Iser v. Copley Memorial Hospital

No. 3--96--0625
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT

BRANDON ISER and NORTHERN ) Appeal from the Circuit
BANK, Limited Guardian of the ) Court of the 12th
Estate of BRANDON ISER, a ) Judicial Circuit, Will
disabled person, ) County, Illinois
)
Plaintiffs-Appellants, ) No. 90-L-1192
)
COPLEY MEMORIAL HOSPITAL, and )
MANUEL SARROCA, M.D., ) Honorable
) Edwin Grabiec
Defendants-Appellees. ) Judge, Presiding
_________________________________________________________________

JUSTICE MICHELA delivered the Opinion of the court:
________________________________________________________________

Brandon Iser (Brandon) and Northern Bank, filed a medical
negligence action in the circuit court of Will County against
Copley Memorial Hospital (CMH) and Dr. Manuel Sarroca, seeking
recovery for personal injuries. Plaintiffs allege that
defendants negligently rendered treatment and care to Brandon
after he was involved in an auto accident. A jury returned a
verdict in favor of defendants, the court denied plaintiffs'
post-trial motion, and plaintiffs appeal.
On appeal, plaintiffs raise numerous issues that can be
generally described as errors concerning the court's restricting
direct examination of an expert; refusing cross examination of
experts using certain exhibits; limiting cross examination of an
expert to matters testified to on direct examination; and
refusing to admit certain exhibits into evidence. Plaintiffs
contend that the cumulative effect of such errors deprived
Brandon of a fair trial. For the following reasons, we affirm.
Facts

Plaintiffs allege that defendants negligently failed to
diagnose a spine fracture and internal carotid artery injury
Brandon incurred in an auto accident. Plaintiffs contend that
defendants' negligent treatment of Brandon was the proximate
cause of a stroke he suffered, which left him with permanent
physical injuries.
At trial, and during direct examination of plaintiffs'
expert, Dr. Donald Austin, plaintiffs attempted to elicit
testimony concerning the authoritative nature of four peer review
medical journal articles, Exhibits 77-80 concerning internal
carotid artery injuries, for the purpose of laying a foundation
to impeach defendants' experts.
Defendants objected, referring to Dr. Austin's deposition
testimony wherein he failed to express an opinion as to these
articles, and stated that he was unaware of, and did not review
for this case, any articles concerning internal carotid artery
injuries. Defendants also complained that the articles had not
been properly disclosed. Plaintiffs suggested that the court
give the jury a cautionary instruction as to the limited,
authoritative nature of Dr. Austin's testimony, however, the
court sustained defendants' objection and would not allow
plaintiff to question Dr. Austin further about these articles.
Thereafter, plaintiffs attempted to use Exhibits 77-80 to
impeach defendants' experts. Defendants objected, plaintiffs
made an offer of proof, and the court sustained defendants'
objections.
During the cross examination of Dr. Sarroca's expert, Dr.
Leonard Rutkowski, plaintiffs attempted to elicit his opinion
concerning the operable nature of Brandon's condition, and the
effect of movement of Brandon's head and neck while under
defendants' care. Plaintiffs planned to impeach Dr. Rutkowski's
testimony with his deposition testimony. Defendants objected,
arguing that it went beyond the scope of direct examination.
Plaintiffs made an offer of proof, however, the court sustained
defendants' objection and limited plaintiffs' questioning to
matters Dr. Rutkowski had testified to on direct examination.
Analysis

