EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 21, 2013

Formula 409: Illinois Court Applies Rule 409 to Medical Offer That Took Place Before Rule Took Effect

Federal Rule of Evidence 409 and its state counterparts have to be among the least cited rules of evidence. Rule 409 provides that

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

I think that there are two primary reasons why this rule isn't cited very often. First, I would guess that offers to pay medical expenses are pretty rare. Second, because the language of the rule is so clear, I doubt that many litigants try to introduce evidence relating to an offer to pay medical expenses. But, with the recent enactment of the first Illinois Rules of Evidence, we can have a case like Lambert v. Coonrod, 966 N.E.2d 583 (Ill.App. 4 Dist. 2012).

In Coonrod

In August 2009, Richard [Lambert] filed a complaint in negligence against [Tim] Coonrod after an October 2008 fall with injury on Coonrod's property. Richard alleged he was helping Coonrod with a project that required him to reach for a light above him. While mounting a coil spool, Richard fell backward and landed on the spool. Richard alleged Coonrod failed to provide a safe and stable platform from which he could work and failed to warn him that the spool he stood upon was or could be unstable and easily tipped. Richard alleged he sustained injuries to his left side and back, including a lumbar fracture and broken rib. In October 2009, Coonrod filed his answer and asserted the affirmative defense of contributory negligence.


In February 2011, Coonrod filed a motion in limine. In part, Coonrod asked the trial court to bar plaintiffs from referencing or suggesting to the jury that Coonrod offered to pay Richard's medical expenses....Plaintiffs objected, claiming Coonrod made a statement to Billie Jo that he was sorry about the incident and would take care of the expenses. Plaintiffs argued evidence of a defendant's offer or payment of a portion of a plaintiff's expenses is admissible as a statement inconsistent with the party's position at trial, where it was not part of any settlement negotiation or offer of compromise. The court found Coonrod's statement that he was sorry about the incident was admissible but testimony about payment of medical expenses was not.

At the close of trial, the jury found for Coonrod and against the plaintiffs. The plaintiffs thereafter appealed, claiming, inter alia, that the trial court erred in deeming the offer to pay medical expenses inadmissible.

The appellate court disagreed, concluding that the offer was inadmissible pursuant to Illinois Rule of Evidence 409, which provides that

In addition to the provisions of section 8–1901 of the Code of Civil Procedure (735 ILCS 5/8–1901), evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

In response, the plaintiffs claimed that the offer to pay medical expenses occurred before the adoption of Illinois Rule of Evidence 409. The court, however, found this fact to be irrelevant, concluding that

The supreme court stated the rules became effective on January 1, 2011, and nowhere did the court state that they did not apply to cases that were pending but had not yet gone to trial. Moreover, a change in a rule affecting matters of procedure, such as a rule of evidence, and not substantive rights, applies retroactively to pending cases....Rule 409 involves matters of evidence, a procedural issue, and thus the rule applied here since plaintiffs' trial took place after the rule's effective date.



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