Motion 1-Bar expert evidence and plaintiff's prior accident evidence in Car Accident Case

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Plaintiff's Motion in Limine to Strike Certain Evidence Deposition Testimony of Dr. Daniel Homer and to Bar Evidence of A 1995 Automobile Accident Involving Plaintiff

NOW COMES the Plaintiff, KATHLEEN O'CONNOR, by and through her attorneys, HOFFMAN, BURKE AND BOZICK, and hereby moves In Limine this Honorable Court to strike certain testimony elicited by defendants from Dr. Daniel Homer at his evidence deposition as a sanction for defendants' violation of the disclosure requirements of Supreme Court Rule 213(f) and (g). In support thereof, plaintiff states as follows:

1. This case arises out of an incident occurring on April 16, 1994, when Kathleen O'Connor fell off a porch into a concrete stairwell at defendants' apartment building suffering bruises, swelling and lacerations to her face and head.

2. Following said fall, Kathleen was treated by Dr. Daniel Homer, a board-certified neurologist, who diagnosed Kathleen as having post-traumatic migraine headaches.

3. On June 15, 1995, Kathleen was involved in a minor automobile accident and was diagnosed with a minor neck sprain.

4. Kathleen dis?? the fact that she had been involved he 1995 automobile accident in her answers to defendants' interrogatories filed on July 11, 1996.

5. Dr. Homer's discovery deposition was taken on April 4, 1997. The subject of Kathleen's 1995 automobile accident was never raised at the deposition.

6. In defendants' answers to Rule 213(f) and (g) interrogatories, they never specifically disclosed that they intended to call Dr. Homer as a witness at the trial of this matter, nor did they disclose that they intended to elicit testimony or opinions from Dr. Homer regarding any specific subject matter. (Said answers attached as Exhibit A.)

7. Dr. Homer's evidence deposition was taken on January 21, 2000. Without prior disclosure, defendants' attorney questioned Dr. Homer at his evidence deposition regarding Kathleen O'Connor's 1995 automobile accident. After asking Dr. Homer what the causes of migraine headaches are, but before asking him if he was aware of Kathleen's accident and before showing him Kathleen's medical records from after the accident, defendants' attorney asked Dr. Homer the following questions:

Q. Can something like an acute sprain to the neck cause or worsen migraine headaches?

A. I am not aware from my experience or the literature that neck injury or sprain alone could precipitate migraines. There is lots of circumstances that can aggravate migraines and I think a neck sprain is one that could aggravate migraines.

Q. For instance, if Ms. O'Connor was involved in an automobile accident during your treatment and did apparently suffer from an acute sprain to the neck in your opinion that is something that could worsen her migraine headaches?

A. Yes.

Then, after showing Dr. ?? Kathleen's emergency room records ?? June 15, 1995, defendants' attorney asked Dr. Homer the following series of questions:

Q. And what is the diagnosis of Kathleen O'Connor on June 15, 1995 after that automobile accident?

A. The diagnosis in her emergency room record is, ‘acute sprain neck motor vehicle accident.

Q. Is that something that you would consider significant in your treatment of a patient if you know about that or something that you would like to know about if that happened during the treatment of Ms. O'Connor?

A. I can't say that it is something that I would need to know about or would like to know about unless the individual thought that it had affected their migraine disorder.

Q. But is it possible that something like that particular accident could affect the condition and worsen in fact the condition of migraine headaches?

A. Yes.

(See excerpts of Dr. Homer's evidence deposition, attached as Exhibit B.)

8. As stated above, prior to Dr. Homer's evidence deposition, defendants had never disclosed their intent to elicit testimony, including opinions, from Dr. Homer regarding Kathleen's minor automobile accident on June 15, 1995.

9. Furthermore, defendants have failed to properly tie up the minor neck sprain apparently sustained by Kathleen on June 15, 1995 with her ongoing post-traumatic migraine disorder. Specifically, after Dr. Homer looked at Kathleen's emergency room records from June 15, 1995, defendants' attorney never asked him if he had an opinion, based upon a reasonable degree of medical certainty, as to whether Kathleen's apparent injury caused by the minor automobile accident affected or worsened Kathleen's migraine headaches. Defendants' attorney merely asked whether it was ??ssible” that “something like” that ?? could affect and worsen the condition of migraine headaches. This question was insufficient to properly connect Kathleen's apparent neck sprain to her ongoing condition of post-traumatic migraine headaches caused by the earlier trauma to her head.

10. All of the testimony elicited at Dr. Homer's evidence deposition regarding any apparent injuries sustained by Kathleen O'Connor on June 15, 1995, and whether such injuries possibly worsened Kathleen's migraine headaches, should be stricken for defendants' failure to disclose at any time, up to and including the start of the doctor's evidence deposition, their intent to elicit testimony from Dr. Homer on this subject matter in their answers to Rule 213(f) and (g) interrogatories. See Seef v. Ingalls Memorial Hospital, 199 WL 1272906 (1st Dist. 1999); Adami v. Belmonte, 302 Ill.App.3d 17, 22-24, 704 N.E.2d 708, 712-13 (1st Dist. 1998).

11. Furthermore, said testimony by Dr. Homer should also be stricken on the basis that defendants failed to present evidence establishing the relevancy of Kathleen O'Connor's apparent neck sprain to her ongoing condition of post-traumatic migraine headaches, so any such testimony would merely provide the jury with the opportunity to speculate about a causal connection between the neck sprain and Kathleen's migraine headaches. This would be highly prejudicial to plaintiff.

12. As a result of striking Dr. Homer's evidence deposition testimony on the subject matter of Kathleen O'Connor's 1995 automobile accident, there will be no medical evidence regarding whether said accident caused or in any way aggravated Kathleen O'Connor's post-traumatic migraine headaches. Therefore, defendants should be barred from questioning any witness about, or mentioning in any way, Kathleen O'Connor's 1995 automobile accident. See Lagestee v. Days Inn Manag?? Co., 303 Ill.App.3d 935, 709 N.E. ?? 270, 277 (1st Dist. 1999) (Evidence of prior injury to different part of body inadmissible without medical evidence establishing relevancy); Marut v. Costello, 34 Ill.2d 125, 214 N.E.2d 768 (1965) (cross-examination regarding prior injury to different part of body inadmissible without medical evidence establishing relevancy.)

WHEREFORE, plaintiff requests that this Honorable Court strike all portions of the testimony of Dr. Daniel Homer at his evidence deposition which relate in any way to plaintiffs involvement in a minor automobile accident on June 15, 1995, and any asserted injuries that she may have sustained as a result of said accident; and further, that this Honorable Court bar the defendants from introducing any arguments, testimony or evidence, whether direct or indirect, regarding the following: 1) that Kathleen O'Connor was involved in an automobile accident on June 15, 1995, 2) that said accident caused Kathleen O'Connor's migraine headaches or 3) that said accident aggravated or worsened Kathleen O'Connor condition of post-traumatic migraine headaches.

Respectfully submitted,

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