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SIXTH DIVISION
July 11, 2003

JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Gaetano DiCosola, prevailed in the underlying personal injury action againstdefendant, Karyn Bowman. Defendant filed a timely appeal, raising the following issues for ourconsideration: (1) whether the trial court erred when it granted plaintiff's motions in limine toexclude photographs depicting the apparent minimal damage to plaintiff's postcollision vehicleand prohibiting defendant from arguing, without expert testimony, that a correlation existedbetween the amount of damage to the vehicle and the extent of plaintiff's injuries; (2) whether thetrial court erred when it prohibited defendant from arguing, without expert testimony, thatplaintiff's injury was caused by the repetitive use of his arm; (3) whether the trial court correctlygranted a directed verdict against defendant on the issue of negligence; and (4) whether the trialcourt correctly ruled that the evidence deposition fee of plaintiff's treating physician, Dr. EugeneBartucci, and the related transcript fee for the evidence deposition, be charged to defendant astaxable costs.

BACKGROUND

On March 19, 1997, plaintiff was operating his vehicle in a Dominick's Finer Foodsparking lot located at 6630 Ridge Road in Chicago. Plaintiff was stopped in one of the aisles,waiting for someone to back out of a parking spot. He had been stopped for approximately 20seconds when defendant, who was not looking at plaintiff's vehicle, drove her vehicle through aparking space and collided with plaintiff's vehicle. Defendant admitted seeing plaintiff's vehiclejust before she struck it and swerving in an attempt to avoid hitting plaintiff.

Plaintiff sought medical treatment for an elbow injury approximately four weeks after theaccident. He first sought treatment from Dr. Bhatia. When his condition did not improve, hesought treatment from an orthopedic surgeon, Dr. Eugene Bartucci. Dr. Bartucci diagnosedplaintiff with medial epicondylitis, commonly referred to as "golfer's elbow." Dr. Bartucciadministered two cortisone shots over a four-month period, but both failed to be effective aslong-term treatment. Dr. Bartucci suggested physical therapy to attempt to treat the elbow. Before plaintiff could start treatment, he was involved in a second automobile accident.⁽¹⁾ Plaintiff began physical therapy in February 1998, which also failed to correct the injury. After afinal cortisone shot was administered and failed to alleviate plaintiff's problems, his onlyremaining option was surgery. Plaintiff decided not to pursue that course of treatment.

Plaintiff subsequently filed suit against defendant. Prior to trial, plaintiff presentedseveral motions in limine, some of which were granted by the trial court. The parties stipulatedthat the medical bills in this case are $1,763. There is no wage loss claim.

Dr. Bartucci's testimony was presented by way of an evidence deposition. Dr. Bartucciopined that the first collision caused plaintiff's medial epicondylitis and the second collisionaggravated that condition. Dr. Bartucci also concluded that plaintiff's condition is permanent anda significant cause of past and future pain and disability. Defendant presented no expertwitnesses.

On January 16, 2002, a jury returned a verdict in favor of plaintiff and against defendantin the amount of $47,063 plus costs. Defendant now appeals.

ANALYSIS

The first issue raised on appeal is whether the trial court erred when it granted plaintiff'smotions in limine to exclude (1) evidence as to the dollar amount of property damage toplaintiff's or defendant's vehicle and (2) testimony or photographs regarding the damage to thevehicles. The trial court agreed with plaintiff that any evidence depicting the apparent minimaldamage to plaintiff's postcollision vehicle was irrelevant to any issues before the court. Thecourt decided that, absent expert testimony, the evidence was inadmissible to show that acorrelation existed between the amount of damage to plaintiff's vehicle and the extent ofplaintiff's injuries.

The parties disagree as to the standard of review that applies to the trial court's rulings onplaintiff's motions in limine. Generally, this court reviews a trial court's rulings on a motion inlimine under an abuse of discretion standard. Beehn v. Eppard, 321 Ill. App. 3d 677, 680, 747N.E.2d 1010, 1013 (2001), citing People v. Williams, 188 Ill. 2d 365, 369, 721 N.E.2d 539, 542(1999). Thus, plaintiff contends that our review should be deferential because the admissibilityof evidence is committed to the sound discretion of the trial court. As the Beehn court furtherexplained, however: "[A] trial court must exercise its discretion within the bounds of the law.[Citation.] Where a trial court's exercise of discretion relies on an erroneous conclusion of law,*** our review is de novo. [Citation.]" Beehn, 321 Ill. App. 3d at 680-81, 747 N.E.2d at 1013,citing Williams, 188 Ill. 2d at 369, 721 N.E.2d 539. Defendant, citing Beehn and Williams, nowsuggests that our standard of review is de novo because the trial court's rulings on plaintiff'smotions in limine were based on an erroneous conclusion of law.

