No. 3–09–0512
______________________________________________________________________________
Filed May 24, 2010-Modified Opinion Filed on June 29, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD JUDICIAL DISTRICT
A.D., 2010
MORGAN JACKSON, a Minor, by Her Parents, ) Appeal from the Circuit Court
Ken Jackson and Jody Jackson, and ) of the 10th Judicial Circuit
KEN JACKSON and JODY JACKSON, ) Peoria County, Illinois,
Individually, )
)
Plaintiffs–Appellants, ) No. 06–L–95
)
v. )
)
CHURPHENA REID, and ) Honorable
AFFILIATED UROLOGY SPECIALISTS, LTD., ) Stephen Kouri,
) Judge Presiding.
Defendants–Appellees. )
______________________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE WRIGHT delivered the opinion of the court:
______________________________________________________________________________
On December 6, 2004, plaintiffs, both individually and on behalf of their minor child,
brought a medical malpractice action against defendants. A jury returned a verdict in favor of
defendants on January 16, 2009. On appeal, plaintiffs claim that the trial court incorrectly denied
their motion for mistrial. Further, plaintiffs assert the trial court erred as to certain evidentiary
matters during trial.
FACTS
On December 6, 2004, plaintiffs filed a two-count complaint against defendants
Churphena Reid (Reid) and Affiliated Urology Specialists, Ltd. (Affiliated). The complaint
alleged that Morgan Jackson (Morgan) was born to Ken and Jody Jackson on June 24, 1999. The
complaint further alleged that Reid, a licensed physician, provided care and treatment to Morgan
from November 1999 to August 2003. On June 30, 2003, Reid performed a surgical procedure
known as bilateral ureteral implantation on Morgan, followed by an additional surgery on July 2,
2003. During this time period, Reid acted as an agent or employee of Affiliated.
Plaintiffs alleged that Reid was negligent by (1) performing the procedure “without
specific indications for the surgery”; (2) improperly managing the procedure; (3) failing to leave
a urinary drain postoperatively; (4) deviating from the standard of care; (5) failing to diagnose a
“massive urinary extravasation”; (6) utilizing improper treatments; and (7) failing to consult with
an intensivist, nephrologist or pulmonologist as to an opinion of Morgan’s postoperative course.
Plaintiffs Ken and Jody Jackson brought count I of the complaint on behalf of Morgan
and sought an amount in excess of $50,000 jointly and severally from Reid and Affiliated. Count
II of the complaint was brought by Ken and Jody Jackson, individually, claiming, that as parents
of Morgan, they are obligated to pay past and future medical expenses for treatment provided to
Morgan resulting in a financial loss proximately caused by the negligence of Reid and Affiliated.
Ken and Jody Jackson sought an amount in excess of $50,000 against Reid and Affiliated, jointly
and severally.
Plaintiffs' Pretrial Requests
On January 2, 2009, plaintiffs filed three separate pretrial requests. First, plaintiffs filed a
Supreme Court Rule 237(b) (210 Ill. 2d R. 237(b)) request for defendants to produce:
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“All medical articles, articles, journals, treatises, texts, or
other materials (including, but not limited to, those reviewed by
Churphena Reid prior to her deposition which Plaintiff requested,
and Defendants refused to produce) considered authoritative by
defendant at the time of the occurrence, or since, regarding the care
and treatment given by Defendant to Morgan Jackson.”
Additionally on January 2, 2009, plaintiffs filed a motion in limine. Paragraph one sought
an order barring defendants from communicating or implying that plaintiffs had or will receive
insurance benefits for losses. Paragraph 3 sought an order barring testimony that someone other
than Reid made the medical determination that the surgery was necessary. Paragraph 6 sought an
order barring testimony that Morgan’s postsurgery bed-wetting was caused by her parents’
divorce. Paragraph 10 sought an order barring “[a]ny information regarding insurance, including
that Ken and Jody Jackson had insurance at the time of Morgan’s surgery, or that Churphena
Reid scheduled Morgan’s surgery on June 30, 2003, because Ken and Jody Jackson were
changing insurance coverage on July 1, 2003.”
Also on January 2, 2009, plaintiffs filed a motion to bar the testimony of Lori Klaus.
According to the motion, defendants disclosed Lori Klaus as a lay witness who would testify
regarding notes in the medical records regarding “personal conversations and phone conferences
with Jody Jackson and/or Ken Jackson.” One attached exhibit was a copy of telephone messages
that indicated Jody Jackson called Reid on May 22, 2003, and asked if the August 2003 tests and
office visit could take place on an earlier date because the family's insurance was changing. At
the end of the note, it indicated “OK’d by CAR.” Another exhibit included a telephone message
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saying that Jody Jackson called Affiliated on May 27, 2003, in order to speak to Reid and wanted
to know if “CAR can schedule surgery before end of June, so CAR will be covered in network.”
