Morrisroe v. Pantano
2016 IL App (1st) 143605
| Ill. App. Ct. | 2016Background
- Viola Morrisroe, with severe COPD and prior CT/PET imaging, had a right upper‑lobe pulmonary “mass” monitored from Feb 2009; a Sept 2009 CT (with IV contrast) was interpreted by treating physicians as showing enlargement. Dr. Pantano recommended and performed a bronchoscopy with biopsy on Oct 1, 2009; bleeding during and after the procedure led to respiratory failure and death.
- Plaintiff (special administrator) sued for medical malpractice and lack of informed consent, alleging the mass had not enlarged and the bronchoscopy was therefore unnecessary, and that Viola was not told of the risk of death.
- Plaintiff’s retained pulmonology expert, Dr. Grodzin, disclosed in Rule 213 that he would testify the mass had not changed, based on records, the radiology report, and his review/measurements of the scans, but his Rule 213 answers and deposition did not disclose that his opinion was based on adjusting screen contrast of the CT images.
- At trial Dr. Grodzin testified that the February and September scans were not directly comparable and, over defense objection, was barred from testifying that changing screen contrast on the September CT was a basis for concluding the mass was not a tumor or had not increased in size; the court found that was an undisclosed new basis under Ill. S. Ct. R. 213.
- In closing, plaintiff’s counsel argued what Viola personally would have done if told of a risk of death and urged jurors to consider her character and family history; the trial court sustained objections as such argument misapplied the objective "reasonable person in the patient's position" informed‑consent standard.
- The jury returned a defense verdict; trial court denied JNOV/new trial; on appeal the First District affirmed, holding the trial court did not abuse its discretion in barring the undisclosed basis for expert opinion or in sustaining objections during closing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred under Ill. S. Ct. R. 213 by barring Dr. Grodzin from testifying that changing CT screen contrast was a basis for his opinion mass had not grown | Grodzin’s contrast‑based visual comparison was part of his review and thus encompassed by prior disclosures; barring it prevented plaintiff from fairly presenting his theory | The contrast‑based rationale was a new, undisclosed basis for opinion and should be excluded under Rule 213; plaintiff failed to supplement disclosures | Affirmed exclusion: the court found the contrast explanation was a new basis, not a logical corollary, and exclusion under Rule 213 was proper |
| Whether plaintiff’s expert could expand on disclosed measurement opinions by demonstrating original scans with adjusted screen settings | The demonstration was explanatory of the expert’s measurement basis and a logical elaboration | It constituted a new basis and should have been disclosed or supplemented pretrial | Affirmed exclusion: demonstration went beyond disclosed bases and required prior disclosure |
| Whether counsel’s closing argument describing what Viola personally would have done was proper for an informed‑consent claim | Such argument merely illustrated characteristics of a reasonable patient in Viola’s position and was permissible | Argument improperly asked jurors to apply a subjective standard (what Viola personally would do) rather than the objective reasonable‑patient standard | Sustained objections affirmed: counsel’s wording misled jury toward a subjective standard and sustained objections were not an abuse of discretion |
| Whether trial court abused discretion in evidentiary and closing rulings amounting to reversal‑worthy error | Excluding the contrast testimony and limiting closing argument deprived plaintiff of critical proof and was prejudicial | Court rulings were within discretion to prevent undisclosed expert bases and improper argument; plaintiff was allowed substantial alternative testimony about scan differences | No abuse of discretion: rulings upheld and verdict affirmed |
Key Cases Cited
- Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (Ill. App. 1999) (expert testimony supplying undisclosed new bases for an opinion is improperly admitted)
- Kotvan v. Kirk, 321 Ill. App. 3d 733 (Ill. App. 2001) (trial court may exclude expert testimony that states a new basis not previously disclosed)
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (Ill. 2004) (Rule 213 disclosures are mandatory and strict compliance is required)
- Cetera v. DiFilippo, 404 Ill. App. 3d 20 (Ill. App. 2010) (an expert may elaborate only by giving logical corollaries to disclosed opinions, not new bases)
- Foley v. Fletcher, 361 Ill. App. 3d 39 (Ill. App. 2005) (same principle on limits of Rule 213 expansions)
- Spaetzel v. Dillon, 393 Ill. App. 3d 806 (Ill. App. 2009) (contrast: expert elaboration that is a logical corollary to disclosed opinion is permissible)
- Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026 (Ill. App. 2003) (discovery rules aim to avoid surprise and gamesmanship)
- Iser v. Copley Memorial Hospital, 288 Ill. App. 3d 408 (Ill. App. 1997) (trial court can exclude expert testimony that relies on nondisclosed or nonauthoritative exhibits)
- Simmons v. Garces, 198 Ill. 2d 541 (Ill. 2002) (scope of closing argument is within trial court’s discretion)