Schuchman v. Stackable

SCHUCHMAN, JR., STACKABLE, Plaintiff-Appellant, ARNOLD v. W.R.

Defendant-Appellee. Fifth District No. 5 — 88—0562 Opinion 19, 1990. May 9, 1990. Rehearing filed denied June CHAPMAN, J., dissenting. Phalle, Randle,

Alexandra de Saint of Londrigan, P.C., Potter & Springfield, appellant. for Ries, of Shepherd, Sandberg Phoenix, P.C.,

Jonathan Louis, & of St. Missouri, appellee. for

PRESIDING JUSTICE LEWIS delivered the opinion of the court: Schuchman, The plaintiff, Jr., Arnold brought against suit the defendant, Stackable, M.D., W.R. damages to alleged have been caused the surgical defendant’s treatment of him after an injury. trial, a Following jury judgment was entered in favor of the defend- ant, and this followed. appeal presents Plaintiff 14 issues for review. He contends that the trial court erred in failing grant to a judgment n.o.v. or a trial “with regard new to the defendant’s inexperience and consequent damage plaintiff,” he raises several concern- issues ing the trial court’s giving give of or refusal to numerous instruc- tions, and he a presents number of issues related evidentiary other matters. We turn first to plaintiff’s concerning contention the grant trial court’s failure to his motion for judgment or a new n.o.v. trial. 17,

At trial the evidence on August 1984, showed that while work- the of a ing logger, injured upper part as a was when the plaintiff feet, striking tree fell his shoulder and approximately a distance result, the neck. frac- plaintiff back of his As a suffered “burst” vertebra, into sev- splintered ture of second lumbar which or burst his his' pieces fragments being spi- eral some of its into retropulsed canal, nal it in obliterating part exerting pressure upon re- plaintiff contents of the canal. after Immediately injury, defendant, ferred to care of sur- orthopedic board-certified 31, Centralia, geon, Mary’s August St. Illinois. On Hospital 1984, him, intending performed defendant lumbar laminectomy Harrington perform spinal during pro- to insert rods and to fusion finding, according cedure in order stabilize back to do defendant, long enough that he not continue the operation could 1984, 6, bleeding. September so because of excessive On while town, caring one for him defendant was out of of the doctors absence, Chandra, deceased, him Dr. R. since had namely, defendant’s Louis, Missouri, Sep- on St. where Hospital transferred Barnes 1984, Harrington Dr. rods and 8, tember Strecker inserted William Later, Dr. fusion. performed posterior spinal September canal and spinal Strecker retropulsed fragment removed re- of 1986 Dr. Strecker January an anterior fusion. In performed rods, until Harrington spine moved stability provided walks forearm plaintiff, using the fusion was solid. The who now crutches, as a or to logger to return to his occupation has been unable involving labor. any physical work Tatkow, a Dr. Robert called as witness he was of who testified orthopedic surgeon,

board-certified the defendant did the form of treatment employed by sur- by orthopedic any usually meet of the minimum standards used stating geons community, an un- in this was to further destabilize

“¡wjhat was done case vestige stability, by removing possible the last spine stable words, in the removing spine, other bone back of sta- vestige This was the last posterior column. third column removal of this that Mr. had left so that Schuchman bility to shift one and caused the spine, spine destabilized totally centimeters, inch with further half an approximately, a half damage nerves.” “it allows “destabilization of the meant spine”

He said that each other abnormally elements move bony remaining The spine.” can the nerve structures within thereupon damage witness testified do not do in the of this presence type laminectomies

“[w]e and I don’t think has in The injury, anybody many, many years. literature at fifteen lam- goes back least more don’t do years inectomies on this people of an It makes worse. type injury. instruments, course, Harrington gold are standard of treatment but not combinedwith laminectomies.” Concerning defendant’s intention to undertake the placement Harrington rods in the plaintiff, when the defendant had never per- formed such a procedure, expressed witness the following opinion:

“This is such a very demanding procedure with so ramifi- many in the cations use of the instrumentation that it would be abso- for lutely impossible pro- an individual who had not even seen a cedure in one on many years go attempt ahead and do such a as Mr. Schuchman was.” complex patient The witness indicated that he had records reviewed made at Hospital his arrival Barnes from St. Hospital Mary’s status expressed regard plaintiff’s neurological upon arrival at Barnes as follows: Hospital records,

“I treating reviewed the room emergency physi- records, cian’s and the resident’s records after he was right transferred to Barnes’ These records all demon- Hospital. [sic] strate neurological a marked deterioration the time he was transferred to Barnes’ to his initial sta- Hospital compared [sic] tus after the he was on at St. injury operated and before Mary’s Hospital.”

He indicated that at that time quadraceps were not func- “[h]is [sic] all. tioning zero, were fur- They paralyzed.” witness testified ther 5, 1984, that X taken on rays following surgery by September 31, 1984, defendant on August demonstrated “a in the of the vertebral very change alignment marked bodies. The entire of his from the first upper spine lumbar part vertebra, on the sec- up spine the entire has shifted backwards centimeters, ond lumbar vertebra one and a half approximately inch, a half more is the that is noted major change or less. This in this film.”

The witness described the of such a shift the vertebral significance bodies at the of L1-L2: level is a it that the nerve change

“That tremendous because infers canal at level must be structures within the spinal one and a centimeters in the is a tremen- spine, stretched half shift, And, dous difference. in order must spine canal. can’t "with- happen stretch nerves within the One spinal the out other.”

He stated that by performing laminectomy plaintiff upper defendant further destabilized and caused the plaintiff’s spine his to a half an inch onto part, of shift about the lower part spine this nerve man as was sub- thereby "definitely causpng] damage I by Hospi- stantiated the records that reviewed from Barnes’ [sic] tal.” the further that between expressed delay witness “very time of and the time defendant was injury surgery

inordinate,” if it’s stating higher that a much success rate “[t]here’s earlier,” is, “the first He days” following injury. done that within few the form of treatment he believed should have indicated that that in- Harrington used the insertion of rods after the shortly been was or 50 performing laminectomy; occurred without about “40 cases,” said, fragment cent of he the rods or it per get “reduce fragment out of the canal” the need to remove the spinal without here. The advo- procedure later as was done witness surgically do it af- any healing cated must be before occurs: “If performed you started, has days, healing get- ter a week or ten after chances that out the canal smaller or ting fragment rapidly become much He that doing staged without another said impossible operation.” that a procedure then demanded delay operative “[t]he performed get would to order to stage second have if do out of spinal you try bone his canal because piece of bones be- back after two weeks the something somebody’s as as if you can’t move them around well you come sticky did fresh.” treatment

As to defendant’s contributed whether ex- residuals” exhibited the witness by plaintiff, “the neurological this pressed opinion: to, as to as any certainty

“It’s to answer with definite difficult have at deficit Mr. Schuchman would neurological how much do beginning. in the We if he was treated properly time as of the neurological damage there a result know that was and the destabilization performed that was surgery therefore, degree to assume within reasonable spine, have contributed surgery performed was certainty Mr. Schuchman now has.” deficit that neurological had increased neurological impairment that plaintiff’s He indicated residual that, “therefore, his of defendant’s treatment a result greater.” impairment probably hospitalization had increased experienced

As to whether plaintiff pain conduct, as a result of defendant’s witness testified: “Hospitalization grossly prolonged Mary’s Hospital St. delay surgery two-week between admission and performed and because of the gross neurological present deficit by the time he was period transferred Barnes’ of his [sic] rehabilitation time at Hospital Jewish St. Louis where [in was, was transferred from Hospital] Barnes and thereafter also, prolonged. I don’t exactly many know how weeks days but the more severely longer an individual is the injured hospitalization is when treatment stay delayed.” Asked on direct examination “the typical length a hospitalization for a patient who has injuries suffered similar to those Arnold Schuchman 17th, 1984, demonstrated on August who were given ap- propriate care” the answered, witness “The last four of these I that did this year, went people home in a month or less.”

On cross-examination the following colloquy occurred between counsel for defendant witness:

“Q. It was your impression that he had made a nice measure of improvement with as findings those described even before an you had to do opportunity your own Is examination. that right, sir?

A. I thought he had made a very nice recovery, yes. Q. And that would represent good a outcome for a man who had had as injuries serious as those suffered by Mr. Schuchman on August 17,1984, correct?

A. Yes.

Q. fact, In probably good as a result as any board certified orthopedic specialist could expect from a patient with such a problem difficult caused tree falling accident? Is that right, sir? No,

A. sir.

Q. Wouldn’t you say that is probably true? A. I’ll say that considering neurological deficit and the problems that the man had at the time he was transferred to Barnes’ Hospital, he has made an yes, excellent recovery. [sic] IBut, would not characterize this as an excellent recovery view the much less neurological deficit that he had at his ini- tial evaluation at St. Mary’s Hospital before the destabilizing was procedure performed.”

He indicated that he would not expect a man as injured the plaintiff had August 17, 1984, been on ever to return to work as a logger or to return to involving significant work manual labor regardless of medical care and received. quality regard treatment had With testified, “I the duration of the witness can plaintiff’s hospitalization, degree certainty hospital state with reasonable of medical months; less this man hospital- would be than six was stay surely altogether including ized rehabilitation time at Jewish for Hospital “to- months.” He that in medical approximately six indicated centers as procedure treating patient day” injured The usually performed stages operations. two or removal The testi- would constitute a third witness Harrington operation. rods bills, fied that he medical that he any plaintiff’s had reviewed not ex- nothing bills, knew medical and that he could about press an or of medical incurred opinion as amount extent bills alleged by plaintiff produced by negligence which were defendant’s as those of the tree distinguished falling top from caused him. redirect, asked if Schuchman had had “why

On when Arnold need treatment been did Arnold Schuchman appropriate given [sic] two-stage procedure?” responded, have witness I say specific

“I can cannot one only quote any statistics. forty case. with this Statistically, thirty percent people just fracture can treated with one type adequately a burst coun- operation. remainder usually [sic] [defense than about, being fifty me more would questioned percent sel] but to take one stage approach, any a second anterior require individual, a certainty.” cannot state within Akbarnia, Dr. whose The defendant called an witness witness, a board-certified first name is omitted the record. This have surgery performed been testified that should orthopedic surgeon, three in the first man as was the “at least injured plaintiff on a it should Asked, testimony “There has some that four weeks.” been on that days. your opinion in the first two or three What is be done responded the witness as follows: subject?” surgery that “Well, early is no scientifically, there evidence and there has been neurologically the final outcome would alter The time are advised that that you no in that. that proof only severely the status is neurological is early should be done when it has to be done on a emer- and that time deteriorated [sic] basis.” gency indicated, not, surgery he one requiring