Another exhibit consisted of an office entry dated May 28, 2003, stating that “per CAR schedule
renal/bladder sono [sic] PPV same day as UCUG & pencil in for surgery in June for right ureteral
reimplantation.” According to other exhibits attached to the motion, LK called Jody Jackson on
June 17, 2003, and verified surgery for June 30, 2003.
On January 2, 2009, defendants filed a response to plaintiffs’ motion in limine that
objected to paragraphs 3, 6, and 10 of plaintiffs’ motion. On the same date, defendants filed a
written response objecting to the motion to bar Klaus’s testimony. On January 8, 2009, the trial
court addressed plaintiffs’ motion in limine.
The trial court heard arguments relating to paragraph 6 of the motion in limine, which
requested that the trial court bar evidence that Morgan’s postsurgery bed-wetting was caused by
her parents’ divorce. Plaintiffs’ counsel argued that there was not any testimony or evidence that
Morgan’s bed-wetting was caused by family trauma and that defendants were setting out a
general proposition “without anything to back it up.” Further, according to counsel, the bed-
wetting began immediately following the surgery in 2003, and Morgan’s parents did not divorce
until 2005. Plaintiffs’ counsel believed that there was a foundational timing issue, and therefore,
the questioning was irrelevant. The trial court ruled that if plaintiffs’ expert testified during
direct examination that the surgery was the only cause of Morgan’s bed-wetting, then defense
counsel could “probe into what possible other causes there could be.”
The parties agreed that paragraphs 3 and 10 of plaintiff’s motion in limine and the
separate motion to bar Klaus’s testimony involved interrelated issues. The first issue was
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whether someone other than Reid determined surgery was medically necessary. Another related
issue was whether changes in plaintiffs’ insurance coverage should be revealed to the jury. The
court barred Klaus’s testimony, but indicated he would revisit the issue if necessary at trial.
On January 12, 2009, the trial court entered a written order allowing paragraph 1 of
plaintiffs’ January 2, 2009, motion in limine and denying the motion as to paragraphs 3 (someone
other than Reid decided the need for surgery) and 6 (bed-wetting). Also according to the order,
the trial court granted paragraph 10 over defendants’ objection. The court wrote:
“The Court’s granting of Paragraph 10 of Plaintiffs’ Motion in
Limine is subject to the same provisions as is its ruling on the
Motion to Bar Klaus, stated below. *** With respect to Plaintiffs’
Motion to Bar Klaus, Plaintiffs’ Motion is denied on the grounds
that Defendants’ Rule 213 Disclosure was inadequate. Plaintiffs’
Motion is granted on the grounds of relevancy. The Court will
revisit this ruling upon Motion of Defendants if the evidence
demonstrates that Klaus’s testimony has become relevant.”
Defendant’s Motion In Limine
On December 29, 2008, defendants filed a motion in limine seeking numerous remedies
from the court. Paragraph 17 of defendants’ motion is the only portion of that motion which is
relevant to the issues presented on appeal. In paragraph 17, defendants sought an order barring
plaintiffs from questioning Reid regarding medical research she conducted or later discussed
with her attorney. On January 5, 2009, plaintiffs filed a response to defendants’ motion in limine
and a motion to strike.
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At the January 8, 2009, hearing, defense counsel stated to the court that paragraph 17 of
his motion in limine related to a discovery dispute that arose in Reid’s deposition 18 months ago
on June 19, 2007. Plaintiffs’ counsel advised the court that during Reid’s deposition, defense
counsel refused “to turn over the documents which were at the deposition, and he [defense
counsel] instructed his client not to answer a question I asked about those articles.” The record
reveals that prior to the deposition, plaintiffs’ counsel sent a request for Reid to produce
“[c]opies of articles, texts, or other documents which Defendant, Dr. Reid, has reviewed in
preparation for the deposition or in connection with the treatment of, and claim by, Morgan
Jackson.” The record also shows that at the end of the deposition, plaintiffs’ counsel stated she
would “wait for a ruling on various issues that couldn’t be resolved in terms of the production of
the articles and the instructions to the witness not to answer the questions.”
On January 9, 2009, the trial court found that plaintiffs’ counsel should be able to cross-
examine Reid regarding whether she reviewed any articles that were contrary to her opinion.