The trial court decided that, absent expert testimony, defendant could not admit evidenceof the property damage or the vehicle photographs merely to "argue that there is any relationshipbetween the amount of the property damage and the nature and extent of the injury." Defendant'sargument that the trial court misapplied the law is based on her contention that the trial court wasrequired to admit the photographs into evidence. Defendant relies heavily on Cancio v. White,297 Ill. App 3d. 422, 697 N.E.2d 749 (1998). The Cancio court, in concluding that theadmission of photographs of a vehicle was proper, stated as follows:

"[T]he photos of plaintiffs' vehicle were relevant to the nature and extent ofplaintiffs' damages. They were relevant because they showed little or no damage,which is something the jury could consider in determining what, if any, injuries[the plaintiffs] sustained as a result of the accident." Cancio, 297 Ill. App 3d. at433, 697 N.E.2d at 756.

Although the Cancio court, in dicta, explained why it believed the photographs in that case to berelevant, it did not state that such photographs are always or automatically relevant. Cancio didnot create a bright line relevancy standard nor did it hold that excluding such evidence constitutesreversible error. While not explicitly stating the rule, the court in Cancio acknowledged the rulethat the admissibility of photographs is discretionary. Cancio, 297 Ill. App 3d. at 433, 697N.E.2d at 756, quoting Bullard v. Barnes, 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235 (1984)("'a decision [to admit a photograph] normally rests within the discretion of the trial court' ").

Defendant notes that the Cancio court did not require expert testimony before thephotographic evidence was admissible for the purpose of determining plaintiffs' injury, if any,and the nature and extent of that injury. Nonetheless, the plaintiffs in Cancio had specifically -and only - argued that the photographs were irrelevant because liability was not in issue. Cancio,297 Ill. App 3d. at 433, 697 N.E.2d at 756. The Cancio court was not presented with, nor did itconsider at all, the issue of whether expert testimony should have been required with respect tothe admissibility of the photographs.

In further support of her argument that the trial court did not exercise its discretion withinthe bounds of the law, defendant also relies on Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d508 (1992).⁽²⁾ Defendant, however, overstates the importance of the photographic evidenceconsidered by the Maple court. Similar to the Cancio case, although the court acknowledged thephotographs of the plaintiff's postcollision vehicle as evidence considered at trial (Maple, 151 Ill.2d at 458, 603 N.E.2d at 514), the admissibility issue was not squarely before the court. Butmore importantly, unlike the present case, the jury considered expert medical testimonypresented by the defendant to show that the plaintiff sustained no injury. Maple, 151 Ill. 2d at458-59, 603 N.E.2d at 515. In its opinion, the Illinois Supreme Court never discussed anythingrelated to the admissibility of the photographs.

Thus, contrary to defendant's contention, no Illinois case stands for the proposition thatphotographs showing minimal damage to a vehicle are automatically relevant and must beadmitted to show the nature and extent of a plaintiff's injuries. There simply is no such bright-line rule that photographs depicting minimal damage to a postcollision vehicle are automaticallyadmissible to prove the extent of a plaintiff's bodily injury or lack thereof. The trial court herewas not required to automatically admit the photographic evidence of the minimal damage toplaintiff's vehicle. We reject defendant's argument that the trial court here abused its discretionbecause its decision requiring expert testimony rested on an erroneous conclusion of law.

