*1 is, these precedents my judgment, case antiquated overly reading narrow the statute is neither the best interest I public. ward nor the would therefore hold that the should entertain the guard- ian’s its petition obligation to de- perform statutory termine whether a dissolution of is in the marriage best interest of the ward.
(No. 63329. MELECOSKY, STANLEY v. MCCARTHY Appellant, al., BROTHERS COMPANY et Appellees.
Opinion Rehearing December filed 1986. 30, 1987. January denied *2 MILLER, JJ., dissenting. RYANand Smith, Ltd., Lester of Peoria (Charles J. Berry Smith, Lester Hughes, Berry and Steven P. Glancy, counsel), for appellant. Moore, P. Harden,
Robert Richard R. and Wm. LeCrone, Associates, Michael & Moore of Champaign, for Brothers appellee McCarthy Company. Causeman, J.
Craig Thomas, Mamer & Haughey, C. Champaign, Sons, for Iber & Inc. appellee JUSTICE MORAN delivered court: Plaintiff, Stanley this action in the Melecosky, brought circuit court of Champaign injuries suffered in County accident, construction-site claiming injuries were caused by violations of the Structural Act (Ill. Work Defendant, Rev. Stat. ch. through pars. 69). Sons, C. Inc., Iber was contractor coordinating *3 for the project, while defendant Brothers Com McCarthy awas pany prime contractor for the erection responsible of structural steel. The a in favor of returned verdict jury defendants, and plaintiff, against both in the amount of $40,000. Plaintiff appealed, that the trial court claiming excluded the evidence of one improperly deposition plaintiff’s medical experts. Plaintiff’s for a appeal asked or, new trial as to damages a trial as to alternatively, new and The court damages liability. appellate (141 affirmed. Ill. This App. granted plaintiff’s petition leave to appeal. See Ill. 2d R. 315. court,
In this plaintiff raises two for review: questions Did the in (1) trial court err to admit the evi- refusing dence of a deposition nontreating opin- whose physician ions in were based state- part plaintiff’s subjective upon and Did the (2) refusing ments? trial court err admit containing of the evidence deposition physician’s part his objective was based opinion allegedly only which observations? working
Plaintiff was on October while injured a on the building as an ironworker on the construction of Plaintiff University of Illinois Urbana. campus which was on a underneath a steel sitting girder beam broke, a rope causing had been suspended by rope. of plain- to fall. The landed on back girder girder head, welding tiff’s which was partially protected by helmet, on after Immediately and back. plaintiff’s upper in Champaign, he taken to the Carle Clinic was injury and a having he as a back diagnosed sprained where was of the third vertebra. chip fracture lumbar treated Mehta, surgeon Dr. Bharat who orthopedic Dr. first saw behalf. Mehta testified plaintiff, plaintiff’s accident. At this time three weeks after the about plaintiff strain, condition as a lumbosacral diagnosed plaintiff’s he a cervi- vertebra, lumbar fracture of the third chip At time Dr. Mehta cal strain in both shoulders. a later had suf- plaintiff added to this the belief diagnosis fered a fracture of the third lumbar vertebra compression Dr. well It was Mehta’s as as fracture. chip to the accident that these were related injuries causally related to him by plaintiff.
In Dr. view soft-tissue were plaintiff’s injuries Mehta’s injuries. than bone disabling much more serious from often recover soft- that, although He testified people tissue disabili- long persistence plaintiff’s sprains, be per- ties led him to that the disabilities would believe plaintiff would manent. He expressed eight-hour-a- as an heavy lifting never be return able avoid any Dr. should plaintiff In Mehta’s day job. *4 legs or strenuous use of involving work and heavy such bend- back, should avoid awkward positions lower overhead should avoid any or ing, stooping, climbing, work which him to bend his neck and upward, requires not sit one for of time. periods should extended position of Dr. deposition Plaintiff also offered the evidence Miller, surgeon Donald S. an who examined orthopedic trial. Dr. did not treat plaintiff plain- before Miller shortly tiff in instead was to examine any way, engaged solely but an at trial. He plaintiff purposes rendering plaintiff’s reviewed medical as recorded history plain- tiff’s and listened to own previous plaintiff’s physicians, of his recounting accident and He also per- symptoms. formed various tests plaintiff. all these Nearly tests required subjective input as to when and plaintiff’s where he felt or discomfort. Dr. pain opinions Miller’s were similar to those of Dr. Mehta. He believed plain- tiff permanent would have a pain, and func- permanent tional loss and restriction of agility.
