Illinois Car Crash Photos May Be Used at Trial Now

Hey folks,

It’s been a while since I felt the need to blog about something on here. A big Illinois Supreme Court case came down recently that may have changed how auto accident photos are used at trial. Let’s talk about it.

Older cases like DiCosola v. Bowman and Baraniak v. Kirby essentially held that, without expert testimony, car crash photos do not come into evidence in car accident cases to prove either the severity of the plaintiff’s injury or lack thereof. Later cases seemed to walk that back a little, but in practice, car damage photos rarely came into evidence.

That’s about to change. In Peach v. McGovern, 2019 IL 123156 (2019), the Illinois Supreme Court essentially overruled DiCosola and Baraniak. The key quote: “If a jury is allowed to consider relevant testimony about vehicle speed and impact forces, a jury should be permitted to consider photographs that depict the damage, or lack thereof, done to vehicles.” The other key quote is: “Juries are entitled to infer that which resides squarely in the center of everyday knowledge, the certainty of proportion, and the resulting recognition that slight force most often results in slight injury and great force most often is accompanied by great injury.” But is that true?

crash photo

My client was in the car above. She had no major injuries at all. Walked away. Honestly, I have probably felt as sore a day after a hard workout.

Are laypeople really capable of correlating vehicle damage with occupant injury? Here are some of the difficulties:

  1. Do the photographs show the actual damage? Often all you get is a blurry shot or two of a bumper. Is there frame damage? Is there damage to an axle or more? If so, what type of impact does it take to damage those things?
  2. What condition was the plaintiff in before the crash? It should be common knowledge that some people are more prone to serious injury than others. A 20 year old athlete, for example, would most likely bounce back from a whiplash injury easier than a 70 year old with degenerative disc disease and a narrow spinal canal.
  3. How much force was required to cause the damage shown?
  4. How much force was required to injure (a) someone, (b) everyone, or (c) no one?

The issue is that someone on the jury will certainly have been in a car wreck that totaled their car – yet they weren’t hurt much. By that logic, many jurors will assume that any wreck where a car was NOT totaled could not possibly have caused an injury. This simply is not true.

Remember that the case is not about the damage to the car, but the damage to the person. The case is about the transfer of force. Neck injury cases are about how the defendant’s car hit the plaintiff’s car, causing force to be transferred into the plaintiff’s body (think of a croquet mallet/ball) and causing her neck to snap back in a way that her body was not prepared for.

Of course, this case cuts both ways. In the case above, I could have shown the jury this photograph – and others – heck, I would have made them Exhibit #1. But the logic would have been faulty, in the same way as showing a minor bumper scratch to argue that a person wasn’t hurt.

For practitioners, there are good arguments you can make using the Peach case. When the defense counsel argues that the case holds that photos always automatically come in, remind the judge that the case doesn’t say that – it says “the essential question
in deciding the admissibility of postaccident photographs is whether the jury
understands the evidence and can relate the vehicular damage depicted in the
pictures to the injury without the aid of an expert. This is an evidentiary question to
be resolved by the trial judge. ” Use your best MIST arguments (or at least your second best MIST arguments – save the absolute best for the jury) with the judge to help her understand that your case is not an appropriate one to show photos.

Also, be aware that Peach specifically drew a distinction between cases where a prior injury was involved. As good Illinois car accident attorneys know, the Voykin case held that a defendant must put on expert testimony to connect a prior injury to a current injury. The DiCosola and Baraniak cases drew on Voykin for their reasoning. In Peach, the court drew a distinction there, noting “Here, as in Baraniak and DiCosola, there is no prior injury involved. This is not a case where jurors must determine whether there is a connection between the plaintiff’s past and current injuries. Given that factual distinction, there is no common thread connecting the reasoning in Voykin to this case.” Where there are past injuries, I think there’s a good reason to exclude photographs based on that logic.

The bottom line is that minor impact cases just became a little tougher for plaintiff’s attorneys. There are still good arguments to be made to exclude vehicle photographs, and good arguments for the jury as to why they aren’t conclusive – but I don’t want to give away all of my secrets today.

(Howard Zimmerle is a personal injury lawyer in Rock Island Illinois. He can be reached at hzimmerle [at] or 309-794-1660).

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Medicare Set-asides – Still Not Required in Liability Cases

The old rules were easily understood. Certain workers comp claims required a Medicare set-aside – and the rules for those claims were straightforward. For other claims – liability and no-fault cases – the parties were still required to satisfy Medicare’s interests out of the settlement.

For years, we’ve been told that Medicare set-asides were coming for no fault and liability cases. You’ve been to the seminars. Some attorneys and insurance companies have probably been telling you for years that this is a requirement.

They’ve been wrong. Until now?

As of October 1, 2017, CMS issued new guidance to the Secondary Payer process: MM9893. Sounds ominous, doesn’t it?

The gist of the rule is that CMS will begin to track whether there is a Liability Medicare Set-aside (LMSA) and if there is, Medicare will stop paying for diagnosis codes that should have been covered by the LMSA. Side note – they didn’t do this before? Why the heck not? I thought that was the point of LMSAs, to the extent that they existed. WTH?

