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 inMoline Illinois. He can be reached at or 309-581-5336).


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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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