delivered the opinion of the court:
Plаintiffs David and Jilayne Lagestee filed this negligence action against the defendants, various entities responsible for the ownership and management of the Days Inn Hotel on Lake Shore Drive in Chicago. Plaintiffs alleged that on February 19, 1991, plaintiff David Lagestee (David) sustained personal injuries on the premises of the Days Inn Hotel and that the negligence of the employees and agents of the defendants proximately caused David’s injuries. Following a jury trial, the jury found in favor of the defendants. The trial court denied plaintiffs’ posttrial motions for judgment notwithstanding the verdict or, alternatively, a new trial.
On appeal, plaintiffs raise two issues for review. Plaintiffs contend that the trial court erred in: (1) barring plaintiffs from presenting rebuttal testimony following the testimony of defendants’ only witness, Tammy Lestinsky; and (2) allowing defendants to cross-examine plaintiffs’ medical expert witnesses on David’s cigarette smoking, preexisting condition, prior injuries, and prior accidents.
At trial, David testified that on February 19, 1991, he was employed at Ace Disposal, a waste hauling company. David stated that on that date he was in good health. He also testified that he had previously injured his back several years earlier, but the injuries were not serious and he had back pain for only a few days. David testified in 1991 he was not exрeriencing any symptoms from these prior injuries.
On February 19, 1991, David’s duties as a waste hauler included picking up a Dumpster at the Days Inn Hotel in Chicago. David had removed the Dumpster on prior occasions. At the Dumpster location, he noticed that a chain-link fence next to the Dumpster was missing a support pipe, and the pipe was actually lying on the ground next to the fence. In addition, the fence had a metal coupling sticking out from the area where it lacked piping. David had reported the condition of the fence before the accident to Tammy Lestinsky, a security guard employed by the defendants. The fence was never repaired.
David further testified that, on the date of the accident, the ground area around the Dumpster was littered with debris and was dirty. In order to separate the Dumpster from the compactor, he was required to loosen a ratchet handle on the Dumpster. While performing this task, David slipped backward and fell on the chain-link fence. His lower back struck the pipe coupling protruding from the fence. After the fall, he noticed that he slipped on tomato paste or sauce and that the paste covered his arms and legs. He also sustained an abrasion or cut on his right arm.
David testified that, following the fall, he reported the accident to Tammy Lestinsky. He told her that he had fallen and that the area around the Dumpster was a mess. Lestinsky told him that she would call house cleaning. Lestinsky assisted David with cleaning the abrasion to his right arm. Lestinsky did not fill out an accident report or examine the area around the Dumpster. After speaking with Lestinsky, David removed the Dumpster and left the Days Inn Hotel. There were no other witnesses to his fall.
David further testified that he returned to the Days Inn Hotel in July of 1991 with his attorneys, Kenneth Lewis and Ann Louise Kleper. David and his attorneys spoke with Lestinsky and she confirmed that she saw that David was injured, that she assisted him with his injuries, and that she believed shе called someone to clean the area where he stated he fell.
David additionally testified that, as a result of the fall at the Days Inn Hotel, he sustained an injury to his back. He stated that, following the accident, he had lower back pain but was still able to work. Because the back pain continued, he sought medical treatment from his family physician in March of 1991. Eventually, David had severe pain in his lower back and right leg and was unable to sit down or bend over. He was referred to a neurologist, who recommended microdisectomy surgery on his back. On May 3, 1991, David had the back surgery. Following the surgery, his back pain was substantially reduced, but he still сontinued to have some pain. David further testified that because of the continued back pain, he had difficulties performing his duties as a waste hauler and took a desk job.
Dr. Charles Mylan Chuman testified that he is a neurological surgeon and first treated David on May 3, 1991, for severe back and right leg pain. Dr. Chuman stated David was unable to raise his right leg while lying on his back. Dr. Chuman found muscle weakness in David’s right leg and initially diagnosed David with right sacral one radiculopathy. Dr. Chuman then performed a myelogram to determine if David had any disk or nerve problems in his spine. The myelogram revealed that David sustained a herniation in the bottom disk in his spine at the L5-S1 level. Dr. Chuman further testified that in his opinion the herniated L5-S1 disk caused David’s pain in his right leg.
On May 3, 1991, Dr. Chuman performed an operation on David to remove the ruptured portions of the herniated disk. Dr. Chuman continued to treat David until June 6, 1991. He testified that, during this time frame, David was unable to perform any bending or twisting activities and was unable to perform his job duties. Dr. Chuman described the surgery as successful and substantially decreased David’s pain.