The trial court granted plaintiff's motion in limine to exclude the photographs becausethey were irrelevant to any issues before the court in this case. "Relevant evidence" is that whichhas "any tendency to make the existence of any fact that is of consequence to the determinationof the action more or less probable than it would be without the evidence." Wojcik v. City ofChicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303, 309 (1998). The trial court is "vested withbroad discretion to grant a motion in limine 'as part of its inherent power to admit or excludeevidence.' [Citation.]" Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1005, 785 N.E.2d507, 516 (2003). A reviewing court will not disturb the trial court's decision to grant a motion inlimine absent a clear abuse of discretion. Hawkes, 336 Ill. App. 3d at 1005, 785 N.E.2d at 516. In determining whether there has been an abuse of discretion, this court may not substitute itsjudgment for that of the trial court, or even determine whether the trial court exercised itsdiscretion wisely. Simmons v. Garces, 198 Ill. 2d 541, 568, 763 N.E.2d 720, 737 (2002). Areviewing court may find an abuse of discretion only where "no reasonable person would take theposition adopted by the trial court." Taxman v. First Illinois Bank of Evanston, 336 Ill. App. 3d 92, 97, 782 N.E.2d 803, 807 (2002). Applying that standard to the instant case, we conclude thatthe trial court did not abuse its discretion in granting plaintiff's motions in limine to (1) excludeevidence as to the dollar amount of property damage to plaintiff's or defendant's vehicle and (2)exclude testimony or photographs regarding the damage to the vehicles.

Moreover, the trial court's decision is consistent with the Illinois Supreme Court in thecase of Voykin v. DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275 (2000). In Voykin, our supreme courtrejected the evidentiary rule known as "the same part of the body rule," which had essentiallyprovided as follows: "[I]f a plaintiff has previously suffered an injury to the same part of thebody, then that previous injury is automatically relevant to the present injury simply because itaffected the same part of the body." Voykin, 192 Ill. 2d at 57, 733 N.E.2d at 1279. The Voykincourt described the same part of the body rule as "nothing more than a bright-line relevancystandard." Voykin, 192 Ill. 2d at 57, 733 N.E.2d at 1279. In abrogating the same part of the bodyrule, the Voykin court criticized this automatic relevancy basis of the rule. As the court explained" ' "[r]elevancy is not an inherent characteristic of any item of evidence but exists only as arelation between an item of evidence and a matter properly provable in the case." ' [Citation.] "Voykin, 192 Ill. 2d at 57, 733 N.E.2d at 1279. The Voykin court instead decided that for evidenceof a plaintiff's prior injury to be admissible, the prior injury must make the existence of a fact thatis of consequence more or less probable. Voykin, 192 Ill. 2d at 56-57, 733 N.E.2d at 1279.

More importantly, the Voykin court pointed out that "jurors are not skilled in the practiceof medicine." Voykin, 192 Ill. 2d at 58-59, 733 N.E.2d at 1279. As the court explained:

"Without question, the human body is complex. * * * In most cases, theconnection between the parts of the body and past and current injuries is a subjectthat is beyond the ken of the average layperson. Because of this complexity, wedo not believe that, in normal circumstances, a lay juror can effectively oraccurately assess the relationship between a prior injury and a current injurywithout expert assistance. Consequently, we conclude that, if a defendant wishesto introduce evidence that the plaintiff has suffered a prior injury, whether to the'same part of the body' or not, the defendant must introduce expert evidencedemonstrating why the prior injury is relevant to causation, damages, or someother issue of consequence. This rule applies unless the trial court, in itsdiscretion, determines that the natures of the prior and current injuries are suchthat a lay person can readily appraise the relationship, if any, between thoseinjuries without expert assistance." (Emphasis added.) Voykin, 192 Ill. 2d at 59,733 N.E.2d at 1280.

This court has explained that the rationale for requiring a defendant to introduce this experttestimony is "to avoid what amount[s] to the jury forming medical opinions." Hawkes v. CasinoQueen, Inc., 336 Ill. App. 3d at 1008, 785 N.E.2d at 518 (2003).

The same principles apply to the relationship between damage to a plaintiff's vehicle andthe nature and extent of a plaintiff's personal injuries. Nonetheless, contrary to the dissent'sassertion, we are not creating a bright-line rule, we are rejecting a bright-line rule. To hold, asthe dissent suggests, that such photographs are always relevant and admissible, is to create abright-line rule that expert testimony is never required. We do not hold that expert testimonymust always be required for such photographic evidence to be admissible. We hold that the trialcourt in this case did not abuse its discretion in requiring expert testimony to show a correlationbetween the extent of the vehicular damage and the extent of plaintiff's injuries.

Nor, as the dissent suggests, was the plaintiff required to offer additional evidence orshow that there was no correlation between the property damage to the vehicle and the nature andextent of his injuries. As our supreme court reiterated in Voykin, a defendant who wishes tointroduce evidence as part of his defense is required to "demonstrate that the evidence he wishesto present is relevant to the question at issue." Voykin, 192 Ill. 2d at 56, 733 N.E.2d at 1279.