Further, the trial court ordered that Reid produce those articles still in her possession. Plaintiffs’
counsel then stated that she wanted to inquire as to whether Reid destroyed any of her research or
refused to produce documents. The trial court responded that it had concerns with those
questions in light of the fact that plaintiffs’ counsel allowed 18 months to pass without taking any
action to correct the discovery situation which became apparent during Reid’s deposition on June
19, 2007, and therefore, the trial court would not allow plaintiffs’ counsel to question Reid about
all documents she researched but did not provide to plaintiffs’ counsel as requested in discovery.
The trial court advised plaintiffs’ counsel that she could not inquire as to whether Reid
gave the articles to her attorney. Additionally, the trial court barred plaintiffs from stating, or
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implying or questioning witnesses in a manner that would imply Reid or her counsel concealed,
hid or prevented disclosure of these articles.
Reid’s Opinion Testimony
At the January 12, 2009, hearing, the day before trial, plaintiffs’ counsel stated to the
court that in light of the court’s rulings on defendants’ motion in limine, she filed a written
motion to bar opinion testimony from Reid. Counsel stated that it was her position that Reid
deliberately destroyed pertinent records. The following morning prior to jury selection, the trial
court stated that it would allow Reid to provide opinion testimony. The trial court reasoned:
“I just think this is a lot more – significantly more complicated
because she’s a party/expert, and it brings it – I don’t think it’s as
simple as when she takes on the label of an expert, she loses all
other labels and all other privileges. And there’s some case law
out there that isn’t – you know, isn’t our situation; i.e., a
party/expert, and that’s what I’ve been looking for, and apparently
there’s nothing out there that any of us can uncover. *** I do think
that this implicates not just the work product privilege, but
attorney/client privilege. And I think it’s – maybe I’m looking at it
wrong, but it just strikes me that if – if – particularly in the area of
medical malpractice and the defendant is a doctor, that the
defendant cannot do some of this legal research without it all being
– not legal research, medical research, without all of it being
discoverable, or else she has to at least sacrifice her ability to give
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an expert opinion. I just think we start to unnecessarily infringe
upon not just the attorney/client privilege, but the attorney/client
relationship, which is broader than just communication between
the parties. She has a right to defend herself, and I just think it
unnecessarily intrudes upon that.”
Jury Trial Opening Statements
In opening statements, plaintiffs’ counsel told the jury that Morgan Jackson was a four-
year-old girl that had “a surgery that never should have been performed.” Plaintiffs’ counsel
discussed the complications experienced by Morgan as a result of the surgery, including a hole or
perforation in her bladder and two additional surgeries. Plaintiffs’ counsel also claimed that as a
result of this “ordeal,” Morgan continues to wet her bed almost every night, despite the fact that
she was nine years old.
Defense counsel’s opening remarks informed the jury that it would decide whether Reid
committed malpractice and caused injury to a child. Defense counsel highlighted the history
between Reid, Morgan’s parents, and Morgan beginning in 1999. Reid did not want to do
surgery until Morgan was approximately five years old. According to counsel, Reid established a
plan in 1999 which included stool management, antibiotics and yearly monitoring to determine
the status of Morgan’s kidneys and the reflux. Reid planned to see Morgan during August 2003.
Defense counsel then said, “Now, the next thing that happened wasn’t in August of 2003.
It was in May. One of the parents called and said they want to move the –.” At that point,
plaintiffs’ counsel interrupted and objected.
In a side bar, plaintiffs’ counsel asserted that defense counsel’s opening remarks violated
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the court’s ruling on plaintiffs’ motion in limine. Defense counsel said that he did not mention
insurance. The trial court inquired, and defense counsel said that he was going to state that the
parents “called and moved the appointments up.” The trial court then asked, “Why is it shown
that they moved the appointment, why do you think?” Defense counsel responded that the
parents wanted to discuss surgery. The trial court instructed defense counsel that the court did
not “want a reference made to they moved the appointment up. They went in. They had an
appointment. That’s it.”
Then, defense counsel continued with his opening statement before the jury by saying
“[i]n May, they [Morgan’s parents] went in for an appointment. They had discussed surgery in
the prior year. It was discussed again.” According to counsel, Reid told Morgan’s parents that
Morgan’s reflux was persistent, that surgery was a reasonable alternative at that point, and that
she recommended surgery. Defense counsel concluded by saying that a breach of the standard of
care did not occur in this case.
