Gossard v. Jyoti-Kalra

NO. 4-96-0591
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
KAREN GOSSARD, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
JYOTI KALRA, M.D., ) No. 94L1572
Defendant-Appellee, )
and )
COVENANT MEDICAL CENTER OF )
CHAMPAIGN/URBANA, a Not-for-Profit ) Honorable
Corporation, ) George S. Miller,
Defendant. ) Judge Presiding.
_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

Plaintiff Karen Gossard filed a complaint in the cir-
cuit court of Champaign County alleging medical malpractice
against defendants Jyoti Kalra, M.D., and Covenant Medical Center
(CMC). The trial court entered a directed verdict in favor of
CMC, and the jury returned a verdict for Dr. Kalra. Gossard
appeals, contending the trial court erred by (1) excluding evi-
dence of Dr. Kalra's prior failed attempts to pass board certifi-
cation examinations in radiation oncology and (2) refusing
Gossard's request to send certain medical records to the jury
room. CMC is not a party in this appeal. We affirm.
In 1992, Gossard was diagnosed with breast cancer. As
part of her treatment, Gossard was referred to Dr. Kalra for
radiation therapy. Gossard contends during treatment Dr. Kalra
negligently created radiation fields that were "inappropriate and
excessively large," which resulted in burns, disfigurement,
lymphedema, infections, and mental suffering.
Dr. Kalra filed several motions in limine. One re-
quested the trial court prohibit Gossard from presenting evidence
concerning Dr. Kalra's failures to pass the board certification
examination. A deposition from another case revealed Dr. Kalra
received board certification in radiation oncology in 1986 after
three failed attempts to pass the oral portion of the examina-
tion. Dr. Kalra passed the written portion of the examination on
his first attempt in 1982. After hearing argument, the trial
court granted Dr. Kalra's motion.
Prior to closing arguments, the trial court refused to
send certain medical records to the jury room. Gossard presented
redacted versions (exhibit Nos. 8A and 14A) of two medical re-
cords (exhibit Nos. 8 and 14), which she argued would eliminate
concerns surrounding the larger records. Dr. Kalra argued the
redacted versions unduly emphasized the aspects Gossard believed
to be most favorable to her case. The trial court determined
which exhibits would go to the jury room, and excluded exhibit
Nos. 8 and 14. After Gossard's counsel sought clarification
whether the court's ruling excluded the redacted versions, the
court responded those were not in evidence. The trial court then
explicitly reminded Gossard she may argue anything in evidence,
even that not sent to the jury room.
Gossard first argues the trial court erred by barring
reference to Dr. Kalra's earlier failures to acquire board cer-
tification. Gossard maintains these failures are directly rele-
vant to Dr. Kalra's credibility in his expert testimony. Gossard
argues O'Brien v. Meyer, 196 Ill. App. 3d 457, 554 N.E.2d 257
(1989), a case the trial court purportedly relied upon in grant-
ing the motion in limine, is flawed. Gossard contends two later
cases declined to apply O'Brien in similar circumstances:
Creighton v. Thompson, 266 Ill. App. 3d 61, 69-70, 639 N.E.2d 234, 239 (1994), and Kurrack v. American District Telegraph Co.,
252 Ill. App. 3d 885, 889-901, 625 N.E.2d 675, 685-86 (1993).
Dr. Kalra contends the evidence was irrelevant and
immaterial and, in the alternative, even if relevant, the proba-
tive value of the evidence is outweighed by its prejudicial ef-
fect. Dr. Kalra argues O'Brien is applicable and Gossard's as-
sertion Creighton and Kurrack failed to apply O'Brien in analo-
gous situations is incorrect. Dr. Kalra further argues even if
the trial court committed error, the error was harmless.
A trial court's ruling on a motion in limine, whether
to admit evidence, will not be disturbed on review absent a clear
abuse of discretion. Swick v. Liautaud, 169 Ill. 2d 504, 521,
662 N.E.2d 1238, 1246 (1996). When a physician defending a medi-
cal malpractice suit testifies as an expert, evidence as to his
qualifications as an expert, such as the physician's age and
practice, is admissible. McCray v. Shams, 224 Ill. App. 3d 999,
1002, 587 N.E.2d 66, 68 (1992), citing Ward v. Epting, 290 S.C.
547, 556, 351 S.E.2d 867, 872 (1986). In general, any type of
impeaching matter may be produced during cross-examination, be-
cause a purpose of cross-examination is to test the witness'
credibility. Rush v. Hamdy, 255 Ill. App. 3d 352, 362, 627 N.E.2d 1119, 1126 (1993). Relevant evidence may be excluded,
however, when factors of prejudice or confusion outweigh its
probative value. Gill v. Foster, 157 Ill. 2d 304, 313, 626 N.E.2d 190, 194 (1993).
In O'Brien, the plaintiff's expert failed the Illinois
licensing examination four times, but she later became licensed
in Florida. The first district held evidence of the expert's
past failed attempts to become licensed in Illinois was inadmis-
sible as to her credibility. The O'Brien court reasoned:
"[O]nce the qualifying threshold has been
met, attempts to impeach the expert's opinion
should have a clear link to facts and assump-
tions underlying the opinion, the methodology
or testing used, the knowledge and experience
of the expert in the matters to which he
testifies, personal bias (such as the fact he
or she is paid to testify), and so forth.