Interestingly, our research has disclosed a case from another jurisdiction, not cited by theparties, that has addressed the precise issue presented here. In Davis v. Maute, 770 A.2d 36 (Del.2001), the Delaware Supreme Court held that a party in a vehicular personal injury case generallymay not argue that there is a correlation between the extent of vehicular damage and the extent ofa person's injuries caused by the accident in the absence of expert testimony on that issue andmay not rely on photographs of the vehicle(s) involved to indirectly accomplish the samepurpose. The Davis court decided that "[a]bsent such expert testimony, any inference by the jurythat minimal damage to the plaintiff's car translates into minimal personal injuries to the plaintiffwould necessarily amount to unguided speculation." Davis, 770 A.2d at 40. In addition, theDavis court addressed the argument, similar to that presented by defendant to the trial court in theinstant case, that the photographs of the minimal damage to the plaintiff's vehicle wereadmissible to support a commonsense inference that the plaintiff's complaints were not credible. The court held that counsel could not rely on photographs of the vehicle(s) involved toaccomplish indirectly what the court had already determined was improper argument. Davis, 770A.2d at 41.

The trial court in the instant case decided that the vehicle photographs were irrelevant. Irrelevant evidence is not admissible. Maffett v. Bliss, 329 Ill. App. 3d 562, 574, 771 N.E.2d 445,455 (2002). The trial court rejected the claim that the photographs were automaticallyadmissible. We reject defendant's argument that the trial court here abused its discretion becauseits decision rested on a misapplication of law. We conclude that the trial court here did not abuseits discretion because it cannot be said "no reasonable person would take the position adopted bythe trial court." Taxman, 336 Ill. App. 3d at 97, 782 N.E.2d at 807.

The next issue raised by defendant is whether the trial court erred when it prohibiteddefendant from arguing, without expert testimony, that plaintiff's injury was caused by therepetitive use of his arm. The trial court granted plaintiff's motion in limine that no mention orinference be made that anything other than the two automobile accidents caused or aggravatedplaintiff's medial epicondylitis and in particular that the condition was caused or aggravated byrepetitive motion. Defendant argues that this ruling was in error because it did not conform tothe analysis of alternative causation in Voykin v. DeBoer, 192 Ill. 2d 49, 56, 733 N.E.2d 1275,1278-79 (2000). Defendant contends that "there was an abundance of evidence to support that[sic] a difference of opinion existed as to the proximate cause of plaintiff's injury." We disagree.

Opinion testimony that is purely speculative in nature and based on guess, surmise orconjecture is inadmissible and is tantamount to no evidence at all. Poulakis v. Taylor RentalCenter, Inc., 209 Ill. App. 3d 378, 383, 568 N.E.2d 196, 199 (1991). The only opinion witness inthis case, Dr. Eugene Bartucci, explicitly rejected defendant's proposition that plaintiff's injurywas caused by his job or a repetitive motion-type activity and opined that the injury was causedby the accident between plaintiff and defendant. Defendant called no other opinion witness tocontradict this evidence and the trial court was well within its discretion to preclude defendantfrom making such arguments to the jury. See Caley v. Manicke, 29 Ill. App. 2d 323, 329-30, 173N.E.2d 209, 212 (1961), rev'd on other grounds, 24 Ill. 2d 390, 182 N.E.2d 206 (1962) (citedwith approval by Voykin and explaining that, although other causes of the injury may be arelevant area of inquiry, "the evidence elicited on this cross-examination does not establish evenremotely, a possible 'cause' or 'causes' of plaintiff's injuries"). The trial court properly excludedany argument that repetitive motion was a cause of plaintiff's injury.

The next issue raised by defendant is whether the trial court correctly granted a directedverdict against defendant on the issue of negligence. A court should grant a directed verdict onlywhere "all of the evidence, when viewed in its aspect most favorable to the opponent, sooverwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). Theundisputed evidence was that at the time of the accident, plaintiff had been stopped for 15seconds in an aisle of a parking lot waiting for a vehicle to exit a spot. Defendant was cuttingacross two parking spots and not keeping a proper lookout. The accident occurred whendefendant struck the plaintiff on the driver side near the rear of his vehicle.