The trial court ruled that Dr. Miller’s as to opinions plaintiff’s were injuries all based in on sub- part plaintiff’s jective statements and The court therefore symptoms. refused to admit of Dr. any deposition Miller’s into evi- dence.
Defendant’s sole witness with to damages was regard Dr. Robert Mussey, who, Miller, like Dr. physician exam- ined solely in plaintiff order render at trial. Dr. X Mussey back, examined earlier of plaintiff’s rays and them to X compared new which he at rays took time of the examination. He also plaintiff’s observed side- bending and leg normal, which he found to be raising, he backbending, which found be somewhat restricted. Dr. testified that Mussey he did not ask for a his- plaintiff of his tory did not ask to relate his injuries, plaintiff no symptoms, did examinations which required plain- tiff’s subjective these limited input. objec- Based solely tive Dr. observations concluded that had Mussey plaintiff not suffered a vertebra, fractured but instead had calcium addition, of unknown from deposits origin. his examina- *5 214
tion, he not re- could find no could why plaintiff reason turn to the of most On lifting ironworking. heavy required cross-examination Dr. admitted his opinion Hussey X was based almost of entirely plaintiff’s upon rays bones. for his observation of sidebend- plaintiff’s Except raises, and did not ing backbending leg opinion have consider which would potential damage, soft-tissue subjective required plaintiff’s input. Illinois, in made to
Traditionally subjective a for of admissi physician treatment have been purposes as an to the Oil (Shell ble rule exception against hearsay. 590, v. 2 2d 602.) Co. Industrial Com. This (1954), Ill. to state however, does not extend hearsay exception, ments consulted made to a who was nontreating physician (Jen at trial. an solely purposes rendering opinion 24 Ill. 2d sen v. & Eastern Co. Elgin, Ry. (1962), Joliet 234 Ill. 383, 388; Greinke v. Co. City Ry. (1908), Chicago 564, Moreover, expert this held that the court has if of a is based opinion nontreating inadmissible physician exam being statements of upon subjective party ined. Eastern 24 Elgin, (1908), Jensen v. Joliet & Co. Ry. 383, (1962), Co. 389; Chicago City 2d Greinke v. Ill. Ry. 564, 234 Ill. 571. 186, v.
However, in Wilson 84 Ill. 2d (1981), Clark court held a records rely upon hospital physician may in are not forming an even when records opinion example themselves into as an Citing admitted evidence. Evidence, the Rules 703 705 of the Federal Rules of to follow the decided, records, in the case of hospital trend, modem is to witnesses base expert which allow their facts so already long evidence opinions upon facts 2d Ill. sufficiently (84 as the relied are reliable. upon that, held “due The Wilson court thus 194-95.) an records,” expert high degree reliability hospital if even base or her records may hospital 2d are 84 Ill. records not themselves evidence. 194. Wilson with
Although dealt an only admissibility records, the expert hospital based upon language of the Wilson indicates general approval (See People rationale Rules 703 and 705. also v. Lang v. (1986), 407, 464; Ill. Anderson People (1986), 1, 13.) 113 Ill. 2d Rule 703 allows witnesses to base an inadmissible facts or data: opinion upon or particular
“The facts data in the case which an opinion per- bases or inference be those may *6 ceived or made known him the hearing. at or before If a type reasonably upon by par- relied in the experts forming ticular field in opinions or inferences upon the subject, the facts or data need not be in admissible evi- (Fed. dence.” R. 703.) Evid.
Rule 705 allows give an without stating particular facts or data relied however, upon; such facts and data can be obtained cross-exami- during nation:
“The in expert may testify of opinion terms or infer- give ence and his reasons therefor prior without disclo- data, sure or underlying facts unless the court re- quires otherwise. The expert may any in be event required to disclose the underlying facts or data on cross- examination.” Fed. R. Evid. 705.
