Illinois Official Reports 

Appellate Court

Campbell v. Autenrieb, 2018 IL App (5th) 170148

Appellate Court 

Caption

STEVEN CAMPBELL, Plaintiff-Appellant, v. KEVIN 

AUTENRIEB, Defendant-Appellee.

District & No. Fifth District

Docket No. 5-17-0148

Filed

Rehearing denied

July 10, 2018

August 13, 2018

Decision Under 

Review

Appeal from the Circuit Court of Madison County, No. 13-L-1904; 

the Hon. William A. Mudge, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Roy C. Dripps III, Charles W. Armbruster III, and Michael T. 

Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, 

of Maryville, for appellant.

Michael P. Murphy, of Freeark, Harvey & Mendillo, P.C., of 

Belleville, for appellee.

Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with 

opinion.

Presiding Justice Barberis and Justice Chapman concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 This appeal stems from a two-count complaint brought by plaintiff, Steven Campbell, to 

recover damages caused by the alleged strict liability and negligence of defendant, Kevin 

Autenrieb, in failing to keep his dog under control. Plaintiff’s action ultimately proceeded to a 

jury trial, where the trial court directed a verdict on liability in favor of plaintiff and against 

defendant at the close of all evidence. The jury returned a verdict of $16,000 in damages in 

favor of plaintiff and against defendant. On appeal, plaintiff argues (1) the trial court erred in 

admitting certain medical testimony regarding potential alternative causes of plaintiff’s 

injuries and (2) the jury’s award of damages was against the manifest weight of the evidence. 

For the following reasons, we reverse and remand this cause for further proceedings consistent 

with this opinion. 

¶ 2 BACKGROUND 

¶ 3 The following pertinent testimony was adduced at trial. We limit our discussion to the 

evidence necessary to provide context. 

¶ 4 A. Plaintiff’s Testimony

¶ 5 Plaintiff testified that on July 18, 2012, while he was working for his employer, United 

Parcel Service (UPS), an unleashed dog owned by defendant lunged at plaintiff and “knocked 

[him] back.” Plaintiff injured his back as a result of the incident. Thereafter, plaintiff went to 

Midwest Occupational Medicine to receive medical treatment. Plaintiff did not finish his work 

shift that day. 

¶ 6 Plaintiff returned to Midwest Occupational Medicine eight days after the incident and 

reported he was feeling much better, which plaintiff attributed to the medicine he was taking. 

Plaintiff volunteered to take vacation time off work during this period “to give [himself] every 

opportunity to get rid of the pain.” Plaintiff testified he was working again by late July or early 

August 2012 but was not performing his regular duties. 

¶ 7 Plaintiff again returned to Midwest Occupational Medicine in September 2012 due to 

recurring back pain. Plaintiff eventually consulted a specialist, Dr. Kennedy, in November 

2012. Dr. Kennedy prescribed plaintiff physical therapy and injections. Plaintiff testified he 

followed all of Dr. Kennedy’s instructions. The last day plaintiff was treated by Dr. Kennedy 

was March 18, 2016. 

¶ 8 Plaintiff testified he missed time from work between July 2012 and September 2015. In 

July 2014, UPS instructed plaintiff to see Dr. DeGrange, who ordered plaintiff back to work 

after conducting an examination. Plaintiff testified he was not working prior to being examined 

by Dr. DeGrange. When plaintiff returned to work, he had not completed all of the physical 

therapy prescribed by Dr. Kennedy. Plaintiff worked for a couple weeks following his 

appointment with Dr. DeGrange before injuring his back while moving a deer stand for UPS. 

Plaintiff subsequently took a leave of absence from work and went to see Dr. Kennedy, who 

recommended physical therapy and conservative treatment. Plaintiff returned to work in 

September 2015. 

¶ 9 Plaintiff testified that from September 2012 until the present day, “[t]here isn’t a day that 

goes by that I don’t have pain.” Plaintiff described his pain as a serious bruise in his back and 
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testified he has pain which radiates down his leg. Plaintiff stated he is able to function on some 

days with medication and struggles on other days. Plaintiff testified he had incurred $200,000 

in lost wages since the incident. Plaintiff further testified he no longer vacations and was 

forced to sell his motorcycle, boat, and camper as a result of the incident. 