Every alleged fact cited by defendant in support of her argument that the trial courtimproperly directed a verdict on the issue of negligence concerns the issue of contributorynegligence on the part of the plaintiff. Contributory negligence, however, is an affirmativedefense. Defendant withdrew her affirmative defenses below and cannot now raise any issuesregarding contributory negligence. There were no factual disputes and defendant has failed tomeet her burden under Pedrick. Taking the evidence in a light most favorable to plaintiff, weconclude that the trial court correctly granted a directed verdict on the issue of negligence infavor of plaintiff.

The last issue raised by defendant is whether the trial court correctly ruled that theevidence deposition fee of plaintiff's treating physician, Dr. Eugene Bartucci, and the relatedtranscript fee for the evidence deposition be charged to defendant as taxable costs. The answer tothis precise question can be found in the recent Illinois Supreme Court case of Vicencio v.Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 789 N.E.2d 290 (2003). In Vicencio, our supremecourt held that "a trial court is neither required by section 5-108 [of the Code of Civil Procedure(735 ILCS 5/5-108 (West 2000))] nor permitted by other statute or rule to tax as costs to thelosing party the professional fee charged by a nonparty treating physician for attending anevidence deposition." Vicencio, 204 Ill. 2d at 311, 789 N.E.2d at 299-300. Therefore, we reversethat portion of the trial court's award of costs in the amount of $1,000 for the evidence depositionfee of plaintiff's treating physician, Dr. Eugene Bartucci.

The Vicencio court also addressed the distinction between the professional fees of theexpert witness and those fees that are mentioned in Illinois Supreme Court Rule 208(a) (134 Ill.2d R. 208(a)), specifically those of the videographer and the court reporter who attended theevidence deposition. Vicencio, 204 Ill. 2d at 308, 789 N.E.2d at 298. The court held that thelatter fees were among those that the trial court had the discretion to award provided that thedeposition was necessarily used at trial. Vicencio, 204 Ill. 2d at 308, 789 N.E.2d at 298. IllinoisSupreme Court Rule 208(a) (134 Ill. 2d R. 208(a)) also mentions the charges for transcription ofthe deposition; thus, this cost is also recoverable at the discretion of the trial court, provided thatthe deposition was necessarily used at trial. As Vicencio further clarified: "A deposition isnecessarily used at trial only when it is relevant and material and when the deponent's testimonycannot be procured at trial as, for example, if the deponent has died, has disappeared before trial,or is otherwise unavailable to testify." Vicencio, 204 Ill. 2d at 308, 789 N.E.2d at 298. Similar tothe situation in Vicencio, we cannot determine from the record whether the evidence depositionof Dr. Bartucci was used at trial as a matter of necessity or merely as a matter of convenience. We therefore vacate that portion of the judgment awarding $312.10 for the evidence depositiontranscript fee and remand this case to the trial court to determine whether the transcript feerelated to the evidence deposition may be taxed as costs to defendant.

CONCLUSION

In conclusion, we affirm the trial court's decision granting plaintiff's motions in limineand directing a verdict against defendant on the issue of negligence. We reverse that portion ofthe judgment taxing as costs to defendant the $1,000 evidence deposition fee of plaintiff'streating physician, Dr. Eugene Bartucci. We vacate that portion of the judgment awarding$312.10 for the evidence deposition transcript fee and remand this case to the trial court forfurther proceedings consistent with this opinion.

Affirmed in part, reversed in part, and vacated in part; cause remanded.

O'BRIEN, P.J., concurs.

O'MARA FROSSARD, J., dissents.

In affirming the trial court's decision excluding evidence of the minimal damage toplaintiff's vehicle, the majority has, in addition to a relevancy requirement, created a newrequirement of expert testimony as a prerequisite for admitting such evidence. I am concernedthat this opinion will be interpreted as creating the following bright line rule: if a defendantwishes to minimize the injury to a plaintiff's person by offering evidence of minor damage toplaintiff's vehicle, then the defendant must introduce expert testimony demonstrating why thedamage to plaintiff's vehicle is relevant to the nature and extent of plaintiff's injury. While theremay be a factual scenario where expert testimony regarding that correlation should be required,this is not that case. Defendant introduced evidence, albeit non-expert evidence, demonstratingwhy minimal damage to plaintiff's vehicle was relevant to the nature and extent of plaintiff'sinjuries. In the factual context of this case, there is no reason to depart from ordinary relevancyprinciples as a prerequisite for admitting such evidence. Based on ordinary principles ofrelevancy, the trial court abused its discretion in excluding evidence and photographs offered bydefendant depicting minimal damage to plaintiff's vehicle and prohibiting defendant fromarguing that a correlation existed between the amount of damage to the vehicle and the extent ofplaintiff's injuries.