The condition was plaintiff’s and per- He that nature extent of basis. testified the emergency on an “depends in a as the on damage plaintiff’s nerve case such manent the he sustained at initial injury the that degree severity the and the impact.” degree Given and sus- severity injury 17,1984, August “suspectjed] tained witness some de- initially gree of residual as a permanent impairment” prognosis. a surgical

The witness discussed the in choice of tech- alternatives defendant, nique “Basically, to the the two main saying, available front, from or from the techniques you can the back approach or, said, defendant, approached can both The he you together.” have The that the expressed poste- back.” witness “[f]rom rior He approach taken defendant “was testified appropriate.” concerning operation defendant’s while stopping back was of the rods and prior Harrington per- unstable insertion forming graft: fusion means a bone spinal was there

“My understanding operating report from was amount towards the bleeding considerable and end especially And, of the what procedure. my understanding That is is. imagine would that the of that loss source blood was probably a, from small veins that are under the because the dura dura torn, plus general oozing was described the oper- not, know, and ating report you based on the records was Doc- tor bleeding.” Stackable was not able to control that He testified follows regard that occurs bleeding during fusion:

“Well, he if wanted to with a and proceed fusion instrumenta- tion as he wrote in report that that was his inten- operating tion he had to take from some bone from the iliac pelvis, bone, of the pelvis. side That means another opening area of ilium, here and some body then carve bones from is the then, source bone and carve graft, again, the area of spine has to and that only way you be fused is the can put graft bone in that then you heals. When carve bone you have more bleeding, obviously, bleedings usually those can- not be controlled.” said, bleeding controlled, cannot be because it from the bone

and, unlike bleeding muscles, from the tissue it soft cannot be clamped. He that it is added harder control that kind bleeding

“[bjecause the bleeding is from all small You can’t areas. deal them, with thousands of you know. It’s like the middle of a bone, so, have seen like of those you sponge, each holes bleeding, have all So you opened why blood. that is we usually do the fusion at the of the part operation end where patient is, part just another is done we do the operation it, carving and do the close so wouldn’t last bone and And, that part usually some time. bleeds.” that, The witness indicated on the basis of the materials he had re- viewed, he “probably” would have terminated the as the operation had; defendant it have appropriate witness concluded would been “to close rather proceed” bleeding.” than on the basis of “[e]xcessive unstable, said, such he spine

Under circumstances the remains managed “by weight condition to be to allowing patient bear load, so, supine, should be in a down He they laying position.” long patient log-rolled kept testified that as as a is “[u]sually, bedrest, to danger increasing damage spine.” there’s no of The you spine the stress on the you put witness said that stand “[w]hen load allows more compres- and that is and that psysiological [sic] down, spine; but, compression sion of the when a that patient lying there, so, to It is you displacement.” force is not don’t tend see undis- had at on frame puted kept Stryker that been bedrest plaintiff of defendant until the time his transfer following surgery by Barnes Hospital. plaintiff’s spine,

The discussed the alignment witness displace- on X that “there some minimal ray, testifying shown prior the X X the X comparing rays, original rays rays ment in minimal operation.” displacement the second The he described measurements, millimeters, according or ap- amounted to nine to his neurological Asked significance one-fourth an inch. proximately answered, “I inch he displacement, really one-fourth of an the ultimate outcome.” He change think that affects alignment don’t not have a longstanding did displacement view expressed concern the witness was the area area of neurologically. effect canal where retro- of the nerves inside compression spinal located, no change which had revealed pulsed fragments bone were or, taken X apparently, rays the defendant following surgery by that, in compar- there. He testified Barnes after his transfer Hospital the plaintiff the initial examination of findings recorded at ing plaintiff April he on Dr. Tatkow when examined with the findings “a good made recov- 1, 1988, very that the had thought care and treatment that defendant’s expressed He ery.” injuries, stating, to plaintiff’s contributed not caused or had “[I]t than he any more had.” any injury, didn’t cause additional deterioration the witness testified On cross-examination “is spine fractured following surgery function back neurological of cases in which unusual, pa- around 3% 5% occurs” He stated after surgery. involved neurologically prior tient is 31, 1984, tempo- condition deteriorated surgery August final the time rarily but that “the outcome determined at of in- jury”:

“Again, outcome, I have to differentiate between the perma- nent we temporary outcome deterioration. When talked be- fore all It testimony permanent injury. very was for is my injury mentioning unusual to have a after three to permanent five after percent, surgery temporary but deterioration can that happen and is due to an edema or as the result surgery. But, outcome, think, So, is the final I what is considered. that is what I’m referring to.”

He said that if some patients get further “sustain or they temporary then, after it that neurological problem takes much to re- surgery, it. it more, turn Sometimes takes two or three months to re- maybe turn.”

He he in testified that had that is past indicated laminectomy fractures, not indicated for treatment of had burst co-authored papers tissue, indicating laminectomy fully that will not neural decompress had as an indicating and written that isolated papers procedure lami- nectomy greater instability lead with increased deformity spine. laminectomy part He indicated that the “was of” the in- following stability plaintiff’s spine defendant surgery by but that he spine already “was unstable when went to He surgery,” testi- laminectomy aggravated fied that the “potential instability” of plain- tiff’s asked he spine. agreed When whether that “offset” or displace- ment of the “could cause to a spine neurological he injury patient,” answered:

“No, I agree, don’t and the reason I is that as mentioned be- fore this offset can in the X right, be seen You’re ray. written in the radiologist I, also, But, and measured report it. indicate the might of these blocks together rotation two neurological damage but actual or any possible neurological damage usually place fragments takes with those in the [sic] in really canal. Those and in the conjunction proximity to the and offset nerve canal themselves there’s no indication for me to say neurological this would cause deficit. That is the reason I’m stating my opinion.” why

Asked, many possible “There were causes for Arnold Schuchman’s in- answered, the witness I juries, correct?” “No. know of one only cause and that that fell initial injury.”' tree and When asked whether agree he would that standard of accepted care 1984 “was to remove in the impinging fragments spinal those cord the early ap- fusion,” Harrington rods and he that plication indicated such treat- if begun ment not had “early” improve need have been patient “plateau” and The tes- .neurologically improvement. had reached a timony following of the defendant that and before sur- injury shows 1984, gery August regained had some sensation his lower limbs. The that in the suggested patient witness event has begun improve neurologically plateau, but has reached a fragments year” could “late as following injury. be removed as even rods do Harrington witness testified that it is now known remove, on the reduce, fragments impinging that is to bone say, think “In now we don’t spinal thought way canal: we response questioning that.” In those instruments would do L2 fracture of the concerning recommended treatment burst vertebra, responded part: think, I

“I cannot come here and stand here all say if I was way burst have to treated this and know fractures You something just coming it is else. are in that situation method, only anterior fusion is the saying Harrington treated poste- is not me to Some can be say. correct for anterior.” riorly Harrington and some with Harrington insert rods Concerning the defendant’s intention to although procedure into the he had never plaintiff performed one, assisted with the witness testified: If surgeon. of the depends orthopedic

“It on confidence then, it, many There are acceptable. he feels he can do it’s that first done that done time are new are for procedures so, I education, and continued medical through seminars one, one, to assist and to see observe think, helpful it is very know, is confident in it.” doing I can’t tell whether one you but Strecker, a Dr. William board-certified deposition The evidence read was Hospital, treated at Barnes orthopedic surgeon plaintiff who in testified that on This witness to behalf defendant. not rendered did “the that Doctor Stackable opinion his treatment and “none of in gentleman” this neurological contribute to a deficit operative proce- to secondary any deficit was his residual functional fragment the retropulsed stated when he removed dure.” He that to in the canal, appeared plaintiff’s spinal fragment bone from August immediately injury in after same which had been location he that On cross-examination said 17, 1984, CT scan. as revealed in an an- in of a fracture which the case burst laminectomy the use of had “forward” been abandoned retropulsed terior was fragment case, a of choice such late The procedure seventies.” “[m]id lateral approach or a said, posterior he been an anterior would have further cross-ex- fragment. upon to remove the He stated retropulsed that, amination to his medical record and deficits “[according August surgery he 31st and the deficits on the had prior got me, after 31st when he there was no August exams physical appreciable change previous deficits in the records.” those medical He this appreciable change testified that lack of neuro- logical was that he no condition the basis sustained ad- neurological damage ditional as a result of the surgery performed by regard defendant. any change quadriceps functioning With plaintiff, the witness stated: “I cannot state that there’s a difference. When he been [sic] initially seen it states that he has I it was one believe two three plus two to which states in the plus way motor graded contraction, function is some muscular to move I enough against And saw him joint gravity. when after three and a half weeks down the line at being complete I bed get rest wasn’t able much of quadriceps contracture. One a flicker of it’s a plus basically contracture. So subjec- definite grading. say tive can’t that there’s been a neurologi- cal change after a three-week gentleman change bed rest fact that does he a flicker of have quadriceps con- tracture that’s not enough joint to move a no versus apprecia- ble quadriceps you contracture because can get atrophy quadriceps muscle within ten days a normal taking subject them putting to bed rest. So you’re looking subjective at grading system and there’s not one examiner always doing the grading.”

Dr. Strecker testified that had indicated initially, had been injury, paraplegic upon arriving hospital in Centraba he had use of his regained right leg but had noted some residual weakness in his left He leg. said that he understood from defendant’s note that had operative operation defendant aborted of excessive and bleeding subsequently because had undertaken hema- tologic a investigation plaintiff determine whether had bleeding not, The knowledge, was problem. plaintiff according permitted twist, get up, operation turn after the by by defendant virtue of having frame, been in a is to placed Stryker purpose keep whose a patient permitting immobile a bed the to be patient while turned without having any part over to move of his body.