There are several reasons em- why procedure bodied in Rules 703 and is to 705 be preferred to more traditional of all, rules. First the rules are “to designed bring judicial into line practice with the practice themselves experts when not in court” (Fed. R. Evid. Advisory Note), Committee so that facts or data on which an expert would normally may serve rely as the basis of an even when those expert opinion facts or data are inadmissible the truth of the prove facts asserted therein. in Also, situations many Rules 703 and 705 would obviate the need for a long and time-consum-
216 (See Wilson v. Clark of authentication. ing process addition, Ill. 2d In the rules elimi (1981), “the time-consuming long hypo nate process posing 186, 195. 84 Ill. questions.” thetical case, In the Dr. Miller instant testified that opin a reasonable medical cer upon degree ions were based it is thus to infer that tainty, proper plaintiffs reasonably relied were such would be relied an in the field. Since upon by experts own on such statements it is normally their practice rely of Rule 703 to allow Dr. consistent with purposes them in at his medical arriving opin Miller rely upon As Wilson out, its makes no Rule face points ion. experts. and nontreating distinction between treating v. Wilson Clark 186, 192-93. 84 Ill. 2d (1981), v. International Co. Manufacturing Mannino (6th 846, 853, the United States court of 1981), 650 F.2d Cir. the ex is allowed “[g]reat liberality stated appeals Rule the basis of under determining opinions pert is not for accepted should 703. Whether finder of fact.” This posi the trial That is judge. in J. L. in this court’s also finds support tion v. Fire ex rel. Insurance Group Simmons Co. Hartford *7 stone Tire & Rubber Co. 106, Ill. 2d where 108 (1985), of a vocational coun the admission upheld the a lit in part upon which was based opinion selor’s expert court, Simmons The rely statements. self-serving igant’s Wilson, fact the counselor’s that the that held ing interested from an was based data received upon opinion given, to it should be weight “is relevant litigant only Here, Ill. 2d admissibility.” (108 and not to its admitted into evidence Dr. Miller’s had been the fact free to out bring would have been defendants subjective his was based plaintiff’s that that jury suggested and could have It exaggerate symptoms. reason to had plaintiff would then have been to decide what up jury to Dr. weight give opinion. Miller’s We therefore hold that it to refuse admit Dr. was error Miller’s opinions contained in evidence deposition. we feel
Moreover, that this case the error requires damages. new trial on issue of Although jury’s verdict is law, not as a matter of inadequate perma- nence of plaintiff’s pain and was a contested is- disability sue. Dr. defendants’ Mussey, concluded expert, not plaintiff was to suffer or dis- likely permanent pain ability. verdict have reflected the jury’s may jury’s of Dr. Dr. acceptance Mussey’s However, Mehta, opinion.
the treating concluded that physician, plaintiff’s pain would disability probably Dr. permanent. opin- Miller’s ion could and, have bolstered that of Dr. there- Mehta fore, we cannot with confidence say the admission of Dr. not Miller’s would have affected the jury’s verdict. of the holding view above we need reach plain-
tiff’s alternative argument regarding admissibility a limited of Dr. portion Miller’s opinion.
Since defendants have not of li challenged finding them, ability against there is no reason to relitigate that issue. Home (See & Loan Savings Association v. Schneider 108 Ill. (1985), 285; v. Balestri Termi nal Cooperative Association Freight Ill. 2d (1979), 451, 456.) therefore reverse the judgment We ap pellate court remand to circuit court of Cham for a paign new trial as to County damages only. remanded,
Reversed and with directions. RYAN, JUSTICE dissenting: I problem have no with the general incorporation of Rules 703 and 705 of the Federal Rules of Evidence into the law of evidence of this State. However, the majority
218 that the Rules 703 and 705 to point
opinion expands of evi- admissibility governing accepted principles un- completely this opinion, are Under dence abandoned. to to the be jury is permitted go evidence trustworthy I it. give wish weight jury may whatever given therefore dissent. admissible, the court must evidence is
Before opinion facts, statements, make a determination “In trustworthy. are expert relied upon by opinions is reason- reliance by whether determining items that such the court should satisfied both able, be in the experts relied customarily upon by are of the type trustworthy field, sufficiently items are and that such added.) (E. (Emphasis reliance reasonable.” make such 703.1, at 470 sec. Graham, Illinois Evidence & M. Cleary set stand- any does not Federal Rule 703 1984).) ed. (4th the trustworthiness which to measure ards against However, the expert. facts relied upon by or Rule Note Federal Committee’s Advisory “the 703] [to facts, if the only reliance is reasonable indicates that in excess trustworthiness data, or opinions possess Trust- statement. ordinary hearsay possessed state- hearsay to that possessed by similar worthiness is ap- hearsay exception to any ment admissible pursuant Graham, M.