In support of the expert testimony requirement the majority relies on Voykin v. DeBoer,192 Ill. 2d 49 (2000). Voykin did not address the issue in the instant case, namely, thecorrelation or relationship between the extent of damage to plaintiff's vehicle and the extent ofplaintiff's personal injury. Voykin addressed the relationship between a prior injury and a currentinjury in the context of a personal injury case. In analyzing that relationship, Voykin noted,"jurors are not skilled in the practice of medicine." Voykin, 192 Ill. 2d at 58-59. Recognizingthat "the connection between the parts of the body and past and current injuries is a subject that isbeyond the ken of the average layperson," the court in Voykin concluded that "[b]ecause of thiscomplexity, we do not believe that, in normal circumstances, a lay juror can effectively oraccurately assess the relationship between a prior injury and a current injury without expertassistance." Voykin, 192 Ill. 2d at 59. The complexity recognized in Voykin requires expertassistance to aid jurors in resolving the issues presented by the relationship between a prior andcurrent injury. However, the analogy to Voykin fails because the facts of the instant case do notpresent the complex relationship recognized in Voykin which required expert testimony to assistthe jury.

Plaintiff argues in his brief that "medial epicondylitis and the force of impact required tocreate that condition is a difficult relationship to understand. Complicated issues dealing withmedicine and physics engulf that relationship and it is certainly not within the commonexperience and understanding of a layperson." A witness, expert or otherwise, never offered thatopinion or described the relationship as complicated. Plaintiff's expert did not indicate that inhis opinion there was no correlation between the extent of vehicular damage and the nature andextent of plaintiff's injuries. The record does not reflect that the relationship between theminimal damage to plaintiff's vehicle and the extent of plaintiff's injuries is a complex subjectthat is beyond the ken of the lay juror requiring expert assistance in order for the juror toeffectively or accurately assess.

Based on the complexity of the connection between the parts of the body and past andcurrent injuries, Voykin held "if a defendant wishes to introduce evidence that the plaintiff hassuffered a prior injury, whether to the 'same part of the body' or not, the defendant mustintroduce expert evidence demonstrating why the prior injury is relevant to causation, damages,or some other issue of consequence. This rule applies unless the trial court, in its discretiondetermines that the natures of the prior and current injuries are such that a lay person can readilyappraise the relationship, if any, between those injuries without expert assistance." Voykin, 192Ill. 2d at 59.

The majority concludes, "The same principles apply to the relationship between damageto a plaintiff's vehicle and the nature and extent of a plaintiff's personal injuries." Slip op. at 9. Applying those principles, the rule created by the majority requires that a defendant mustintroduce expert evidence demonstrating why the minimal damage is relevant, if the defendantwishes to introduce evidence depicting minimal damage to plaintiff's vehicle. This rule appliesunless the trial court in its discretion determines that a lay person can readily appraise therelationship if any, between the minimal damage to plaintiff's vehicle and the extent of plaintiff'sinjuries without expert assistance. Superimposing the Voykin rule in the factual context of thisrelatively simple soft tissue personal injury case is not supported by the record. The complexityrecognized in Voykin resulting in the need for expert testimony is non-existent in the instant case. There is no reason in the factual context of this case to depart from ordinary relevancy principlesas a prerequisite for admitting evidence.

In the factual context of this case, the defendant offered evidence, albeit not expertevidence, demonstrating why damage to the plaintiff's vehicle was relevant. Credibility issueswere especially significant in light of plaintiff's delay in symptoms and treatment together withthe subjective nature of his complaints. On March 19, 1997, the date of the first accident, whichis the subject of this case, plaintiff had been stopped for approximately 20 seconds in theDominick's parking lot before impact. Defendant drove her vehicle through a parking space andcollided with plaintiff's vehicle. When the impact occurred, plaintiff could not state whether hehit his elbow on the steering wheel or whether he was straining his elbow. Plaintiff was not cutor bleeding. He did not tell the police he was injured. After the accident, plaintiff went on athree-week vacation to Florida. He drove his vehicle to Florida. He first sought medicalattention four weeks later. Plaintiff's motion in limine prevented the jury from viewing photostruly and accurately reflecting the plaintiff's vehicle as the result of the impact. Plaintiff'smotion in limine prevented the jury from considering photos showing little or no damage indetermining what if any injuries plaintiff sustained as a result of the accident.

