ERNESTINE WILSON, as Special Administrator of the Estate of BRIAN CURRY, Deceased, Plaintiff-Appellant, v. ERIC MOON, D.O., Defendant-Appellee.
No. 1-17-3065
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
March 28, 2019
2019 IL App (1st) 173065
PRESIDING JUSTICE McBRIDE
FOURTH DIVISION; Appeal from the Circuit Court of Cook County; 2014-L-006679; Honorable Gregory Wojkowski, Judge Presiding
Justices Gordon and Burke concurred in the judgment and opinion.
OPINION
¶ 1 After Ernestine Wilson‘s 23-year-old son, Brian Curry, died from a saddle pulmonary embolism (a blood clot that blocked the large pulmonary artery straddling his lungs), Wilson sued emergency room physician Eric Moon and St. Bernard Hospital (St. Bernard), alleging that the physician negligently failed to diagnose and treat her son‘s condition and that the hospital was liable because of its principal-agent relationship with the doctor. Dr. Moon denied negligence and the hospital sought summary judgment on grounds that the doctor was an independent contractor. Wilson reached a settlement with the hospital, but at the trial that ensued six weeks later, the doctor called the hospital‘s retained expert in pulmonary medicine, who testified that Curry‘s signs and symptoms did not suggest a pulmonary embolism and that what subsequently occurred was sudden and unsurvivable regardless of the doctor‘s efforts. The doctor‘s retained expert in emergency medicine testified that the doctor also complied with the standard of care for emergency medicine. The jury rejected the malpractice claim. The main issue on appeal is whether a pretrial witness disclosure that concluded, “Defendant adopts herein and reserves the right to call any Rule 213(f)(1), 213(f)(2) or 213(f)(3) witness disclosed by any party,” adequately informed the plaintiff that an expert witness disclosed by a defendant who subsequently settled would be called by the remaining defendant. Wilson contends that the remaining defendant should have supplemented his witness list if he intended to call the settling defendant‘s witness and that his nondisclosure was prejudicial when she was unprepared for cross-examination. Wilson raises four other contentions about the scope of other witness testimony and the scope of the defendant‘s closing arguments.
¶ 2 I. BACKGROUND
¶ 3 We will summarize the evidence presented at the trial that was conducted in March 2017, and subsequently discuss the pretrial procedural history to the extent necessary to address Wilson‘s appeal. Wilson does not dispute that the manifest weight of trial evidence was in Dr. Moon‘s favor. Accordingly, we need not provide extensive detail of the witness testimony.
¶ 4 Wilson called Terrance L. Baker, M.D., as her retained expert in emergency
¶ 5 Dr. Baker testified that deep veins are the ones inside the arms, legs, and body that return blood from the feet and hands to the heart; a deep vein thrombosis (DVT) is a blood clot in one of those deep veins; and a pulmonary embolism (PE) occurs when one of those abnormal blood clots travels to the lungs. Dr. Baker reviewed the paramedics’ report, the emergency room records, the autopsy report and death certificate, and the deposition testimony of persons involved in Curry‘s medical care and this lawsuit. In Dr. Baker‘s opinion, when Curry arrived at the emergency room, he had the signs and symptoms of a blood clot in his left leg and other clots in the periphery or outer margins of his lungs, including the sudden onset of shortness of breath, tightness in his chest and throat, a cough, and his eyes rolling back in his head. In Dr. Baker‘s opinion, Dr. Moon breached the standard of care for emergency medicine by not ordering a chest CT scan (a form of X-ray) to rule out peripheral PE and by discharging Curry prior to ruling out PE. The standard of care also required Dr. Moon to start Heparin1 until he could see the results of the chest scan, i.e., to start Heparin around 12:35 or 12:40 a.m., when Dr. Moon started ordering diagnostic tests. According to Dr. Baker, Heparin would have prevented the clot in Curry‘s left leg from growing and stabilized it so that it would not move to his lungs. Curry‘s electrocardiogram (EKG)—which showed a heart rate of 122 beats per minute, instead of 60 to 100, and a strain at the top and bottom of his heart—was also consistent with PE. However, Curry felt better while in the emergency room because he was provided with Tylenol, oxygen, fluids, and rest—which allowed his body to naturally dissolve the small clots in his lungs—and because his young heart and lungs had reserve that allowed his body to compensate when it was injured. According to Dr. Baker, when Curry was discharged at 3:05 a.m. with a diagnosis of bronchitis, his movements caused blood clots to break loose and travel to his heart, where they were pumped to his lungs and closed off circulation. Curry was able to return to emergency room before going into cardiac arrest. The standard of care required that he be given tissue plasminogen activator (tPA) almost immediately upon his return to the emergency room and collapse at 3:45 a.m.2 It was also Dr. Baker‘s opinion, that Curry probably would have survived if he had been given Heparin and oxygen at 3:45 a.m.