& (E. Cleary contemplated.” parently Thus 703.1, 1984).) ed. (4th sec. at Evidence Illinois make the prelim- the court must Rule under Federal data, or state- facts, of whether determination inary reasona- type are relied upon by ments Graham, Illinois M.& (E. Cleary upon. relied bly 104.1, 29-30 (4th at 703.1, at and sec. sec. Evidence a lot to throw therefore, is, appropriate It ed. 1984).) it to the jury chaff, untrustworthy, no matter how it something perceive may in search through to sort of wheat. a grain the recent decision relies on this majority *9 L. Co. ex rel. Insurance J. Simmons court in Hartford v. Firestone Tire & Rubber Ill. 2d Group Co. (1985), However, 106. in the court had made that case trial ex determination to admit the of the preliminary on in pert information, based certain whereas hearsay our case the trial court had finding made the preliminary that the the should be admitted expert into evidence. Simmons, Simmons,
In the had settled a employer, Boone, compensation workers’ claim of an employee, had against filed suit Firestone for the paid both amount to under Boone the workers’ settlement compensation and for to Boone. The testi personal injuries who expert fied in case that was a vocational counselor who stated that, in his opinion, Boone was unemployable. opin This based, ion at was least in ex part, interviews of the with the pert injured It not clear the employee. is from this opinion of court the for which the inter purpose views were the However, conducted. in appellate opinion in Simmons L. (J. Simmons Co. v. Firestone Tire & Rubber Co. (1984), 126 Ill. it 866), App. the appears expert examined Boone for the purpose his evaluating compensation against claim Simmons to determine whether Boone was a for re likely candidate other training work, and not for the of testi purpose case, If this was fying. then the facts in Simmons are so different from completely those in our present case that Simmons would be no for the authority holding event, here. In as majority any trustworthiness to the facts and statements relied in upon by expert Simmons was not found to wanting, be and the trial case, judge permitted to our expert testify. trial court came to the conclusion. opposite ago this court noted when a to
Many years party a lawsuit is examined for the expert solely purpose trial, as a witness at the qualifying expert has an incentive
party being examined fabricate not, should there exaggerate symptoms. fore, on such sub state his based permitted v. (See Chicago Greinke self-serving responses. jective, this 564, 572-73.) 234 Ill. City Following Co. Ry. (1908), rationale, I that the of the plain would hold statements case, examining to an expert tiff in this made who was behalf, him for the solely purpose testifying not sufficiently trustworthy permit were based, to his which was at least opinion, testify self-serving plaintiff. part, is excellent, on this subject An well-reasoned article Bar Chicago (See found in a recent issue of the Record. Switzer, & and its Progeny: Stalmack v. Clark Wilson *10 in Illi- The Federal Rules 703 and 705 Application of nois, B. Rec. The article stresses require- 67 Chi. data or ment that before reliance outside expert’s reasonable, found the information be may to The article also notes trustworthy. must be found be rule are themselves predi- to the exceptions hearsay In of trustworthiness and necessity. cated on notions that for most fact, authority has been noted one by it 703 is simi- of Federal Rule effect practical purposes, hearsay to the lar to creation additional exceptions Graham, sec. & M. Illinois Evidence rule. (E. Cleary Chicago The 703.1, ed. article in the 1984).) at (4th then makes the observation about following Bar Record in our case: situation that is presented very examining the situation consider example, “For physician a retained by party to Statements physician. for of treatment purposes trial are not made testify at outweigh strong motive and, hence, carry little cases, most there- under such circumstances. falsify contain indicia fore, probably would such statements few them, use qualify under trustworthiness for sufficient describes such state- though even Rule being ments as of a relied on mem- type customarily profession.” added.) bers of his Stalmack (Emphasis & Switzer, Progeny: Applica- Wilson v. The Clark and its Illinois, tion B. Federal Rules 703 and 705 in 67 Chi. of 4, Rec. 15-16. cites no its majority for authority posi- Simmons, which, tion above, other than as noted may The general of Federal Rule applicable. language 703, when considered in of the light Commit- Advisory Notes, tee’s does not the conclusion the support majority draws from the general of the rule. I find language in our case was based in part on untrustworthy, self-serving statements which the made in plaintiff I preparation trial. believe that the trial court properly excluded of this I expert. therefore dissent.
JUSTICE MILLER joins this dissent.
(No. 62552. SPRINGFIELD RARE GALLERIES, INC., COIN Ap- v. J.
pellee, JOHNSON, THOMAS Director of Reve- nue, Appellant.
Opinion December 1986. filed