Three months later, plaintiff's expert witness, Dr. Bartucci, diagnosed plaintiff withmedial epicondylitis, commonly referred to as golfer's elbow. Golfer's elbow could be caused byrepetitive motion or use of the elbow or overuse activity. The plaintiff owned and operatedlaundry mats. Plaintiff's job activities included cleaning the laundry mats, emptying out moneymachines, and filling pop machines. Nothing in Dr. Bartucci's notes indicated there wasanything that hit or impacted plaintiff's elbow in any way during the accident. Based on thehistory provided by plaintiff, Dr. Bartucci related the medial epicondylitis to the automobileaccident in March 1997. However, Dr. Bartucci also indicated the plaintiff's medialepicondylitis could have been work related from overuse. Clearly, plaintiff's credibility was inissue. Plaintiff's injury was aggravated by another vehicle accident in February 1998. In theinstant case, treatment for the soft tissue injury included cortisone shots, 12 physical therapysessions, and use of an elbow brace. The medical bills were $1,763.

Jurors in this state, without expert testimony, by using their common sense and everydayexperience, have considered testimony and evidence regarding the impact of vehicle collisions indetermining the nature and extent of a plaintiff's injuries. Jurors in this state, without experttestimony, using their common sense and everyday experience, have considered photos of aplaintiff's vehicle in determining the nature and extent of plaintiff's damages, including personalinjury. Such photos and evidence have historically been regarded as relevant to the nature andextent of plaintiff's damages absent expert testimony. Jurors without expert testimony haveconsidered photographic evidence in determining the minor nature of the impact in connectionwith evaluating a plaintiff's credibility.

For example, in Maple v. Gustafson, the Illinois Supreme Court recognized thatphotographic evidence reflected on plaintiffs' credibility and demonstrated the minor nature ofthe impact as follows: "The credibility issues in this trial were especially significant in light of

plaintiffs' delay in symptoms and treatment, the subjective nature of their complaints, thephotographic evidence showing the minor nature of the impact, and Dr. Frederick's findings." Maple v. Gustafson, 151 Ill. 2d 445, 460 (1992). Similar to Maple, in the instant case, credibilityissues were especially significant in light of plaintiff's delay in symptoms and treatment and thesubjective nature of his complaints.

In Cancio v. White, 297 Ill. App. 3d 422 (1998), we recognized that photos of a plaintiffs'vehicle were relevant to the nature and extent of plaintiffs' injuries. Although the issue ofwhether expert testimony should have been required as a prerequisite for admissibility of thephotographs of the plaintiffs' vehicle was not raised in Cancio, relevancy of the photos, as wellas the nature of plaintiffs' injuries, were clearly in issue. Similar to Cancio, relevancy of thephotos and the nature of plaintiff's injuries are clearly in issue in the instant case. In Cancio, theonly witnesses were the plaintiffs and a neurosurgeon called by the plaintiffs. Similar to Cancio,in the instant case, plaintiff relied on his own testimony and the evidence provided by Dr.Bartucci. In Cancio, as in the instant case, no expert was provided by the defendant. In bothCancio and the instant case, the credibility of plaintiff and the nature and extent of plaintiff'sinjuries were in issue. Regarding the relevancy of the photos of plaintiffs' vehicle, in Cancio weconcluded as follows:

"In the instant case, the photos of plaintiffs' vehicle wererelevant to the nature and extent of plaintiffs' damages. Theywere relevant because they showed little or no damage, which issomething the jury could consider in determining what, if any,injuries [plaintiffs] sustained as a result of the accident. Accordingly, we find that admission of the photos was proper." Cancio, 297 Ill. App. 3d at 433.

