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SMARTEVIDENCE: MEDICAL MALPRACTICE SMARTEVIDENCE: MEDICAL MALPRACTICE 2010 2010 CONTENTS CONTENTS Preface III. [3.1] DEMONSTRATIVE Preface III. [3.1] DEMONSTRATIVE EVIDENCE EVIDENCE List of Major Potential IV. RELEVANCE AND ITS EXCEPTIONS List of Major Potential IV. RELEVANCE AND ITS EXCEPTIONS Objections Objections A. [4.1] Relevance A. [4.1] Relevance I. HEARSAY B. [4.2] Impeachment I. HEARSAY B. [4.2] Impeachment C. [4.3] Subsequent Remedial C. [4.3] Subsequent Remedial A. [1.1] Hearsay Measures A. [1.1] Hearsay Measures B. [1.2] Non-Hearsay D. [4.4] Dead-Man’s Act B. [1.2] Non-Hearsay D. [4.4] Dead-Man’s Act C. [1.3] Admissions E. [4.5] Privilege C. [1.3] Admissions E. [4.5] Privilege D. [1.4] Additional Hearsay F. [4.6] Offers of Compromise and D. [1.4] Additional Hearsay F. [4.6] Offers of Compromise and Exceptions: Declarant’s Settlement Exceptions: Declarant’s Settlement Availability Immaterial Availability Immaterial E. [1.5] Additional Hearsay V. TESTIMONY E. [1.5] Additional Hearsay V. TESTIMONY Exceptions: Declarant Exceptions: Declarant Unavailable A. [5.1] Laying the Foundation for Unavailable A. [5.1] Laying the Foundation for Testimony Based on Testimony Based on Personal Knowledge Personal Knowledge II. DOCUMENT ISSUES B. [5.2] Objectionable Questions II. DOCUMENT ISSUES B. [5.2] Objectionable Questions C. [5.3] Refreshing Present C. [5.3] Refreshing Present A. [2.1] Medical Records Recollection A. [2.1] Medical Records Recollection B. [2.2] Authentication D. [5.4] Nonresponsive Answer B. [2.2] Authentication D. [5.4] Nonresponsive Answer C. [2.3] Best-Evidence Rule E. [5.5] Lay Opinion C. [2.3] Best-Evidence Rule E. [5.5] Lay Opinion D. [2.4] Summaries F. [5.6] Experts D. [2.4] Summaries F. [5.6] Experts E. [2.5] Parol-Evidence Rule G. [5.7] Medical Experts E. [2.5] Parol-Evidence Rule G. [5.7] Medical Experts F. [2.6] Computer Records F. [2.6] Computer Records and E-Mails VI. ARGUMENTS and E-Mails VI. ARGUMENTS G. [2.7] Other Medical Sources G. [2.7] Other Medical Sources and Regulations A. [6.1] Opening Statement and Regulations A. [6.1] Opening Statement B. [6.2] Closing Argument B. [6.2] Closing Argument VII. [7.1] JURY EXHIBITS VII. [7.1] JURY EXHIBITS The original concept, design, and content of SMARTEVIDENCE were provided by Mitchell L. The original concept, design, and content of SMARTEVIDENCE were provided by Mitchell L. Marinello, Timothy J. Miller, and Alison Schwartz of Novack and Macey LLP, Chicago, in the Marinello, Timothy J. Miller, and Alison Schwartz of Novack and Macey LLP, Chicago, in the first of this series: SMARTEVIDENCE: COMMERCIAL LITIGATION (2006). This 2010 edition is first of this series: SMARTEVIDENCE: COMMERCIAL LITIGATION (2006). This 2010 edition is provided by Courtney Boho Marincsin, Clifford Law Offices, Chicago. provided by Courtney Boho Marincsin, Clifford Law Offices, Chicago. ©COPYRIGHT 2010 BY IICLE. ©COPYRIGHT 2010 BY IICLE. Copyright 2010 by IICLE. 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Wolven, Horwood Marcus & Berk, Chtd., Chicago* Lauren J. Wolven, Horwood Marcus & Berk, Chtd., Chicago* Immediate Past Chair Immediate Past Chair George F. Mahoney III, Mahoney, Silverman & Cross, Ltd., Joliet* George F. Mahoney III, Mahoney, Silverman & Cross, Ltd., Joliet* William J. Anaya, Arnstein & Lehr, Chicago* William J. Anaya, Arnstein & Lehr, Chicago* Paul E. Bateman, Littler Mendelson, P.C., Chicago Paul E. Bateman, Littler Mendelson, P.C., Chicago Lorraine