¶ 10 On cross-examination, plaintiff was impeached based on an incorrect discovery response 

to a question regarding whether plaintiff was able to return to work following the incident. 

Plaintiff responded he was unable to return to work and had not returned to work since the 

incident, when in fact plaintiff had worked for a period of time following the incident. Plaintiff 

conceded UPS records showed plaintiff engaged in work activity from August 2012 to April 

2013. Plaintiff also testified that on the day of the incident, he experienced unbearable pain 

which he essentially marked as a “ten out of ten pain.” When plaintiff returned to Midwest 

Occupational Medicine the day after the incident, however, he testified he marked his pain 

level as a 3 or 4 out of 10. 

¶ 11 Further evidence adduced on cross-examination showed the physicians who treated 

plaintiff at Midwest Occupational Medicine following the incident did not recommend that 

plaintiff be taken off work. From April 2013, when plaintiff took a leave of absence from 

work, until August 2014, plaintiff testified the only treatment he received was from Dr. 

Kennedy. Also on cross-examination, plaintiff testified he did not work from October 29, 

2014, until September 21, 2015, following an incident in which he was injured while moving a 

deer stand at work. Plaintiff testified he did not agree that it was common for individuals in his 

employment position to have bad backs. Plaintiff conceded that no physician had placed any 

type of restriction on him at the time of trial. 

¶ 12 B. Dr. Kennedy’s Testimony

¶ 13 Plaintiff presented deposition testimony from Dr. Kennedy, a board-certified neurosurgeon 

who initially treated plaintiff on November 28, 2012. After performing a physical examination 

on plaintiff, Dr. Kennedy testified the most notable findings were that plaintiff had significant 

limitation in the range of motion of his back and plaintiff’s ability to bend forward was 

significantly reduced. Dr. Kennedy recommended physical therapy in addition to injections 

into the areas of particular tenderness in the muscle groups. Dr. Kennedy continued to treat 

plaintiff until early 2016. Dr. Kennedy testified that an MRI conducted early in plaintiff’s 

treatment showed bulging discs and an annular fissure. Dr. Kennedy testified it was evident 

from the MRI that plaintiff’s annulus had been injured, which he opined was likely a result of 

the dog incident. 

¶ 14 Dr. Kennedy further testified he was aware of an examination of plaintiff performed by Dr. 

DeGrange in 2014 that recommended plaintiff return to work without restrictions. Dr. 

Kennedy testified that Dr. DeGrange’s opinion about plaintiff’s ability to return to work was 

very different from his opinion, which concluded plaintiff was not ready to return to work. Dr. 

Kennedy also testified regarding the incident in which plaintiff injured his back on October 29, 

2014, as he was delivering a deer stand. Dr. Kennedy opined this event was not a new injury 

but an aggravation of his prior injury. Dr. Kennedy opined that because plaintiff “never really 

fully recovered” from his prior injury, he was “vulnerable to events that otherwise might not 

bother him.” 

¶ 15 Dr. Kennedy testified he last saw plaintiff in March 2016. At that time, Kennedy testified 

plaintiff was generally able to function but was not symptom-free and experienced aching 
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pains. Kennedy opined plaintiff was not medically able to work for UPS without restrictions 

from July 18, 2012, the date of the dog incident, until he released plaintiff to return to work in 

September 2015. 

¶ 16 C. Dr. DeGrange’s Testimony

¶ 17 Defendant presented deposition testimony from Dr. DeGrange, a board-certified doctor 

who first examined plaintiff in July 2014 at the request of plaintiff’s employer, UPS. Dr. 

DeGrange testified plaintiff had a chief complaint of low back pain and the symptoms were 

present on a daily basis. He identified plaintiff’s complaint to be at the lumbosacral area. Dr. 