Jury Trial Testimony
Peggy Marshall
Plaintiffs’ counsel called Peggy Marshall (Peggy) to testify. Peggy explained that she had
been a registered nurse since 1999 and that she worked on the pediatric floor at Methodist
hospital from 1999 until 2004. While at Methodist hospital, she provided care to Morgan
Jackson following bilateral ureteral reimplantation surgery performed by Dr. Reid on June 30,
2003. She cared for the child immediately after this surgery until her discharge on July 7, 2003.
By the late afternoon on July 2, 2003, Peggy observed Morgan “turning blue.” She also
observed Morgan’s stomach turning purplish with a lacy appearance. At 5:30 p.m., Morgan was
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sent to the X-ray department for a sonogram. Peggy testified that the sonogram revealed free
fluid in the peritoneal cavity, the abdominal region. Morgan returned from the X-ray department
at 6:45 p.m., and Reid ordered that Morgan be returned to surgery that evening. Peggy also
testified that during her care of Morgan, she became frustrated with Reid because she paged Reid
for particular problems, but did not get a response in an appropriate time frame. As a result,
Peggy had to repage Reid in order to get a response.
Following the second surgery on July 2, 2003, Peggy explained Morgan still experienced
difficulty breathing and her abdomen remained swollen on July 3, 2003. During the night of July
2, 2003, until the morning of July 3, 2003, Peggy stated that Morgan’s respiration and heart rate
were monitored. During this time, the alarm on the monitor activated several times due to
Morgan’s low heart rate. At 8:50 a.m., Reid called to check on Morgan, and the nurses advised
her of the alarm on the monitor. Reid told the nurses that there was “nothing to be concerned
about.”
On July 7, 2003, the records indicated that Morgan experienced lower abdominal pain
with spasms causing urinary incontinence. Peggy explained that urinary incontinence means that
“urine comes out *** it happens, and it’s not meant to be.” On that day, Morgan was discharged
from the hospital with instructions, including home health care by a nurse.
Kimberly Marshall
Kimberly Marshall (Kimberly) testified next for the plaintiffs. Kimberly explained that
she practiced medicine since 1995 with Sugar Creek Medical Associates, specializing in
pediatrics. As a physician with Sugar Creek Medical Associates, Kimberly provided care to
Morgan, beginning shortly after her birth. At six weeks of age, Morgan was admitted to the
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hospital for fever and kidney infection. As a result of the hospitalization, another physician
determined that Morgan had “Grade 2 reflux on the left and Grade 3 on the right.” After
receiving these results, Kimberly referred Morgan to Reid, a pediatric urologist.
Following the surgeries by Dr. Reid, Kimberly saw Morgan again as a patient. At that
time, at the request of Morgan’s parents, she referred the family to a different urologist, Dr.
Coplen of the St. Louis Children’s Hospital. Kimberly also referred Morgan to a pediatric
gastroenterologist because Morgan was experiencing constipation and urinary retention.
Dr. Churphena Reid
Plaintiffs then called Reid to testify as an adverse witness. Reid testified that she worked
as a pediatric urologist. She first saw Morgan as a patient in early fall 1999. When Reid saw
Morgan in 2001, she was doing well and had not suffered from any urinary infections. At that
time, reflux was observed on the right side at grade 3, but not the left side. In the notes, she
wrote: “If it still shows persistence of Grade 3 reflux on the right, we will then start discussing
whether or not to proceed with surgical correction.” At this time, Morgan was two years old.
In 2002, the tests showed Morgan still did not have any sign of reflux on the left. Reid
said that according to the records, Morgan had grade 2 to 3 reflux on the right. Later in 2002,
Reid wrote that if Morgan still had persistent reflux of unchanged severity in 2003, it would
become unlikely that her reflux would resolve itself with time. Reid stated that her concerns in
2002 stemmed from an abnormal kidney test result. However, when the test was conducted
again in the fall of 2002, it revealed that there were no issues with her kidney. Therefore, she
continued Morgan on antibiotics.
Reid saw Morgan on June 12, 2003. At this time, Morgan was almost four years old. In
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2003, Morgan’s test results still showed no reflux on the left side. In the findings of the test
report, it indicated a grade 2 reflux on the right side. However, Reid stated that the final
impression of the report indicated a grade 3 reflux. Reid told Morgan’s parents that after five
years of age, the odds of the reflux improving reduced to 20% or less. Reid pointed out that she
told the parents to start considering surgery. She did not tell them that the surgery was necessary.
Further, she believed that Morgan’s condition was beginning to reach a point where the reflux
would not resolve itself. Her recommendation was “that if they [Morgan’s parents] wish to
consider it, it is acceptable.” She provided the information so that the parents could make a
decision regarding surgery.
Reid agreed that literature from the American Urological Association provides that reflux
will gradually disappear and that the average age for the disappearance is five to six years. Reid
also acknowledged that her office notes dated August 21, 2000, stated that she would “only
consider fixing her [Morgan’s] reflux if she fails to outgrow it after age five.” However, Reid
operated on Morgan six days after her fourth birthday. Reid agreed that operating on Morgan
was inconsistent with her office notes of August 21, 2000.