Although the at length, defendant testified the in this dispute case not to the was pertains given care that but to the plaintiff quality Hence, that care. we to set forth the unnecessary undisputed deem 222 concerning his care and treat-

details about which defendant testified plaintiff. ment of judgment only is entitled to a n.o.v. cases where party

A evidence, a light oppo all the most favorable when viewed contrary the that no verdict nent, overwhelmingly so favors movant & Eastern (Pedrick on the evidence ever stand. v. Peoria based could 504.) the 494, Application Ill. 229 N.E.2d (1967), R.R. Co. 2d requires reviewing the malpractice standard to medical cases Pedrick in support submitted by plaintiff court to scrutinize evidence (1984), App. v. Memorial 124 Ill. (Mielke Hospital of his case. Condell 216.) examined the entire record and con 42, 3d 463 N.E.2d We have n.o.v. was denied. judgment properly clude that motion for plaintiff’s In a action bears burden of establish malpractice plaintiff medical is conduct ing physician’s the standard of care which defendant in the to measured of that standard resulted be breach 649, 510 (1987), v. 157 Ill. 3d N.E.2d (Piano App. Davison injury. concern conflicting testimony offer medical 1066.) parties Where of that of care and defendant's breach ing the standard applicable conflict, and a standard, to resolve the uniquely qualified the jury 649, Ill. (Piano, App. 3d judgment required. n.o.v. is case, set In the as is from the facts 1066.) apparent N.E.2d instant conflicting above, testimony forth offered vir parties both of care and the standard point relating proper tually every Thus, conflicting testimony alleged thereof. defendant’s breach a of fact to decided the jury, to raise question sufficient entry judg motion for denied properly trial court ment n.o.v. trial, the trial granting

In on motion new ruling the verdict and order and set aside weigh court will evidence of the evi weight to the manifest contrary new trial if the verdict is 32.) 64 Ill. 2d N.E.2d (Mizowek (1976), v. De Franco dence. weight of the evidence when A to the manifest contrary verdict is erro palpably or the verdict clearly conclusion is opposite apparent Cordwell, Solomon, v. clearly (Cadral Corp. unwarranted. neous Associates, 497 N.E.2d App. 147 Ill. 3d Inc. Buenz & here verdict conflicting expert testimony, In 1285.) view weight of the evi to the manifest contrary said to be may not be in denying plain its discretion court did not abuse dence, and trial trial. motion for a new tiff’s post-trial failing trial court erred that the contends a concerning aggravation “on issues properly

instruct the jury erred he contends that court pre-existing injury.” Specifically give to his erred in instead his refusing giving instruction No. and No. of in 18(a) proof. instruction the burden Plaintiff’s concerning struction No. 18 in pertinent reads as follows: part the of negligence

“Third that the defendant was a proximate cause of injury to the Plaintiff.”

His 18(a) instruction reads in part No. relevant as follows:

“Third, negligence that the of the proximate defendant was a cause of the injury plaintiff added.) the to ***.” (Emphasis of his language instruction No. that of Illinois Pattern 18(a) Jury Instructions, Civil, (hereafter No. 21.02 ed. (2d 1971) referred to as IPI Civil Plaintiff 2d). urges that the “the injury” reference to No. 18(a) when, instruction he implies that suffered one only injury fact, says, he he suffered two separate argues back. He injuries his that the instruction was plainly because it that misleading implied he could recover if only the that responsi found the defendant was ble for his injuries. “all” He maintains that of term ‘the in “[u]se jury’ operated grant effect as of directed verdict to the Defend ant because Plaintiff could never prove that Defendant’s conduct was a cause the original and injury the Plaintiff not in jury was formed that the words ‘the could refer to injury’ any injury rather ” than to ‘the injury.’ Illinois courts have that the long held test of correctness propriety instructions is not what meaning inge nuity can, leisure, of counsel to them, attribute but how and in sense, what under the evidence before them and the circumstances of trial, men ordinary acting as jurors will understand the instruc tions. (Nicholl v. Scaletta (1982), 104 App. 642, Ill. 3d 432 N.E.2d 1267; Newton v. Meissner App. 479, Ill. 3d 394 N.E.2d 1241.) Under the evidence them, before jury in exercise of common sense could not have understood instruction to require proof that by plaintiff defendant’s conduct caused the original injury plaintiff sustained when the tree fell on him. top

Similarly, plaintiff argues that the trial court erred in refusing to give his instruction No. his No. giving 16(a). instead instruction He argues that the use of the injuries” words “his in instruction No. 16(a), plaintiff” instead words “injuries in- proposed struction No. “again, in effect directs a verdict for Defendant because the Plaintiff could never show in this case that the Defendant was a of the tree falling cause on him.” We consider contention equally unmeritorious.

Plaintiff states he 19(a) tendered his instructions Nos. and 35(a) remedy order to raised the trial court’s problem” “[i]n alleged error pertaining 18(a) instructions No. giving his set in- refer, single to “a undifferentiated No. which 16(a), says, here in situation presented to the juries” opposed to the defendant. were attributable injuries some only instructions He trial court’s refusal of proposed contends However, Nos. error. we have determined 19(a) 35(a) instruc- regard giving trial no error with court committed hence, to be reme- there was no 16(a); problem tions Nos. 18(a) died, court’s refusal of no occurred in the trial and error could have them. give to the as error the trial court’s refusal plaintiff assigns although cause defining proximate IPI Civil 2d No. 15.01

long of form gave The trial court causes.” “multiple case involved instant read refused to instruction but first this three-sentence sentence proposed This instruction as sentences thereof. the second and third reads: by plaintiff cause,’ any I mean ‘proximate I the expression

“When use in- which, probable sequence, produced in natural or cause last cause, nor the only of. It need not be complained jury if with some other It is sufficient it concurs or nearest cause. it, time, combination acting cause at the same the injury.” causes be- long to form instruction give

The trial court refused that, court, the words of not contend plaintiff cause the did to bring time acted at the same “the tree and Doctor Stackable limb 2d long of IPI Civil to form refusing give about this In injury.” 14(a), which instruction No. 15.01, gave plaintiff’s the trial No. court an 12.05, intervention of outside concerning No. is IPI Civil 2d follows: That reads as instruction agency. and that his negligent was

“If decide that the defendant you it is to the injury plaintiff, negligence proximate was a cause have cause else also been something defense that of the injury. in- cause of

However, proximate the sole if decide that you than the conduct something other plaintiff was the defendant.” defendant, then verdict should be for your 12.05.) 2d No. (IPI Civil given, the trial 2d would be

In that IPI Civil No. 12.05 determining stated, court are I don’t think entitled you 12.05. going your

“I’m give 12.05 which takes have an instruction any it event you it, misunderstand Jury possible chance away any think.”

The test in instruc determining propriety submitted whole, whether, tions is taken as a are so sufficiently clear they not to the jury fairly mislead and whether and state the they correctly (Curry v. Summer law. 3d (1985), 711.) 136 Ill. N.E.2d App. IPI Civil 2d instruction No. made it given 12.05 here clear there could be more than one cause proximate injury In plaintiff. addition, the jury was further informed cause concerning proximate by plaintiff’s No. instruction a non-IPI Civil 2d instruction 35(b), ap v. proved in Freight Cooperative Balestri Terminal Association Ill. 2d No. 35(b) N.E.2d 391. Plaintiff’s instruction reads as follows:

“If you find that the defendant negligent and his negligence was a cause of and proximate injury disability the plaintiff, you should then find for the right to recover damages injuries disability such is not barred or to be fact, limited in if find any way by the be a you fact, that the plaintiff’s injury disability resulted an aggravation of a pre-existing condition occurrence in question.” that,

We think under circumstances, error, if any we make —and no determination with regard question to that obviated —was trial giving court’s of IPI Civil 2d No. 12.05 and instruction No. 35(b). plaintiff

The assigns as further error trial court’s re give 14, fusal to his instruction No. of only consisted first of IPI paragraph 12.05; instead, Civil 2d No. the trial gave court plaintiff’s Instruction No. of 14(a), both of consisting No. paragraphs 12.05, above. The quoted plaintiff contends that it was error trial court to have given because, second of paragraph No. 12.05 he argues, “there was no evidence the Plaintiff’s tree accident was the sole proximate Plaintiff,” of injuries cause all including “additional hospitalization neurological deficit.” How temporary ever, as the disclosed, evidence jury could have concluded on the basis of expert testimony defendant’s care and treatment caused no to injury plaintiff addition to that by falling sustained of right the tree him. A top has a to have the in party on theory structed if is sup defense recovery theory ported by facts in evidence or reasonable from facts in by inference (Smith v. Ford 407, evidence. 43 Ill. App. 3d N.E.2d 1306.) trial, In view of the evidence did adduced the trial court err in giving the second IPI paragraph Civil 2d No. 12.05. plaintiff urges that the court refusing trial erred “in evi- consultation hospital of Dr. Chandra’s barring

dence and discussion Chandra, stated, Dr. died As have who on the we plaintiff.” note of town fol- trial, when defendant was out prior treated plain- last 1984. The defendant saw lowing August surgery Thereafter, transfer plaintiff’s until tiff on 1984. September care for defendant. plaintiff’s Dr. Chandra assumed Hospital, Barnes into evi- was admissible report contends that Specifically,plaintiff should plaintiff’s expert and that the as evidence dence substantive opinion. from the of his report support read permitted have been “to show offering document was purpose He states that condition was obvious the docu- the deterioration in Plaintiff’s Dr. Strecker’s testimony.” Dr. Tatkow’s and ment itself and from argues: Plaintiff following surgery of the Plaintiff’s condition

“The issue Dr. Strecker and of the case because both disposition critical whether the condition of the Plaintiff Dr. stated that Tatkow determi- following surgery key Defendant’s was a deteriorated permanent the Plaintiff suffered ascertaining nant in whether *** surgery. Specif- of the Defendant’s consequence as deficit not think the Plaintiff suf- stated that he did ically Dr. Strecker he didn’t think the Plain- because long damage fered term any the Defendant’s following surgery. deteriorated tiff’s condition *** into Dr. Chandra’s report been able admit Had Plaintiff evidence, been to show that Dr. Strecker he would have able a direct means com- respect in that and had was mistaken surgery.” Plaintiff and after before condition paring witness, Tatkow, Dr. was not per- Although plaintiff’s examination, the direct report Dr. Chandra’s mitted to read from records of another sur- had “the witness testified that he reviewed Schuchman evaluated Mr. Doctor ‘Chandra’ who geon the name of in St. Louis after Hospital transfer to Barnes’ just before his [sic] Asked, “How Doctor Stackable.” performed had been surgery formation significant The records of the Hospital. arrival at Barnes his upon cal status “right and of the resident room, treating physician, of the emergency demonstrated, all Hospital” to Barnes’ after he was transferred [sic] the time said, neurological by deterioration a marked Dr. Tatkow his initial status compared to Barnes plaintiff’s Hospital transfer indi- Dr. Tatkow after the defendant. injury surgery by and before functioning cated were plaintiff’s quadriceps further that Hospi- transfer to Barnes were time of the paralyzed plaintiff’s at the tal. Dr. stated, by

As on cross-examination already plaintiff, we have change Strecker the lack appreciable testified that sus- plaintiff for his neurological condition was basis the surgery tained no as a result of neurological damage additional above, this indicated performed defendant. As outlined witness by quad- in plaintiff’s that he could not state that there was a difference earlier the defendant riceps functioning graded by himself and the effects of grading nature of such subjective view bedrest further on quadriceps muscle. The witness indicated grade cross-examination that “Doctor Stackable and I do not muscle Tatkow, function the same Like Dr. Dr. Strecker testified that way.” Centraba, when the arrived in St. Louis from quadriceps function left. Dr. right Concerning was absent on and the both during Chandra’s Dr. Strecker testified as report, colloquy follows between the and counsel: witness

“Q. also received Doctor ‘Chandra’s dictation you Now [sic] from Mary’s Hospital; St. correct?