DeGrange characterized the symptoms as “frequently mild, meaning they were definitely there 

and noticeable and occasionally moderate causing significant problems with activities either 

professionally or of daily living.” Dr. DeGrange’s physical examination of plaintiff concluded 

he did not look particularly uncomfortable and he did not have acute distress. Dr. DeGrange 

opined the diagnosis of plaintiff’s injury was a lumbar strain. Dr. DeGrange opined plaintiff 

reached maximum medical improvement by July 26, 2012, which was eight days after the dog 

incident, and plaintiff did not need any additional medical treatment thereafter. Dr. DeGrange 

further opined the dog incident may have aggravated plaintiff’s preexisting degeneration and 

plaintiff had no permanent injury to his low back as a result of the dog incident. Dr. DeGrange 

testified that after seeing plaintiff in July 2014, he did not place any restrictions on plaintiff’s 

activities and released plaintiff to return to work. 

¶ 18 Dr. DeGrange also testified he examined plaintiff a second time in February 2015 

following the incident in which plaintiff injured himself while moving a deer stand for UPS. 

Dr. DeGrange’s second examination concluded plaintiff sustained a lumbar strain and plaintiff 

had symptoms of a radiculopathy that involved his right leg. Dr. DeGrange opined that none of 

the symptoms or findings he made on his second evaluation of plaintiff were related to the dog 

incident. 

¶ 19 D. Cross-Examination Testimony Admitted Over Plaintiff’s Objection

¶ 20 During trial, plaintiff sought to exclude certain cross-examination testimony that defense 

counsel elicited from Dr. Kennedy regarding potential alternative causes of plaintiff’s injuries, 

arguing the testimony was not offered to a reasonable degree of medical certainty. Plaintiff 

alleged the testimony was prohibited under our supreme court decision in Voykin v. Estate of 

DeBoer, 192 Ill. 2d 49 (2000). The trial court admitted the testimony on the basis that (1) it was 

elicited on cross-examination as opposed to direct examination and (2) it pertained to potential 

alternate or subsequent causes of plaintiff’s injuries rather than a preexisting condition. The 

evidence admitted over plaintiff’s objection was Dr. Kennedy’s deposition testimony:

“[COUNSEL FOR DEFENDANT]: 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. Right. 

 * * *
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 Q. And the annular fissure, we talked about that. That could be caused—You 

mentioned it could be caused by an 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 type of events? 

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

¶ 21 E. Jury Verdict 

¶ 22 At the close of all evidence, plaintiff moved for a directed verdict on liability, which the 

trial court granted. Following deliberations, the jury returned a verdict of $16,000 in favor of 

plaintiff and against defendant. Specifically, the jury awarded plaintiff: $6000 for loss of a 

normal life experienced and reasonably certain to be experienced in the future; $6000 for the 

pain and suffering experienced and reasonably certain to be experienced in the future as a 

result of the injuries; and $4000 for the value of time, earnings, salaries, and benefits lost, and 

the present cash value of the time, earnings, salaries, and benefits reasonably certain to be lost 

in the future. Plaintiff subsequently filed a motion for a new trial on damages, which the trial 

court denied. 

¶ 23 This appeal followed. 

¶ 24 ANALYSIS 

¶ 25 Plaintiff first alleges the trial court committed prejudicial error in admitting speculative 

testimony regarding potential alternative causes of plaintiff’s injuries and pain and suffering. 

Conversely, defendant contends the trial court did not commit prejudicial error in admitting 

foundation and/or background testimony regarding general potential causes for plaintiff’s 

injuries and plaintiff’s pain and suffering. 

¶ 26 Evidentiary rulings, including whether to allow an expert to present certain opinions, are 

within the sound discretion of the trial court and will not be disturbed on review absent a clear 

abuse of discretion. People v. Wheeler, 226 Ill. 2d 92, 132 (2007); Cetera v. DiFilippo, 404 Ill. 

App. 3d 20, 36-37 (2010). This is the most deferential standard of review recognized by law, 

and a reviewing court’s mere disagreement with the trial court’s decision is not enough to 

make the decision an abuse of discretion. People v. Hancock, 2014 IL App (4th) 131069, 

¶ 121. Rather, a trial court abuses its discretion only if it acts arbitrarily without the 

employment of conscientious judgment, exceeds the bounds of reason and disregards 

recognized principles of law, or if no reasonable person would take the position adopted by the 

trial court. Myrick v. Union Pacific R.R. Co., 2017 IL App (1st) 161023, ¶ 21. If the trial 

court’s decision rests on an error of law, “then it is clear that an abuse of discretion has 

occurred, as it is always an abuse of discretion to base a decision on an incorrect view of the 

law.” Thompson v. Gordon, 356 Ill. App. 3d 447, 461 (2005). 