There is no reason to depart from that analysis in the context of this case. There is noreason to depart from ordinary relevancy principles in the instant case. As in Cancio, the photosof plaintiff's vehicle were relevant to the nature and extent of plaintiff's injuries. They wererelevant because they showed little or no damage, which is something the jury should have beenallowed to consider in determining what, if any, injuries plaintiff sustained as a result of theaccident. Plaintiff had the opportunity when arguing the motion in limine to provide evidence oran offer of proof that there was no relevancy correlation between the extent of vehicular damageand the nature and extent of plaintiff's injuries. Plaintiff offered no such evidence. Plaintiff'sexpert offered no such opinion regarding lack of correlation. Plaintiff had the opportunity todemonstrate the photos were not relevant. Plaintiff failed to do so. Plaintiff failed todemonstrate a complex relationship which required expert testimony to assist the jury.

I am well aware that a defendant who wishes to introduce evidence is required to"demonstrate that the evidence he wishes to present is relevant to the question at issue." Voykin,192 Ill. 2d at 56; Slip op. at 9. In the instant case, defendant satisfied relevancy and foundationalrequirements for admission of the photographs. Contrary to the majority's assertions, I am notsuggesting that "photographs are always relevant and admissible," nor am I suggesting a brightline rule that expert testimony should never be required as a prerequisite for photographs to beadmissible. Slip op. at 9. A proper foundation is a prerequisite for admission of photographs. Relevance is a prerequisite for admission of photographs. The record indicates the photos trulyand accurately reflect the condition of the vehicle as the result of the accident, and similar toCancio, the record demonstrates that the photographic evidence was relevant. When, as in theinstant case, plaintiff's credibility and the nature and extent of plaintiff's injuries are in issue,photographic evidence is relevant. Maple, 151 Ill. 2d at 460; Cancio, 297 Ill. App. 3d at 433.

The majority opinion will be interpreted as requiring expert testimony if a defendantwishes to challenge plaintiff's personal injury by showing the minor damage to plaintiff'svehicle. Based on that interpretation, in every case regardless of whether the plaintiff calls anexpert, if the defendant wants to admit photographic evidence to challenge the injury toplaintiff's person by showing minor damage to plaintiff's vehicle, defendant will be required topresent expert testimony regarding the correlation between plaintiff's injuries and damage toplaintiff's vehicle or risk exclusion of that evidence. Under this rule, if defendant wants to elicitdirect testimony from the parties about the nature of the impact, defendant will be required topresent expert testimony regarding the correlation between plaintiff's injuries and the nature ofthe impact, or risk exclusion of that evidence. This rule flies in the face of common sense andeveryday experience.

I am well aware of the trial court's discretion to grant a motion in limine inherent in itspower to admit or exclude evidence. In the factual context of the instant case, based on ordinaryrelevancy principles it was an abuse of discretion to refuse to admit photographs and evidencedepicting the minimal damage to plaintiff's vehicle. Requiring expert testimony as a prerequisiteto finding the photographs and evidence relevant was not supported by the record. In the instantcase, where plaintiff's credibility and the nature and extent of plaintiff's injuries are in issue, thephotos were relevant because they showed little or no damage, which is something the jury couldconsider in determining what, if any, injuries plaintiff sustained as a result of the accident. Maple, 151 Ill. 2d at 460; Cancio, 297 Ill. App. 3d at 433. Nothing in this record indicates thecorrelation between the extent of vehicular damage and the nature and extent of plaintiff'sinjuries is a complex subject that is beyond the ken of the lay juror. In the factual context of theinstant case, the correlation between the extent of vehicular damage as reflected by photographicevidence and the nature and extent of plaintiff's injuries is such that a lay person can readilydiscern the relationship, without expert assistance. Based on the evidence, including plaintiff'sdelay in symptoms and treatment together with the subjective nature of his complaints, the jurywithout expert assistance, using common sense and everyday experience, should have beenallowed to consider photographic evidence in evaluating the relationship between the minornature of the impact and the nature and extent of plaintiff's injuries.

A lay juror, in the context of this case, could effectively and accurately assess therelationship between the extent of vehicular damage and the nature and extent of plaintiff'sinjuries, using common sense and everyday experience. Jurors have demonstrated their ability tomake these kinds of determinations in thousands of cases without expert testimony. Underordinary relevancy principles, the photos and evidence depicting minimal damage to plaintiff'svehicle should have been admitted and considered by the jurors. The rule created by the majorityin the instant case undermines the role of the jury to make determinations regarding relevantevidence based on common sense and everyday experience. I respectfully dissent.

1. The underlying action involved both automobile accidents. The jury returned a verdictin favor of the defendant involved in the other accident.

2. Defendant has cited other cases, all of which are inapposite.