K. Cavataio, Mathis, Marifian & Richter, Ltd., Belleville Lorraine K. Cavataio, Mathis, Marifian & Richter, Ltd., Belleville Jane N. Denes, Posegate & Denes, P.C., Springfield Jane N. Denes, Posegate & Denes, P.C., Springfield Deborah L. Gersh, Ropes & Gray LLP, Chicago Deborah L. Gersh, Ropes & Gray LLP, Chicago James M. Lestikow, Hinshaw & Culbertson, LLP, Springfield James M. Lestikow, Hinshaw & Culbertson, LLP, Springfield Thomas A. Lilien, Office of the State Appellate Defender, Elgin Thomas A. Lilien, Office of the State Appellate Defender, Elgin Claire A. Manning, Brown, Hay & Stephens, LLP, Springfield Claire A. Manning, Brown, Hay & Stephens, LLP, Springfield Timothy S. Midura, Huck Bouma, P.C., Wheaton Timothy S. Midura, Huck Bouma, P.C., Wheaton Ben Neiburger, Neiburger Law, Ltd., Elmhurst Ben Neiburger, Neiburger Law, Ltd., Elmhurst Robert Z. Slaughter, Evanston Robert Z. Slaughter, Evanston *Executive Committee Members *Executive Committee Members IICLE Board of Directors Past Chairs IICLE Board of Directors Past Chairs H. Ogden Brainard (1962 – 1969) Tomas M. Russell (1989 – 1990) H. Ogden Brainard (1962 – 1969) Tomas M. Russell (1989 – 1990) John S. Pennell (1969 – 1971) John K. Notz, Jr. (1990 – 1991) John S. Pennell (1969 – 1971) John K. Notz, Jr. (1990 – 1991) William K. Stevens (1971 – 1972) Michael J. Rooney (1991 – 1992) William K. Stevens (1971 – 1972) Michael J. Rooney (1991 – 1992) J. Gordon Henry (1972 – 1973) Willis R. Tribler (1992 – 1993) J. Gordon Henry (1972 – 1973) Willis R. Tribler (1992 – 1993) Roger J. Fruin (1973 – 1974) Thomas Y. Mandler (1993 – 1994) Roger J. Fruin (1973 – 1974) Thomas Y. Mandler (1993 – 1994) Joseph J. Strasburger (1974 – 1975) Ralph T. Turner (1994 – 1995) Joseph J. Strasburger (1974 – 1975) Ralph T. Turner (1994 – 1995) William J. Voelker (1975 – 1976) Robert E. Bouma (1995 – 1996) William J. Voelker (1975 – 1976) Robert E. Bouma (1995 – 1996) Harold W. Sullivan (1976 – 1977) Patrick B. Mathis (1996 – 1997) Harold W. Sullivan (1976 – 1977) Patrick B. Mathis (1996 – 1997) John J. Vassen (1977 – 1978) Michael H. Postilion (1997 – 1998) John J. Vassen (1977 – 1978) Michael H. Postilion (1997 – 1998) James M. (Mack) Trapp (1978 – 1979) Robert V. Dewey, Jr. (1998 – 1999) James M. (Mack) Trapp (1978 – 1979) Robert V. Dewey, Jr. (1998 – 1999) Theodore A. Pasquesi (1979 – 1980) Roma Jones Stewart (1999 – 2000) Theodore A. Pasquesi (1979 – 1980) Roma Jones Stewart (1999 – 2000) George W. 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William Elwin, Jr. (1987 – 1988) Susan T. Bart (2007 – 2008) Donald E. Weihl (1988 – 1989) Adrianne C. Mazura (2008 – 2009) Donald E. Weihl (1988 – 1989) Adrianne C. Mazura (2008 – 2009) IICLE Staff IICLE Staff Nora L. Crandall, Executive Director Nora L. Crandall, Executive Director Aaron Wickenhauser, Director of Publishing Aaron Wickenhauser, Director of Publishing Megan K. Moore, Director of Courses Megan K. Moore, Director of Courses Valerie J. Merrihew, Director of Operations & CFO Valerie J. Merrihew, Director of Operations & CFO Alan W. Gietl, Director of Marketing & Delivery Alan W. 