¶ 27 Here, plaintiff argues the trial court improperly admitted the following deposition 

testimony elicited from Dr. Kennedy by defense counsel on cross-examination: 

“[COUNSEL FOR DEFENDANT]: 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? 
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 A. Right. 

 * * *

 Q. And the annular fissure, we talked about that. That could be caused—You 

mentioned it could be caused by an 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 type of events? 

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

¶ 28 The parties agree the court admitted this testimony on the basis that (1) it was elicited on 

cross-examination as opposed to direct examination and (2) it pertained to potential alternate 

or subsequent causes of plaintiff’s injuries rather than a preexisting condition. However, 

plaintiff contends the trial court erred in admitting this evidence because testimony such as 

“[s]ometimes people’s back will just go out for no reason,” it is possible an annular fissure 

“could be caused by many other factors,” and plaintiff’s injuries could have been caused by 

“[l]ifting, twisting, any kind of daily activities involving those type of events” is the type of 

speculative testimony our supreme court in Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), 

held to be inadmissible because it allows the jury to make medical assessments based on 

conjecture. 

¶ 29 In Voykin, the plaintiff sustained injuries to his neck and back in an automobile accident 

caused by the defendant. Voykin, 192 Ill. 2d at 51. At trial, the defendant sought to introduce 

evidence of a lower back injury the plaintiff had suffered approximately five years before the 

accident. Voykin, 192 Ill. 2d at 52. The trial court admitted the evidence, but the appellate court 

reversed and remanded for a new trial after concluding evidence of prior injuries should not be 

admitted unless the defendant presents evidence of causation between the prior and present 

injuries. Voykin, 192 Ill. 2d at 52-53. The defendant’s petition for leave to appeal was 

subsequently granted. Voykin, 192 Ill. 2d at 53. 

¶ 30 Our supreme court affirmed the appellate court’s reversal, holding that when a defendant 

seeks to introduce evidence of a plaintiff’s prior injury or medical condition at trial, the 

defendant must first introduce expert evidence showing why the prior injury or medical 

condition is relevant to causation, damages, or some other issue of consequence. Voykin, 192 

Ill. 2d at 59; Noble v. Earle M. Jorgensen Co., 2013 IL App (5th) 120248, ¶ 21. The Voykin 

court further concluded there is an exception to the requirement for expert testimony, which 

arises when the trial court determines a “lay person can readily appraise the relationship” 

between the plaintiff’s prior and current injuries without expert assistance. Voykin, 192 Ill. 2d 

at 59. 

¶ 31 In reaching its decision, our supreme court rejected the evidentiary rule known as “the 

same part of the body rule,” which had provided: “[I]f a plaintiff has previously suffered an 

injury to the same part of the body, then that previous injury is automatically relevant to the 

present injury simply because it affected the same part of the body.” Voykin, 192 Ill. 2d at 57; 

DiCosola v. Bowman, 342 Ill. App. 3d 530, 536 (2003). The Voykin court characterized “the 

same part of the body rule” as “nothing more than a bright-line relevancy standard” and 

criticized the automatic relevancy basis of the rule. Voykin, 192 Ill. 2d at 57; DiCosola, 342 Ill. 

App. 3d at 536. As the court observed, “ ‘ “[r]elevancy is not an inherent characteristic of any 

item of evidence but exists only as a relation between an item of evidence and a matter 
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properly provable in the case.” ’ [Citation.]” Voykin, 192 Ill. 2d at 57; DiCosola, 342 Ill. App. 

3d at 536. 

¶ 32 Illinois courts have since extended the Voykin holding to evidence of subsequent injuries in 

addition to prior injuries. In Caliban v. Patel, 322 Ill. App. 3d 251, 256 (2001), a motorist 

brought a negligence action to recover damages sustained in an automobile accident. On 

appeal, the plaintiff argued the trial court erred in denying his motion in limine, which sought 

to prevent the defendant from introducing evidence or argument concerning plaintiff’s prior 

and subsequent injuries and medical conditions. Caliban, 322 Ill. App. 3d at 253. Citing 

Voykin, the court concluded the trial court erred when it allowed the introduction of evidence 

regarding a subsequent injury without requiring the defendant to offer relevant, supporting 

expert testimony. Caliban, 322 Ill. App. 3d at 256. 