A. That’s correct. Q. Dr. September And ‘Chandra’ indicates that on [sic] —at the time of his Hos- discharge Mary’s 6 from St. September pital voluntary that Arnold Schuchman had no control move- ment of either extremity, is that not correct? reading

A. Can see where from there? you’re Q. here, the patient voluntary Sure. And also down has no extremities control of movement either lower [sic]? then he muscle quotes

A. He does that there but also say time. I’m not what he grading strength at the same So sure It no control of says voluntary means that. has patient very he has movement of either lower extremities but [sic] weak adductors of the weak flexors abductors hips, any could not resist hips, patient strings had active ham him force. I alone fits with also don’t know how statement abductors, strings. and ham got that he’s adductors saying hip So I he has than no vol- functioning look more at what he says motion or untary voluntary motion because must have some Doctor he couldn’t do all So I don’t know what things. of these ‘Chandra’ at the time.” meant [sic] not reverse a verdict

Generally, reviewing court will 228 has of error in the admission of unless there been a

because evidence 1009, v. Ill. 3d justice. (Greene Rogers App. denial of real reversal; it 867.) appears error where every requires N.E.2d Not court, did in trial or where that an error not affect outcome from record has reviewing injury court can see the entire that no Ill. done, (Greene, not disturbed. judgment App. been will Here, 3d in of this both Dr. 867.) testimony by 498 N.E.2d light and deteri Tatkow and Dr. Strecker Dr. Chandra’s concerning report defendant, following surgery condition to plaintiff’s oration concerning neurological Dr. Akbarnia deteri gether testimony by think spine, fractured we that following surgery oration back to to admit re error, urged by even if it were as refuse plaintiff, and to refuse to allow Dr. port of Dr. Chandra as substantive evidence read of his outcome case support opinion, Tatkow to and, thus, such error harmless. would have been no different We whether, fact, as any not and do make determination to need not rulings regard. in its this trial court erred trial to allow assigns Plaintiff further error the court’s refusal as and to certain textbooks stud- expert witness “discuss” In partial response ies case. support opinions his Dr. from limine Tatkow “read- preclude defendant’s oral motion in to summarizing or ing from notes the medical literature otherwise treatisef,] any journal literature or to the context testifying [sic] work,” stated, specifi- “I’m going other counsel for not studies, however, think, him in his may I he an- ask about cally any that he relied and swer, bring up things upon want has in part a text.” The trial court as portion responded read from follows: from any portion any

“I’m not to allow him to read going treatises, relied, in part, He he has medical say text. can what he say even be able to might and articles journals, to be cross read, of it. Those would be proper has the source going not goes, as as far but he’s examined to those unadulterated That is pure, pure be able sit there read. not to cross examination.” hearsay, subject which is Honor, not court, saying “Your are you Plaintiff’s counsel asked exist are there are studies that consistent say that he can’t have and there are studies that shown that with his are opinion, you, such and such recovery?” have X have made injury who had people The trial court answered: read, he cannot said he cannot

“I haven’t that. have said out of or medical treatises. any journals paraphrase statements to, are required You but can a foundation of basis you lay for his opinion. [(1981), Under Wilson v. Clark 84 Ill. 2d 1322,] 417 N.E.2d all the matters in which an expert could have been examined can prior hereto still exist but now you also, after an call him to the stand and ask qualifying him if him he has an If he can ask what opinion. says yes, you and leave it to the cross examiner to develop fact, basis for it but that is In taking literally. Wilson v. Clark it, that is almost they what said. He can state the basis for I’m not him going get let into paraphrasing journals them; articles or reading but he can stud say based ies.”

During direct examination of Dr. him Tatkow counsel asked whether studies had been done certain using grading systems as- certain levels of in a improvement patient with a nerve root injury. Upon objection defense, by ruling, trial court reiterated its in part: stating

“I that he said could not or he not recite paraphrase, could word for word from any literature. He can that studies say them, have made been and he is has read acquainted with them, can whether he say any part has based his opinion not, on those But, studies, studies. are them- they *** selves, are not disclosable. If he is necessarily generally basing studies, his opinion upon some he can recognizable say go that. Let’s on.”

Counsel addressed no further questions to this witness pertaining studies or articles in the medical literature. Later plaintiff made an offer of proof, including page numbers of those pages of five medical articles Dr. Tatkow have, words, would in counsel’s or re- “[r]ead ferred to as supportive as At his the conclusion of testimony.” [sic] the offer of proof, the following exchange occurred between the trial court and plaintiff’s counsel: Well, have made you your proof offer of

“[THE COURT] I have previously indicated the reason for my ruling why don’t think you from, can allow the to simply witness read examination, direct read from various articles —.

MS. de SAINT PHALLE: Or refer to- Well, THE now, COURT: put don’t words in mouth. my Don’t words in put my the, mouth. The record reflect that will you indicated to the Court that wanted to for you use these that purpose my You ruling previously. making are of- your fer of now and I’ll them proof for the file I’ll refuse accept into

them evidence.” admission made no effort on direct plaintiff record shows his within the limitations outlined question expert examination regard in the trial court’s refusal to ruling. the trial court its With litera read from articles from the medical permit any the witness to ture, it that an not read from notes expert may has been held witness thereby findings taken literature and summarize reviewing while (Mielke Hospital v. Condell Memorial in the medical studies literature If an witness 216). may 124 Ill. 3d 463 N.E.2d (1984), App. expert articles, ex it follows that an findings logically not summarize the from such articles. Mielke read In the trial court witness not pert from notes expert reading although his prohibited she to have the notes admitted plaintiff stated that did wish in Mielke had made an offer of plaintiff proof into evidence. The Mielke The court in pointed not in evidence. records themselves are it, in Wilson “the witness that, expert situation out unlike the before contained in based facts answering question was hypothetical therefore, those facts that, were plaintiff’s chart” hospital 55, (Mielke, 124 3d at App. Ill. litigation” to “directly pertinent of the contrast, testimony plain the excluded 227). By 463 N.E.2d at Mielke, said, directly not concern tiff’s the court did expert Tatkow Dr. testimony treatment. excluded plaintiff’s Similarly, treatment. concern directly in the instant case does Dr. to to Tatkow Thus, refusing permit err in the trial court did not Furthermore, ex our the medical literature. read from articles from evidence, light of all amination of record indicates reading court have prohibited for the trial even if it were error harmless most. materials, of these error would have been such concerning for three issues review plaintiff presents The damages: whether trial court erred in excluding evidence bills, plaintiff’s medical whether the refusing trial court erred in instruction No. 20 to the pertaining apportionment damages when aggravation occurred, condition preexisting has and whether the trial refusing court erred in plaintiff’s instruction No. pertaining certain elements of damages. It is well established that where a defendant liable, is found not alleged pertaining solely errors v. question damages do not (Mackey grounds afford for reversal. Daddio (1985), 604, 139 Ill. App. 3d 487 N.E.2d In the 1167.) instant case the jurors were instructed IPI 36.01, Civil 2d No. as defend 4, ant’s instruction No. that if they decided for the defendant on the question of would liability, they have no occasion to consider the ques tion of damages. jury decided for the defendant on question Hence, the trial liability. court’s alleged errors in failing instruct concerning certain matters pertaining damages grounds are not reversal.

The plaintiff raises a number of other issues instruc- concerning tion of the jury as well as evidentiary and other of the rulings trial court. We have examined each one and conclude that the contentions are either without merit or are so minor as not to constitute revers- ible error.

Affirmed.

RARICK, J., concurs. CHAPMAN,

JUSTICE dissenting: The majority’s reliance upon Mielke is misplaced for two reasons: first, Mielke has been implicitly overruled by People v. Anderson 1, (1986), 113 Ill. 2d cert. 485, N.E.2d denied 479 U.S. 1012, 93 L. Ed. 2d 107 S. Mielke was second, Ct. wrongly decided.

Anderson held that an expert could not only rely upon material admitted, had not been but that the witness could also relate that material Anderson recognized that relating fact, In jury. the underlying basis to the jury necessary order for it to properly expert’s evaluate the testimony.

“Absent a full explanation expert’s reasons, including underlying opinions, facts and has no way evaluat ing testimony and is therefore faced [citation] ‘meaningless conclusion’ Ander witness [citation].” son, 113 Ill. 2d at 11. N.E.2d at 489. 232 might, not, distinguish the majority attempt

While but does Anderson because it dealt with reliance re- other upon psychiatrists’ articles, I feel ports attempt rather than texts or do not that such an of Anderson: would language be in view of the broad persuasive “However, and in the Rule 703 judgment logic underlying our decisions in Ward and Wilson court’s the conclu- compels the contents sion an should be allowed reveal expert materials relies in order to upon reasonably explain which he the basis his opinion. designed expert opin- Rule 703 was to ‘broaden basis *** into line with the bring judicial practice

ions and to in practice of the when not court.’ experts themselves [Cita- The of information availa- range rule thus expands tion.] ble, indirectly, at least to the trier of fact. Inasmuch these are deemed trustwor- opinion based on materials —which allowed, illogical it would both thy by profession —is reasons jury supporting anomalous to deprive opinion. au- overwhelming weight

This conclusion accords with the per- from as a deal of jurisdictions great other as well thority commentary. suasive scholarly [Citations.] mate the contents referring prevent To rials ‘places at his conclusion arriving relied upon less to be not compels only an unreal stricture on him and him *** his di to base than frank but also jury appear with when agnosis are and inconclusive upon flimsy reasons which added.) Ander (Emphasis they fact not be.’ [Citation.]” son, 9-11, Ill. at 488-89. 2d at 495 N.E.2d limit does quotation above emphasized language addition, some of In while the doctrine to psychiatric reports. referred to Anderson dealt reports, with psychiatric Federal cases Miami as a disparate of such bases others disclosure approve agencies York investigative fraud checks New examiner’s 1322, 1324); an (United v. Ramos 725 F.2d States (11th 1984), Cir. v. Dave (Paddack Christen reports accountant’s reliance audit sen, Inc. 1254, 1261-62); psychiatrist’s 1984), Cir. 745 F.2d (9th in part based sanity that his on a defendant’s revelation concerning agents Internal Revenue Service on conversations with v. States Sims (9th (United investigation their of the defendant prior & M. Graham Cleary E. 149). Finally, 514 F.2d 1975), Cir. ed. (4th 1984)) §703.1, (Handbook of Illinois Evidence ed. (4th of Evidence Manual & Redden Rules Saltzberg (Federal allowing the rule 1986)) learning both benefit support Anderson. basis, and approval both were cited with underlying Anderson Thus, of and the authorities which language both the relied its lead me to supreme upon reaching court in decision conclude that Mielke has been However, overruled. since effectively Mielke, Anderson did expressly refer I feel that more de- not to the holding tailed examination its and the basis for is in holding order.