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Instead, medical malpractice and the laws of evidence. Instead, SMARTEVIDENCE is intended to be concise enough to be thrown in a SMARTEVIDENCE is intended to be concise enough to be thrown in a briefcase on the way to court. While we firmly believe that the best briefcase on the way to court. While we firmly believe that the best practice is to anticipate and research evidentiary issues before they practice is to anticipate and research evidentiary issues before they arise in the courtroom, the authors hope that SMARTEVIDENCE will be arise in the courtroom, the authors hope that SMARTEVIDENCE will be useful to litigators who are faced with the need to address unexpected useful to litigators who are faced with the need to address unexpected evidentiary issues and do not have the luxury of researching these evidentiary issues and do not have the luxury of researching these issues before providing the court with argument in support of their issues before providing the court with argument in support of their positions. positions. The authors welcome suggestions for future editions of The authors welcome suggestions for future editions of SMARTEVIDENCE. If any user of SMARTEVIDENCE: MEDICAL SMARTEVIDENCE. If any user of SMARTEVIDENCE: MEDICAL MALPRACTICE is aware of an evidentiary issue that arises frequently in MALPRACTICE is aware of an evidentiary issue that arises frequently in medical malpractice that is not addressed herein, please let us know. medical malpractice that is not addressed herein, please let us know. Mitchell L. Marinello Mitchell L. Marinello Timothy J. Miller Timothy J. Miller Alison Schwartz Alison Schwartz Novack and Macey LLP, Chicago Novack and Macey LLP, Chicago SMARTEVIDENCE: COMMERCIAL LITIGATION (2006) SMARTEVIDENCE: COMMERCIAL LITIGATION (2006) Courtney Boho Marincsin Courtney Boho Marincsin Clifford Law Offices, Chicago Clifford Law Offices, Chicago SMARTEVIDENCE: MEDICAL MALPRACTICE (2010) SMARTEVIDENCE: MEDICAL MALPRACTICE (2010) List of Major Potential Objections List of Major Potential Objections (References are to section numbers.) (References are to section numbers.) Objections to Questions: Objections to Questions: 1. Lack of foundation, 5.1 1. Lack of foundation, 5.1 2. Leading, 5.2 2. Leading, 5.2 3. Ambiguous or vague, 5.2 3. Ambiguous or vague, 5.2 4. Compound, 5.2 4. Compound, 5.2 5. Calls for a narrative answer, 5.2 5. Calls for a narrative answer, 5.2 6. Repetitive of questions already asked (by the questioner) of this witness, 5.2 6. Repetitive of questions already asked (by the questioner) of this witness, 5.2 7. Cumulative of evidence already presented, 4.1 7. Cumulative of evidence already presented, 4.1 8. Argumentative, 5.2 8. Argumentative, 5.2 9. Misstates the witness’ prior testimony, 5.2 9. Misstates the witness’ prior testimony, 5.2 10. Seeks information that is not relevant, 4.1 10. Seeks information that is not relevant, 4.1 11. Assumes facts not in evidence, 5.2 11. Assumes facts not in evidence, 5.2 12. Asks the witness to make a conclusion,5.2 12. Asks the witness to make a conclusion,5.2 13. Asks the witness to speculate, 5.2 13. Asks the witness to speculate, 5.2 14. Asks the witness for information which is hearsay, 1.1 14. Asks the witness for information which is hearsay, 1.1 15. Asks the witness for an opinion the witness is not qualified to give, 5.5, 5.6 15. Asks the witness for an opinion the witness is not qualified to give, 5.5, 5.6 16. Violates the best-evidence rule, 2.3 16. Violates the best-evidence rule, 2.3 17. Asks for information that is privileged, 4.5 17. Asks for information that is privileged, 4.5 18. Beyond the scope of the direct, cross, or redirect, 5.2 18. Beyond the scope of the direct, cross, or redirect, 5.2 19. Improper impeachment, 4.2 19. Improper impeachment, 4.2 20. Violates subsequent remedial measures rule, 4.3 20. Violates subsequent remedial measures rule, 4.3 