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Docket No. 88353-Agenda 21-May 2000.

CHARLES SCOTT DECKER, Appellee, v. 

JASON LIBELL, Appellant.

Opinion filed September 21, 2000.

JUSTICE MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County,the plaintiff, Charles Decker, was awarded $13,715 in damages forinjuries he sustained in a motor vehicle accident with thedefendant, Jason Libell. The defendant appealed, and, in anunpublished order, the appellate court affirmed the circuit courtjudgment. No. 5-98-0641 (unpublished order under SupremeCourt Rule 23). We allowed the defendant's petition for leave toappeal (177 Ill. 2d R. 315(a)), and we now affirm the judgment ofthe appellate court.

The facts in this case are uncomplicated and may be statedbriefly. The plaintiff was injured on September 4, 1994, in anaccident in Shiloh when his pickup truck was hit by a vehiclebeing driven by the defendant. The plaintiff brought the presentaction against the defendant in the circuit court of St. Clair Countyin February 1995 to recover damages for his injuries. Thedefendant conceded liability, and the only issue at trial, in April1998, concerned the plaintiff's damages. At trial, the plaintifftestified in his own behalf and also introduced the evidencedeposition of his chiropractor, Dr. Warren Stewart, Jr. Dr. Stewarthad treated the plaintiff for four months, from September 1994 toJanuary 1995, for the injuries the plaintiff sustained to his neck,back, and shoulder as a result of the accident. Dr. Stewart'sdeposition had been taken in March 1996, and his testimonyconcerning the plaintiff's prognosis was admitted over thedefendant's objection that Dr. Stewart's treatment of the plaintiffwas too remote in time in relation both to the deposition and to theeventual trial to be admissible.

The defendant did not present any evidence. At the conclusionof the trial, the jury awarded the plaintiff a total of $13,715 indamages, which comprised itemized awards of $7,500 for theplaintiff's past pain and suffering, $2,500 for future pain andsuffering, and $3,715 for past medical expenses; the jury did notaward the plaintiff any of the damages requested by him for lossof a normal life. The defendant filed a post-trial motion seeking anew trial. In the motion, the defendant renewed his argument thatthe trial court erred in admitting Dr. Stewart's depositiontestimony about the plaintiff's prognosis. In addition to the pointsraised previously, the defendant contended that Dr. Stewart'stestimony regarding the possible permanency of the plaintiff'sinjuries was contradicted by the plaintiff's own statement, at trial,that he no longer experienced any pain in his neck. The trial courtdenied the post-trial motion, and the defendant appealed. Theappellate court affirmed the circuit court judgment. No.5-98-0641 (unpublished order under Supreme Court Rule 23). Weallowed the defendant's petition for leave to appeal (177 Ill. 2d R.315(a)), and we now affirm the judgment of the appellate court,though for reasons different from those relied on by that court.

The sole issue before this court concerns the admission of Dr.Stewart's deposition testimony regarding his opinion about theprognosis for the plaintiff's injuries. As noted earlier, theplaintiff's accident occurred in September 1994, and the plaintiffwas treated by Dr. Stewart for four months, from September 7,1994, until January 11, 1995. According to the evidence, Dr.Stewart saw the plaintiff a total of 55 times during this period. Dr.Stewart's evidence deposition was taken on March 15, 1996, alittle more than 14 months after the plaintiff ceased his course oftreatment with the chiropractor. Trial was conducted on April 20and 21, 1998, 25 months after Dr. Stewart's deposition was taken,and 39 months after the last treatment occurred. The defendantcontends that Dr. Stewart's deposition testimony regarding theprognosis for the plaintiff's injuries was too old to represent anopinion at the time of trial and therefore was inadmissible. SeeHenricks v. Nyberg, Inc., 41 Ill. App. 3d 25, 28 (1976); see alsoWilson v. Chicago Transit Authority, 126 Ill. 2d 171, 176 (1988).The defendant argues further that the plaintiff contradicted Dr.Stewart's testimony when the plaintiff testified that he no longerexperiences pain in his neck; Dr. Stewart, in the evidencedeposition, had stated that the plaintiff's condition, especially inthe neck, could be permanent.