¶ 6 On cross-examination, Dr. Baker said his only board certification was in family practice, not emergency medicine, and he was not eligible for board certification in emergency medicine because he had not completed a residency in that specialty. Dr. Baker had never written any articles or performed studies regarding PE or emergency medicine, and he had never been invited to present to the field of emergency room professionals. Wilson was paying Dr. Baker $500 per hour. Dr. Baker was splitting his workweek between an emergency room, a family practice office,
¶ 8 Chicago Fire Department paramedic Dante Butler testified that he was dispatched to Curry‘s home due to a report of shortness of breath, but Curry said that earlier it felt like he was going to have a seizure. Curry also said he was feeling better. Butler‘s exam on the scene confirmed that Curry was breathing normally, did not have a seizure, was not in a post-seizure state, and was ambulatory. Curry‘s vital signs were normal and his Glascow Coma Scale (GCS) score, which was a way of assessing his alertness and orientation, was a perfect score of 15. Curry was transported to the nearest hospital.
¶ 9 Catherine James, R.N., testified that she had been a registered nurse for 26 years and started working the St. Bernard emergency room in 2011. After nurse James assessed Curry, he was examined by the triage nurse, and then Dr. Moon followed his usual practice of examining his patient immediately. Curry‘s EKG showed a slightly elevated heart rate of 122 at one point. If this rate had been persistent, it would have indicated PE, but he did not always maintain this rate while in the emergency room. In nurse James‘s experience, a patient with a fluctuating heart rate while at rest does not have PE. Curry was attached to a machine that continuously monitored his heart, but his chart did not include any notes between 1 a.m. and 3:05 a.m., which was consistent with the hospital‘s protocol of charting vital signs every two to three hours. Nurse James saw Dr. Moon recheck Curry‘s lungs, oxygen saturation, and vital signs before deciding to discharge him after his temperature was down and his vital signs were stable. When nurse James took the written discharge instructions to Curry, he confirmed that he was feeling better and did not have pain or shortness of breath and was ready to go home. Nurse James observed that Curry did not have any difficulty putting on his clothing and that he left the emergency room with his mother. Curry, however, returned to the emergency room (walking, not running), sat down, and then passed out. He was immediately taken to the trauma room and given cardiopulmonary resuscitation (CPR).
¶ 10 Wilson called Dr. Moon as an adverse witness. Dr. Moon earned a bachelor‘s degree in zoology and a master‘s degree in physiology, before attending four years of medical school and earning an
¶ 11 After considering the paramedics’ report, taking Curry‘s history, and performing a physical exam, Dr. Moon ordered a chest X-ray and observed slight abnormalities in the images that were suggestive of pneumonia, although a radiologist who subsequently reviewed the film concluded Curry‘s lungs were normal. Curry was obese and had been playing video games for hours before he started feeling ill. Obesity, however, was “very low” on the risk scale for DVT and PE, Curry‘s sedentary lifestyle was only an insignificant risk factor, and gaming was not a risk factor at all. Dr. Moon denied that the standard of care required him to “think of DVT and PE when [Curry] arrived.” Major risk factors included malignancy, pregnancy, hormone use, birth control, anabolic steroids, and being immobile for more than 48 hours (bedridden). PEs were essentially nonexistent in people below the age of 18 and were unlikely in a 23-year-old. Almost all people suffering from PEs were over the age of 40, and most were over the age of 50.
¶ 12 Dr. Moon documented that Curry complained of throat pain and difficulty breathing and that his chief complaint was that he had suspected he was going to have a seizure (he had some past history of seizures). However, when Dr. Moon first examined him, Curry said he did not need to be there, wanted to go home, and his mother was coming to pick him up. Because people are disoriented or confused after a seizure, Dr. Moon called Curry‘s mother to ask her why Curry came to the emergency room. Curry‘s mother said he did not have a seizure but he clutched his chest, complained of shortness of breath, and his eyes rolled back in his head. When a patient reports shortness of breath (which Curry did not experience in the emergency room), Dr. Moon will consider cardiac problems, PE, pneumonia, bronchitis, asthma, anemia, and other issues. Dr. Moon again denied that being sedentary or in bed for more than nine hours would be risk factor for DVT and said that he frequently slept for nine hours at a time without experiencing DVT. Dr. Moon charted that he checked for DVT by inspecting Curry‘s legs for swelling and symmetry and palpating them for pain or tenderness and that Curry‘s extremities appeared to be normal. Dr. Moon spent 10 minutes performing this initial physical exam. Curry‘s symptoms prior to arriving in the ambulance “may well have been” caused by PE. Dr. Moon admitted that he now believes Curry was experiencing a thrombosis or DVT while in the emergency room, which Dr. Moon did not diagnose, in addition to the bronchitis, which Dr. Moon did diagnose. Definitive diagnosis of PE would have required a CT scan, but the standard of care did not require a chest CT scan in Curry‘s case, and Dr. Moon did not order one. Dr. Moon ordered blood work, in part to determine whether Curry‘s kidneys were functioning normally, in case Curry needed a CT scan. Dr. Moon also ordered an EKG, and received results at 1:01 a.m. The EKG showed that Curry‘s heart rate was more than 122 and in an abnormal rhythm (he was in tachycardia) and that the ST segment of the test was elevated. A heart rate of 122 is a symptom of “many things,” including PE. If Dr. Moon had diagnosed PE then, he would have ordered Heparin and hospitalization, which would have helped Curry‘s body break down the clot but would not have necessarily saved his life. Dr. Moon
¶ 13 On redirect examination, Dr. Moon denied that Curry‘s elevated white blood cell count and elevated neutrophils were indicative of DVT rather than an infection. Curry‘s symptoms in the emergency room were not reasons to order an ultrasound or CT scan. The autopsy found small emboli in the periphery of Curry‘s lungs, but this was not the cause of the symptoms he experienced before calling for the ambulance.