21. Violates Dead-Man’s Act, 4.4 21. Violates Dead-Man’s Act, 4.4 22. Asks for information about a settlement offer, 4.6 22. Asks for information about a settlement offer, 4.6 23. Unduly prejudicial, 4.1 23. Unduly prejudicial, 4.1 Objections to Answers: Objections to Answers: 24. Lack of foundational personal knowledge, 5.1 24. Lack of foundational personal knowledge, 5.1 25. Narrative, 5.2 25. Narrative, 5.2 26. Repetitive, 5.2 26. Repetitive, 5.2 27. Cumulative, 4.1 27. Cumulative, 4.1 28. Irrelevant, 4.1 28. Irrelevant, 4.1 29. Violates parole-evidence rule, 2.5 29. Violates parole-evidence rule, 2.5 30. States a conclusion, 5.2 30. States a conclusion, 5.2 31. Speculative, 5.2 31. Speculative, 5.2 32. Hearsay, 1.1 32. Hearsay, 1.1 33. Privileged, 4.5 33. Privileged, 4.5 34. Nonresponsive, 5.4 34. Nonresponsive, 5.4 35. Improper opinion, 5.5, 5.6 35. Improper opinion, 5.5, 5.6 Objections to Documents and Other Records: Objections to Documents and Other Records: 36. No authentication, 2.2 36. No authentication, 2.2 37. No foundation, 2.1 37. No foundation, 2.1 38. Contains hearsay (hearsay within hearsay) or other objectionable material, 1.1 38. Contains hearsay (hearsay within hearsay) or other objectionable material, 1.1 39. Not relevant, 4.1 39. Not relevant, 4.1 40. Its prejudicial effect outweighs its probative value, 4.1 40. Its prejudicial effect outweighs its probative value, 4.1 41. Violates best-evidence rule, 2.3 41. Violates best-evidence rule, 2.3 42. Improper summary, 2.4 42. Improper summary, 2.4 I. HEARSAY I. HEARSAY H H E E A. [1.1] Hearsay A. [1.1] Hearsay A A R R General Rule: S General Rule: S A A Y Y Hearsay evidence is inadmissible. Hearsay is (1) testimony in court or Hearsay evidence is inadmissible. Hearsay is (1) testimony in court or written evidence, (2) of a statement made out of court, (3) being offered §1.1 written evidence, (2) of a statement made out of court, (3) being offered §1.1 to show the truth of matters asserted therein, and (4) resting for its to show the truth of matters asserted therein, and (4) resting for its value on the credibility of the out-of-court asserter. People v. value on the credibility of the out-of-court asserter. People v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 738, 741 (1963). Carpenter, 28 Ill.2d 116, 190 N.E.2d 738, 741 (1963). Examples: Examples: • Statement can be hearsay even if declarant is on the witness • Statement can be hearsay even if declarant is on the witness stand. People v. Spicer, 79 Ill.2d 173, 402 N.E.2d 169, 172, 37 stand. People v. Spicer, 79 Ill.2d 173, 402 N.E.2d 169, 172, 37 Ill.Dec. 279 (1979) (witness’ written out-of-court statement was Ill.Dec. 279 (1979) (witness’ written out-of-court statement was improperly admitted as substantive evidence, despite his presence improperly admitted as substantive evidence, despite his presence on witness stand). on witness stand). • Statement is not hearsay if used to impeach. • Statement is not hearsay if used to impeach. Admitted: People v. Virgin, 302 Ill.App.3d 438, 707 N.E.2d 97, Admitted: People v. Virgin, 302 Ill.App.3d 438, 707 N.E.2d 97, 236 Ill.Dec. 252 (1st Dist. 1998) (when witness is impeached with 236 Ill.Dec. 252 (1st Dist. 1998) (when witness is impeached with out-of-court statements, those statements need not be considered out-of-court statements, those statements need not be considered for their truth; it is deemed admissible hearsay and is used to for their truth; it is deemed admissible hearsay and is used to determine credibility of witness). determine credibility of witness). Rejected: J.L. Simmons Company, Inc. ex rel. Hartford Insurance Rejected: J.L. Simmons Company, Inc. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co., 108 Ill.2d 106, 483 N.E.2d Group v. Firestone Tire & Rubber Co., 108 Ill.2d 106, 483 N.E.2d 273, 277, 90 Ill.Dec. 955 (1985) (trial court improperly admitted 273, 277, 90 Ill.Dec. 955 (1985) (trial court improperly admitted wife’s testimony regarding her husband’s statements; statements wife’s testimony regarding her husband’s statements; statements could not be used to impeach wife because they were husband’s could not be used to impeach wife because they were husband’s statements, not wife’s). statements, not wife’s). • Hearsay within hearsay. • Hearsay within hearsay. Admitted: Van Steemburg v. General Aviation, Inc., 243 Admitted: Van Steemburg v. General Aviation, Inc., 243 Ill.App.3d 299, 611 N.E.2d 1144, 1166, 183 Ill.Dec. 496 (1st Dist. Ill.App.3d 299, 611 N.E.2d 1144, 1166, 183 Ill.Dec. 496 (1st Dist. 1993) (pilot’s statement reported in air traffic controller’s report 1993) (pilot’s statement reported in air traffic controller’s report was admissible because both levels of hearsay were established as was admissible because both levels of hearsay were established as business records). business records). Rejected: Horace Mann Insurance Co. v. Brown, 236 Ill.App.3d Rejected: Horace Mann Insurance Co. v. Brown, 236 Ill.App.3d 456, 603 N.E.2d 760, 765, 177 Ill.Dec. 690 (1st Dist. 1992) 456, 603 N.E.2d 760, 765, 177 Ill.Dec. 690 (1st Dist. 1992) (statement contained in police report was not admissible because (statement contained in police report was not admissible because statement and police report were both hearsay and neither fell statement and police report were both hearsay and neither fell within hearsay exception). within hearsay exception). B. [1.2] Non-Hearsay B. [1.2] Non-Hearsay General Rule: General Rule: When an out-of-court statement is not offered for its truth but, rather, When an out-of-court statement is not offered for its truth but, rather, for some other purpose, such as the background circumstances in which for some other purpose, such as the background circumstances in which an action was taken, the statement is not hearsay and may be an action was taken, the statement is not hearsay and may be admissible. Goshey v. Dunlap, 16 Ill.App.3d 29, 305 N.E.2d 648, 652 admissible. Goshey v. Dunlap, 16 Ill.App.3d 29, 305 N.E.2d 648, 652 (1st Dist. 1973). (1st Dist. 1973). 1. Verbal Acts and Legally Operative Facts 1. Verbal Acts and Legally Operative Facts General Rule: General Rule: Oral or written statements that have legal significance or legal effect Oral or written statements that have legal significance or legal effect are not hearsay. See Werner v. Botti, Marinaccio & DeSalvo, 205 are not hearsay. See Werner v. Botti, Marinaccio & DeSalvo, 205 Ill.App.3d 673, 563 N.E.2d 1147, 1152, 151 Ill.Dec. 41 (5th Dist. Ill.App.3d 673, 563 N.E.2d 1147, 1152, 151 Ill.Dec. 41 (5th Dist. 1990). Moreover, “[w]hen words play a part along with conduct in 1990). Moreover, “[w]hen words play a part along with conduct in determining the total significance to be attached to an act, the uttered determining the total significance to be attached to an act, the uttered words are a verbal part of the act and are admissible in evidence to words are a verbal part of the act and are admissible in evidence to explain the act.” Grebe v. Vacek & Co., 103 Ill.App.2d 79, 243 N.E.2d explain the act.” Grebe v. Vacek & Co., 103 Ill.App.2d 79, 243 N.E.2d 438, 441 (1st Dist. 1968). 