Mielke a medical action to malpractice brought was recover for the loss of the inner ear’s function was allegedly balance which caused by administration of certain antibiotics. The improper plaintiff’s expert opinion was allowed to state his and name the basis, authorities which form not helped its but was allowed to read from the (The expert articles themselves. was also prohibited notes, his reading from which of a apparently consisted review literature, issue an which is not in this presented case.) The court noted that the appellate issue had not been decided precise by an Illinois then proceeded court and review which it felt cases con sidered similar I relied questions. upon will discuss cases Mielke in the order that in they opinion, and appear during my discussion I out I point will what consider be errors in Mielke’s I interpretations holdings. their would also note that Mielke has subject been of critical comment. Stalmack and Switzer, Wilson v. Clark Progeny: and its The Application Fed Illinois, eral 703 705 in Rules and 67 Chi. Bar (1986). Rec. 4

The first case cited by Mielke on Darling v. this point Community Charleston Hospital Memorial 326, Ill. (1965), 33 2d 211 cert. denied (1966), 253, N.E.2d 946, 209, 383 U.S. 16 L. Ed. 2d 86 1204, S. Ct. approved the use treatises and recognized arti in cles expert cross-examination of despite witnesses the fact that hearsay. Mielke does they were not address the different treat ment accorded authorities their in depending use cross-examina tion versus I examination, direct feel is legitimate this If concern of Mielke area of discussion. my colleagues is that material should hearsay jury, not be disclosed to the how is the Darling Mielkel To holding to be squared with the holding ex tend Mielke allow cross-examination would be asked he agreed Campbell’s if Orthopedics but would not allow him to questioned statement any particular sug be about in that book. To the use of gest authorities cross-examination different be impeachment cause are used for and not offered as they only sub ignores stantive evidence the fact that when are they submitted as bases of the expert’s opinion (as they case), they were this are being offered as substantive evidence either. In situations they both are reasons, offered for there being nonsubstantive both situations distinction, that the fail to danger recognize will danger an hopefully appropri both cases can be overcome Anderson, 12, ate instruction. 113 Ill. 2d at N.E.2d limiting (See at differently? then treated submit that 490.) Why they should Expert In Testi Collision Course Carlson, But they should not. cf. mony: Underlying Limitations On Introduction Affirmative Of Data, 234, Fla. L. Rev. 246-47 (1984). U. The next case cited in Mielke is Lawson v. G.D. Searle & Co. 779, 64 Ill. 2d which allowed witness to 356 N.E.2d “a base of all the clinical studies that study detailed (Lawson, have literature.” 64 Ill. 2d published been Lawson, Mielke 786.) distinguished stating N.E.2d at “that not mention name did not ‘recite the reports by witness did drawn conclusions of the re empirical reports data from the ” (Mielke, 52, 225, at N.E.2d at quot searchers.’ 124 Ill. 3d 463 App. ing Lawson, it Ill. 2d out that seems 557.) point at would first require me to a preferable copy study have so cross-examined on it effectively available in court that he can be “detailed rather than allow an based the witness’ opinion Thus, relied study.” distinguishing upon by one of the features that the Mielke reduces of the basis. The fact witness reliability re Lawson did not recite data or the conclusions empirical feature, it is a should be significant distinguishing searchers it in follows the su light language immediately viewed preme opinion. court of factual information great

“These studies a mass represent one or research team any much broader than doctor scope a part of the clearly could to assemble. These studies are hope literature the witness could professional scientific or Wigmore, In 3 Evi- forming opinion. consider in properly 1970), 3, it is dence, (Chadbourn page rev. ed. sec. stated: data a mass of transmitted collated

‘Medical science is generalizations which are from numerous quarters; exclusively one are the personal result of man’s observation the methods recognize all. The law must acceptable least establishing, It itself stultify medical science. cannot a rule never inquiries, necessary by for considered judicial It a enough physician, medical itself. is profession and occu fact, training that he is by to a medical testifying information for his source of a whether physician; pation of his hearsay part entirety fact is particular ” immaterial ***.’ is investigators fellow-practitioners 786-87.) N.E.2d at 557, 64 Ill. 2d at (Lawson, quotation immediately following It should further be noted that lan- following is the contained in Lawson Wigmore Holmes: Wigmore in which Justice guage quotes Co., 312, “Holmes, J., 159 Mass. v. Gas Works Finnegan that after (1893) testimony asphyxiation 34 N.E. 523 (receiving death, the suffering physi- there a of conscious before period is kind): Although might cian had no cases of the having had read in a repeat what witness merely be admissible still, one on admissible, competent itself when who book not reading probably from his true general subject accepts verified, the fact an matter of detail which he has not receives page which it not have had from the authority printed would discretion, and, alone to the exercise of some subject perhaps §687, (Chad- J. at 4 (3 Wigmore, be admitted.” Evidence 1970).) ed. bourn rev.

Thus for the admission of learned treatises as Wigmore arguing rule, as an exception hearsay position substantive evidence Evidence, later Federal Rule and one which is adopted by 803(18) far more liberal than the allowance of such materials as the simple basis for the expert’s opinion. Lawson,

Immediately following attempt distinguish its court in Mielke states:

“The more recent case of Walski v. 72 Ill. Tiesenga 279,] position 2d N.E.2d defendant’s supports ap [381 225.) 124 Ill. 3d at 463 N.E.2d at peal.” (Mielke, App. following And Mielke from Walski: quotes language “ time, ‘Such is not the law in this at this and it is jurisdiction for us to decide now whether and under what cir unnecessary cumstances a introduce medical treatises as sub plaintiff may evidence; no to attempt stantive has made introduce plaintiff treatises used to cross-examine Dr. as substantive Tiesenga the ” Mielke, 53, 225, 124 Ill. 3d at 463 N.E.2d at App. evidence.’ Walski, 258-59, 72 Ill. at 283. 2d 381 N.E.2d at quoting argue very In I would that Walski offered little response support First, for the the from Walski is dicta position. quote defendant’s that language since the itself establishes the quoted as attempt Walski did not to introduce treatises substantive evi- 236 Second, relied paragraph upon by

dence. the remainder of Mielke provides: 543, Ill. (1976), Lawson v. G.D. & Co. 64 2d 556- Searle “Cf.

58, to improper that not for defendant’s holding that he clinical studies testify opinion published based cannot that science ignore literature since the law medical (Walski, is a 72 Ill. 2d mass transmitted collated data.” 259, at 283.) 381 N.E.2d as authori- suggests Therefore a whole use of paragraph sources in some instances. proper tative is A. Hospital

Mielke next Plost v. Louis Weiss Memorial cites 253, 1180, 259, 1176, 62 Ill. 378 for the (1978), prop 3d N.E.2d App. ev generally osition that scientific works are not admissible as direct Plost, effect is found it is idence. While to be language trial grant since the dealt court’s refusal dicta case continuance. 559,

After v. Ill. 2d referring People (1975), Ward 61 briefly 171, 186, 417 (1981), and Wilson v. 84 Ill. 2d 338 N.E.2d Clark 1322, more the Mielke court mentions five cases that dealt N.E.2d with the issue involved: the reference materials directly five cases opinion. formed the basis of Four those expert’s 512; 73 3d (1979), 288, People v. Ill. 391 N.E.2d (People App. Rhoads 265, 1267; Kinsey Ill. N.E.2d v. (1983), v. 113 3d 446 App. Castro 1316; 933, Ill. 431 re (1982), App. Kolber 103 3d N.E.2d In Germich 626, 1092) approved practice 103 Ill. 3d 431 N.E.2d (1981), App. opinion jury. to be related to allowing expert’s basis 31, N.E.2d case, (1977), App. The fifth In re Ill. 3d Smilley error, harmless, to admit the under 315, although held that it was conclu well have a different report, Smilley might reached lying in that if the had been met case. requirements sion foundation City v. upon by (Bailey The final three cases relied Mielke of v. 680; Ill. 3d App. 452 N.E.2d Chicago (1983), Fornoff 793; 681, 434 Me App. 105 Ill. 3d N.E.2d (1982), Parke-Davis & Co. 581), 66 Ill. v. Co. 2d N.E.2d App. hochko Gold Seal either relying upon the movant was all involved situations ev introduce the substantive attempting bases in Mielke presented situation that itself idence. that is Again, hold here. Reliance cases which presented nor is it the situation if that is purpose appropriate for one that evidence is inadmissible However, if the evi was offered. for which evidence purpose re for some other limited purpose, considered properly dence inappropriate. liance on the prohibition absolute

237 Mielke is listed below: A relied upon by authorities recap Walski )

Plost ) Bailey ) use of basis as substantive (disapprove evidence) ) Fornoff Mehochko

) Ward ) (do relating jury not address issue of basis to Wilson ) although occurred) it apparently Darling cross-examination) ) use treatises (approves Lawson ) published studies) reference to clinical (approves Rhoads )

Castro ) to the (approve relating jury) basis Kinsey )

Germich ) Smilley ) (disapproves jury relation to at least partially improper foundation)

because of an involved, Thus the first nine cases do not address the issue specific cases, and of the four remaining approve relating five basis to decision it does jury. judicial making game, While numbers seem to me that the Mielke decision an amount of gave weight undue addition, involving to cases issues different from the one it. In before Mielke there other neither to nor dis- authority referred cussed. issue referred to in Mielke were all specific