¶ 14 Wilson testified that her son, who lived with her in Chicago, had stayed in his room all day on Saturday, November 10, 2012, playing video games. That night, Curry started to walk to the gas station to purchase some juice but then suddenly returned home holding his chest, saying that he was having chest pains and difficulty breathing, and that she should call 911. He left in the ambulance just before midnight, and she followed on public transportation. While she was still enroute to St. Bernard, Dr. Moon called her to ask why Curry was in the emergency room and whether he had a history of seizures. Wilson could not recall her answer. While she was at the hospital, she noticed that her son was unusually quiet and answering questions slowly. She signed the discharge instructions because her son was not talking and did not want to do anything. He was slow to get out of the bed, he had difficulty putting on his shoes and shirt, and she could tell that he was still having problems. Wilson was the only one, however, who observed that when he bent over to put on his shoes, his breathing worsened. She had been asking repeatedly whether he was ready to leave and finally he answered that he was ready. When they started to walk toward the train station, Curry began “crying and hollering and screaming” and then ran back to the emergency room. He went back to the same bed, laid down, and collapsed, and then the doctor ran in to help. Wilson also testified about the emotional difficulty she has experienced since her son‘s death and said she felt “lost in this world” without him.
¶ 15 On cross-examination, Wilson said that her son attended one year of high school and subsequently (between almost age 16 and age 23) stayed home watching TV, playing video games, and listening to music. He was not athletic, and as time went by, he went outdoors less and less. He smoked and had shortness of breath and chest pain. When he had trouble breathing in 2007 (approximately five years before his death), he had been taken by ambulance to the University of Chicago Medical Center, but testing indicated he was “fine” and he was released that same day. He had also been taken to the hospital once when he was younger for a seizure that occurred when he did not take his seizure medication. Curry‘s weight increased with his inactivity. She observed that his physical condition was deteriorating and that it was increasingly difficult for him to do things that required bending down. However, when the paramedics arrived, he was alert and he walked to the ambulance and entered it by himself. Wilson denied that she thought Curry was having a seizure when she called 911, but
¶ 16 Wilson rested after tendering statistical information about Curry‘s and Wilson‘s life expectancy.
¶ 17 When the trial resumed on the morning of March 10, 2017, Wilson moved to bar Victor F. Tapson, M.D., from testifying for Dr. Moon on grounds that Dr. Tapson would be cumulative of David T. Overton, M.D., and because Wilson‘s attorney was unprepared for cross- examination. Dr. Moon‘s attorney told Wilson‘s attorney on the first day of trial, March 1, 2017, that Dr. Tapson was coming to testify. However, Wilson‘s attorney had been preparing for trial under his assumption that Dr. Tapson was no longer a witness once the hospital settled and Dr. Moon did not update his
¶ 18 Dr. Moon then called Dr. Tapson, who is a specialist in PE. Dr. Tapson graduated from medical school in 1982, completed a four-year residency in internal medicine, took three additional years of training in pulmonary medicine and critical care medicine, and then passed the exams for board certification in pulmonary medicine and internal medicine. Between 1989 and 2013, Dr. Tapson was on the faculty of Duke University, as the head of the pulmonary vascular disease department, and taught pulmonary medicine classes. Dr. Tapson also ran the pulmonary clinic, where he regularly lectured about PE and
¶ 19 Dr. Tapson was charging $500 per hour and estimated that he had spent 15 to 18 hours becoming familiar with Curry‘s case. Dr. Tapson would expect there to be some symptoms if Curry had DVT, which had already broken off and were causing PE. There was, however, nothing in the paramedics’ report, the paramedic‘s testimony, or the hospital records indicating that Curry complained of any problem with his legs. Further, there was no evidence of swelling or physical deformity, which might have been clues of DVT. His temperature of 101.5 degrees was very unusual with PE and would lead a physician to a different diagnosis. Curry also had a slightly fast heart rate (tachycardia), but this came down subsequently when his temperature came down. Curry displayed no symptoms of PE, and “there was nothing here to suggest it should have been looked for.” What he had mainly noted at home was that he felt he was going to have a seizure and that his mother said his eyes rolled back, so he had been brought in for evaluation. Dr. Tapson said it was “difficult,” “tough,” and “tricky” to diagnose PE and that many of the 100,000 patients who die each year in the United States due to PE go undiagnosed until after death.
¶ 20 Heparin would not be administered to someone who did not have symptoms requiring a blood thinner. In Dr. Tapson‘s opinion, if by chance Heparin had been administered between midnight and 3:30 a.m., it would have made no difference, as it takes roughly 24 hours for Heparin to become effective at thinning the blood and preventing a clot from becoming larger.
¶ 21 On cross-examination, Dr. Tapson denied that he would have prescribed Heparin and hospitalization, as some emergency room patients are sent home with treatment for PE and Dr. Tapson was in the midst of a medical study about this approach. When PE is diagnosed and patients are then admitted and put on blood thinner, 96% to 98% of them survive. Dr. Tapson agreed that Curry had the DVT in his left leg when he arrived in the emergency room and when he was discharged. PE can be detected with a CT scan, and Curry was discharged without receiving one.