Dr. Chuman testified that in his medical opinion David’s fall on February 19, 1991, caused the disk herniation. Dr. Chuman stated that when he performed surgery on David in May of 1991, he found a fresh injury that had occurred in the recent past. Dr. Chuman additionally stated that the disk herniation оccurred from trauma that David sustained within the previous year. Dr. Chuman opined that the L5-S1 disk herniation was a permanent condition.
On cross-examination, defense counsel asked Dr. Chuman whether he recommends to his patients that they stop smoking cigarettes and whether there exist any medical studies that state smoking cigarettes causes a permanent disk injury in the lumbar spine. Dr. Chuman answered “yes” to these questions. Defense counsel also questioned Dr. Chuman on whether David could have sustained the disk herniation at the L5-S1 nerve root a year prior to the surgery but not have had any pressure on the nerve or subjective pain. Dr. Chuman responded “no” to this question, because, according to Dr. Chuman, David’s disk injury was too big and was a fresh injury.
Plaintiffs called an additional expert witness, Michael Roy Treister, M.D. Dr. Treister, an orthopedic surgeon, testified that he reviewed David’s medical records and first examined him in February of 1992. Dr. Treister stated that between the time of his accident on February 19, 1991, and the time he had surgery on May 3, 1991, David had a herniated disk at the L5-S1 level. In addition, Dr. Treister found that David had a bulging disk at the L4-L5 level, but concluded that the disk was not impinging on any nerve. Dr. Treister diagnosed David with degenerative disk disease, a by-product of aging. Dr. Treister testified that in his medical opinion David’s falling accident сaused the L5-S1 herniated disk. Dr. Treister specifically opined that the trauma from his lower back striking the pipe caused the herniation.
Dr. Treister did not believe that any degenerative disk changes in David’s spine were a cause of the herniated L5-S1 disk, but that trauma to his spine in fact caused the herniation. However, he also stated that David “had some degree of degenerative disk disease, or he wouldn’t have had the disk herniation.” Dr. Treister testified that the herniated disk was a fresh injury because of its appearance at the time Dr. Chuman operated on the disk. Dr. Treister additionally testified that David sustained a permanent injury and that he properly changed his lifestyle to avoid heavy lifting and other activities that could cause future back problems or other herniations.
Moreover, Dr. Treister stated that David’s smoking of cigarettes had no causal connection with the L5-S1 disk herniation. On cross-examination, defense counsel questioned Dr. Treister on David’s accident in 1986 when he fell off a loading dock and injured his back. According to Dr. Treister’s reports, a 1986 falling accident caused David to sustain a fractured third lumbar vertebra at the L3 level. Dr. Treister, however, testified that because the fracture constituted a non-united hypophysis, he had never seen this type of injury cаuse back pain. Dr. Treister then opined that the L3 hypophysis was unrelated to David’s L5-S1 disk herniation because David had no complaints of pain in his thigh area or other areas of his body that would correlate with the L3 hypophysis back injury.
Defense counsel additionally asked Dr. Treister about a prior injury to David’s back in 1987 when he was in a car accident and about “some type of back injury” he sustained while playing football in high school. Dr. Treister responded that his records reflected these previous injuries. Dr. Treister, however, testified that in his opinion none of these prior injuries caused the disk herniation. Dr. Treister stated David’s medical histоry was devoid of any symptoms or history correlating to a L5-S1 disk herniation.
The defendants did not call any expert medical witnesses. The defendants only called one witness, Tammy Lestinsky. She testified that she was a security guard and timekeeper at the Days Inn Hotel from February 1987 until September 1993. She remembered the plaintiff, David Lagestee, coming to the Days Inn Hotel a few times a week to remove the Dumpsters.
Lestinsky testified that on February 19, 1991, David never reported to her that he fell near the Dumpster, that he never stated there was tomato sauce or paste near the Dumpster, and that he did not ask her for a bandage or other medical assistance. Lestinsky then stated that David, in July 1991, returned to the Days Inn with two attorneys. They took pictures of the Dumpster area and asked her for a statement. Lestinsky testified that David told her that he was there for a “compensation,” that Days Inn had nothing to do with the compensation, and that he requested if Lestinsky would state on a tape recorder that she gave him a bandage. Lestinsky then testified that she gave a recorded statement about David requesting a bandage after he fell.