The key point to remember is… that’s it. There is NO REQUIREMENT that an LMSA be set up at all. None. All this says is that if there is one, it has to be used before Medicare will pay again. I’m not just making this up – it’s in the guidance and the rule – ” Liability and NoFault MSP claims that do not have a Medicare Set-Aside Arrangement (MSA) will continue to be processed under current MSP claims processing instructions. ”

There has been no statutory change that requires LMSAs. Remember that when someone inevitably misunderstands this minor change.

Of course, don’t kid yourself – that still might happen someday.

(Howard Zimmerle is an attorney practicing injury law in Iowa and Illinois. You can reach him at 309-794-1660 or hzimmerle [at]

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Iowa Supreme Court Recognizes Cause of Action for Wrongful Birth (Sort of)

Is this big? Time will tell. Either way, the Iowa Supreme Court ruled in a surprisingly progressive way, joining the majority of states (including Illinois – over 30 years ago) in recognizing a cause of action for wrongful birth. The case (Plowman v. Fort Madison Community Hospital, et al, is linked here). 

The gist of the cause of action is this: if a physician knew or should have known that a child was likely to have a birth defect, but failed to inform the parents, and the parents would have terminated the pregnancy, the parents can sue for the expenses/etc of raising a severely disabled child.

As the court repeatedly asserts, the injury/harm is not the child, the injury/harm is the loss of the opportunity to make an informed decision whether or not to terminate a pregnancy.

Obviously this brings up some hot button issues. This blog is not the place to discuss those right now.

Oddly enough, Iowa does not allow a lawsuit for the wrongful birth of a “normal, healthy” baby. In other words, if your vasectomy is done poorly, too bad.

The case leaves some issues hanging, which will have to be ironed out by other courts in the future. For example:

  1. How disabled does the child have to be? The holding seems to be limited to a “severely disabled child”. What does that mean? As the dissent mentions, where is that line?
  2. What are the damages? Obviously the cost of raising a severely disabled child can be enormous. These damages appear to be allowable. As opposed to some courts, the Iowa Supreme Court refused to “monetize the joy of raising a severely disabled child to offset the costs of raising him.” In other words, the damages will not be reduced just because a parent loves his/her child and enjoys having him/her. This makes perfect sense – despite the burdens such a situation places on parents, all parents I’ve ever known who have children with severe disabilities love and enjoy them immeasurably. Will damages for emotional distress be included? Will medical expenses continue throughout the child’s life expectancy?

It will be interesting to see how this all plays out. Given the current makeup of the Iowa legislature, I wouldn’t be surprised to see this overruled by statute in the next session.

(Howard Zimmerle is a personal injury and medical malpractice attorney in the Quad Cities. He can be reached at 309-794-1660 or at hzimmerle [at]

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More Recognition for Warner & Zimmerle Lawyers!!

We’re proud to announce some significant accolades for both of our attorneys!

Mike Warner was nominated by his peers as a Leading Lawyer in the areas of:

ADR Law: Personal Injury;

Personal Injury: Professional Malpractice Personal Injury Law; and

General Workers Compensation Law.

Additionally, Mike was the most often recommended Personal Injury Plaintiff’s lawyer in the Illinois Quad City area! Being nominated as a Leading Lawyer is a great honor, as it is an award given to less than 5% of the lawyers in the state.

Likewise, Howard Zimmerle was nominated by his peers as an Emerging Lawyer in the areas of:

Personal Injury Law: General; and

Workers Compensation Law.

This award is given to less than 2% of lawyers under age 40 in the state of Illinois.

As always, we are proud of our attorneys, and we couldn’t do our jobs without great clients and an outstanding support staff. You can contact us at 309-794-1660 or hzimmerle [at]

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Why Haven’t I Served on a Jury?

As soon as I sat down to write this, I realized that I should have called the post “How to Get Out of Jury Duty” and gotten a lot more hits. Oh well – the current title will find the right people. People like me, who never get called for jury duty and wonder why.

I saw an article on FiveThirtyEight discussing that same issue. It first cites a small DRI survey noting that 27 percent of US adults had served on a jury at some point. That seems about right – maybe even a little high.

The article also discusses some of the basics – people picked for jury selection must be US citizens, must not be felons, and must have enough English proficiency to do the job. There’s more to it though.

In Illinois, the jury pool is picked from (a) registered voters, (b) drivers license holders, (c) disability identification card holders, and (d) applicants for unemployment. In Iowa, the jury pool is picked from (a) registered voters, (b) drivers license holders, and may include (c) “any other current comprehensive list… including lists of public utility customers”. Obviously this excludes a lot of people – those who don’t drive, haven’t registered to vote, and don’t have any utilities in their name. Quite frankly it excludes a lot of lower income people and people of color. The nature of the citizenship requirement also excludes a significant percentage of the Hispanic population – which often includes Resident Aliens who are not US Citizens.

Even if the system worked well, it could still miss some people. At this moment, my drivers license expired two days ago. It doesn’t list my current address. My voter registration is still at two houses ago – I always mean to get that changed, but I never do… there’s a chance I could have been called but fell through the cracks. I’m not alone.