¶ 22 On redirect, Dr. Tapson said, “For sudden shortness of breath to occur and go after two minutes and not come back is very unusual in [PE]. It‘s not what you would expect.” Generally speaking, once PE sets in and produces symptoms, “those symptoms are going to stay.” When asked if there had been signs or symptoms in the medical records or any of the testimony that required that Curry receive a chest CT, Dr. Tapson answered:
“No. It‘s a difficult case. That‘s why I‘m going to continue to do research in this area because of people like Brian Curry. We don‘t want people like that to die. There was nothing that could have been done. CT was not indicated because [he didn‘t have any symptoms or signs of PE]. He had a fever of 101.5. If anything, that leads you away from [PE].
It‘s a tough case. I don‘t know anyone that would have made a diagnosis of [PE].”
¶ 23 When asked why he had testified in numerous cases over the years, Dr. Tapson answered, “Because I‘ve seen thousands of [PE] cases over the years. It‘s my focus. *** I don‘t mean to talk myself up, if you will. But this is what I do. *** [T]his particular disease is what I‘ve been studying for 25 years and think about all the time.” Dr. Tapson said that Dr. Moon‘s care complied with what Dr. Tapson expected and that Dr. Moon did nothing to cause Curry‘s death.
¶ 24 Out of the presence of the jury, Wilson made an offer of proof by questioning Dr. Tapson. Dr. Tapson testified that he was initially hired by “Lowis & Gellen, Michael Code, and Simon Hill” to give opinions in this case. When Dr. Tapson was shown attorney Hill‘s
¶ 25 David T. Overton, M.D, testified that his undergraduate degree was in biochemistry. He completed medical school in 1978, which was followed by residencies in internal medicine and emergency medicine and the exams necessary to earn board certifications in both specialties. After his training, Dr. Overton spent eight years in Detroit, Michigan, where he helped start an emergency medicine residency program and practiced in an emergency room. Then he started an emergency medicine academic unit and an emergency medicine residency program in Kalamazoo, Michigan. In Kalamazoo, Dr. Overton continued to practice emergency medicine at two different teaching hospitals. For 15 years, he was the chair of emergency medicine at either Western Michigan or Michigan State, and he had spent the past 20 years as Western Michigan‘s associate dean for graduate medical education. Thus, Dr. Overton‘s entire career involved teaching medicine at the medical student, resident, and continuing education levels. For almost 30 years, Dr. Overton has been involved in organizations that enhance emergency medicine care, including the American College of Emergency Physicians, the Society for Academic Emergency Medicine, the American Board of Emergency Medicine, and the Accreditation Council for Graduate Medical Education. Dr. Overton is an oral examiner for doctors to become board certified in emergency medicine, and he serves on a
¶ 26 After Dr. Moon took Curry‘s medical history and performed a physical exam, Dr. Moon called Curry‘s mother, an indication that Dr. Moon was “being careful and going the extra mile” to obtain additional history that a parent might know and a young patient might not even be aware of, according to Dr. Overton. Dr. Moon‘s medical history and physical exam of Curry complied with the standard of care for an emergency room physician, Dr. Overton stated. Although Dr. Moon had initially considered and removed PE as a possible diagnosis, Dr. Overton opined that this was appropriate. Because tPA is “an extraordinarily dangerous drug,” even “a lot more dangerous than Heparin” and has “a good chance of causing damage,” “a physician needs to be very sure there is a reason to prescribe tPA.” Doctors are supposed to first do no harm. It would have been a violation of the standard of care to prescribe tPA during Curry‘s initial stay in the emergency room. When Curry‘s heart arrested, he was given multiple medications, including tPA, which was appropriate because Dr. Moon would have strongly considered PE to be the reason for Curry‘s cardiac arrest and because at that point the risk-to-benefit weighed in favor of giving tPA. In Dr. Overton‘s opinion, Dr. Moon‘s treatment of Curry complied with the standard of care for an emergency medicine physician. Dr. Moon did not do or fail to do anything that caused the DVT to develop in Curry‘s leg, break off and travel to his pulmonary trunk, rest at the saddle location, or cause his death. The DVT broke off and traveled to the saddle point within seconds to a minute or so before Curry had the seizure in the emergency room. In Dr. Overton‘s opinion, there was no prior indication of its presence, there was nothing that could have been done to reduce its size, and there was nothing that could have been done to prevent it from breaking off.
¶ 27 On cross-examination, Dr. Overton disagreed that the standard of care for an emergency physician required that he or she diagnose a DVT before discharging a patient because, in Dr. Overton‘s opinion, there would first need to be some symptoms that suggested DVT. Dr. Moon had not knowingly discharged Curry with a life-threatening condition. Dr. Overton disagreed that if Dr. Moon had ordered a chest CT scan, it would have revealed the small peripheral PEs that the autopsy found in Curry‘s lungs. He explained that the autopsy did not indicate the timing of those PEs, and they “could have occurred just at the same time that the saddle embolus broke apart.” Dr. Overton agreed that if Curry had been given tPA at 3:45 a.m. when he returned to the emergency room instead of at 4:10 a.m., then Curry might have survived, but “[c]learly the standard of care would have prevented [an emergency room physician] from giving it [that early].” Curry‘s EKG recorded tachycardia at one point (rapid heart rate while at rest) and Dr. Overton testified, “99 percent of the time, [the cause is] not going to be PE, it‘s going to be something else, like bronchitis or pneumonia or something
¶ 28 After closing arguments, the jury deliberated and returned a verdict in favor of Dr. Moon.