The tape recording was played in front of the jury. In the recording, Lestinsky stated that on February 19, 1991, David reported to her that he fell near the Dumpster аnd that she saw that his arm was bleeding. Lestinsky identified her voice as the one on the tape recorder. She testified that she gave the statement because she felt pressured and that David told her what to say.
After Lestinsky testified, defendants rested. Plaintiffs requested permission to call two rebuttal witnesses, Ann Louise Kleper and Ken Lewis. Plaintiffs’ counsel stated to the trial court that Lestinsky testified that she had lied on the tape recording about assisting David and that plaintiffs’ witnesses would rebut that testimony. The trial court found that timely notice of the rebuttal testimony was lacking and that it was unclear from Lestinsky’s testimony who exactly told her to speak on the tape. Thus, the trial court denied plaintiffs’ request to present rebuttal evidence.
Before closing arguments, plaintiffs renewed their request to call a rebuttal witness. Plaintiffs’ counsel told the court that he intended to call David to rebut Lestinsky’s testimony by asking him if he told Lestinsky what to say on the tape recording. The trial court again denied plaintiffs’ request. The jury found in favor of the defendants and the trial court denied plaintiffs’ posttrial motions.
Plaintiffs first argue that the trial court erred in precluding the plaintiffs from calling a rebuttal witness following the testimony of Tammy Lestinsky. The defendants counter that plaintiffs failed to make an appropriate offer of proof regarding the excluded evidence and therefore failed to preserve this issue for review.
A proponent of excluded evidence is required to make an adequate offer of proof in the trial court to preserve the issue for review. In re A.M.,
A statement by counsel may be a sufficient offer of proof when the offered evidence is obvious and when neither opposing counsel nor the court disputes counsel’s statement. Wright v. Stokes,
Similarly, in In re A.M., a witness in a petition for wardship of her minor siblings denied telling a youth counselor that she recanted allegations of sexual abuse against her father because she did not want to hurt her father. In re A.M.,
In this case, the statements made by plaintiffs’ counsel to the trial court regarding the proposed rebuttal testimony were a sufficient offer of proof. Lestinsky testified that David pressured her and told her to say that she assisted him on February 19, 1991. After defendants rested, plaintiffs’ counsel first stated to the trial court that he intended to call in rebuttal the two lawyers who were with David at the time of this conversation to impeach Lestinsky. The trial court denied this request. Before closing arguments, plaintiffs’ counsel additionally stated to the trial court that he wanted “to put on [David] Scott Lagestee just to ask him the question: Did that conversation ocсur, did he tell [Lestinsky] what to say.”
In response to plaintiffs’ counsél’s statements, the trial court stated it was unclear who told Lestinsky what to say and held that there was no need for rebuttal evidence. Defense counsel replied that Lestinsky’s testimony should not have surprised plaintiffs’ counsel. Therefore, neither defense counsel nor the trial court disputed that plaintiffs’ witnesses would contradict Lestinsky’s testimony that David told her what to say in July of 1991. Moreover, like counsel’s statements in Wright and in In re A.M., it was obvious from plaintiffs’ counsel’s statements to the trial court that his rebuttal witnesses sought to impeach Lestinsky about her prior conversation with David Lagestee. Thеrefore, we find that plaintiffs have made a sufficient offer of proof and preserved this issue for review.
We now address whether the trial court erred in excluding plaintiffs’ proposed rebuttal testimony. Rebuttal evidence is admissible “if it tends to explain, repel, contradict or disprove the evidence of defendant.” People ex rel. Mendez v. Villa,
If a defendant presents in its case in chief an affirmative matter to suppоrt its defense, the plaintiff then has the right to introduce evidence in rebuttal as to such affirmative matter. Flanagan v. Redondo,
In Pellico v. E.L. Ramm Co.,
In the present case, the trial court erred in restricting plaintiffs’ right to rebut the affirmative matters raised in Lestinsky’s testimony. Lestinsky, defendants’ only witness, denied that David ever reported a falling accident to her and recanted the tape-recorded statement she gave to David and his attorneys. Even more importantly, Lestinsky testified that David, accompanied by his attorneys Ken Lewis and Ann Louise Kleper, told her what to say on his behalf to corroborate the fact that he had been injured on the Days Inn property on February 19, 1991. Defense counsel obtained the following testimony from Lestinsky:
“Q. What did [plaintiff] say?
A. He said that he was there for compensation, something compensation that he got hurt and he said it really had nothing to do with the Days Inn, and he asked me if I would say if I gave him a band-aid on a tape.