¶ 33 In Obszanski v. Foster Wheeler Construction, Inc., 328 Ill. App. 3d 550, 559 (2002), the 

court relied on Voykin in concluding the introduction of evidence on cross-examination 

concerning an ironworker’s subsequent injury without any supporting expert testimony was 

error. As the court observed: 

“This type of questioning by defense counsel without expert testimony could be 

prejudicial and in conflict with the Voykin decision. With an appropriate foundation 

laid by a medical expert, if that could be done, defense counsel should be allowed to 

show that the subsequent injury is a ‘cause’ of plaintiff’s current complaint. This is 

difficult because the injury in question is claimed to be permanent in nature. If medical 

evidence can show enhanced or separate pain from the subsequent injury, then the jury 

should hear it. If not, then it should not come in at all.” Obszanski, 328 Ill. App. 3d at 

560.

¶ 34 In light of the foregoing, it is clear Voykin applies to testimony elicited on 

cross-examination and to subsequent injuries in addition to prior injuries. That being said, we 

are unaware of any decision by this court that has resolved the specific question presented to 

us, which is essentially whether the trial court erred in admitting expert testimony regarding 

unsupported, potential alternative causes of plaintiff’s injuries. Although we are unaware of 

any decision that has resolved this specific issue, we find the reasoning of Voykin as it pertains 

to evidence of prior and subsequent injuries applies to unsupported evidence of phantom 

causes of injuries. 

¶ 35 As previously stated, defense counsel in this case elicited testimony from Dr. Kennedy 

regarding potential alternative causes of plaintiff’s injuries, including that “[s]ometimes 

people’s back will just go out for no reason,” plaintiff’s annular fissure “could be caused by 

many other factors,” and plaintiff’s annular fissure could be caused by “[l]ifting, twisting, any 

kind of daily activities involving those type of events.” The record shows defense counsel 

failed to provide any medical testimony or other competent evidence establishing a causal link 

between the phantom causes of injuries suggested and plaintiff’s present injuries complained 

of as a result of the dog incident. Moreover, Dr. Kennedy later dismissed the possibility that 

plaintiff’s injuries were incurred as a result of an alternative phantom cause:

“[COUNSEL FOR PLAINTIFF]: Okay. Just so the record is clear, you were asked 

if other events could have caused this kind of injury. Has anyone provided you with a 

record, a statement, a history, a video, anything suggesting there was an event, other 

than the dog attack in July of 2012, that caused [plaintiff’s] low back pain?
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 [DR. KENNEDY]: No, there was no other event in this case. The question was 

regarding potential. But in actuality there was no other injury that [plaintiff] suffered 

that I know of.”

¶ 36 Dr. Kennedy’s hypothetical testimony elicited from defense counsel invited the jury to 

speculate about unsubstantiated causes of plaintiff’s injuries, which is precisely the type of 

speculative testimony Voykin guarded against. As this court has explained, the rationale for 

requiring a defendant to present expert testimony showing why a separate injury is relevant to 

causation is “to avoid what amount[s] to the jury forming medical opinions.” Hawkes v. 

Casino Queen, Inc., 336 Ill. App. 3d 994, 1008 (2003). Nothing from Dr. Kennedy’s testimony 

regarding potential alternative causes of plaintiff’s injuries demonstrates why the phantom 

causes are relevant under the Voykin standard. For these reasons, we find the trial court abused 

its discretion in admitting this testimony. 

¶ 37 Lending support to our conclusion are two decisions decided by this court: Hawkes, 336 Ill. 