438, 441 (1st Dist. 1968). Examples: Examples: • Verbal acts. • Verbal acts. Admitted: Grebe v. Vacek & Co., 103 Ill.App.2d 79, 243 N.E.2d Admitted: Grebe v. Vacek & Co., 103 Ill.App.2d 79, 243 N.E.2d 438, 441 (1st Dist. 1968) (plaintiff’s conversation with defendant’s 438, 441 (1st Dist. 1968) (plaintiff’s conversation with defendant’s agent was admissible to explain circumstances under which agent was admissible to explain circumstances under which plaintiff made out personal check to defendant). plaintiff made out personal check to defendant). Rejected: Lubeznik v. HealthChicago, Inc., 268 Ill.App.3d 953, Rejected: Lubeznik v. HealthChicago, Inc., 268 Ill.App.3d 953, 644 N.E.2d 777, 782, 206 Ill.Dec. 9 (1st Dist. 1994) (physician’s H 644 N.E.2d 777, 782, 206 Ill.Dec. 9 (1st Dist. 1994) (physician’s H E E statement that medical treatment was experimental and not covered statement that medical treatment was experimental and not covered A A by insurance was hearsay and not verbal act because evidence was R by insurance was hearsay and not verbal act because evidence was R offered to show that treatment was experimental and, thus, for its S offered to show that treatment was experimental and, thus, for its S substance). A substance). A Y Y • Legally operative facts. §1.2 • Legally operative facts. §1.2 Admitted: See Werner v. Botti, Marinaccio & DeSalvo, 205 Admitted: See Werner v. Botti, Marinaccio & DeSalvo, 205 Ill.App.3d 673, 563 N.E.2d 1147, 1152, 151 Ill.Dec. 41 (5th Dist. Ill.App.3d 673, 563 N.E.2d 1147, 1152, 151 Ill.Dec. 41 (5th Dist. 1990) (statement that was significant part of offer and acceptance 1990) (statement that was significant part of offer and acceptance that brought contract into being was not hearsay and was that brought contract into being was not hearsay and was admissible). admissible). Rejected: People v. Nyberg, 275 Ill.App.3d 570, 656 N.E.2d 65, Rejected: People v. Nyberg, 275 Ill.App.3d 570, 656 N.E.2d 65, 74, 211 Ill.Dec. 873 (1st Dist. 1995) (note written by defendant 74, 211 Ill.Dec. 873 (1st Dist. 1995) (note written by defendant was hearsay and not nonverbal act because “significance of the was hearsay and not nonverbal act because “significance of the defendant’s note rested in its substantive content and not simply in defendant’s note rested in its substantive content and not simply in the fact that it was made”). the fact that it was made”). 2. State of Mind of Declarant or Listener 2. State of Mind of Declarant or Listener General Rule: General Rule: If a statement is offered to show its effect on the listener, rather than to If a statement is offered to show its effect on the listener, rather than to prove its truth, it is not hearsay. McManus v. Feist, 76 Ill.App.2d 99, prove its truth, it is not hearsay. McManus v. Feist, 76 Ill.App.2d 99, 221 N.E.2d 418, 423 (4th Dist. 1966). 221 N.E.2d 418, 423 (4th Dist. 1966). Examples: Examples: • Motive or intent. • Motive or intent. Admitted: McManus v. Feist, 76 Ill.App.2d 99, 221 N.E.2d 418, Admitted: McManus v. Feist, 76 Ill.App.2d 99, 221 N.E.2d 418, 423 (4th Dist. 1966) (defendant’s testimony that judge told him he 423 (4th Dist. 1966) (defendant’s testimony that judge told him he should plead guilty because there were no witnesses was properly should plead guilty because there were no witnesses was properly admitted to explain why defendant entered guilty plea). admitted to explain why defendant entered guilty plea). Rejected: Chicago White Metal Casting, Inc. v. Treiber, 162 Rejected: Chicago White Metal Casting, Inc. v. Treiber, 162 Ill.App.3d 562, 517 N.E.2d 7, 13, 115 Ill.Dec. 42 (2d Dist. 1987) Ill.App.3d 562, 517 N.E.2d 7, 13, 115 Ill.Dec. 42 (2d Dist. 1987) (negotiations for life insurance policy were not admissible because (negotiations for life insurance policy were not admissible because they were offered for truth of matters asserted rather than to show they were offered for truth of matters asserted rather than to show why policy was issued). why policy was issued). • Belief, knowledge, or notice. • Belief, knowledge, or notice. Admitted: Healy v. Chicago City Ry., 160 Ill.App. 7, 10 (1st Dist. Admitted: Healy v. Chicago City Ry., 160 Ill.App. 7, 10 (1st Dist. 1911) (testimony that defendant’s supervisor told motorman to run 1911) (testimony that defendant’s supervisor told motorman to run car slowly was admissible to show defendant’s knowledge of car’s car slowly was admissible to show defendant’s knowledge of car’s condition). condition). Rejected: Chicago Housing Authority v. Rose, 203 Ill.App.3d 208, Rejected: Chicago Housing Authority v. Rose, 203 Ill.App.3d 208, 560 N.E.2d 1131, 1137, 148 Ill.Dec. 534 (1st Dist. 1990) (police 560 N.E.2d 1131, 1137, 148 Ill.Dec. 534 (1st Dist. 1990) (police officer’s testimony that informant told him there was gun in officer’s testimony that informant told him there was gun in tenant’s apartment was properly excluded because that testimony tenant’s apartment was properly excluded because that testimony was offered as circumstantial evidence that tenant had knowledge was offered as circumstantial evidence that tenant had knowledge of guns, not that informant had knowledge of guns). of guns, not that informant had knowledge of guns). • Mental condition. • Mental condition. Admitted: Dowie v. Driscoll, 203 Ill. 480, 68 N.E. 56, 58 (1903) Admitted: Dowie v. Driscoll, 203 Ill. 480, 68 N.E. 56, 58 (1903) (grantor’s testimony in conservatorship hearing shortly after she (grantor’s testimony in conservatorship hearing shortly after she executed deed was admissible to show her mental capacity when executed deed was admissible to show her mental capacity when she executed deed). she executed deed). Rejected: Skelton v. Chicago Transit Authority, 214 Ill.App.3d Rejected: Skelton v. Chicago Transit Authority, 214 Ill.App.3d 554, 573 N.E.2d 1315, 1330, 158 Ill.Dec. 130 (1st Dist. 1991) 554, 573 N.E.2d 1315, 1330, 158 Ill.Dec. 130 (1st Dist. 1991) (comment made to fire department official by plaintiff’s (comment made to fire department official by plaintiff’s companion — rather than plaintiff — that plaintiff was drunk at companion — rather than plaintiff — that plaintiff was drunk at time of accident was inadmissible to establish that plaintiff was time of accident was inadmissible to establish that plaintiff was intoxicated). intoxicated). C. [1.3] Admissions C. [1.3] Admissions General Rule: General Rule: Any statement made by a party or on his or her behalf that is relevant to Any statement made by a party or on his or her behalf that is relevant to a trial issue may generally be admitted into evidence as an admission a trial issue may generally be admitted into evidence as an admission by a party opponent. Zaragoza v. Ebenroth, 331 Ill.App.3d 139, 770 by a party opponent. Zaragoza v. Ebenroth, 331 Ill.App.3d 139, 770 N.E.2d 1238, 264 Ill.Dec. 542 (3d Dist. 2002). N.E.2d 1238, 264 Ill.Dec. 542 (3d Dist. 2002).
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