In response, the plaintiff contends that the periods of timebetween a patient's last examination or office visit, the time of theexpert's deposition, and the time of trial pertain only to the weightto be given to the expert's testimony and do not affect itsadmissibility. The appellate court below adopted this rationale inaffirming the circuit court judgment. The appellate court believedthat the intervals of time between the chiropractor's lastexamination, his deposition, and the trial went only to the weightto be accorded the evidence and did not determine whether it wasadmissible.

The plaintiff's argument assumes that evidence of this natureis automatically admissible, regardless of its provenance, and thatthe relative age or recency of the testimony will never affect itsadmissibility. To be sure, language in some cases suggests that theage or recency of an expert's opinion pertains only to the weightto be given to the testimony. Housh v. Bowers, 271 Ill. App. 3d1004, 1008 (1995); Molitor v. Jaimeyfield, 251 Ill. App. 3d 725,729 (1993). We believe the better view, however, is represented bythe cases that first consider whether the testimony or evidence isadmissible and, if it is, then permit the trier of fact to determinewhat weight to assign to it. See Soto v. Gaytan, 313 Ill. App. 3d137, 145-48 (2000); Knight v. Lord, 271 Ill. App. 3d 581, 587(1995); see also Marchese v. Vincelette, 261 Ill. App. 3d 520, 526-27 (1994) (after determining that doctor's testimony wasadmissible, court explains that age of opinion will affect theweight to be given to the testimony); Courtney v. Allied FilterEngineering, Inc., 181 Ill. App. 3d 222, 231 (1989) (courtconcludes that doctor's testimony was properly admitted). Eventhe court in Housh, cited by the plaintiff, referred to the length andnature of the doctors' treatment in finding no error in theadmission of their testimony. Trial courts routinely bar evidencebecause it is irrelevant or unreliable, and we see no reason to applya different rule in this context. Under this approach, the trial judgeserves in a familiar role as "gatekeeper," barring testimony that isnot sufficiently relevant or reliable to be admitted into evidence.

It remains for us to consider what circumstances are relevantin determining the admissibility of opinion testimony about theprognosis for a patient's injuries or condition. As a number of thecases illustrate, the calendar alone does not determine whether theevidence should be admitted or excluded. Courts will consider thenature of the plaintiff's injury or condition, the type of treatmentadministered to the plaintiff, the length of time the plaintiff wasreceiving the treatment, the number and frequency of theplaintiff's visits, the length of time between the plaintiff's lasttreatment and the witness' formation of his or her opinion, thelength of time between the formation of the opinion and the trial,and any other circumstances that bear on the relevance andreliability of the proposed testimony. See Soto, 313 Ill. App. 3d at147-48 (listing relevant circumstances; specifically discussingnature of injury, length and nature of treatment, and intervalbetween treatment and time of trial); Housh, 271 Ill. App. 3d at1008 (length and nature of treatment); Marchese, 261 Ill. App. 3dat 526 (interval between examination and deposition; length oftreatment).

Applying these considerations to the case at bar, we do notbelieve that the trial judge abused his discretion in admitting intoevidence Dr. Stewart's testimony regarding the plaintiff'sprognosis. The plaintiff sustained injuries to his neck, back, andshoulder in the collision with the defendant's vehicle. Theplaintiff's treatment with Dr. Stewart lasted a little over fourmonths, beginning September 7, 1994, three days after theaccident, and ending January 11, 1995. During that period, Dr.Stewart treated the plaintiff 55 times, and he took two full sets ofX rays in the course of the treatment.

The defendant argues, however, that Dr. Stewart's depositiontestimony regarding the permanency of the plaintiff's injuries wasfatally contradicted by the plaintiff's own testimony at trial. Theplaintiff stated that, although he still experienced pain in his backfrom time to time, he no longer experienced any pain in his neck.The defendant believes that this contradicts Dr. Stewart'stestimony. In the evidence deposition, Dr. Stewart stated that, withrespect to the plaintiff's neck injury, "there certainly could be apermanency." Unlike the defendant, we do not believe that the twoare inconsistent. Dr. Stewart testified only that there could be apermanent problem, not that there necessarily would be. Thebalance of his testimony regarding the plaintiff's prognosis wasborne out by the plaintiff's testimony, for the plaintiff stated thathe still suffered from back pain. On this record, we are unable toconclude that the trial judge abused his discretion in admitting thechallenged testimony.

For the reasons stated, the judgment of the appellate court,which affirmed the judgment of the circuit court of St. ClairCounty, is affirmed.

Judgment affirmed.