May 11, 2001

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JUSTICE SLATER delivered the opinion of the court:

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Plaintiff filed suit alleging that he was injured as aresult of defendant's negligent operation of his automobile. Thejury returned a verdict in plaintiff's favor and awarded damagesof $25,856. Plaintiff's post-trial motion seeking a new trialwas denied and this appeal followed. We reverse and remand.

On June 4, 1992, plaintiff was waiting to make a left turnin his 1977 pickup truck in Lockport, Illinois, when he wasstruck from behind by defendant's vehicle. After the accident,plaintiff drove his vehicle from the scene. Plaintiff did notseek medical treatment until four days later. As a result of thecollision, plaintiff was treated for facet joint syndrome in thecervical and lumbar spine and for temporomandibular joint dysfunction. Plaintiff received treatment from a number ofmedical providers during the approximate eight-year periodbetween the date of the accident and the time of trial. Furtherevidence will be related as necessary to resolve particularissues.

Plaintiff asserts that the trial court erred in denying hismotion in limine which sought to prevent the defendant fromintroducing evidence or argument regarding plaintiff's prior andsubsequent injuries and medical conditions. Specifically, thecourt ruled that defendant could introduce evidence of motorvehicle accidents in 1989 and 1990 and falls by plaintiff in 1992and 1993. The trial court relied on this court's decision inO'Brien v. Thomas Steel Corp., 181 Ill. App. 3d 901, 538 N.E.2d1162 (1989), which held that evidence of a prior injury isadmissible without establishing a causal connection between thatinjury and the one at issue if the prior injury involved the samearea of the body. This "same part of the body rule" was rejectedby our supreme court in Voykin v. Estate of DeBoer, 192 Ill. 2d49, 733 N.E.2d 1275 (2000). The Voykin court characterized thesame part of the body rule as "nothing more than a bright-linerelevancy standard" (Voykin, 192 Ill. 2d at 57, 733 N.E.2d at1279) that improperly presumed that a previous injury wasautomatically relevant to the present injury simply because itaffected the same part of the body. The court held that suchevidence was admissible only if it was shown to be relevant, arequirement that would usually require expert testimony:

"In most cases, the connection betweenthe parts of the body and past and currentinjuries is a subject that is beyond the kenof the average layperson. Because of thiscomplexity, we do not believe that, in normalcircumstances, a lay juror can effectively oraccurately assess the relationship between aprior injury and a current injury withoutexpert assistance. Consequently, we concludethat, if a defendant wishes to introduceevidence that the plaintiff has suffered aprior injury, whether to the 'same part ofthe body' or not, the defendant mustintroduce expert evidence demonstrating whythe prior injury is relevant to causation,damages, or some other issue of consequence. This rule applies unless the trial court, inits discretion, determines that the naturesof the prior and current injuries are suchthat a lay person can readily appraise therelationship, if any, between those injurieswithout expert assistant." Voykin, 192 Ill.2d at 59, 733 N.E.2d at 1280.

Defendant argues that plaintiff has waived this issuebecause he failed to object to the evidence when it was offeredat trial and because he introduced some of the evidence of whichhe now complains. We disagree. Although a failure to objectwill generally result in a waiver (see Chubb/Home Insurance Cos.v. Outboard Marine Corp., 238 Ill. App. 3d 558, 606 N.E.2d 423(1992)), here the parties specifically stipulated thatplaintiff's objections to the evidence of other accidents andmedical conditions were preserved without the need forcontemporaneous objection. Under such circumstances, applicationof the waiver rule due to a failure to object or becauseplaintiff introduced the evidence as a matter of trial strategywould be inequitable. See Michigan Avenue National Bank v.County of Cook, 191 Ill. 2d 493, 732 N.E.2d 528 (2000) (waiverrule is limitation on the parties, not on the jurisdiction of thecourt, which has responsibility for achieving a just result); seealso Brown v. Baker, 284 Ill. App. 3d 401, 672 N.E.2d 69 (1996)(plaintiff did not waive objection to evidence of prior injury byintroducing it himself).