The five cases on the district, (Kinsey, Ger from the first albeit different divisions Smilley (1st mich Castro Dist., (1st Div.); Dist., 1st 2d (1st Div.); Rhoads Dist., Dist., Div.); (1st Div.)). 4th 5th Other districts have also ruled on the issue of relating basis to second district jury. in People Sharkey (1978), v. 257, 263-64, 60 Ill. 3d 376 N.E.2d App. v. 464, 468-69, Smith The third district approved practice. Broscheid 117, 124-25, 380, 384, Ill. (1964), 2d 196 N.E.2d App. decision, pre-Ward-Wilson ruling allowing testimony affirmed a citing one information from another physician physician, based Evidence, Wigmore, “3 688.” the fifth district p. par. Finally, Smith v. Williams 677, 681-82, (1975), 34 Ill. 3d 339 N.E.2d App. Clemons v. Alton & Southern R.R. Co. 14, 56 Ill. 3d App. 328, 337-38, 679, 685-86, N.E.2d has that a doctor testifying held can read consultation notes to the as substantive evidence as an of Ward. The last rule under the exception hearsay authority People too far v. going (Spector, two cases have been criticized Illinois, Testimony Ward: Toward a Reconstruction Expert rule of (1977)). De Paul L. Rev. 284 Without Smith and adopting us, Clemons, agree since that issue is not before would with Rhoads that, exceptions whether or not the statements are admissible as rule, it for an to relate certainly permissible hearsay their contents to the jury. first, second,

From the above discussion it is that the apparent had almost unanimously approved relating third and fifth districts to the to Mielke. It should be out underlying jury prior pointed basis referring that all of the cases referred to above dealt with doctors relied in form- they upon other medical or materials that psychiatric Thus, case to deal- only their Mielke is the Illinois date ing opinions. texts or other authorita- ing question of reference to medical with analogous it examine some helpful tive works. would be Perhaps to test the wisdom of the in Mielke. ruling situations attending respective the members of a are their Assume that method of insight in order to worship gain proper houses them, making supreme importance decision in a matter of of all is of their souls. the attendance Perhaps eventual destination more con- considerations; some bemay not motivated such eternal filing such as earthly properly cerned on more matters guidance on an casting upcoming presiden- tax returns or vote their income a hawk and a dove. While that offers a choice between tial election are con- always case at time any given any given in trial lawyers event not progress important only that the trial in most vinced lives, else’s, is not the case. Ju- everyone always in their but concern for the of their appropriate importance duty, rors have an lead, to seek attempts their lives to hence their they also have own re- is, it receive being they rarely what spiritual guidance. Religion above; given set out the advice as are plies specific questions to such general more of a making usually in their decision to assist them and re- good” isn’t say, “Stealing might nature. For a rabbi example, might say, minister 15, or a Christian Exodus, verse chapter fer to Quite Matthew, verse 9. chapter and refer to “Fighting good” isn’t men, if experts you are learned and the minister the rabbi obviously advice, or is re- endeavor, opinion, and their will, in this area of state of of their advanced solely followed because spected may also be increased may of the advice learning. persuasiveness field, one in their Bible, recognized source their reference sincerely But experts. people other them and upon by that is relied souls, their govern their or affect to make decisions trying lives, more. do want? they want What everyday the advice person offering more than that the want know They he is. knowledgeable knowledgeable is more than no matter how they, a numerical reference to a simply want to know more than They work, it is. want to know what They learned no matter how revered the ex- judge So that can both says. Why? they work itself better hear, of truth be allowed pert and his advice. Shouldn’t seekers they “Thou shalt not steal” or “Blessed are the peacemakers: shall be called the children of God”? Mielke “No.” say would

Having and referred to the Old and New passed through both Testaments, let us now return to the If I had present. begun with, ended this dissent “I from the reliance majority’s dissent Mielke” and followed that statement with a of citations that string pages, might covered five the readers reach one of several conclusions dissenting opinion: about this

(1) that the citations would be viewed with disfavor under Supreme Court Rule Ill. R. 341(e)(7)(107 341(e)(7)); 2d

(2) that is neither nor clear as to particularly persuasive position is; what my

(3) they wished knew what the citations that had they strung together had to so that could say subject they about better determine whether to with the or the dis- agree majority sent.

Conclusions two and three are the ones I obviously which wish readers to draw. Mielke and the allow a list of authorities to majority to, of, be read to a jury, prohibit any but reference or rec- explanation itation meaningful from authorities. It is the latter that are the of the aspects process.

We now move backward in time a short distance and remove our- from religion selves the fields of and law and turn to the playing following fields America examine the situation. hypothetical As- sume that years ago being some Stan Musial was for sponsored induc- tion into Hall Fame baseball’s and an admittedly qualified expert such as Jack Buck was prepared testify before a panel comprised who were I people completely unknowledgeable about baseball. re- alize followed, that this is not the and that a process panel may such exist, not but bear with me for a or two. page occurs: following colloquy Buck,

“Q. Mr. in your opinion, should Mr. Musial be admitted the hall of fame? A. Yes.”

Note that the is that procedure followed allowed Federal Rule of by it is Evidence the statement of the alone. Note also that opinion for it There- and that the basis isn’t clear. particularly persuasive examiner, lawyer is, fore the that she another competent follows with question:

“Q. Upon what do you opinion? base

A. him Upon watching play.” many years data or Again personal experience per- information coming allowable under Federal of Evidence while this fectly Rule and buttressing of the makes it more clear and slightly persuasive, examiner seeks more:

“Q. other basis? Any ex- Yes,

A. The Baseball which I and other Encyclopedia, such upon, player’s this field statistics perts rely publishes hits, doubles, batting average, triples, as number of number homers, etcetera.

Q. terms What do these mean?

^ given that an for each of the terms for the bene- explanation Assume to find un-American So arguably panel. fit of this hard and admittedly far, examiner good; so Federal Rule of Evidence 703 has sanctioned our ques- That again. panel thinking point, What was our however? has also skillful so she tion occurred to our examiner asks: “Q. do these authorities reveal about Mr. Musial? What Officer, Objection, Hearing ques- Counsel: Mr.

Opposing calls hearsay. tion

Q. I ex- offering only my am these materials a basis of limiting can instruction pert’s opinion you give effect. panel holding Objection sustained because

Hearing Officer: in Mielke.” 2B H 3B HR BA 1Stan Musial: AB 10,972 3,630 725 .331 1979)). (J. (The Encyclopedia 1240 Reichler 4th ed. Baseball violating I Mielke hold- including Mr. statistics am I realize that Musial’s disagree quite strongly it. In addi- I ing, apparent it should be now that them, tion, might in this matter about to me that the reader be curious occurs gathered Huckleberry everyone was Finn when am reminded of the funeral scene yowling proceedings disrupted by a were parlor of the home in the deceased’s downstairs, sharp quietly there was dog went in the basement. The undertaker said, As whack, ceased, had a rat!” returned and “He yowling and the undertaker great natu- noted, people, to the because it was a satisfaction “You could see Huck Finn, Twain, Huckleberry in The rally they to M. The Adventures wanted know.” (1988).

Family Twain Mark 570

241 result, This Mr. of his well-earned niche possibly depriving Musial Fame, in the Hall of and more of the importantly depriving panel benefit of the recitation the ability adequately of reliable data and to judge the of the is the reason for dissent. credibility expert, my

With reluctance I my meandering some will leave alliterative the Bible to to the doing baseball return law. On so let us first ascertain what an type materials courts have allowed to expert jurors since Mielke and then and to relate to let rely upon us examine whether learned treatises are either more or less as appropriate sub- jects to relate to the The cases jury. organized according will be districts.

First District. Piano v. Davison (1987), 649, 157 Ill. 3d App. 1066, N.E.2d alleged was medical action which malpractice negli gent diagnosis surgical treatment of the condition. The court allowed an expert read verbatim from nurse’s notes and indi cated that during cross-examination the could as testify contents of medical records. Piano also allowed reference to learned treatises the expert’s as basis of have allowed reci tation of the contents those treatises:

“Plaintiffs contend further that several times defense wit nesses were improperly permitted testify regarding basis of their an opinions. Generally, expert may base an opinion facts, data, or upon specialized knowledge, including opinions contained a learned treatise recognized authority. reliable Piano, 669-70, Ill. [Citing App. 3d at Lawson.]” N.E.2d at 1080-81.

In re Scruggs (1986), 260, 1108, 151 Ill. 3d 502 N.E.2d in App. volved a who adjudged subject woman admission involuntary under the Mental Health and Developmental Disabilities Code. court the testimony psychologist of a clinical who relied approved upon and related to the finder of fact that manager re had him that spondent’s apartment respondent opened told had her door in the nude to a who had sent apartment carpenter been v. apartment. People Sassu manager do some work on the 199, 1047, (1986), App. 151 Ill. 3d 502 N.E.2d was a murder case in a toxicologist which was allowed to relate test results to the jury showed absence or its active metabolites in marijuana the victims’ These blood. test results had been received phone from a laboratory forensic Canada. Sandoz-Wander, v. Inc. 124 Ill. App. 3d

Hatfield N.E.2d was a strict action in which the liability plaintiff claimed that she her eyesight ingesting lost as a result of a prescription drug 242 over an of time. reliance ex period approved extended Hatfield doctors,

perts upon deposition pharmacists, and the testimony It is unclear from the as to whether this plaintiff. opinion Hatfield material was related to the jury. District. ex rel. v. Department Transportation People Second

Amoco Co. Oil 479, 1018, 174 Ill. 528 (1988), App. 3d N.E.2d was a condemnation case in which the court an approved expert referring relating and to the sales as a of his jury figures comparable basis opinion.

Third v. Henry District. Brenner 609, Ill. (1985), App. 138 3d 934, arising 486 N.E.2d was a suit out of an auto acci personal injury dent in which the court a medical doctor to the approved testifying contents of medical other doctors in his office. prepared by records Henry doctors, it reports While is concerned with the of other only following language: does contain the 705, once can expert, qualified, simply

“Under Rule an found And, course, developing state his a full opinion. presentation basis, qualifications, opinions detail the expert witness’ Facts, data, reasoning permissible upon is direct examination. not themselves admitted into evidence be in opinions may if requirements cluded in such disclosure Federal Rule 703 are then used to may satisfied. Cross-examination reveal for his and the ex expert’s inadequate, basis pert’s upon conjecture then be stricken as based opinion may (Henry, 614, App. 138 Ill. 3d at 486 N.E.2d speculation.” 936.) Henry may

In its notes that Federal Rule 703 concluding paragraphs abuse, judge gave for but that the trial provide opportunities properly allowed the a more candid state jury instruction “which limiting Henry, Dr. 138 reasons conclusions.” supporting Cooper’s ment of the 615, 936. Ill. 3d at 486 N.E.2d at App. Construction 319, v. Cecon Co. (1979), 74 Ill. 3d App.

