2019 IL App (1st) 173065
Ill. App. Ct.2019Background
- Brian Curry (23) died of a saddle pulmonary embolism after two ER visits to St. Bernard Hospital; his mother Ernestine Wilson sued ER physician Dr. Eric Moon for malpractice and sued the hospital as principal for the physician’s conduct.
- Plaintiff settled with St. Bernard before trial; Dr. Moon proceeded to trial alone.
- Prior to trial the hospital had disclosed a retained pulmonology expert (Dr. Victor Tapson) under Ill. S. Ct. R. 213; Dr. Moon’s Rule 213 responses stated he “adopts” and reserves the right to call any Rule 213 witness disclosed by any party.
- At trial Dr. Moon called the hospital’s disclosed pulmonary expert (Dr. Tapson) and his own emergency-medicine expert (Dr. David Overton); plaintiff’s sole retained expert was Dr. Terrance Baker (family-practice/generalist).
- The jury found for Dr. Moon. Plaintiff appealed, arguing: (1) Dr. Moon improperly called a 213(f)(3) expert disclosed originally by the now-settled hospital without supplementing his disclosures; (2) cross-examination about that expert’s retention/compensation and bias was improperly restricted; (3) defense closing comments about plaintiff’s failure to call certain experts were improper; and (4) cumulative expert testimony and limits on cross-examining Dr. Moon about ultrasound/standard of care were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disclosure/adoption of co‑defendant’s Rule 213 expert after settlement | Moon should have supplemented his Rule 213 to re‑disclose Tapson after hospital settled; failure prejudiced Wilson | Moon’s 213 answers timely adopted other parties’ disclosed witnesses; adoption language sufficed and Tapson had been disclosed/deposed months earlier | Adoption language was adequate; no supplementation required; no abuse of discretion |
| Cross‑examination about expert’s prior retainer/settlement revealing hospital role | Plaintiff was unfairly surprised and prevented from probing Tapson’s bias/compensation because she hadn’t issued discovery after settlement | Tapson’s identity, opinions, and compensation were disclosed months earlier; plaintiff deposed him and had opportunity to question fees; court appropriately limited questions that would disclose settlement | Court found no unfair surprise or prejudice; limitation on settlement-disclosing questions proper and harmless |
| Closing argument comments about plaintiff not calling board‑certified EM or pulmonology expert | Comments suggested plaintiff couldn’t find experts and invited inference from missing witnesses | Defense argued remarks were fair inferences from record (plaintiff’s lone, non‑board‑certified expert, while defense had two specialists) | Comments were permissible (based on evidence and reasonable inference); jury instruction cured any risk of prejudice |
| Cumulative experts and limits on cross‑exam re: ultrasound/standard of care | Calling two defense experts was cumulative; plaintiff should have been allowed to question Dr. Moon about ultrasound as an alternative standard | Experts had distinct specialties (pulmonology vs emergency medicine); plaintiff never disclosed ultrasound as a theory and motion in limine barred it | No abuse of discretion: experts not improperly cumulative; trial court properly limited new theory absent 213 disclosure or offer of proof |
Key Cases Cited
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (Sup. Ct. Ill.) (factors for sanctioning nondisclosure and exclusion of witnesses)
- Scassifero v. Glaser, 333 Ill. App. 3d 846 (1st Dist. 2002) (adoption of co‑defendant’s Rule 213 witnesses can be timely disclosure)
- Lopez v. Northwestern Memorial Hospital, 375 Ill. App. 3d 637 (1st Dist. 2007) (purpose of expert‑disclosure rules: avoid surprise and gamesmanship)
- Gee v. Treece, 365 Ill. App. 3d 1029 (1st Dist. 2006) (timing and substitution issues for expert disclosure)
- Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770 (1st Dist. 1998) (no abuse of discretion in allowing multiple medical experts where specialties and testimony differ)
- Moore v. Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874 (1st Dist. 1996) (permissible multiple standard‑of‑care witnesses in complex medical cases)