be admitted for the sole purpose of illustrating and explaining the expert’s opinion. Henry v. Brenner, 138 Ill.App.3d 609, 486 N.E.2d 934, 93 Ill.Dec. 401 (3d Dist. 1985); Ziekert v. Cox, 182 Ill.App.3d 926, 538 N.E.2d 751, 131 Ill.Dec. 376 (1st Dist. 1989).
Until 1992, medical records, as well as police reports, were not admissible as business records pursuant to S.Ct. Rule 236. The exclusion of medical records was deleted effective August 1, 1992. All medical records may be allowed as business records provided the proper foundation is laid. Lecroy v. Miller, 272 Ill.App.3d 925, 651 N.E.2d 617, 209 Ill.Dec. 439 (1st Dist. 1995) (patient’s discharge summary admissible). Medical records may also be admitted pursuant to an alternative exception, such as a past recollection recorded or as a party admission in medical malpractice actions. See S.Ct. Rule 236; 725 ILCS 5/115-5. Even though medical records may be admissible as business records, when appropriate, the court should redact certain portions of the records. Polk v. Cao, 279 Ill.App.3d 101, 664 N.E.2d 276, 215 Ill.Dec. 879 (1st Dist. 1996).
Literature is inadmissible as substantive evidence. However, literature may be used as a basis for an expert’s opinion on direct examination. When used for this purpose, the experts can only cite to the literature — they cannot actually read the literature while testifying. Literature may also be used to impeach an expert on cross-examination. Before the literature is used for either purpose, the court must take judicial notice of the author’s competence or there must be evidence that the literature is authoritative. Witnesses are not required to use the term “authoritative” to permit use of the literature. The courts require only proof of the authority of the text and the author’s competence. Terms such as “standard,” “well-respected,” and “very good” are sufficient. Bowman v. University of Chicago Hospitals, 366 Ill.App.3d 577, 852 N.E.2d 383, 304 Ill.Dec. 133 (1st Dist 2006); Downey v. Dunnington, 384 Ill.App.3d 350, 895 N.E.2d 271, 324 Ill.Dec. 408 (4th Dist. 2008). See also Scott D. Lane, Use of Literature at Trial: “Authoritative” Is Not The Only Magic Word, 42 Tort Trends, No. 4 (Mar. 2007).
The credibility of an expert opinion should be established tacitly on the strength and reliability of the facts or data underlying it. By the same token, an attack of the opinion must attack the basis. While experts may now base their opinions on data or information not admitted or admissible into evidence, they still may not base an opinion on conjecture, speculation, or personal surmise. Johnson v. Commonwealth Edison Co., 133 Ill.App.3d 472, 478 N.E.2d 1057, 88 Ill.Dec. 449 (1st Dist. 1985); Dyback v. Weber, 134 Ill.App.3d 426, 480 N.E.2d 845, 89 Ill.Dec. 363 (2d Dist. 1985), aff’d in part, rev’d in part, 114 Ill.2d 232 (1986). Put another way, a mere opinion or conclusion is not admissible unless it is supported by analysis showing the application of scientific, technical, or other specialized knowledge. Huey v. United Parcel Service, Inc., 165 F.3d 1084 (7th Cir. 1999).
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9. [12.87] Acceptance of Scientific Evidence: Frye vs. Daubert Standards
In Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), the court established the Frye test, which is also called the “general acceptance test.” Under this test, the expert witness testimony must be generally accepted in a particular scientific field. The Frye court explained the standard as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 293 F. at 1014.
Professor Graham has written that imposing the Frye admissibility standard serves to accomplish the following:
(1) ensure that a minimal reserve of experts exist who can critically examine the validity of a scientific determination in a particular case; (2) promote a degree of uniformity of decision; (3) avoid the interjection of a time-consuming and often misleading determination of the reliability of a scientific technique into the litigation; (4) ensure that scientific evidence introduced will be reliable . . . and thus relevant; (5) provide a preliminary screening to protect against the natural inclination of the jury to assign significant weight to scientific techniques presented under circumstances where the trier of fact is in a poor position to place an accurate evaluation upon reliability; and (6) impose a threshold standard of reliability in light of the fact that cross-examination by opposing counsel is unlikely to bring inaccuracies to the attention of the jury. [Citation omitted.] CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §702.10, p. 660.
It should be noted that the Frye test applies to scientific evidence and not an expert’s opinion based on the expert’s own observations and experience. Jackson v. Seib, 372 Ill.App.3d 1061, 866 N.E.2d 663, 310 Ill.Dec. 502 (5th Dist. 2007); Noakes v. National Railroad Passenger Corp., 363 Ill.App.3d 851, 845 N.E.2d 14, 300 Ill.Dec. 593 (1st Dist. 2006); In re Marriage of Alexander, 368 Ill.App.3d 192, 857 N.E.2d 766, 306 Ill.Dec. 367 (5th Dist. 2006).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993), the Court did away with the Frye test (in federal court) and created a more complex test for the admissibility of expert testimony. Instead of simply requiring that the expert testimony be generally accepted within the scientific community, Daubert allowed for new and innovative theories to enter the courtroom, theories that might not have gained general acceptance. However, the court is to act as a safety net; judges are to act as gatekeepers to evaluate whether the testimony is “ground[ed] in the methods and procedures of science” or “derived by the scientific method.” 113 S.Ct. at 2795.