Plaintiffs contend that the court erred in not allowing Dr.
Austin to testify to the authoritative nature of Exhibits 77-80.
Effective January 1, 1996, Illinois Supreme Court Rule
213(g) (134 Ill. 2d R. 213(g)), replaced the eliminated Rule 220
(134 Ill. 2d R. 220) and required that upon written
interrogatory, a party must disclose the subject matter,
conclusions/opinions, qualifications, and all reports of a
witness who will offer any opinion testimony.
In this case, at a February 6, 1996, Rule 237 conference,
all parties agreed to exchange medical articles. Exhibits 77-80
were not disclosed at this time, but rather, plaintiffs maintain
that all of defendants' attorneys received Exhibits 77-80 on
February 12, 1996, the day before the articles were used. To the
contrary, defendants maintain that Dr. Sarroca's attorney had not
yet received Exhibits 77-80 at the time plaintiffs attempted to
admit them into evidence. Plaintiffs assert that defendants
failed to comply with the provisions of Rule 213(g).
In light of plaintiffs' acknowledgment that they were in
possession of Exhibits 77-80 at the time of the Rule 237
conference, but did not disclose the exhibits until the day
before they used them in court, had the court allowed use of the
exhibits, defendants would have been afforded little time to
prepare their cross examination of Dr. Austin's authoritative
opinion. See Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 104 (1995)(effective cross examination of experts require
advance preparation.) Further, we reject plaintiffs' assertion
that an expert's foundational testimony as to the authoritative
nature of a medical article is not an opinion, as the term is
used in Rule 213(g). As noted in Wilkerson v. Pittsburgh Corning
Corp., 276 Ill. App. 3d 1023, 1034-34 (1995), Rule 213(g)
requires disclosure of "all" opinion testimony prior to trial.
We also find no merit to plaintiffs' contention that since
defendants failed to file a motion in limine to bar use of
Exhibits 77-80, they did not regard the production of said
exhibits as a Rule 213(g) issue. There is no indication in the
record or from oral arguments to this court that plaintiffs
informed defendants at the Rule 237 conference that they
possessed and would be producing such exhibits. Thus,
defendants' failure to move to exclude exhibits that they were
unaware of certainly does not relieve plaintiffs of their duty to
comply with disclosure requirements.
Plaintiffs, citing Southern Illinois Airport Authority v.
Smith, 267 Ill. App. 3d 201, 209 (1994), contend further that
even if they did not properly disclose Exhibits 77-80, the court
should have allowed them to use the exhibits because the articles
were in the public domain; were only to be used on cross
examination; and were such that the witnesses should be familiar
with the articles if their testimony was to be given credibility.
However, in Southern, unlike the instant case, the exhibit
in question was a deed. The Southern court determined that
because the deed was easily obtainable to both parties through
the recorder of deeds office, no violation of discovery rules
resulted from the failure to disclose. The court in Southern,
267 Ill. App. 3d at 207, made it clear that its decision was
limited to documents used in cross examination only, and that if
such documents were used by the cross examiner to bolster the
testimony of his witnesses during his case-in-chief, it would not
hesitate to rule against such non-disclosure. Further, the
Southern court was careful to point out that it was not
advocating or condoning withholding discovery documents that are
damaging to the party who requests their production.
Although plaintiffs maintain that the purpose of Dr.
Austin's testimony was to establish the authoritativeness of
Exhibits 77-80, it is reasonable to assume that these exhibits
supported and bolstered plaintiffs' experts opinions. It is also
reasonable to infer that such exhibits, which discredit the
opinion of defendants' experts, were damaging to defendants, who
had initially requested the production of such documents.
Importantly, plaintiffs acknowledge that in answers to
interrogatories, Dr. Austin indicated that in forming the basis
of his opinion he did not rely on any articles that suggested
defendants deviated from the standard of care. This
acknowledgement is inconsistent with plaintiffs' contention that
defendants knew or should have known that such exhibits would be
used, and it supports a reasonable inference that defendants were
"surprised" by such exhibits.
The committee comments to Rule 213(g) state that "in light
of the elimination of former *** Rule 220 ***[i]t is the
Committee's belief that in order to avoid surprise, the subject
matter of all opinions must be disclosed pursuant to this rule
*** no new or additional opinions will be allowed unless the
interest of justice require otherwise."
