{ "id": 249147, "name": "MICHAEL J. HOUSH, Plaintiff-Appellant, v. JENNIFER L. BOWERS, Defendant-Appellee", "name_abbreviation": "Housh v. Bowers", "decision_date": "1995-04-18", "docket_number": "No. 3\u201494\u20140426", "first_page": "1004", "last_page": "1009", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 1004" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "642 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "157 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "633 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3384916 ], "weight": 3, "pin_cites": [ { "page": "863" }, { "page": "864" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0861-01" ] }, { "cite": "363 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464094 ], "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0585-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "698, 700" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "year": 1977, "pin_cites": [ { "page": "516, 519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] } ], "analysis": { "cardinality": 711, "char_count": 11852, "ocr_confidence": 0.738, "pagerank": { "raw": 1.1893820964262424e-07, "percentile": 0.5910082016364661 }, "sha256": "a367d0bb5d16bd3f44a05537d0ff06880728e59709365a8c444e6c86a7075f28", "simhash": "1:8cae30456ee695ec", "word_count": 1972 }, "last_updated": "2023-07-14T19:52:56.134317+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL J. HOUSH, Plaintiff-Appellant, v. JENNIFER L. BOWERS, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nMichael Housh filed a negligence action against Jennifer Bowers for injuries he sustained when their vehicles collided at an intersection. The jury returned a verdict for Bowers. Housh appeals. We reverse and remand.\nAt approximately 9:25 a.m. on February 17, 1990, a 1982 CMC dump truck driven by Michael Housh collided at the intersection of Illinois Route 59 and 95th Street with a 1982 Ford Crown Victoria station wagon driven by Jennifer Bowers. Prior to the accident, Housh had been driving south on Route 59, a two-lane highway, between 50 and 55 miles per hour; the posted speed limit was 55 miles per hour. The weather was clear; the pavement was dry, and neither driver\u2019s view of the intersection was obstructed.\nHoush testified that he had seen Bowers\u2019 car stop at the intersection and that Bowers and her passenger appeared to look in his direction. When he was 15 to 20 feet from the intersection, Housh saw Bowers\u2019 car start to cross the intersection. He swerved and attempted to apply his brakes, but did not sound his horn. He estimated his speed at 45 to 50 miles per hour when the left front portion of his truck hit the right front portion of Bowers\u2019 car. Both vehicles came to rest facing south, with Housh\u2019s truck in a ditch along the east side of Route 59 and Bowers\u2019 car on the shoulder of the southbound lane of Route 59. The investigating police officer found no skid marks prior to the point of impact.\nWhen the accident occurred, Bowers was 16 years old and had been driving for about two months. On the morning of the accident, she had been travelling west on 95th Street and had stopped at a stop sign at the intersection of 95th Street and Route 59. She testified that she had waited there \"quite a while\u201d for traffic and had accelerated slowly into the intersection when traffic was only at a distance. She estimated that in four to five seconds she had moved 16 to 19 feet into the intersection when her passenger shouted \"Truck!\u201d and Bowers saw Housh\u2019s truck for the first time.\nAt trial, Bowers described the truck\u2019s speed as \"high\u201d and \"really fast,\u201d which she considered to be 50 or 55 miles per hour. She stated that she had not heard a horn or screeching tires prior to impact. Despite her attempt to avoid the collision by applying her brakes and swerving to the left, the two vehicles collided shortly after she saw the truck.\nAfter the accident, Housh was taken to the emergency room, where he was treated for injuries he sustained when he was thrown against the lap belt he had been wearing. His family physician, Dr. Ronald Cheff, treated him for back pain and referred him to Dr. Gene Neri, a neurologist, when his condition failed to improve. Dr. Neri conducted several tests, including two electromyography (EMG) tests. The EMG results were abnormal and indicated nerve root damage in Housh\u2019s lower back. After Dr. Neri told Housh not to return to work as a concrete construction laborer, Housh was unemployed from February 17, 1990, to November 12, 1991, when he went to work for a new employer without medical approval.