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To satisfy Daubert, it usually is necessary to consider the methodology or technique underlying an opinion and to evaluate whether the opinion could withstand empirical testing. The expert must follow the general methodology applicable to his or her particular field of expertise. Frye focused more on the nature of the opinion, while Daubert focused more on the method that the expert used to reach the opinion.
In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999), the Supreme Court announced the general proposition that the Daubert test applies to all expert opinions, not just scientific ones. Therefore, the trial judge’s general gatekeeping obligation applies not only to testimony based on scientific knowledge but also to testimony based on technical and other specialized knowledge. As long as the expert’s opinion rests on “good grounds” as required by Daubert, the court need not conduct a further screening of the opinion. The adversarial process, including competing expert testimony and cross-examination, remains to test its evidentiary weight in the eyes of the jury. Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77 (1st Cir. 1998).
In In re Commitment of Simons, 213 Ill.2d 523, 821 N.E.2d 1184, 290 Ill.Dec. 610 (2004), the Illinois Supreme Court once again acknowledged that the admission of expert testimony in Illinois is governed by the standard first expressed in Frye. The court further emphatically agreed with the court’s conclusion in In re Detention of Erbe, 344 Ill.App.3d 350, 800 N.E.2d 137, 279 Ill.Dec. 295 (4th 2003), that, whether or not actuarial risk assessment is subject to Frye, there is no question that it is generally accepted by professionals who assess sexually violent offenders and, therefore, is perfectly admissible.
Illinois, however, has not adopted the Daubert standard and adheres to the Frye criteria in the acceptance of scientific evidence. See People v. Hickey, 178 Ill.2d 256, 687 N.E.2d 910, 227 Ill.Dec. 428 (1997); People v. Miller, 173 Ill.2d 167, 670 N.E.2d 721, 219 Ill.Dec. 43 (1996); People v. Moore, 171 Ill.2d 74, 662 N.E.2d 1215, 215 Ill.Dec. 75 (1996); Agnew v. Shaw, 355 Ill.App.3d 981, 823 N.E.2d 1046, 291 Ill.Dec. 460 (1st Dist. 2005). In Agnew, the trial court granted the motion in limine filed by the defendant internist, radiologist, and corporation to bar the plaintiff’s expert’s “backward extrapolation” opinion on the basis that it was not generally accepted in the oncologic community. On appeal, the court held that the expert’s testimony was properly stricken pursuant to Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314, 262 Ill.Dec. 854 (2002), and Frye. See also Bernardoni v. Industrial Commission, 362 Ill.App.3d 582, 840 N.E.2d 300, 298 Ill.Dec. 530 (3d Dist. 2005) (expert testimony regarding multiple chemical sensitivity properly excluded under Frye test); In re Commitment of Sandry, 367 Ill.App.3d 949, 857 N.E.2d 295, 306 Ill.Dec. 202 (2d Dist. 2006) (penile plethysmograph test satisfies Frye test and may form basis of expert’s opinion).
In Miller, supra, the Illinois Supreme Court acknowledged that the U.S. Supreme Court in Daubert held that Fed.R.Evid. 702 applies in federal cases rather than the Frye “general acceptance” standard. Nonetheless, the Miller court declined to address sua sponte the issue of whether it should abandon the Frye standard and adopt the reasoning of Daubert. See also Whiting v. Coultrip, 324 Ill.App.3d 161, 755 N.E.2d 494, 258 Ill.Dec. 111 (3d Dist. 2001) (noting Frye test is law in Illinois, requiring general acceptance standards to be proved when introducing scientific evidence).
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The Frye standard applies to deductions from a purportedly scientific principle, technique, or test. It does not apply to simple “actuarial tables — methods of organizing and interpreting a collection of historical data.” Erbe, supra, 800 N.E.2d at 149, quoting In re Commitment of R.S., 339 N.J.Super. 507, 773 A.2d 72, 92 (2001). The mere fact that particular instruments are controversial should not render them inadmissible under Frye. Erbe, supra. In this case, actuarial risk assessment instruments were developed by observing sex offenders who re-offended to determine which “risk factors” they had in common. The court noted:
The actuarial instruments merely help the professional draw inferences from historical data or the collective experience of other professionals who have assessed sex offenders for risks of reoffending. In this regard, the instruments are akin to actuarial tables for life expectancy admitted as evidence to a jury for the determination of the gross amount awarded for future pain and suffering or used by an economic expert to determine the present cash value of a pension. Such instruments simply do not constitute the special scientific principle, method, or test to which Frye applies. 800 N.E.2d at 149.
Testimony by a physician at a Frye hearing that he had used single photon emission computer topograhy machines as a diagnosis tool for over 15 years and that the test is taught in medical school was sufficient under both Frye and Daubert to allow the physician’s testimony that the plaintiff’s scan was consistent with traumatic brain injury. Donnellan v. First Student, Inc., 383 Ill.App.3d 1040, 891 N.E.2d 463, 322 Ill.Dec. 448 (1st Dist. 2008).
Clearly, under either standard of acceptance (Daubert or Frye), it is absolutely essential that counsel be meticulous in discovery so as to be fully prepared to meet effectively any expert opinion proffered. For further discussion of opinion evidence, see ILLINOIS CIVIL TRIAL EVIDENCE, Ch. 5 (IICLE®, 2009, Supp. 2012).
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