Q. Did Mr. Lagestee talk to you before your voice was recorded?
A. Yes, he did.
Q. Did you feel pressured at all while you were giving that statement?
A. Yes, I did.
Q. Why is that?
A. Because I was nervous and I asked them if they could leave because my boss or somebody would come back and I didn’t want to get in trouble, and I asked them to leave and they were just like give us a couple minutes, give us a couple minutes. They said, all you have to do is talk. So I really wanted them to leave.
Q. All they wanted to do was talk. And did they tell you what to say?
A. Yes. He told me about the band-aid. He said I didn’t have to be specific about that he fell, just say he had a band-aid.
Q. When you say ‘he,’ you’re talking about David Lagestee?
A. Right.”
Based on a review of the above record, Lestinsky’s testimony accused David of telling her what to say and made the same accusation against his attorneys. Therefore, as in Flanagan and Pellico, defendants raised an affirmative matter in support of their defense, specifically, whether David and his аttorneys solicited Lestinsky to fabricate a statement. Similar to the plaintiffs in Flanagan and Pellico, plaintiffs here were entitled to present rebuttal testimony to explain, discredit, or impeach the defendants’ evidence.
Furthermore, the trial court’s failure to allow rebuttal testimony prejudiced the plaintiffs and denied them a fair trial. The plaintiffs should have been given the opportunity in rebuttal to deny Lestinsky’s serious allegations against David. Defendants’ accusations not only went to the heart of plaintiffs’ case on the issue of liability but directly impacted on David’s credibility. The unrebutted testimony of Lestinsky improperly left the direct inference, through the court-imposed silence of David, Ken Lewis, and Ann Louise Kleper, that Lestinsky’s claim about David obtaining a false statement from her was true. The prejudice was clear in this case because the accident was unwitnessed, the credibility of David was critical to the jury’s decision, and the accusations were directly relevant to the issue of liability.
The trial court committed reversible error by denying the plaintiffs their right to call witnesses in rebuttal to dispute Lestinsky’s serious allegations. Because the trial court excluded plaintiffs’ rebuttal evidence, the case is reversed and remanded for a new trial in accordance with this opinion.
Since we are remanding for retrial, we will address plaintiffs’ additional contention that the trial court erred in permitting evidence of David’s smoking, prior injuries, prior accidents, and preexisting condition.
Prior to trial, plaintiffs moved in limine to preclude the defendants from introducing any collateral evidence of David’s cigarette smoking, preexisting conditions, prior injuries, and prior accidents. Plaintiffs contended that defendants did not disclose or possess any medical opinion or other relevant evidence to demonstrate a causal connection between David’s smoking, prior injuries, prior aсcidents and preexisting condition and the injuries David allegedly sustained in the instant action. The trial court denied the motions, and during the trial allowed defense counsel to cross-examine David’s treating surgeon, Dr. Chuman, and retained expert witness, Dr. Treister, on David’s smoking, prior injuries to his back, prior accidents, and preexisting spine condition. The trial court held that this evidence was relevant to future disability.
A prior injury or preexisting condition may be relevant to the issue of a plaintiff’s damages in a personal injury action. Wilson v. Granite City Steel Division of National Steel Corp.,
Two recent cases have refined the type of proof the defendant is required to present on the issue of causation. In Brown v. Baker,
The Fifth District Appellate Court reversed. The court noted that, in a personal injury action when the claimed injury is complex or could have been caused by an event other than the accident at issue, a plaintiff may need testimony from a physician to provide, the necessary evidentiary causation link between the accident and the injury at issue. Brown,
In Cando v. White,
Relying on the Brown case, the First District Appellate Court concluded in Cando that defendant failed to establish the necessary causal link between plaintiffs preexisting condition and her current injury. Cando,
The fourth district, while recognizing the potential problems outlined by the Brоwn court concerning the “same part of the body rule,” continues to follow that rule. Bailey v. Wilson,
The Bailey court fails to address the inherent problems of the “same part of the body” rule but simply notes them. Bailey,
Moreover, Brown highlights the evidentiary problems of the “same part of the body” rule. Brown,
After a careful review of Brown and Cando, we hold that the defendant is required to present medical or other competent evidence of a causal or relevancy connеction between plaintiff s prior injury, prior accident, or preexisting condition and the injury at issue as a prerequisite of admissibility. Brown,
Defendant may not always need to present medical expert testimony for admissibility purposes. The exact evidence defendant will need to produce to establish the relevancy or causal connection may for example depend on the nature, extent, duration and treatment of the prior injuries, prior accidents or preexisting condition and the injury for which plaintiff is seeking damages.