Defendant also asserts that Voykin, which was decided aftertrial was held in this cause, should only be appliedprospectively. We disagree. A court's decision is generallypresumed to apply both retroactively and prospectively, unlessthe court expressly states that its decision will be appliedprospectively only. Tosado v. Miller, 188 Ill. 2d 186, 720N.E.2d 1075 (1999); Aleckson v. Village of Round Lake Park, 176Ill. 2d 82, 679 N.E.2d 1224 (1997). Absent such a statement,overcoming the presumption of retroactivity requires applicationof a three part analysis: (1) whether the decision established anew principle of law, either by overruling clear past precedenton which litigants may have relied or by deciding an issue offirst impression whose resolution was not clearly foreshadowed;(2) whether, given the purposes and history of the new rule, itsoperation will be retarded or promoted by prospectiveapplication; and (3) whether substantial inequitable resultswould be produced if the former decision is appliedretroactively. Tosado, 188 Ill. 2d 186, 720 N.E.2d 1075;Aleckson, 176 Ill. 2d 82, 679 N.E.2d 1224.

Voykin arguably overruled "clear past precedent" in thisdistrict as established by O'Brien, although the other appellatedistricts were split over the admissibility of evidence based onthe same part of the body rule. Compare O'Brien and Bailey v.Wilson, 299 Ill. App. 3d 297, 700 N.E.2d 1113 (4th Dist. 1998)(adhering to rule) with Lagestee v. Days Inn Management Co., 303Ill. App. 3d 935, 709 N.E.2d 270 (1st Dist. 1999) (rejectingrule); Cancio v. White, 297 Ill. App. 3d 422, 697 N.E.2d 749 (1stDist. 1998) (same); Brown, 284 Ill. App. 3d 401, 672 N.E.2d 69(5th Dist.) (same). However, an examination of Voykin indicatesthat the court was essentially reaffirming its decision in Caleyv. Manicke, 24 Ill. 2d 390, 182 N.E.2d 206 (1962), requiring adefendant to demonstrate a causal relationship between a priorand present injury. See Voykin, 192 Ill. 2d at 55-56, 733 N.E.2dat 1279. Therefore Voykin did not establish a new principle oflaw, and failure to meet this "threshold requirement" forprospective application mandates that Voykin be appliedretroactively. See Tosado, 188 Ill. 2d at 197, 720 N.E.2d at1081, citing Aleckson, 176 Ill. 2d at 88, 679 N.E.2d at 1226.

Even if we were to consider Voykin as establishing a newprinciple of law, application of the two remaining factors woulddictate retroactive application. The purpose of the Voykin ruleis to exclude irrelevant evident. Retroactive application willfurther this purpose, while prospective application will not. Furthermore, because the same part of the body rule can result inthe introduction of irrelevant evidence, failing to apply theVoykin rule retroactively may produce substantial inequitableresults for plaintiff. Accordingly, we find that Voykin appliesretroactively.

Defendant also maintains that even if Voykin is applied tothis case, the evidence of prior accidents and subsequentinjuries was relevant and admissible. Defendant asserts that thedeposition testimony of Dr. Frederick Will supported theadmission of evidence of the February 23, 1993, slip and fall. We agree. Dr. Will testified that the 1993 fall exacerbatedplaintiff's physical problems from the 1992 auto accident. Therefore evidence of the 1993 fall was relevant to the issue ofdamages. Plaintiff also contends that the testimony of Dr.Steven Mash supported the admission of evidence of the 1989 autoaccident. However, Dr. Mash testified that he saw the plaintifftwo times after his 1989 accident and, although there were noobjective findings to support an injury, plaintiff was diagnosedwith chronic low back syndrome. After the second office visit onJune 8 of 1990, Mash did not see plaintiff again until August 13,1992, approximately two months after the accident with thedefendant. Mash did not know whether plaintiff had any symptomsassociated with his earlier back condition between June of 1990and August of 1992. Moreover, the symptoms reported by plaintiffin August of 1992 were "distinctly different" from his priorsymptoms. Such testimony contradicts defendant's claim of acausal connection between the 1989 and 1992 accidents, and doesnot satisfy the Voykin relevance requirement. In addition,defendant offers no supporting expert testimony for admission ofthe 1990 accident or the 1992 fall. Accordingly, we must reverseand remand this cause for a new trial.

Due to the admission of evidence of prior and subsequentinjuries without sufficient expert testimony establishingrelevance, this cause must be reversed and remanded for a newtrial. Given this result, we need not address plaintiff'sremaining claim concerning the inadequacy of the jury's award ofdamages. The judgment of the circuit court is reversed and thiscause is remanded for further proceedings consistent with thisorder.

Reversed and remanded.

BRESLIN and HOLDRIDGE, J.J., concur.