App. 3d 994, and Noble, 2013 IL App (5th) 120248. In Hawkes, a patron brought a premises 

liability action against the owner of a casino after he tripped and fell in the casino’s restroom, 

sustaining injuries to his head, neck, and back. Shortly before the trial, the plaintiff submitted a 

motion in limine seeking to bar the defendant from mentioning or referring to prior neck 

injuries and related treatment the plaintiff received prior to his fall. Hawkes, 336 Ill. App. 3d at 

999. Relying on Voykin, the plaintiff’s motion sought to prevent the defendant from suggesting 

the plaintiff’s injuries were a result of a preexisting condition involving his neck. Hawkes, 336 

Ill. App. 3d at 999. The trial court granted the plaintiff’s motion and barred the defendant from 

mentioning the plaintiff’s prior neck injuries and treatment, as well as any opinions or 

cross-examination regarding whether the plaintiff had a prior bulging disc in his cervical area. 

Hawkes, 336 Ill. App. 3d at 999. On appeal, the defendant argued the court erred in granting 

the plaintiff’s motion. Hawkes, 336 Ill. App. 3d at 1005. 

¶ 38 This court affirmed the exclusion of evidence of the plaintiff’s prior conditions. Regarding 

the defendant’s expert testimony attempting to establish the plaintiff suffered from a 

preexisting condition, namely a disc bulge, this court concluded said testimony did not negate 

the cause of the plaintiff’s fall or the resulting injuries. Hawkes, 336 Ill. App. 3d at 1006. This 

court further concluded “the fact that plaintiff’s prior injuries could have caused a disc to bulge 

in his neck does not make it less likely that defendant’s actions caused any of plaintiff’s 

injury.” (Emphases in original.) Hawkes, 336 Ill. App. 3d at 1006. 

¶ 39 The Hawkes court also rejected the defendant’s expert testimony elicited on 

cross-examination that allegedly showed the plaintiff was symptomatic at his C5 vertebrae 

prior to his fall and the disc injury for which the plaintiff received surgery was caused by 

something other than the fall. Hawkes, 336 Ill. App. 3d at 1007. The court concluded that 

neither of the experts’ testimony, when taken alone, demonstrated why the prior injury was 

relevant under the Voykin standard. Hawkes, 336 Ill. App. 3d at 1008. The court found the 

experts’ testimony amounted to little more than supposition and conjecture. Hawkes, 336 Ill. 

App. 3d at 1008. The court stated that the essential next step of assessing the relationship 

between the prior injury and the present injury from the experts’ testimony would be left to the 

jury, which “is exactly what the Voykin decision guarded against.” Hawkes, 336 Ill. App. 3d at 

1007-08. As this court explained, “In order to avoid what amounted to the jury forming 

medical opinions, the Illinois Supreme Court has instructed that a defendant bears the burden 

of ‘introduc[ing] expert evidence demonstrating why the prior injury is relevant to causation, 
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damages, or some other issue of consequence.’ (Emphasis added.)” Hawkes, 336 Ill. App. 3d at 

1008 (quoting Voykin, 192 Ill. 2d at 59). Accordingly, this court affirmed the exclusion of such 

evidence. 

¶ 40 In Noble, the plaintiff brought a negligence action against the defendant and his employer, 

seeking damages for injuries allegedly sustained to her coccyx, piriformis muscle, and 

sacroiliac joint in a motor vehicle accident. Noble, 2013 IL App (5th) 120248, ¶¶ 1-2. The 

defendants sought to present evidence showing the plaintiff was treated for pain in her low 

back and pelvic area prior to the motor vehicle accident and that she suffered a subsequent 

fracture in her low back. Noble, 2013 IL App (5th) 120248, ¶ 22. Prior to trial, the plaintiff 

filed a motion in limine seeking to prevent the defendants from referencing any injuries and 

medical treatment to portions of the plaintiff’s body unrelated to the coccyx, sacroiliac joint, 

and piriformis muscle. Noble, 2013 IL App (5th) 120248, ¶ 3. The plaintiff asserted this 

evidence should be barred on the basis that the defendants failed to present any medical or 

other competent evidence establishing a causal connection between the plaintiff’s prior and 

subsequent medical conditions and the injuries she alleged to have suffered as a result of the 

accident, as required by Voykin. Noble, 2013 IL App (5th) 120248, ¶ 3. The trial court granted 

the plaintiff’s motion in limine, barring the defendants from mentioning the plaintiff’s prior 

low back injuries and treatment and her subsequent fracture. Noble, 2013 IL App (5th) 120248, 

¶ 19. 