At his deposition, Dr. Austin failed to express an opinion
as to the exhibits in question. Specifically, he stated that he
was unaware of, and did not review for this case, any articles
concerning internal carotid artery injuries. Therefore, pursuant
to the committee comments of Rule 213(g), to allow Dr. Austin to
testify at trial as to the authoritative nature of Exhibits 77-80
would be to allow him to give a new opinion that is contrary to
his deposition testimony. To do so appears to be contrary to the
purpose of Rule 213(g). Also, under eliminated Rule 220, this
court has consistently held that an expert's direct testimony is
limited to comments within the scope of, and consistent with, the
facts and opinions disclosed in discovery. See Lowney v. Arciom,
232 Ill. App. 3d 715 (3d Dist. 1992).
Citing Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993),
plaintiffs maintain that had Dr. Austin been allowed to establish
the authoritativeness of Exhibits 77-80, they would have been
able to discredit the direct testimony of defendants' experts,
and the jury may have reached a different verdict. Roach is
distinguishable.
The plaintiffs in Roach alleged that the Clinic was guilty
of an unreasonable delay in providing anesthesia. One issue of
the case concerned whether certain conversations between a nurse
anesthetist and a physician were protected by statutory
privilege. The Court determined that testimony concerning these
conversations should not have been kept from the jury because the
conversations were not privileged. The Court noted that although
the jury heard testimony that the anesthesiology team were not
notified at the times indicated by medical records, there was no
other evidence presented that the delay was attributable to
mistakes of the Clinic's staff. Since the issue of negligent
delay was central to plaintiffs' case, the Court was unable to
say that admission of the excluded evidence would not have
affected the jury's decision.
In the instant case, however, through plaintiffs' experts,
the jury heard medical testimony that conflicted with the
opinions of defendants' experts. Therefore, plaintiffs were not
deprived of the opportunity to challenge the opinions of
defendants' experts with conflicting medical evidence.
Considering that the jury heard expert opinion testimony
that conflicted with and refuted defendants' expert opinions,
coupled with the fact that it was within the province of the jury
to resolve such conflicts in medical opinion testimony (Wodziak
v. Kash, 278 Ill. App. 3d 901, 913-14 (1996)), we find that the
interest of justice would not have been served in allowing Dr.
Austin to testify to the authoritativeness of Exhibits 77-80,
which were not properly disclosed. See also Sohaey v. Van Cura,
158 Ill. 2d 375, 380 (1994)(courts are vested with broad
discretion to formulate an appropriate response to violations of
discovery rules.) Therefore, the court did not abuse its
discretion in restricting such testimony, and we hold our
decision is dispositive of the remaining issues concerning
plaintiffs' use of Exhibits 77-80 in cross examination of defense
experts, and in offering said exhibits into evidence.
Lastly, plaintiffs contend that the court erred in
restricting their cross examination of Dr. Rutkowski to matters
he had testified to on direct examination. Plaintiffs cite
Leonardi, 168 Ill. 2d at 105, wherein the court stated that facts
within a witness' knowledge may be developed on cross-examination
that explain, qualify, discredit, or destroy the witness' direct
testimony, even though not raised on direct examination.
The expert in Leonardi opined on direct examination that
defendants had deviated from the standard of care. On cross
examination, defendants asked the expert if these deviations
caused the decedent's injuries. The court found that this
question would explain, qualify, discredit, or destroy the
expert's direct testimony, and found no error in permitting such
cross examination.
In the present case, Dr. Rutkowski failed to give his
opinion on direct examination concerning the operable nature of
Brandon's condition and the effect of movement of Brandon's head
and neck while under defendants' care. Considering cross
examination is limited to matters discussed on direct, and the
scope of such cross lies within the court's discretion (Nunley v.
Mares, 114 Ill. App. 3d 779, 791 (3d Dist. 1983)), coupled with
the fact that deposition testimony is admissible for impeachment
only where it contradicts an in-court statement of a witness on a
material matter (Law v. Central IL. Public Serv. Co., 80 Ill.
App. 3d 701 (1980)), we find that the court did not err in
restricting plaintiffs' cross examination of Dr. Rutkowski.
Based on the foregoing, the circuit court of Will County is
affirmed.
Affirmed.
BRESLIN and SLATER, JJ., concurring.