Montefusco 1103, damage to a 392 N.E.2d involved claim structural build to refer registered engineer an to and ing. expert The court allowed of materi suppliers and conversations rely upon correspondence to refer to an authoritative book pub als. also allowed expert was Standards Institute. It is somewhat lished the American National to the jury. matters also have been related unclear but these 150, v. Baisier 147 Ill. 3d Mayer Fourth District. (1986), App. case in which the court 827, malpractice N.E.2d was a medical 497 to the contents of rec testify hospital approved allowing opinion. Manning v. Mock (1983), of his ords in the basis explaining 788, 447, a will contest action App. 119 Ill. 3d 457 N.E.2d was home nursing reference to approved gerontologist’s which court as a It unclear whether the contents opinion. records basis for his jury. were nursing home records related 95, v. Brandt Ill. 3d (1986), App. District. Thomas Fifth arising from a motor vehi injury N.E.2d was a action personal rely upon was cle accident which an allowed orthopedic surgeon test on the plain and relate to the the results of a blood-alcohol though hospital tiff technician didn’t recall who took even test, lost, the work sheets on method and had been procedure there was some of whether it question was blood was tested. earlier,

As noted v. Ill. 2d People Anderson 495 N.E.2d the court held that a supreme psychiatric expert be to should allowed to relate the other jury psychiatric reports upon. he relied

thusWe have the Illinois courts relation to of approving jury the the of types above of their It to the opinions. bases seems me that next logical question to ask is not whether or learned treatises are more or less in appropriate terms of the for necessity reliability and of their contents. In making this a determination reference to some of the commentators may helpful. be a prelude

As to the commentators’ in opinions this area I would offer one further of Iwhat feel is the of example unreasonableness the result reached in In every MielJce. civil trial in Illi- practically jury nois the jury will be sometime during told the course of the case that “the court will instruct on the law to at its you applicable this case court; close.” The of jury awaits the words wisdom from the patiently is to promise inevitably kept, and court furnishes the law the acting the court as an jury. Isn’t in this function— expert performing Indeed, an on the must law? since the the law as jury accept court, it given by is free to or reject any while other ex- accept pert’s opinion, isn’t the a sort of judge super-expert? And what is the of this expert’s source opinion? judge’s knowledge this area obviously begins with law

school, with exposure principles, analysis of factual legal and of patterns, and the a hundreds portion years retention of accu- mulated wisdom knowledge contained written words. This base of in the amplified by practice of law for a engaging period years which the of an during contents additional untold of advance number sheets and articles are This continues perused. process per- after the a judge. son becomes does all and available where training, study, experience

With in well a court The answer go impart jury? obtain law Jury (IPI). Pattern Instructions over 90% the cases is Illinois an appropri- Even in those the IPI does not contain situations where full law, grown ate the instruction does spring statement it court; elevated, is not the bench the brow of appropriate Mt. In the instances an relatively few Olympus. cases, it from the and the reported statement isn’t found IPI comes instruction to fit the case on trial. judge fashions an law) (IPI This reliance authorities case upon recognized of the court’s trial, trial the basis every occurs every If this is so the law is related to the opinion jury. procedure then abuse, universally accepted? is it so fraught danger why with the hand, why if isn’t followed procedure proper On the other experts? other out, it was raised Wigmore novel question. points This isn’t a As years ago: almost 300 treatises, of legal which allows the use practice

“Certainly which admits principle even domestic confesses only, generally: learned treatises Trial, 1106, 1163 (1699). St. Tr. Cowper’s 13 How.

Spencer lord, of sev- ‘Now, give Dr. I will my you Crell: doctor, tell ‘Pray, eral ancient authors.’ BARON HATSELL: lord, it Dr. must be ‘My us own Crell: your observations.’ that will make experience, as well as man’s own reading, reading of that of books any physician, one a without lord, Besides, art, my to. the art itself cannot be attained difficult ought as this we conceive that in such case opinions reports have deference for great why quote do I I should not learned men. Neither see fa- gentlemen case well as you thers in this as my profession of ” (Em- in others.’ robe Coke Littleton long quote of phasis §1697, (Chad- at added.) Wigmore, 6 J. Evidence 1976). rev. ed. bourn his Wigmore

I in of Professor must add that these sections work excep- of a learned treatise heresy is of advocating adoption attempt The this case did hearsay tion to the rule. of such a rule adoption if the behind the high, reasoning reach so but allow a basis a rule would sound, is isn’t it which equally applicable it jury? to be related submit in a learned treatise found analysis, found is, Wigmore’s summarize briefly will therefore contends Wigmore 1713. Professor through sections light general learned treatise should be examined exception exception is the hearsay considerations to other applied exceptions: trustworthy? and is material necessary issue of necessity:

On the witness, larger “The ordinary expert perhaps proportion has not a may of which he be topics upon questioned, re virtually He knowledge personal derived observation. substance, of which literally or in conclusions others produces, responsible on the of the eminent names accepts authority *** unavailable, or persons legally for them. such are Whether princi it is a merely question expense, whether relative satisfied; and (§1421 we ple necessity supra) equally their in the permitted testimony should be to avail ourselves of Wigmore, form in which most printed it is convenient.” J. §1691, (Chadbourn 1976). at 5-6 Evidence rev. ed.

On the issue of trustworthiness:

“(a) There is no need of assuming higher degree a of sincer- for learned as ity writers a class than for other persons; we at least that in usual say instance their state of mind fulfils the ordinary requirement for the hearsay exceptions, namely, that the declarant should have ‘no motive to misrepre- sent.’ They may have a bias in favor of theory, a but it a bias in favor of it; the truth as see a is not bias in favor of they lawsuit or of an Their individual. statement is made with no *** to litigation view a or to litigable the interests of a affair.

(b) writer of a learned treatise publishes primarily his profession. He every knows that conclusion will be sub- jected to careful professional criticism, is open ultimately to certain founded; refutation if not well that his de- reputation on the correctness pends of his data and the validity of con- clusions; and that he better might not have than put written forth statements which may be detected lack of sincerity of *** method accuracy results. (c) Finally, probabilities are, such as accuracy, they greater least are than those accompany testimony of many expert witnesses on the stand. The abuses of tes from the timony, arising fact that such too witnesses are often in effect take paid to are partisan practically view and un too trustworthy, (§563 are well known It repeat must supra). conceded those who write with view to litigation no are at least trustworthy, though unexamined, as unsworn and greater portion those take the perhaps who stand for a 246 §1692, 6 J. Evidence litigants.” Wigmore,

fee from one (Chadbourn 1976). at 6-7 rev. ed. by Wigmore

At time the Professor above words were written J. Evidence position admittedly minority (6 Wigmore, his one. in §1693, (Chadbourn posi at He is not alone 1976).) 7-12 rev. ed. Testimony, 15 tion, (See Rheingold, The Basis Medical however. Of For Morgan, Remedy L. 473 Obstruc (1962); Suggested Vand. Rev. Evidence, Rev. Testimony By tions To Rules 10 U. Chi. L. Expert Of Requisite Expert Basis For (1942);Maguire and Hahesy, Proof Of L. has a (1952).) Maguire partic 5 Vand. Rev. Professor Opinion, apt jurors may prone to the concern of some that be ularly response with much reverence: regard written materials too confi- democracy expression and freedom of rests

“Our faith being to avoid assumption public’s power dently It deceitful is not without relevance by writings. fooled ‘free trade in ideas’ and advocating Holmes’ famous statement itself testing by power thought get truth ‘the of the market’ referred the con- competition accepted deemed loathsome. apparently tent of leaflets which printed alluring prop- discount should we trust the citizen Why false as a life, treat him aganda yet in the shock and turmoil of comparatively ordered calm when he reaches the ninny we cutting is all the more because what box? contrast him court is often and disin- carefully see in letting shrink material, intended to or terestedly printed typed composed (Empha- minimum risk of error.” carrying only accurate L. at 440. Vand. Rev. added.) Maguire Hahesy, sis Wolfson, Judge words of Warren pungent it in more put Or mushrooms, dark and them keeping like “Why jurors treat Wolfson, Judge Circuit (Comment by Warren feeding them manure?” Illinois Collinsville, Regional Judicial Seminar County, of Cook (October 1987).) call for an Wigmore’s exception

It should be noted of Federal Rule by adoption been answered learned treatises has 803(18), provides: of Evidence rule, even by hearsay excluded following

“The are not as a witness: the declarant available though

* * * the extent called to attention treatises. To Learned (18) by relied upon cross-examination or witness expert an examination, statements published contained in direct [him] med- subject history, or on a treatises, pamphlets periodicals, art, authority reliable icine, or science or established as a other or or of the witness other testimony admission admitted, If statements by judicial notice. testimony as be read into evidence but not be received exhibits.” may While this case does not the of the admission of the present question evidence, text as it impossible I find in these of in- days substantive costs include creasing litigation quotes Wig- of not to two final from more on this point: litigation is the of and we too

“Costly parasite justice; pay high a when we to our information from price accept refuse Wigmore, source hand.” Evidence competent ready (6 at J. §1691, (Chadbourn at 6 1976).) Rev. ed.

“The the judges upon anonymous readiness with which rely legal authors’ cyclopedias compilations, statements reject science, the most authors distinguished in natural is of course an baffles inconsistency brings which the on layman the law the sneers of the of other representatives sciences when called to the 6 Wigmore, witness stand.” J. Evidence §1697, (Chadbourn at 14-15 1976). Rev. ed. foregoing

From the it is comments obvious there is considerable for the support relating bases of to the experts’ opinions jury. The is, that question arises is criticism any there commentator on the practice? my answer is even yes, judgment but in that criticism not the would situation apply presented this case.

The most specific criticism be found in articles two Pro- fessor Policing The Bases Modern Ex- (Carlson, Ronald Carlson. Of pert Testimony, Carlson, Vand. L. 577 (1986); Collision Rev. In Course Expert Testimony: Limitations On Introduc- Affirmative Data, tion Underlying U. Fla. L. Rev. 234 In (1984).) answer- Of ing the question whether not the who an lawyer expert calls is en- evidence, titled to read into the basis Professor states: Carlson “As explained, has principles expert, been strict hearsay, and confrontation that law the answer require above *** question an emphatic be no.