\nBowers pleaded guilty to failure to yield the right-of-way and was placed under court supervision. Housh subsequently filed this negligence action against Bowers.\nThe trial court denied Housh\u2019s motion in limine to exclude evidence of his five-year-old felony conviction for possession of a controlled substance with intent to deliver, and evidence of the conviction was admitted at trial. Also at the trial, the court refused to admit the testimony of Dr. Cheff and Dr. Neri concerning the permanence of Housh\u2019s back injury because they had not recently examined him. The jury returned a general verdict for Bowers.\nADMISSION OF A PRIOR FELONY CONVICTION\nOn appeal, Housh first argues that denial of his motion in limine to exclude evidence of his prior felony conviction was reversible error.\nTo determine the admissibility of a prior conviction for impeachment purposes, the supreme court has adopted a three-part test derived from proposed Federal Rule of Evidence 609. (People v. Montgomery (1971), 47 Ill. 2d 510, 516, 519, 268 N.E.2d 695, 698, 700.) This test was extended to civil cases in Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 590, 363 N.E.2d 805, 808. To be admissible for purposes of impeachment under the current Rule 609, (1) the conviction must have been for a felony or other appropriate crime, (2) it had to have occurred less than 10 years before the witness\u2019 testimony, and (3) the probative value of the conviction must outweigh its prejudicial effect on the jury.\nBecause Housh\u2019s conviction satisfies the first and second prongs of the Montgomery test, the third prong is critical. An appellate court will reverse a ruling on a motion to exclude a prior conviction if the trial court abuses its discretion. Baldwin v. Huffman Towing Co. (1977), 51 Ill. App. 3d 861, 863, 366 N.E.2d 980, 982.\nIn denying Housh\u2019s motion in limine to exclude evidence of his conviction, the trial judge relied on Holmes v. Anguiano (1988), 174 Ill. App. 3d 1081, 529 N.E.2d 300, appeal denied (1989), 124 Ill. 2d 554, 535 N.E.2d 914. In Holmes, the court reversed the grant of the defendant\u2019s motion in limine to exclude evidence of his prior felony conviction for attempted robbery. (Holmes, 174 Ill. App. 3d at 1085, 529 N.E.2d at 303.) The court ruled that the conviction was admissible because it demonstrated the defendant\u2019s willingness \"to place advancement of his interests ahead of the interests of society, [which] may suggest the willingness to do so again on the witness stand.\u201d (Holmes, 174 Ill. App. 3d at 1084, 529 N.E.2d at 302.) On appeal, Bowers contends that Holmes controls this case because Housh\u2019s drug conviction shows his willingness to advance his own interests over those of society.\nIn People v. Williams (1994), 161 Ill. 2d 1, 641 N.E.2d 296, the supreme court recently undertook an extensive review of Montgomery and critiqued its subsequent application by the appellate court. The court rejected the blanket justification used in Holmes that a prior felony conviction \"establishes a disposition to place self-interest ahead of the interest of society\u201d and decried the \"increasingly mechanical application\u201d of this rationale as contrary to the principles in Montgomery. (Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312.) The touchstone for the admissibility of a prior conviction is the relationship between the crime and the likely truthfulness of the witness.\nThe Williams court reviewed several factors from the committee comments to Rule 609 in determining whether to admit evidence of a prior conviction and added that \" '[i]n common human experience, acts of deceit, fraud, cheating, or stealing *** are universally regarded as conduct which reflects adversely on a man\u2019s honesty and integrity.\u2019 \u201d Williams, 161 Ill. 2d at 37, 641 N.E.2d at 311, quoting Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, 940, cert. denied (1968), 390 U.S. 1029, 20 L. Ed. 2d 287, 88 S. Ct. 1421.\nApplying these principles to the instant case, we find that Holmes is distinguishable and the trial court erred in relying on it. The nature of the convictions in Holmes and this case bear different relationships to a witness\u2019 veracity and credibility. The attempted robbery conviction in Holmes is more closely linked to testimonial dishonesty than the drug conviction in this case.