IV Countering the "pre-existing Condition" Defense - Ill. R. Evid. 803(7)

• Library: The Direct Examination of the Plaintiff's Treating Physician (2017 Ed.)

IV. COUNTERING THE "PRE-EXISTING CONDITION" DEFENSE - Ill. R. Evid. 803(7)

Especially in cases involving common spinal injuries, the defense will often argue that the plaintiff suffered from conditions of ill-being that existed before the collision; that the pain experienced by the plaintiff and/or the medical care rendered after the collision was the results of these preexisting conditions, not the collision.

The first response to such defense tactics is to challenge the pre-existing condition claims during discovery and to adduce facts and opinions that allow the plaintiff's counsel to argue in her motion in limine that evidence or argument of a pre-existing condition should be barred. (See below). However, if the effort to completely bar any evidence or argument of pre-existing condition fails, it is incumbent upon plaintiff's counsel to be prepared to minimize the significance of the condition.

Perhaps the most common case in which the pre-existing condition issues come into play is when a plaintiff alleging a spinal injury is found to have a degenerative disc disease. The defense will often attempt to argue that the plaintiff's current condition is due to a degenerative condition that is the cause of continuing pain and medical care.

Degenerative disc disease is an arthritic condition where the intravertrabal discs become degraded over time. Wear and tear caused by sports, labor, and ordinary daily activities means that most adults, or at least most older adults, have some degree of degenerative disc disease. The condition can cause the very same type of pain and require the same type of medical treatment as conditions caused by trauma (i.e., facet arthropathy, bulging/herniated disc).

Thus, if a 45 year old plaintiff involved in an automobile accident makes a claim that the collision was a cause of his back or neck pain, the defense will surely consider asserting that the plaintiff's current pain is due to the degenerative conditions of the back/neck that existed before the date of the collision.

In order to counter this claim by the defense, plaintiff's counsel should consider Illinois Rule of Evidence 803(7). As discussed in more detail in Section V, Ill. R. Evid. 803 sets forth exceptions to the hearsay rule. Among these exceptions is "evidence that a matter is not included" in certain medical records. More specifically, the rule states that the following is not excluded from evidence, even though the declarant is available as a witness:

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless

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