Defense lawyers have been suggesting other causes of injuries since the Stone Age. The Fifth Appellate District, in Campbell v. Autenrieb recently handed down a decision that does a nice job of explaining exactly when such testimony is permissible. In Campbell, the plaintiff was injured when an unleashed dog lunged at Campbell and caused him to fall. Campbell alleged the fall caused serious back injuries which dramatically altered his lifestyle and caused a $200,000 wage loss. At trial, Campbell’s treating surgeon, Dr. Kennedy was called to testify. Defense counsel, on cross, suggested other causes of the injuries:

[Defense Counsel]: Okay. Sometimes people’s back will just go out for no reason; would you agree with that?

[Dr. Kennedy]: Yes.

Q: They call it an idiopathic cause?

A: Yes.

Q: And the annular fissure, we talked about that. That could be caused – You mentioned it might be caused by the incident like he described to you with the dog, but it could be caused by many other factors; would you agree?

A: Possible.

Q: Lifting, twisting, any kind of daily activities involving those types of events?

A: Well I think as a general proposition that’s possible, yes.

The jury came back with a verdict for plaintiff in the amount of $16,000. The plaintiff filed a motion for a new trial on damages which the trial court denied. Plaintiff appealed, arguing that suggesting some phantom “lifting, twisting” suggestion was inadmissible speculation.

The Appellate Court got it right. The opinion noted that the hypothetical testimony elicited from Dr. Kennedy by defense counsel invited the jury to speculate about unproven causes of Campbell’s injuries, contrary to well-established Illinois case law. See Voykin v. Estate of DeBoer, 192 Ill.2d 49.

And the Court weighed in on when a pre-existing injury or condition may be admissible. The defense must first present expert evidence why the earlier injury or condition is relevant. There should be a causal link between the other injuries suggested and the specific injury before the jury. The hired gun doc the defense brings may be well credentialed. And he may be a compelling, articulate witness. But that expert doesn’t get to offer opinions based on assumptions that have no basis in fact. Since the defense didn’t offer any medical evidence to provide the necessary link between this mysterious lifting and twisting, the testimony was pure conjecture. The trial court was reversed and a new trial ordered.

Kudos to the lawyers for Campbell – Armbruster, Dripps, Winterscheidt & Blotevogel for staying the course and getting a bad result based on phantom evidence reversed.