In-court exam by treating physician is useful visual tool for jury at trial
Balancing Life and the Law
April 7, 2022
My 13-year-old daughter is an interesting young lady on so many levels. Notwithstanding her addiction to TikTok, she is wise beyond her years. For example, when there are upcoming trials or cases, she wants to “see” the injury of my client. Sometimes, I feel like it is a little bit morbid but she is a visual person and learner. Which got me thinking, I may not be doing enough of presenting some incredibly important visual evidence. Namely, the in-court physical examination of the injured plaintiff by a doctor.
Illinois courts have long favored the use of demonstrative evidence to help the jury better understand the relevant issues in the case. See, e.g., Burke v. Toledo, Peoria & Western R.R. Co., 148 Ill. App. 3d 208 (1st Dist. 1986). Demonstrative evidence serves as a visual aid to the jury in comprehending the verbal testimony of the witness. See, e.g., Smith v. Ohio Oil, 10 Ill. App. 2d 67, 75 (4th Dist. 1956) (“[i]t is said [demonstrative evidence’s] great value lies in the human factor of understanding better what is seen than what is heard.”). (Emphasis added.)
The Illinois Supreme Court has held that it is proper for a medical doctor to examine the plaintiff in the presence of the jury. See Lanark v. Doughtery. 153 Ill. 163 (1894), overruled on other grounds by Alvis v. Ribar, 85 Ill. 2d 1 (1981). In Lanark, the plaintiff was injured when he stepped into a hole in a sidewalk. Lanark, 153 Ill. at 165. On the plaintiff’s request, the trial court permitted the plaintiff to be examined in the presence of the jury by a physician. The defendant argued that the court’s ruling was in error, but the Illinois Supreme Court disagreed, stating “it is … within the discretion of the court to allow the plaintiff to exhibit to the jury his injured limb or body” and found no error in the action of the court in this respect.
Similarly, in LeMaster v. Chicago Rock Island & Pacific R.R., 35 Ill. App. 3d 1001, 1023 (1st Dist. 1976), the plaintiff was called as a witness and was asked by his attorney to undress down to a bathing suit so as to demonstrate the limitations of his disability when disrobing, in addition to the use of his prostheses. After hearing arguments on the defendant’s objection, the trial court ruled that the disrobing would be proper as the jury is required to evaluate the damages and is therefore entitled to see the plaintiff’s disability. In affirming the trial court’s ruling on the issue, the 1st District Appellate Court held:
“The exhibition of a stump or wound and the demonstration of a disability have both been approved of in personal injury cases subject to the discretion of the trial court. The trial court in Darling wrote that ‘[t]he exhibition of an injury to a jury is within the discretion of the Trial Court — a party may demonstrate the nature and extent of the injury, or the disability resulting therefrom, and it is common and correct practice to exhibit the wound or injury to the jury, even where there is no dispute as to the fact and nature of the injury.’ Such observations are permitted because they are useful in aiding a jury to understand the exact nature and extent of the claimed injury to be evaluated. In the instant case, it is clear that the plaintiff’s demonstration of his disability and the exhibition of his stumps and prosthetic limbs accurately portrayed his injuries to the jury. Id. at 1024, citing Darling v. Charleston Community Memorial Hospital, 50 Ill. App. 2d 253, 325-26 (4th Dist. 1964) affirmed on other grounds, 33 Ill. 2D 326 (1965) (emphasis added).”
The jury has every right to see the party’s injury around which the entire case often revolves. See, e.g., Burnett v. Caho, 7 Ill. App. 3d 266, 272 (3d Dist. 1972) (“[i]t is common practice to display personal injuries to the jury even though there is no controversy as to the existence, nature, and extent thereof.”). Similarly, a health care provider should be afforded the opportunity to conduct an examination in court which would serve as a visual aid that will help explain their opinions, to the jury. Far from cumulative, in fact the Illinois Supreme Court has stated that “[t]his court has recognized that demonstrative evidence may be clearer and more persuasive than oral testimony covering exactly the same points.” People v. Simms, 143 Ill. 2d 154, 176-77 (1991).
As such, an in-court examination offered by a treating physician is a visual tool that will assist the jurors in understanding the testimony the doctor intends to provide. It is not cumulative. It is not gruesome. It is factual and should be permitted by trial judges for the benefit of the jury.
Some lawyers work for the income. Others work for the outcome. Thanks to the insight of Lily Kroll, her visual desire to see how my clients have been impacted will assist myself and others with the outcome.
Read the full article: https://www.chicagolawbulletin.com/jeffrey-kroll-examination-of-injured-plaintiff-20220407