Finally, one other aspect is the vanishing jury trial. For some reference, there were over 12,000 jury trials in federal courts in 1985. That number fell to just over 2,000 in 2010. State Courts are no different – Iowa, for example, had 1,426 jury trials in state court in 1995, but only 815 in 2014. There are many reasons for that, but the main point is that asking “Why haven’t I served on a jury” may be like asking “Why haven’t I seen a Black Rhino?” They’re both endangered – there just aren’t as many as there used to be.

(Howard Zimmerle is a lawyer practicing in Rock Island Illinois and Davenport Iowa. He can be reached at hzimmerle [at] or at 309-794-1660). 

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Calculating Lien Reductions under the Illinois Health Care Services Lien Act (after McVey)

The Illinois Supreme Court issued an opinion on McVey v. MLK Enterprises this week. Plaintiffs lawyers who accept small and/or difficult cases are frustrated.

The Health Care Services Lien Act, 770 ILCS 23/10(c), provides a framework to reduce the liens of health care providers (in some circumstances) after a case has been settled. The quick and dirty of this law (which is actually quite intricate) is that the total of all medical liens were reduced to 40% of the verdict or settlement, and the attorney’s lien was reduced to 30%, with the idea that there would still be money available to go to the injured party.

In practice, this doesn’t always work out the way it should. First, the Act didn’t address subrogation claims (like those for health insurance, Medicaid or Medicare). This has been mitigated somewhat by the new 770 ILCS 23/50, which allows for a reduction in subrogation if there is comparative fault or “uncollectability of the full value of the claim.” Second, the Act specifies that, even though a lien can be reduced, the injured party still owes the full amount of the bill. So if there is a $10,000 bill that is reduced to $6,000 under the Act, the injured person still owes $4,000 unless the attorney can negotiate that away (which we always try to do – typically by adding a little extra to the reduced lien amount). Third, to apply the Act to a provider who wasn’t willing to reduce its lien voluntarily, there has to be a suit or at least some sort of action filed by which the Court can adjudicate the liens. That’s fine if a case has already been filed, but for some that are resolved pre-suit, it could add filing fees and costs.

The McVey case created (or at least highlighted) a fourth problem with the Act. The 30% that goes to the attorney also includes the attorney’s costs incurred in prosecuting the case. Most attorney fee contracts provide that the attorney is paid 33.33% plus reimbursement of costs at the end of the case. So if an attorney settles a typical case for $10,000 after spending $500, the attorney would be paid $3,333.33 plus the $500 back. If the attorney needs to use the Health Care Services Lien Act to reduce the liens, then the attorney would only take home $3,000 total – 30% of the settlement.

Doesn’t seem that bad, right? Not in that case. The difficulty comes in where there is a compromise settlement of a difficult case, or a verdict without much awarded for pain and suffering.

Imagine the “bad verdict.” $10,000 in medical bills. Jury awards $12,000. Attorney has taken depositions and needed two treating doctors to testify at trial, spending $3,000. Attorney’s fees are now only $1,000, per statute. What if there were $5,000 in costs? Then the attorney loses $4,000.

Imagine the “50/50” case. Both parties say they had the green light. Case worth, say, $20,000 but with a 50% chance of winning. $3,000 in costs, but a $10,000 offer. If the attorney takes the offer, he gets his costs back and nothing else. If he rolls the dice and goes to trial, his costs go up and he may get nothing – or even less. If there are medical liens out there, then there are unpaid medical bills. Settlement is probably in the client’s best interest, but then the lawyer would have worked and “loaned” $3,000 of his own money, for free.

This isn’t a pity party for us poor plaintiffs lawyers, although it certainly may sound like that. The real problem here is that many people will have difficulty finding attorneys who are willing to fight tough cases. Not all cases are clear cut. Some have difficult liability. Sometimes it’s tough to prove that the crash or whatever actually caused the injury. People with tough cases need lawyers who are willing to fight for them – even more than most people do because the cases are harder. People like me take those cases and enjoy the challenge – but if we can win and still not even recover what we spent out of pocket? It may make us think twice about taking the case, and it may leave injured people without the legal help they need.

(Howard Zimmerle is a personal injury lawyer handling car accident and other injury cases in the Quad Cities area. He can be reached at hzimmerle [at] or 309-794-1660). 

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New Iowa laws help car accident victims get a fair trial

Just a quick overview of some of the new Iowa Civil Procedure rules on one of my other blogs…

Iowa Car Accident Law and Facts

Happy New Year!

One of the interesting things we see each new year are the new laws that go into effect. The State of Iowa adopted some new rules for smaller court cases that will help anyone who has been hurt in an accident get a fast and fair trial.

The cases that make the news are the big ones – the cases in the hundreds of thousands of dollars or in the millions of dollars… and we handle those cases. We also handle much smaller cases – and let’s face it – most auto accident cases are smaller than that. In many cases our clients simply need our help to get their medical bills paid, along with a few thousand in lost wages.

When it came time for settlement discussions, one of the hard realities was that the trial process can be expensive and can take a long time…

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