\nIn Baldwin v. Huffman Towing Co. (1977), 51 Ill. App. 3d 861, 366 N.E.2d 980, the court affirmed the exclusion of the plaintiff\u2019s 4\u00bd-year-old drug conviction for possession of heroin because the potential for prejudice \"far outweigh[ed]\u201d the probative value of the conviction when no evidence was offered at trial to show that the underlying car accident was drug-related. The court held that a drug conviction is unduly harmful because society presumes that \"narcotics addicts are notorious liars\u201d and that \"once a user or addict always a user or addict.\u201d Baldwin, 51 Ill. App. 3d at 864, 366 N.E.2d at 982.\nAlthough the specific drug crimes in Baldwin and the instant case differ, the probative value and prejudicial effect of these crimes are substantially similar. No evidence was presented to show that Housh had any subsequent convictions, had used or possessed illegal drugs since his conviction, or that the accident was related to drugs.\nBecause the prejudicial effect of a drug conviction is particularly harsh in a civil case where drugs are not involved, we hold that the trial court abused its discretion in denying Housh\u2019s motion in limine. The record shows that admitting Housh\u2019s conviction unduly tainted the jury\u2019s verdict because the evidence was largely undisputed and not favorable to Bowers. The probative value of Housh\u2019s conviction was substantially outweighed by the risk of unfair prejudice. On remand, Housh\u2019s prior conviction should not be admitted for purposes of impeachment.\nEXPERT TESTIMONY REGARDING PERMANENCE OF INJURIES\nAlthough we remand this cause for a new trial on other grounds, we feel it appropriate to offer guidance to the trial court and the parties concerning the testimony of two of Housh\u2019s treating physicians on the nature, extent and permanence of his injuries to avoid a subsequent appeal on that issue.\nRelying on Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, 353 N.E.2d 273, the trial court excluded testimony from Dr. Cheff and Dr. Neri concerning Housh\u2019s \"risk of future problems\u201d because nearly three years had passed since they had treated him. In Henricks, the court excluded medical testimony regarding the plaintiff\u2019s prognosis because the doctor had only treated him for three weeks and had not examined him in the three years preceding trial.\nHoush argues that the trial court should have followed Thurmond v. Monroe (1992), 235 Ill. App. 3d 281, 291, 601 N.E.2d 1048, 1055, aff\u2019d (1994), 159 Ill. 2d 240, 636 N.E.2d 544, and allowed the physicians\u2019 testimony. In Thurmond, evidence was admitted as to the permanence of an injury without a recent examination based on the court\u2019s distinction between the \"permanence\u201d of an injury and the patient\u2019s \"prognosis.\u201d\nWe feel that both of these holdings are too narrow and follow instead the recent decision in Marchese v. Vincelette (1994), 261 Ill. App. 3d 520, 526, 633 N.E.2d 877, 881, appeal denied (1994), 157 Ill. 2d 504, 642 N.E.2d 1283, in which the court held that the time interval between the plaintiff\u2019s last examination and the trial goes to the weight given to the physician\u2019s testimony, not to its admissibility.\nIn the instant case, Housh had been treated by Drs. Cheff and Neri for over a year, and extensive tests had been conducted, including two EMGs. Based on these tests, the physicians concluded that Housh\u2019s condition would not change substantially over time, and Dr. Neri stated that his medical opinion was unlikely to vary if he were to reexamine Housh.\nOn remand, the trial court should admit the testimony of Drs. Cheff and Neri concerning the permanence, nature, and extent of Housh\u2019s injury. The passage of time between the physicians\u2019 examinations of Housh and the trial properly goes to the weight of their testimony.\nCONCLUSION\nBecause we reverse and remand this cause on other grounds, we need not address the other issues before us.\nFor the reasons stated, the judgment of the circuit court of Will County is reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nMcCUSKEY and SLATER, JJ, concur.", "type": "majority", "author": "JUSTICE LYTTON" } ], "attorneys": [ "Rooks, Pitts & Poust, of Joliet (Robert R. Gorbold, of counsel), for appellant.", "James Scott McMahon and Donald Stellato, both of Stellato & Schwartz, Ltd., of Chicago (Esther Joy Schwartz, of counsel), for appellee." ], "corrections": "", "head_matter": "MICHAEL J. HOUSH, Plaintiff-Appellant, v. JENNIFER L. BOWERS, Defendant-Appellee.\nThird District\nNo. 3\u201494\u20140426\nOpinion filed April 18, 1995.\nRooks, Pitts & Poust, of Joliet (Robert R. Gorbold, of counsel), for appellant.\nJames Scott McMahon and Donald Stellato, both of Stellato & Schwartz, Ltd., of Chicago (Esther Joy Schwartz, of counsel), for appellee." }, "file_name": "1004-01", "first_page_order": 1024, "last_page_order": 1029 }