¶ 29 II. ANALYSIS
¶ 30 This brings us to Wilson‘s first argument for reversal of the judgment. Wilson contends it was error to allow Dr. Moon to call an undisclosed 213(f)(3) (
Moon‘s
“Defendant adopts and incorporates the disclosures and/or opinions made under this subsection, including those previously filed and those which may be filed in the future, of
Rule 213 by any other party to this litigation to the extent that the disclosures and/or opinions benefits Defendant. This adoption should not be construed to include the adoption of any disclosure/opinion that are considered adverse or contrary to Defendant‘s position.Defendant adopts herein and reserves the right to call any
Rule 213(f)(1) ,213(f)(2) or213(f)(3) witness disclosed by any other party or previously disclosed and the right to elicit opinion testimony on either direct or cross-examination of those witnesses consistent with those disclosures. Defendant also reserves the right to cross-examine any witness called by any party pursuant to the Supreme Court Rules, including adverse witnesses pursuant toSection 2-1102 of the Illinois Code of Civil Procedure , and therefore, the scope of examination of the adverse witness is not limited to those subject matters and opinions disclosed in their discovery deposition or other records.* * *
Defendant reserves the right to withdraw any of the above witnesses and to call or cross-examine any witness at trial who has been identified by the Plaintiff on any topic such witness disclosed by interrogatory, by deposition or by trial testimony. Defendant also reserves the right to supplement these disclosures with any additional witnesses pursuant to court order”
¶ 31 Similarly, in Wilson‘s
“Plaintiff reserves to supplement and the right to call any witnesses disclosed by any of the parties to testify concerning issues referenced in the parties’ disclosures and/or the depositions of each such witness and adopts their disclosures as though fully set forth herein. Plaintiff reserves the right to identify additional Supreme Court
Rule 213 witnesses they may call at trial as discovery progresses and to supplement its SupremeCourt Rule 213(f)(1) disclosures consistent with the court‘s case management schedule and applicable state and local court rules. * * *Plaintiff reserves the right to disclose any additional
213(f)(2) witnesses at the appropriate time in the future, and supplement their response, in accordance with the applicable Illinois Supreme Court Rules, applicable local rules, and any court order. Plaintiff retains the right to call to testify any witnesses disclosed by any other party to this litigation and adopt their disclosures as though fully set forth herein.* * *
Plaintiff reserves the right to supplement when required by court order, and reserves the right to call any witnesses disclosed by any of the parties to testify concerning issues referenced in the parties’ disclosures and/or the depositions of each such witness and adopts their disclosures as though fully set forth herein.”
¶ 32 Wilson contends that once the hospital settled with her, if Dr. Moon intended to call an expert from the hospital‘s witness list, then Dr. Moon should have expressly supplemented his list with that additional witness. Wilson contends Dr. Moon‘s nondisclosure of Dr. Tapson was prejudicial because she did not know until he testified whether his opinions were changed and she was unprepared to cross-examine him about his compensation because she had not issued discovery as to how much he was being paid, the number of hours he spent reviewing the case, and when and by whom he was retained.
¶ 33 A trial court‘s decision on the admission of evidence will not be disturbed absent an abuse of discretion. Lopez v. Northwestern Memorial Hospital, 375 Ill. App. 3d 637, 645, 873 N.E.2d 420, 428 (2007) (reviewing the admission of expert testimony). A court abuses its discretion when no reasonable person would agree with the decision. Lopez, 375 Ill. App. 3d at 645. The purpose of discovery rules about the “‘timely disclosure of expert witnesses, their opinions, and the bases for those opinions is to avoid surprise and to discourage strategic gamesmanship.‘” Lopez, 375 Ill. App. 3d at 645 (quoting Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1032, 801 N.E.2d 90, 95 (2003)). Disclosures are mandated by
“In determining whether the exclusion of a witness is a proper sanction for
nondisclosure, a court must consider the following factors: (1) the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110, 806 N.E.2d 645, 652 (2004).
None of these factors are in Wilson‘s favor.