In the instant case, the trial court erred in allowing defendants to introduce evidence of David’s childhood injury, smoking cigarettes, and prior injuries and accidents. However, evidence of David’s preexisting degenerative disk disease was properly presented to the jury.
Plaintiffs’ medical testimony established that David sustained an L5-S1 disk herniation as a direct result of a fall at the Days Inn Hotel. Both Dr. Chuman, David’s treating physician, and Dr. Treister, David’s retained expert, excluded any other trauma or accident as the cause of David’s disk herniation.
Similar to the childhood injury scenario discussed in Brown, the trial court permitted defense counsel to cross-examine plaintiffs’ medical expert witnesses on an alleged injury David sustained to his bаck while playing sports in high school. However, at the time of the accident in this case, David was 30 years old and testified that he experienced no symptoms from any prior injuries to his back. In addition, defense counsel produced no other evidence related to the alleged high school injury, which occurred approximately 15 years before David’s fall and resulting disk herniation. The only evidence therefore in thé record was that the high school back injury had long since healed and produced no symptoms for 15 years. The jurors were invited to speculate on the exact nexus between the childhood injury and the injury for which plaintiffs were seeking compensation in this case because defendants failed to produce any relevant evidence on causation between the childhood injury and the L5-S1 disk herniation. Specifically, Illinois jury instructions attempt to prevent jurors from engaging in precisely this type of speculation and require that each “verdict must be based on evidence and not upon speculation, guess or conjecture.” Illinois Pattern Jury Instructions, Civil, No. 1.01(3) (3d ed. 1995). Therefore, evidence of David’s childhood back injury was error and should not be admitted upon retrial, unless defendants can present evidence demonstrating a relevаncy or causal link between David’s childhood back injury and the L5-S1 disk herniation.
Regarding the collateral issue of David’s smoking, Dr. Chuman testified that medical studies exist which state that smoking may cause premature disk deterioration in the lumbar spine, but he found no causal connection between David’s smoking and the L5-S1 herniated disk. Dr. Treister expressed the same opinion that David’s smoking was not related to his disk herniation. Therefore, because defendants offered no relevant evidence of a causal connection between David’s smoking and his L5-S1 disk herniation, the evidence of smoking was inadmissible. On retrial, defendants cannot raise David’s smoking without рresenting an evidentiary basis demonstrating a relevancy or causal link between David’s smoking and the L5-S1 disk herniation.
In addition, the trial court allowed defendants to cross-examine Dr. Treister about two separate prior accidents and injuries to David’s back: a fall off a loading dock in 1986 and a car accident in 1987. During his testimony, David testified that at the time of the accident at the Days Inn on February 19, 1991, his back was in good condition and he had no symptoms from any prior back injury. Dr. Treister confirmed that none of these prior injuries or accidents caused David’s L5-S1 disk herniation. Dr. Treister testified that the 1986 injury had healed and was unrelated to David’s L5-S1 disk herniation. Dr. Treister’s records reflected the 1987 accident and injury, but, according to Dr. Treister, the symptoms from this past injury were unrelated to David’s L5-S1 disk herniation. Therefore, Dr. Treister concluded that the trauma from David’s fall was the only cause of David’s L5-S1 disk herniation. Defendants presented no other relevant evidence to link the prior accidents and injuries with David’s L5-S1 disk herniation.' Consequently, the trial court erred in allowing defendants to cross-examine Dr. Treister about David’s fall off a loading dock in 1986 and car accident in 1987. Such cross-examination should not be permitted upon retrial unless defendants can present evidence demonstrating the relеvancy or causal link between the prior accidents and injuries and David’s L5-S1 disk herniation.
Lastly, Dr. Treister testified that David had degenerative disk disease within his spine. Although Dr. Treister opined that trauma from a fall caused David’s L5-S1 disk herniation, he additionally stated that David had some degree of degenerative disk disease, or he wouldn’t have had the disk herniation. Therefore, Dr. Treister’s testimony constituted sufficient relevant evidence that David’s degenerative disk disease was causally related to the L5-S1 disk herniation. Cross-examination of Dr. Treister regarding the degenerative disk disease was properly allowed.
For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded for a new trial consistent with this opinion.
Reversed and remanded.
TULLY and GALLAGHER, JJ., concur.