¶ 41 On appeal, the defendants alleged the court erred by preventing them from introducing 

evidence regarding the plaintiff’s prior low back pain and treatment and her subsequent 

fracture in her low back on the basis that the defendants failed to introduce expert testimony 

establishing a causal connection between the injuries to the plaintiff’s low back and the injuries 

to her coccyx, sacroiliac joint, and piriformis muscle. Noble, 2013 IL App (5th) 120248, ¶ 20. 

The defendants argued the excluded deposition testimony of two doctors, Dr. Anderson and 

Dr. Pereira, established the causal connection between the injuries and, therefore, the 

defendants were not required to present further expert testimony on the issue. Noble, 2013 IL 

App (5th) 120248, ¶ 20. 

¶ 42 Relying on Voykin, this court affirmed the exclusion of evidence regarding the plaintiff’s 

prior low back pain and her subsequent fracture. As this court observed: 

“In Voykin [citation], the Illinois Supreme Court concluded that when a defendant 

seeks to introduce evidence of a plaintiff’s prior injuries or medical conditions at trial, 

the defendant must first introduce expert evidence demonstrating why the prior injury 

or medical condition is relevant to causation, damages, or some other issue of 

consequence. The defendant must present medical or other competent evidence to 

establish a causal connection between the evidence offered and the complained-of 

injuries.” (Emphasis in original.) Noble, 2013 IL App (5th) 120248, ¶ 21. 

¶ 43 This court found that Dr. Anderson’s testimony regarding the plaintiff’s low back pain 

preexisting the date of the accident did not establish a causal connection between the injuries to 

her coccyx, piriformis muscle, and sacroiliac joint and the plaintiff’s complaints of low back 

pain and her subsequent fracture. Noble, 2013 IL App (5th) 120248, ¶ 25. As this court noted, 

the plaintiff only alleged injuries to her coccyx, piriformis muscle, and sacroiliac joint during 

the trial and never alleged she aggravated her previous low back pain as a result of the accident. 

Noble, 2013 IL App (5th) 120248, ¶ 25. This court further noted that Dr. Pereira testified there 

was no correlation between the finding that the plaintiff suffered a fracture after the accident 
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and the plaintiff’s complaints of pain to her coccyx, sacroiliac joint, and piriformis muscle, as 

the fracture was 8 to 10 inches from the area treated as a result of the motor vehicle accident. 

Noble, 2013 IL App (5th) 120248, ¶ 25. For these reasons, this court concluded it did not 

believe sufficient expert testimony was presented to establish a causal connection between the 

plaintiff’s injuries to her low back and her subsequent fracture and the plaintiff’s injuries to her 

coccyx, sacroiliac joint, and piriformis muscle. Noble, 2013 IL App (5th) 120248, ¶ 25. 

¶ 44 In the instant case, Dr. Kennedy’s testimony amounted to little more than speculation and 

conjecture, as defense counsel failed to provide any medical testimony or other competent 

evidence establishing a causal link between the phantom causes of injuries suggested and 

plaintiff’s injuries incurred as a result of the dog incident. This type of speculative testimony is 

prohibited under Voykin. “Regardless of how skilled or experienced an expert may be, he is not 

permitted to speculate or to state a judgment based on conjecture, i.e., a conclusion based on 

assumptions not in evidence or contradicted by the evidence.” Royal Elm Nursing & 

Convalescent Center, Inc. v. Northern Illinois Gas Co., 172 Ill. App. 3d 74, 79 (1988). 

Moreover, experts are prohibited to opine regarding the cause of an injury based on 

nonexistent facts. Yanello v. Park Family Dental, 2017 IL App (3d) 140926, ¶ 44. For the 

foregoing reasons, the trial court abused its discretion in admitting Dr. Kennedy’s testimony 

regarding unsubstantiated hypothetical causes of plaintiff’s injuries. 