¶ 34 Dr. Tapson‘s testimony neither surprised nor unfairly prejudiced Wilson. Dr. Tapson‘s identity and opinions were disclosed to all the parties on June 30, 2016, some eight months before the March 2017 trial, when St. Bernard issued its
¶ 35 Dr. Moon points out that at the crux of Wilson‘s argument is her erroneous assumption that although Dr. Tapson had been disclosed, deposed, and adopted pursuant
¶ 36 There is no indication in the wording of
¶ 37 There is also no indication in case law that supports Wilson‘s argument that a party who has generally adopted another party‘s expert opinions is supposed to submit a second disclosure containing all the same information of an earlier disclosure when that other party settles. Wilson‘s reliance on Scassifero is misplaced. Scassifero v. Glaser, 333 Ill. App. 3d 846, 770 N.E.2d 859 (2002). In that case, a patient sued his treating physician, the physician‘s partners, and the hospital where the patient was allegedly injured due to the physician‘s malpractice. Scassifero, 333 Ill. App. 3d at 850. The treating physician and his partners identified three experts. Scassifero, 333 Ill. App. 3d at 856. The treating physician and his partners also disclosed that they were adopting and relying upon “the
¶ 38 Wilson contends that Scassifero turned on the fact that the defendants supplemented their disclosures in order to expressly adopt Dr. Cybulski. However, it was only after first ruling that the adoption of another party‘s expert in answers to interrogatories was a timely disclosure that the court further supported its holding by stating: “We further note that defendants later supplemented their answers to plaintiff‘s
¶ 39 Wilson contends that another dispositive fact was that the Scassifero trial court “alleviated any potential prejudice to plaintiff by granting him the opportunity to call a rebuttal witness in response to Dr. Cybulski‘s testimony and by extending the trial date.” Scassifero, 333 Ill. App. 3d at 858. Wilson contends she did not know until the first day of trial that Dr. Tapson was to be called as an expert witness and therefore did not know that rebuttal witness would be necessary. The quoted statement was made, however, in response to a different, subsequent argument in Scassifero and is not relevant here. Nothing in Scassifero requires that, following a party‘s settlement with the plaintiff, the plaintiff is entitled to a second opportunity to retain a rebuttal witness, and if necessary, be granted a continuance of the trial in order to obtain that witness.
¶ 40 Wilson has also erroneously relied on Gee v. Treece, 365 Ill. App. 3d 1029, 851 N.E.2d 605 (2006), as authority that there is a duty to supplement following a codefendant‘s settlement from the case. The case is factually distinguishable, in that Dr. Tapson was timely disclosed to Wilson, but the witness at issue in Gee was disclosed less than 60 days before trial. Gee, 365 Ill. App. 3d at 1036. Gee did not concern the timing of the initial or supplemental disclosures; rather, it concerned the fact that the original expert was no longer available for deposition prior to trial, but there was another expert who was available for deposition and would provide the same opinion testimony. Gee, 365 Ill. App. 3d at 1038. One expert witness was substituted for another, but the opinion and bases did not change, and the plaintiff could not claim prejudice by the change in experts.
¶ 41 We find no basis to support Wilson‘s first argument on appeal. Wilson‘s decision to settle with one of the codefendants did not change the contents or the timing of the other codefendant‘s
¶ 42 Wilson‘s second appellate contention also concerns Dr. Tapson. Wilson contends that the trial court improperly curtailed her cross-examination of the hospital‘s pulmonary expert regarding “his credibility, bias, financial interest, and the
¶ 43 Wilson‘s brief makes clear that she wanted to cross-examine Dr. Tapson about being previously retained by St. Bernard. Wilson argues, for instance: “Dr. Tapson testified that he received a copy of the St. Bernard Hospital records with respect to the decedent but [the trial court] overruled plaintiff counsel‘s foundation objection as to who supplied Dr. Tapson with those records. [Record citation.]” She also argues, “Because Dr. Tapson was original[ly] retained by St. Bernard Hospital, and Plaintiff‘s counsel was not allowed to bring this out during Dr. Tapson‘s testimony at trial, Plaintiff‘s counsel was allowed to make an offer of proof.” Wilson reiterates that her intent was to reveal that the hospital had retained Dr. Tapson:
“[The trial court] would not allow Plaintiff to cross-examine Dr. Tapson as to who actually retained him, would not allow Plaintiff to cross-examine Dr. Tapson with St. Bernard Hospital‘s
Rule 213 disclosures, which was the only disclosure of Dr. Tapson that ever existed in this case, and would not allow Plaintiff to cross-examine Dr. Tapson with respect to the opinions held by Dr. Mark Cichon, the other213(f)(3) retained expert witness for St. Bernard Hospital or regarding St. Bernard Hospital‘s theory of the case. [Record citation to Wilson‘s offer of proof.]”
¶ 44 The record indicates that the trial court was concerned that any mention of St. Bernard‘s involvement in
¶ 45 Wilson‘s third argument for reversing the judgment is that Dr. Moon‘s closing arguments included improper comments on Wilson‘s failure to call an emergency medicine physician who was board certified in that field and her additional failure to call a pulmonologist.
¶ 46 Attorneys are permitted wide latitude in their closing arguments. Guzeldere v. Wallin, 229 Ill. App. 3d 1, 13, 593 N.E.2d 629, 638 (1992).
“In contrast to the purpose and scope of a legitimate opening statement which is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony as a whole, the purpose of closing argument at the end of trial is to draw together all of the facts and to present the theories of the litigants so that the fact finder may make a proper decision.” Jacob A. Stein, Closing Arguments, § 1:3 (2018).