Matters going to schooling and licensing are
in a different category, we believe, because
of their attenuated relevance to the medical
opinion in issue. Also, there is a practical
consideration of where to draw the line.
Should juries be allowed to consider the
school rank of a witness, or the fact that he
or she failed a course? Few would argue that
the answer to that question should be no."
O'Brien, 196 Ill. App. 3d at 462-63, 554 N.E.2d at 261.
The O'Brien court examined Ward, (290 S.C. 547, 351 S.E.2d 867, in which a South Carolina court found it proper to
cross-examine an expert witness regarding her failure to achieve
board certification in her specialty, because the court found it
was relevant to whether the expert was qualified to meet her
specialty's standards. The O'Brien court distinguished Ward,
stating "if an expert gives an opinion relating to a specialty in
which she has not obtained certification, her credibility as a
specialist is in issue." O'Brien, 196 Ill. App. 3d at 464, 554 N.E.2d at 261. The O'Brien court believed permitting impeachment
based on prior failures to pass the Illinois examination had
little value considering the witness was licensed in Florida.
The court concluded, "[w]hat scant probative value this informa-
tion had was outweighed by its prejudicial impact." O'Brien, 196
Ill. App. 3d at 464, 554 N.E.2d at 262.
We agree Creighton and Kurrack are distinguishable. In
Kurrack, the first district found the expert witness' failure to
pass the board certification examination in internal medicine was
relevant to his credibility on the subjects to which he was tes-
tifying. Kurrack, 252 Ill. App. 3d at 900-01, 625 N.E.2d at 685-
86. The witness in Kurrack had not only failed the board certif-
ication examination, but also had never attained board certifica-
tion. Kurrack, 252 Ill. App. 3d at 900, 625 N.E.2d at 685. In
Creighton, the first district affirmed the trial court's decision
to allow cross-examination of the plaintiff's expert about re-
strictions on his medical license. The Creighton court conclud-
ed, however, O'Brien was inapplicable because the Creighton facts
concern current restrictions on an expert's license to practice.
Creighton, 266 Ill. App. 3d at 69-70, 639 N.E.2d at 239.
We note the first district has stated an expert's fail-
ure to pass a board certification examination is both relevant
and admissible. Rockwood v. Singh, 258 Ill. App. 3d 555, 557,
630 N.E.2d 873, 875 (1993). There is, however, no indication the
witness at issue in Rockwood, like those in Ward and Kurrack,
ever attained board certification. Rockwood, 258 Ill. App. 3d at
557-58, 630 N.E.2d at 875 (determining because the defendant did
not testify as an expert, evidence of his failure to pass a board
certification examination was properly barred). In this case Dr.
Kalra was board certified at the time he treated Gossard and at
trial.
We find the trial court did not abuse its discretion in
barring evidence of Dr. Kalra's prior failures. The facts of
this case are more analogous to O'Brien than to the cases cited
by Gossard. The trial court may have found the rationale in
O'Brien to be instructive and determined evidence of Dr. Kalra's
failures had little probative value and any it had was outweighed
by its prejudicial impact. Dr. Kalra became board certified over
6« years prior to his treatment of Gossard and he remained board
certified throughout Gossard's treatment.
Second, Gossard argues her "medical records *** were
properly admitted into evidence and should have been submitted to
the jury as properly admissible business records." Gossard con-
tends two truncated versions, exhibit Nos. 8A and 14A, were ad-
mitted into evidence, arguing because they were admitted as a
whole, they were admitted in part.
Gossard's argument indicates she has confused the issue
of admissibility with the issue of whether exhibits will be sent
to the jury room. Simply because something is admitted does not
mean it is going to the jury room. Section 2-1107(d) of the
Civil Practice Law states: "Papers read or received in evidence
*** may be taken by the jury to the jury room for use during the
jury's deliberation." (Emphasis added.) 735 ILCS 5/2-1107(d)
(West 1994). The trial court thus has been given considerable
discretion in this determination. Merlo v. Parisi, 255 Ill. App.
3d 53, 61, 627 N.E.2d 309, 315 (1993); Fultz v. Peart, 144 Ill.
App. 3d 364, 379, 494 N.E.2d 212, 223 (1986); Wetherell v.
Matson, 52 Ill. App. 3d 314, 318, 367 N.E.2d 472, 475 (1977).
We find no abuse of discretion by the trial court. The
exhibits Gossard argues should have been sent to the jury room
were voluminous; three contained over 100 pages. The exhibits
contained irrelevant information pertaining to treatment for
unrelated medical problems, including carpal tunnel surgery and a
hysterectomy. The records also contained information referring
to Gossard's domestic circumstances and the alleged episode of
overradiation, both barred by granted motions in limine. In
addition, Gossard does not argue the trial court prohibited tes-
timony on these exhibits, and the trial court expressly reminded
Gossard she may argue evidence within the exhibits during closing
arguments.
Gossard further argues the truncated versions were
admitted. Even if that were true, simply because they were ad-
mitted does not require they be sent to the jury room. Exhibit
No. 8A referenced information regarding Gossard's domestic cir-
cumstances, information barred by the trial court. Moreover, be-
cause truncated versions often highlight evidence one side finds
favorable, the trial court's determination in regards to the
truncated versions was not an abuse of discretion.
Affirmed.
GARMAN and COOK, JJ., concur.