¶ 45 Defendant argues that, unlike Voykin and its progeny, which concerned cases where the 

defendants attempted to argue prior and subsequent accidents and/or conditions were a cause 

of the plaintiff’s injuries and damages, no testimony was elicited in the instant case regarding 

any prior injuries and conditions or any subsequent accidents which may have caused 

plaintiff’s injuries. Defendant contends that nothing in Voykin or its progeny prohibits the 

foundational and/or background testimony elicited from Dr. Kennedy during 

cross-examination regarding potential mechanisms of plaintiff’s injuries. We disagree. 

¶ 46 Although defendant did not introduce evidence that plaintiff’s injury was related to a 

specific prior or subsequent accident, defendant did introduce evidence that suggested 

plaintiff’s injury may have been the result of something other than the dog incident. We find 

this to be a distinction without a difference. As previously stated, defense counsel asked Dr. 

Kennedy if he agreed with the following statement: “Sometimes people’s back will just go out 

for no reason,” which is referred to as an “idiopathic cause.” Dr. Kennedy replied, “Yes.” 

Defense counsel further asked Dr. Kennedy if he agreed that the annular fissure plaintiff 

suffered as a result of the dog incident could have been caused by “many other factors.” Dr. 

Kennedy replied, “Possible.” Thus, defense counsel attempted to present a phantom cause of 

plaintiff’s injury without any medical evidence to support such a claim. This type of 

unsupported speculation and conjecture is inadmissible under Voykin. 

¶ 47 Defendant also cites Hahn v. Union Pacific R.R. Co., 352 Ill. App. 3d 922 (2004), in 

support of his position, which held that an employee’s neurosurgeon was permitted to testify as 

to what might or could have caused the employee’s injury. Specifically, the Hahn court 

explained: 

“To be probative on the issue of causation, a medical expert is not required to give 

an opinion regarding a specific cause. Rather, a medical expert is permitted to testify to 

what might or could have caused an injury, despite any objection that the testimony is 

inconclusive. Testimony from a physician regarding what might or could have caused 

an injury is merely a medical opinion given on facts assumed to be true. [Citations.] For 
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evidence to be relevant, it need only tend to make the existence of any fact more 

probable or less probable than it would otherwise be.” (Emphasis in original.) Hahn, 

352 Ill. App. 3d at 930. 

¶ 48 After careful review, we find Hahn distinguishable from the instant case. In Hahn, the 

court permitted the testimony of a neurosurgeon who opined there was a causal connection 

between the events described in the employee’s history and the initiation of the employee’s 

symptoms, despite an argument that the causation testimony was inconclusive. As the court 

noted, “an examination of a plaintiff and a review of his medical history provide a sufficient 

foundation from which a treating physician may offer opinions on the cause of his injury.” 

Hahn, 352 Ill. App. 3d at 931. The court concluded the neurosurgeon’s testimony was based 

upon his specialized knowledge and experience and not mere guess or speculation, and the 

testimony served to narrow the reasonable probabilities of causation in an area where limited 

medical knowledge does not permit an unequivocal opinion. Hahn, 352 Ill. App. 3d at 931. 

¶ 49 In contrast, defense counsel in this case elicited testimony from Dr. Kennedy regarding 

potential events that never occurred. Defense counsel attempted to establish causation from 

events that Dr. Kennedy explicitly stated were never established in plaintiff’s medical records. 

We reiterate that for an alternative event to be relevant to causation, it must make it less likely 

that the defendant’s actions caused any of the plaintiff’s injuries or an identifiable portion 

thereof. Voykin, 192 Ill. 2d at 58. Here, the phantom causes of injury suggested by defense 

counsel do not make it less likely that defendant’s dog caused plaintiff’s injuries, as these 

phantom causes never occurred. Accordingly, we reject defendant’s argument. 

¶ 50 CONCLUSION 

¶ 51 In sum, we conclude the trial court erred in admitting unsupported evidence on 

cross-examination regarding potential alternative causes of plaintiff’s injuries. Voykin 

prohibits this type of speculative testimony. Given our disposition, we need not address 

plaintiff’s remaining contention alleging the jury’s award of damages was against the manifest 

weight of the evidence. In light of the trial court’s directed verdict in favor of plaintiff, as well 

as the Voykin violations noted above, we reverse the judgment of the circuit court of Madison 

County and remand this cause for a new trial on damages only. 

¶ 52 Reversed and remanded.