¶ 47 Comments on evidence during closing argument are proper “if they are either proved by direct evidence or are a fair and reasonable inference from the facts and circumstances proven.” Guzeldere, 229 Ill. App. 3d at 13; Lebrecht v. Tuli, 130 Ill. App. 3d 457, 484, 473 N.E.2d 1322, 1341 (1985). Furthermore:
“A new trial is not warranted based on an improper opening statement or closing argument unless, when the trial is viewed in its entirety, the argument resulted in substantial prejudice to the losing party or rose to the level of preventing a fair trial. [Citations.] Errors in opening statements or closing argument must result in substantial prejudice such that the result would have been different absent the complained-of remark before
reversal is required. [Citations.]” (Emphases in original.) Parsons v. Norfolk Southern Ry. Co., 2017 IL App (1st) 161384, ¶¶ 57, 88 N.E.3d 45 (quoting Davis v. City of Chicago, 2014 IL App (1st) 122427, ¶ 84, 8 N.E.3d 120).
¶ 48 Wilson objected during the closing arguments, but the trial judge overruled her objection. “In determining whether a party has been denied a fair trial because of the opposing party‘s closing argument, considerable deference is extended to the trial court‘s judgment, because the trial court is in a superior position to assess the accuracy and effect of counsel‘s statements.” In re Salmonella Litigation, 198 Ill. App. 3d 809, 820, 556 N.E.2d 593, 600 (1990); Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 396, 728 N.E.2d 797, 814 (2000).
¶ 49 During closing arguments, Dr. Moon addressed the credentials of Wilson‘s expert witness, by pointing out that Dr. Baker was not board certified in emergency medicine and that Dr. Baker did not lecture or publish articles on emergency medicine like Dr. Moon‘s experts, Dr. Tapson and Dr. Overton, who were speaking and publishing to their peers. These statements were factually true, and Wilson does not argue to the contrary. Dr. Moon argued that the reason Wilson did not have a board-certified emergency-medicine expert was because she could not find a board-certified expert to “come in and say that Dr. Moon caused this death.” As Wilson herself points out, “[c]omments on evidence during closing argument are proper if they are either proved by direct evidence or are a fair and reasonable inference from the facts and circumstances proven.” Guzeldere, 229 Ill. App. 3d at 13; Lebrecht, 130 Ill. App. 3d at 484. Dr. Moon‘s experts had more extensive training and experience, considerably more, in their respective specialties of pulmonary medicine and emergency medicine than Wilson‘s one expert had in these fields. Furthermore, Dr. Moon‘s two experts were devoted to the topics they testified about, in contrast to Wilson‘s only expert, who testified that he was splitting his work week between an emergency room, a family practice office, a rehab facility, and a tattoo removal facility. Dr. Moon‘s inference as to why Wilson did not have a board-certified emergency physician on her side was consistent with the factual evidence. Thus, the record indicates Dr. Moon‘s remark about Wilson‘s case was not an improper remark. Furthermore, viewing the trial as a whole, the comment was not capable of causing substantial prejudice to Wilson.
¶ 50 Dr. Moon also commented on Wilson‘s failure to call a pulmonology expert to testify and that an inference to be drawn from that is that “they couldn‘t find one.” In support of her argument, Wilson cites Rutledge v. St. Anne‘s Hospital, 230 Ill. App. 3d 786, 791, 595 N.E.2d 1165, 1168 (1992), which indicates a party was denied a fair trial, in part, because counsel commented on the failure to call an unavailable witness “when that witness is not under the opponent‘s control.” See also Lebrecht, 130 Ill. App. 3d at 484 (indicating that generally it is improper to comment on an opponent‘s failure to call a witness that is not under their control). “The danger is that the jury will presume the testimony would have been unfavorable to the noncalling party.” Lebrecht, 130 Ill. App. 3d at 484. Dr. Moon‘s remark about Wilson‘s strategic choice to not call her own pulmonology expert is not the same as remarking on an opponent‘s failure to call an admittedly
¶ 51 Moreover, even assuming that Dr. Moon‘s attorney erred during closing arguments, the trial court cured any misstatement by instructing the jury that closing arguments are not evidence. The trial court instructed the jury: “A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence, you should disregard that statement or argument.” Illinois Pattern Jury Instructions, Civil, No. 1.01 (2011). See Randall v. Naum, 102 Ill. App. 3d 758, 761, 430 N.E.2d 323, 325 (1981) (concluding that although defendant‘s counsel made an improper remark during closing arguments, it was cured when defendant objected and the trial court sustained the objection, admonished the jury to disregard it, and later instructed the jury to ignore any statement or remark that had no basis in the evidence).
¶ 52 For these reasons, we do not find that Dr. Moon‘s closing argument was improper.
¶ 53 The fourth issue is whether allowing Dr. Moon to call Dr. Overton and Dr. Tapson improperly resulted in cumulative expert testimony. The admission of evidence is at the discretion of the trial court, and in that discretion, the court may exclude cumulative testimony. Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 781, 692 N.E.2d 1303, 1311 (1998). We will not reverse such rulings unless the trial court clearly abused
¶ 54 In Dahan, the trial court did not abuse its discretion in allowing the defendants to call a hematology expert, a neurology expert, and a third physician, who testified as to the standard of care for an internist. Dahan, 295 Ill. App. 3d at 781. In Taylor, the trial court did not abuse its discretion in allowing the defendant-hospital to call one expert, a rheumatologist, and the defendant-doctor to call two experts, a rheumatologist and a neurologist. Taylor, 2011 IL App (1st) 093085, ¶¶ 36, 40. In Moore, the plaintiff permissibly elicited standard of care testimony from five physicians, four of whom had rendered medical treatment to the plaintiff, in a case involving an “extensive medical history” and an uncommon medical condition. Moore v. Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 881, 672 N.E.2d 826, 832 (1996).