This Essay not suggest experts intended should be denied the use of hearsay propound unadmitted to form ex- Rather, pert opinions. the analysis speaks to the impropriety receiving wholesale fashion the unauthenticated background data as exhibit an on behalf of the that offered party the ex- pert’s courtroom opinion. expert Once identifies sources examination, his conclusions during direct reference to Furthermore, cases, outside material complete. criminal exten- permitting beyond and recite expert go point person’s report sively significantly damages another door intro- confrontation clause the Constitution. This back of a non-testifying expert’s report, duction the contents material, impinges without the author on producing Mod- rights.” Carlson, amendment criminal defendant’s sixth Testimony, ern L. Expert 39 Vand. Rev. 585. reply. Carlson’s comments Professor prompt

Professor received underlying Paul Rice noted that most courts do allow data admitted as evidence but do the reference to otherwise permit background argues: inadmissible information. He then “Thus, hand, on the facts or jury may the one consider her to assess the data based upon expert hand, Yet, to be the other weight given opinion. conclusion, jury, deciding whether to arrive at the same when In reaching true. accept upon cannot what relied conclusion, only product its can rely own like If this sounds expert’s opinion. practice evidence—the as a (Rice, Inadmissible Evidence talk, judicial double is.” Opinion A Expert Testimony: Response Basis Professor for Carlson, L. 584 (1987).) 40 Vand. Rev. the upon argue by that the materials relied goes Professor Rice on under certain be as substantive evidence expert should admitted being is to adopt that this court not asked I out guidelines. point these Rice; is whether question for us only of Professor position expert’s opin- as for the a basis jury materials can be related ion. the “impropriety concern about to Professor Carlson’s

Returning background data the unauthenticated in fashion receiving wholesale expert’s offered the court- on of the party as an behalf exhibit Testimony, 39 Vand. L. Rev. Expert Modern (Carlson, opinion” room so worried about the rela- I not 585), argue nearly is would Mielke from treatises which material learned tion to the of material types of the he is disclosure prohibits, as about re- Illinois, psychological in such as the approved have been already tenant an by apartment nude ports Ward or the statements about al- not own Scruggs. argument only upon my manager I base to Federal view, amendment suggested stated also ready 1986 in Professor Carlson’s Rule of which is contained Evidence 703 article: add a might (b) idea be to new section productive

“One following concept: incorporating Rule 703 cases, cases, generally underlying In civil criminal data admissible in order to be expert independently must on unadmitted expert’s received evidence. An reliance data, where the data does not mandate introduction of the sole reason for introduction is that it formed a for the basis good When cause is shown in cases civil expert’s opinion. underlying particularly trustworthy, information court admit the data under this rule to illustrate expert’s opinion.” basis added.) (Carl- (Emphasis son, Modern Expert Testimony, n.29.) 39 Vand. L. Rev. at Even if we do independently not consider learned treatises as admissi- ble under Federal Rule 803 (18), the emphasized portion pro- posed amendment would include learned certainly treatises because of their “particularly trustworthy” nature.

I commentator, will refer to one final now Professor Im- winkelried, only but, because feel views support my position, more because I feel importantly, that he offers an excellent analysis of the problems inherent A expert testimony. series quotes Expert “Bases” Professor Imwinkelried’s Testimony: A article Of Syllogistic Structure Testimony, 67 N.C. L. Rev. Of Scientific follows: books, “Source materials such lectures, treatises, and text- books state principles and theories which function as the expert’s major contrast, premise. In statements a patient by the patient tests other doctors furnish the wit- ness with the minor premise; they supply the data about present case to which applies premise.” major Imwinkelried, Syllogotic Structure, 4. N.C. L. Rev. at strong

“There case for liberally allowing scientists to choose general theories and principles their comprising ma- jor premise even doing when so necessitates reliance hear- say sources information such as treatises written other As stated, scientists. one court it would be ‘virtually impossible’ for a scientist to avoid on relying hearsay sources of informa- tion. That observation is an understatement. The reality is that *** ‘no can possibly knowledge have firsthand of all scientist] the comprising data his field.’ scientific Any testimony invari- on ably rests such the college sources as expert’s textbooks and the lectures she has heard since The graduation. witness has undoubtedly reviewed the published studies conducted other scientists, and common sense dictates that the be per- witness mitted rely on those works even the though witness did not It limit participate directly those studies. would be absurd to the to scientific studies she had conducted. expert personally a Would we modern accident reconstruction require seventeenth to derive replicate century experiments Newton’s physicist testifying the laws motion? a is about Suppose plant. of a nuclear If the contem- safety power physicist or would plates relying Oppenheimer, works Fermi physicist duplicate Imposing we that the their research? require all requirement testimony. would bar scientific effectively To the matter witnesses to put bluntly, permitting scientific consider the theories and studies other researchers is an ab- necessity. solute

Moreover, theories to em- the witness’ choice of and studies defer- premise as should be afforded substantial ploy major The is because expert precisely ence. scientific witness an study in that field. That has studied literature intensively life The sphere expertise witness’ work. witness’ methodologies, principles, consists of mastery concepts, The discipline. theories to the witness’ scientific peculiar ways witness ‘the of his work’ than scientific knows better acts selecting In witness judge jurors. major premise, witness has expert. his as an Because scientific capacity of a field, choice superior expertise in witness’ unique, great respect. warrants major premise as a selection of information we turn to the witness’ When emerges. There is different radically picture minor premise, sources, there no necessity hearsay resort permit absolute to the witness’ se- case for deference compelling a much less serving the information lection, and its nature very at (Em- trial.” peculiar probative dangers premise poses minor Structure, Imwinkelried, L. Syllogotic N.C. phasis added.) at 8-10. Rev. first, Imwinkelried’s time: be noted things

Two should appropriately are materials major premise that the analysis states 702 which our Rule of Evidence discussion under Federal subject of second, Wilson; quota- above adopt did not court supreme relation of these discussing specifically tions Imwinkelried is in the above quotations contained analysis to the jury. materials subject comments on the however, later crucial, understanding disclosing jury: matters report is that if a otherwise satisfies thought school of “One receive the full detail of of fact should 703, the trier rule school the trier report. argue The advocates that cannot of the intelligently expert’s opinion evaluate the worth unless the the the detail The report. trier has benefit of all of the only safeguard judge in- required give jury limiting that the The struction under Federal Rule Evidence competing 105. thought judge school of is that the should be cautious in expos- ing the information. jury independently inadmissible The of this proponents despite limiting school fear instruc- tion, will misuse the information as substantive evi- jury dence on the merits of the case. distinction this Arti- major-minor premise proposed by

cle of the latter strengthens position thought. school Sec- tion II that the that the misuse the danger noted will in- expert’s major premise contained minimal formation rarely since overlaps disputed adju- with the information contrast, in the danger dicative case. In of misuse of facts information included in witness’ premise minor is sub- stantial since that with frequently information coincides contro- such verted facts as the manner in which the traffic accident personal causing injuries added.) occurred.” Im- (Emphasis Structure, winkelried, Syllogotic 67 N. C. L. Rev. at 26. Thus, Imwinkelried would apparently agree with Professor Carl- son’s concern relating about materials to the case-specific jury, but as the emphasized portion indicates, of the last quote would not have the same about concern materials contained in learned treatises which are a part expert’s of the major premise. this case in

Examining analysis, view of we find foregoing there was reference plaintiff’s expert comprising materials i.e., minor premise, hospital records. There objection was no to this not testimony which is in view of There surprising Wilson. was also a general underlying reference defense literature. Again objection there was no to this testimony obviously formed a major premise. of the When the part expert’s plaintiff attempted to re- than general, recognized late rather statements from specific, journals the defendant’s was sustained. objection

As has indicated earlier there was no attempt been introduce evidence; these as statements substantive offered they only were addition, In explain expert’s opinion. although the basis controlling, the references were not necessarily lengthy so to be a to; journals on the court’s time. four were referred Only burden all journal Spine, medical less than sentences in were submit- ted. court to give limiting Anderson authorizes the trial instructions those whose proba- articles and exclude proffered and to examine the effect. The trial court did their outweighed by prejudicial tive value is This was of its reliance Mielke. not do that in this case because remand for a new trial. I would reverse and error in my opinion, long-gone of the now from the announcer quote In I would closing episode each Ranger” opened “The Lone who program radio Following his advice days yesteryear.” “Let us now to the return Nash v. Classen century: from the last would submit two cases recog to a a farmer to refer 409, N.E. which allowed 163 Ill. the ap shelled corn establish quotes to obtain paper nized trade Ill. 28 N.E. v. Carter and Carter propriate price; the next hotel people testify which allowed a witness from emanating based on the sounds committing adultery room were after following question then pose I would room. adjoining Stevens, poet lawyer:2 to Mr. a true in advance apologizing If on shelled corn quotes sounds concupiscent fine, related as both be then rebuff

Why trustworthy stuff

such Spinel statements scholarly as the Lockett, his Mother and LOCKETT, Minor, by A Barbara CHRISTOPHER BOARD Cross-Appellees, v. al., Friend, Plaintiffs-Appellants Next et 189, Defendant-Appellee DISTRICT NO. FOR SCHOOL OF EDUCATION Clyde Cross-Appellant; Inc., Lines, Defendant-Appellee (Vandalia Bus Defendants). al., Jordan et C. No. 5 — 88—0461

Fifth District 11, 1990. Opinion May filed Cream, Emperor Ice of Amer- Book The New Oxford Stevens, 2See Wallace 1976). (R. ed. Ellman ican Verse notes were Doctor ‘Chandra’s’ [sic] Dr. following surgery?” condition neurological to his as your opinion in Mr. marked deterioration answered, “It demonstrates Tatkow Dr. Tatkow paralysis.” and further neurological status Schuchman’s neurologi- above, concerning further, quoted testified

Notes

notes articles written by which her stated his summarized authorities, of care was his standard well-recognized his notes, testimony, allowed, parallel if would and his upon based in Mielke concluded that, by summarizing reviewing notes. The court literature, there of the studies the medical findings the articles. Like to recite the data and conclusions of attempting plaintiff’s expert the authors of the articles summarized Mielke, unavailable the authors of the articles the instant case were cross-examination, a to that is to this matter concern court v. Mielke considered Wilson Clark 84 Ill. 2d one. The court 1322, in upon prospectively court review 417 N.E.2d hypothetical to a nontreating expert give response allowed a even if hospital facts contained in records question based

Case Details

Case Name: Schuchman v. Stackable

Court Name: Appellate Court of Illinois

Date Published: May 9, 1990

Citation: 555 N.E.2d 1012

Docket Number: 5-88-0562

Court Abbreviation: Ill. App. Ct.