Swift v. Schleicher, 2017 IL App (2d) 170218

Background

In 2010 Dr. David J. Schleicher (employed by Swedish American Hospital) performed a laparoscopic hysterectomy on Lisa Swift; the small bowel was later found with three through‑and‑through perforations, sepsis followed, and plaintiff required bowel resection and prolonged care. Defendants admitted the injury but disputed negligence.\
Central factual dispute: whether injury occurred during limited‑visualization umbilical trocar entry (defense theory: pierced a looped, adhered/compressed bowel) or during full‑visualization placement of the left ancillary trocar (plaintiff’s theory via her expert Dr. Robert Dein). The causation choice was outcome‑determinative for negligence.\
Plaintiff called one expert (Dein). Defense called multiple experts (Dominicis, Blumenthal, Sobinsky) supporting the umbilical‑entry, non‑negligent theory and timely diagnosis.\
At deposition and trial Dein described a 1989 umbilical trocar incident he had performed that perforated bowel during a ‘‘true blind’’ entry but said he recognized it immediately and complied with the standard of care then. Plaintiff moved in limine to bar questioning about the 1989 incident; the court denied the motion.\
Defense cross‑examined Dein about the 1989 incident at trial and emphasized it heavily in closing argument (arguing Dein had done the “same thing” and attacking his credibility). Jury returned verdict for defendants; plaintiff moved for new trial which was denied. Plaintiff appealed.\
The appellate court reversed and remanded for a new trial, holding the trial court abused its discretion by admitting Dein’s 1989‑incident testimony for impeachment or as affirmative proof of the 2010 standard of care, and that admission appears to have affected the outcome.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of expert’s prior‑incident testimony (1989)	Dein’s 1989 trocar incident was irrelevant to his 2010 opinions and unduly prejudicial; it should have been barred on limine.	The 1989 incident was relevant to Dein’s credibility (impeachment) and, alternatively, was admissible as affirmative evidence of the applicable standard of care.	Reversed: admission was an abuse of discretion. The 1989 testimony neither impeached Dein’s 2010 opinions nor properly established the 2010 standard of care and its use likely affected the verdict.
Use of prior malpractice‑suit evidence	Even if prior incident is relevant, evidence of malpractice suits is disfavored; exclusion of suit name insufficient to cure prejudice.	Trial court limited reference to exclude mention of malpractice suit; defense argued that showing the incident alone was permissible.	Court found the incident testimony itself prejudicial (injury to a patient), and the absence of a limiting instruction plus defense closing argument made the use improper.
Cumulative testimony (Blumenthal)	Plaintiff argued Blumenthal’s testimony was cumulative of defense expert Dominicis and should have been barred.	Defendants: each defendant entitled to present its own expert; Blumenthal provided non‑duplicative perspectives and plaintiff’s timing precluded earlier objection.	Affirmed: trial court did not abuse discretion in allowing Blumenthal to testify; denial to bar cumulative testimony was appropriate.
Whether verdict was against the manifest weight of the evidence	Plaintiff contended verdict unsupported given expert testimony and trial error.	Defendants argued evidence supported verdict and was not against manifest weight.	Appellate court did not resolve manifest‑weight claim because reversal was required on evidentiary ground; trial error made a new trial necessary.

Key Cases Cited

Mazzone v. Holmes, 197 Ill. App. 3d 886 (disfavoring cross‑examination of experts about prior malpractice suits)
Webb v. Angell, 155 Ill. App. 3d 848 (similar rule limiting inquiry into experts’ malpractice litigation)
Miceikis v. Field, 37 Ill. App. 3d 763 (prior malpractice involvement of an expert is of questionable relevance to standard‑of‑care testimony)
Schmitz v. Binette, 368 Ill. App. 3d 447 (personal‑practice testimony may be admissible to impeach an expert when inconsistent with that expert’s standard‑of‑care testimony)
Gunn v. Sobucki, 216 Ill. 2d 602 (improperly admitted evidence requires reversal only if it appears to have affected the outcome)
Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226 (same standard for jury trials regarding prejudicial evidence)
Lee v. Calfa, 174 Ill. App. 3d 101 (outrageous attacks on an expert’s integrity in closing can warrant reversal when the case is close)
Dillon v. Evanston Hospital, 199 Ill. 2d 483 (trial court has discretion to restrict cumulative expert testimony)
Pielet v. Pielet, 2012 IL 112064 (appellate courts may address other issues briefly to avoid recurrence on remand)