¶ 55 Similarly, here, the two doctors that Dr. Moon called to testify had different specialties and were called for different reasons. Dr. Tapson‘s testimony made clear that he is a board certified pulmonologist, not an emergency medicine expert, while Overton, an emergency medicine expert testified about the standard of care for emergency medicine physicians. Dr. Tapson‘s introduction to the jury detailed his deep interest, research, and experience in the diagnosis and treatment of PE. From his perspective as a PE specialist, Dr. Tapson critiqued Dr. Moon‘s diagnosis of Curry‘s symptoms as bronchitis and not PE. Toward the conclusion of his testimony, Dr. Tapson summed up that PE was his “focus” and “this particular disease is what I‘ve been studying for 25 years and think about all the time.” Similarly, the testimony that Wilson and Dr. Moon elicited from Dr. Overton made clear that his specialty was emergency medicine. The direct and cross-examinations also made it apparent that Dr. Overton had evaluated Dr. Moon‘s conduct from the perspective of an emergency medicine specialist. Both of Dr. Moon‘s experts testified about PE and the methods of detecting and treating PE. There was some overlap and repetition between the two experts, caused in part by Wilson‘s questioning. Given that a PE caused Curry‘s death and that Dr. Moon‘s diagnosis and treatment of Curry in the emergency room were at the heart of Wilson‘s lawsuit, every medical witness necessarily testified about PE. Dr. Moon was entitled to call the two experts to defend against Wilson‘s claims, and Wilson was also entitled to present medical experts in order to make her claim and rebut Dr. Moon‘s defense. Even though the defendant hospital and defendant physician disclosed a pulmonary expert and an emergency medicine expert within the discovery deadline set by the trial court, plaintiff Wilson did not retain her own pulmonology expert during that timeframe. Wilson‘s decision to rely on Dr. Baker as her only expert can be attributed to trial strategy or her litigation budget, but that does not transform Dr. Moon‘s two distinct experts into improperly cumulative witnesses.
¶ 56 Wilson‘s fifth and final contention is that her cross-examination of Dr. Moon was improperly limited, in that she was not permitted to elicit standard of care testimony from him, specifically whether
¶ 57 When Wilson cross-examined Dr. Moon, a sidebar was called. Outside the presence of the jury, Wilson argued that since Dr. Moon had brought up an ultrasound test in response to a nonleading question, Dr. Moon had opened the door as to whether the standard of care required an ultrasound to detect a DVT. The trial court rejected Wilson‘s argument then and when Wilson presented the argument for a second time in a postjudgment motion for a new trial. The trial court‘s written order denying a new trial details why Wilson was not permitted to pursue this line of questioning: Wilson had not previously disclosed any evidence to support this theory of malpractice liability (she had no other evidence to support this new theory of malpractice liability), and allowing Wilson to pursue a new theory of malpractice liability on cross-examination of the defendant doctor without any basis in the testimony of Wilson‘s disclosed expert would have violated the 213 disclosures and could have confused or misled the jury.
¶ 58 We reject Wilson‘s contention that she should have been able to pursue a line of questions regarding an ultrasound test. The mere reference during cross-examination to a procedure that was barred by a motion in limine would not necessarily allow the plaintiff to delve into that procedure in detail if the evidence did not support that theory of liability.
¶ 59 Wilson now cites authority for the proposition that a standard of care may be established by testimony from the defense (see, e.g., Anderson v. Martzke, 131 Ill. App. 2d 61, 65, 266 N.E.2d 137, 139 (1970) (testimony of a defendant doctor may be sufficient to satisfy the requirement that there be expert testimony as to the issue of acceptable medical standards of care in a community)). Wilson, however, does not cite authority refuting the trial court‘s concern that introducing an entirely new theory of malpractice liability on cross-examination would tend to mislead or confuse the jury. Illinois law indicates that evidence may be excluded on the basis of its perceived tendency to confuse of mislead the jury. Dial v. City of O‘Fallon, 75 Ill. App. 3d 782, 785, 394 N.E.2d 84, 87 (1979) (otherwise admissible evidence may be excluded as irrelevant when it does not concern facts in issue and could only serve to mislead or confuse issues in case); Maffett v. Bliss, 329 Ill. App. 3d 562, 574, 771 N.E.2d 445, 455 (2002) (even relevant evidence may be excluded if its probative value is substantially outweighed by factors such as prejudice, confusion, or the potential of misleading the jury); Demos v. Ferris-Shell Oil Co., 317 Ill. App. 3d 41, 53, 740 N.E.2d 9, 18 (2000) (“even if the evidence is arguably relevant it may still be excluded if it would confuse the issues or tend to mislead the jury“). In addition to her failure to cite legal authority, Wilson fails to factually address the trial court‘s concern that she would have been pursuing a new theory of malpractice liability that would only serve
III. CONCLUSION
¶ 61 Having considered and rejected all of Wilson‘s arguments, we affirm the judgment of the trial court in favor of Dr. Moon and against Wilson.
¶ 62 Affirmed.