2017 IL App (2d) 170218
Ill. App. Ct.2018Background
- In 2010 Dr. David J. Schleicher performed a laparoscopic hysterectomy on Lisa Swift; the small bowel was perforated in three through‑and‑through holes and not diagnosed until four days later, causing sepsis and bowel resection.
- Defendants admitted causing the injury but contended it was a non‑negligent known complication (umbilical trocar through a looped, adhered bowel); plaintiff alleged negligence (injury from left ancillary trocar and/or failure to timely recognize the perforations).
- Plaintiff’s sole standard‑of‑care expert, Dr. Robert Dein, testified that the injury was most likely from the left trocar (full visualization) but could not entirely rule out umbilical entry; he also testified about a separate 1989 umbilical trocar bowel injury he caused during a blind entry.
- Defendants cross‑examined Dein about the 1989 incident over plaintiff’s in limine objection; the court allowed the questioning but barred mention of the related malpractice suit. Defendants highlighted the 1989 incident heavily in closing to attack Dein’s credibility and to support their causation theory.
- The jury returned a defense verdict. The trial court denied plaintiff’s motion for a new trial; the appellate court reversed and remanded for a new trial, concluding the 1989 evidence was improperly admitted and likely affected the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert's 1989 prior trocar injury | Dein's 1989 incident was irrelevant to his 2010 standard‑of‑care opinion and unduly prejudicial; cross‑examination should have been barred | The 1989 incident was relevant to Dein's credibility and, alternatively, could be used as affirmative evidence of the standard of care | Reversed: trial court abused its discretion admitting the 1989 testimony — it was neither inconsistent with nor probative of Dein's 2010 standard‑of‑care opinions and was unduly prejudicial; new trial warranted |
| Use of prior malpractice suit in cross‑examining expert | Even if prior incident admissible, mentioning malpractice suit is highly prejudicial and generally disfavored | Defendants argued they would not mention the suit and needed the incident for impeachment/causation | Court barred mention of the suit but nonetheless allowed the incident testimony; appellate court found the incident itself prejudicial when used in closing |
| Cumulative expert testimony (Blumenthal) | Plaintiff argued Blumenthal's testimony was cumulative of SwedishAmerican's expert and should have been barred | Defendants said each party/defendant is entitled to present its own expert and experts were in different specialties | Affirmed: trial court did not abuse discretion in permitting Blumenthal to testify |
| Whether verdict was against manifest weight of the evidence | Plaintiff argued manifestly against weight given close, expert‑dependent record and prejudicial evidence | Defendants argued evidence supported verdict and errors were harmless | Appellate court did not address manifest‑weight argument after deciding a new trial was required on evidentiary error |
Key Cases Cited
- Schmitz v. Binette, 368 Ill. App. 3d 447 (Ill. App.) (personal‑practice testimony may impeach expert when inconsistent with his standard‑of‑care testimony; limits discussed)
- Mazzone v. Holmes, 197 Ill. App. 3d 886 (Ill. App.) (cross‑examining experts about prior malpractice suits is generally disfavored)
- Webb v. Angell, 155 Ill. App. 3d 848 (Ill. App.) (prior malpractice litigation involving the testifying expert is of questionable relevance and often should be excluded)
- Miceikis v. Field, 37 Ill. App. 3d 763 (Ill. App.) (personal involvement of an expert as a defendant in malpractice is of limited relevance)
- Gunn v. Sobucki, 216 Ill. 2d 602 (Ill. 2005) (improperly admitted evidence requires reversal only if it appears to have affected the trial outcome)
- Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226 (Ill. 1988) (same standard for reversal in jury trials where prejudicial evidence admitted)
- Lee v. Calfa, 174 Ill. App. 3d 101 (Ill. App.) (outrageous attacks on expert integrity in closing argument can warrant reversal when combined with close liability issues)
- People v. Miller, 302 Ill. App. 3d 487 (Ill. App.) (factors for assessing whether improperly admitted evidence affected outcome: limiting instruction, closeness of evidence, whether evidence was cumulative or used in closing)
- Dillon v. Evanston Hosp., 199 Ill. 2d 483 (Ill. 2002) (trial court has discretion to limit cumulative expert testimony; notice and timing can affect that discretion)