Plaintiffs’ counsel questioned Reid about the American Urological Associations’s (AUA)
recommendations to continue antibiotics until the reflux disappears or it lowers. Reid said that
Morgan’s reflux was not low. The following series of questions and answers occurred:
“Q. But, I’m talking about this decision to do the surgery,
Doctor Reid.
A. Okay.
Q. If you would have done what this book suggests is
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usually done, antibiotics are usually continued until the reflux
disappears or the risk is considered low.
A. Okay. Yes, uh-huh.
Q. But that isn’t what happened with Morgan; right? She
wasn’t continued on the antibiotics. You went ahead and did the
surgery?
A. At parents’ request, yes.
Q. Well, what’s this business about the parents – did the
parents come into your office and say, ‘We demand that you do
bilateral reimplantation on our child’?
A. They called and wanted the office visit moved up so
they can consider having the surgery done, yes, because remember,
she was already –.”
At that point, plaintiffs’ counsel objected, and the trial court removed the jury from the
courtroom.
Request for Mistrial
Outside the presence of the jury, plaintiffs’ counsel said that this was the second time that
day that the defense violated the court’s order in limine. Plaintiffs’ counsel went on to say that
the trial court’s pretrial ruling was clear and that the court further clarified the ruling earlier that
day during trial. Further, according to plaintiff’s counsel, Reid’s testimony indicated that the
parents called her in June and wanted the surgery done. Plaintiffs’ counsel requested a mistrial.
The trial court disagreed with plaintiffs’ counsel as to the interpretation of Reid’s
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testimony. However, the trial court observed that Reid’s testimony was not “directly responsive”
to the question asked by plaintiffs’ counsel. The trial court said that he believed that plaintiffs
had “a legitimate concern that somebody might draw what I [trial judge] consider, Miss Corwin,
a weak inference that – you know, that the Plaintiffs are the ones pushing to have the surgery, a
weak inference from the change in the appointment.”
The trial court indicated its inclination was to instruct the jury that the timing of the
appointment had no relevance on the issues of the case. The trial court said that “now all of a
sudden you’re [defense counsel] telling me it does.” Defense counsel said that “[y]eah, it does,
and I think we’re maybe at a point where a mistrial is – I mean, we’re so bent around this
thing –.” Defense counsel explained that the timing of the appointment was relevant because “if
they [Morgan’s parents] wanted to continue on with the plan, they could have had the antibiotic
therapy in August. Everything would have stayed the same and then come back the next August
and the next August. But they were fed up with it. I mean, that’s an inference we can draw.”
The trial court stated that he specifically instructed the defense not to mention insurance
or that the parents called and moved the appointment “because I [trial court] thought it was even
more harmful to the Plaintiff.” The judge went on to say that he was not inclined to declare a
mistrial, but would instruct the jury that “the fact that the appointment was in June rather than in
August has no relevance to the issues in this case.” Plaintiffs’ counsel requested time to write the
proposed instruction.
Plaintiffs’ counsel asked the trial court to instruct the jury before they were dismissed for
the day. Counsel argued that the trial stopped on her objection, and she did not want the jury
spending the rest of the night wondering why she objected and what happened in the courtroom
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outside their presence. The trial court said that he believed that they could break for the day and
dismissed the jurors for the day without any instruction from the court.
On the following day, January 14, 2009, outside the presence of the jury, the trial court
indicated to the attorneys that they needed “to take up then and close up the issue that was raised
late last night, the request by the defendant to have a mistrial.” Defense counsel corrected the
judge and advised “[i]t was plaintiff.” Then the trial court said, “I’m sorry, the plaintiff - but the
defendant agreed I guess, or vaguely indicated that maybe that [a mistrial] should be the right
course, not sure.”
The trial judge indicated that he had prepared an instruction to be presented to the jury
that morning. Plaintiffs’ counsel stated that she believed an instruction would now draw
additional attention to the discrepancies and that she stood upon her request for a mistrial as the
only appropriate relief.
The trial court stated that he would not give the limiting instruction if plaintiffs’ counsel
believed that a mistrial was the only appropriate remedy. The judge then said that he would not
grant a mistrial, would not give the instruction and the trial would simply move forward.
Reid’s Testimony Resumes
In the presence of the jury, plaintiffs’ counsel continued her questioning of Reid and
showed Reid a copy of the transcript of defense counsel’s opening statement. Reid
acknowledged that her attorney told the jury that she recommended the surgery. However, Reid
stated that her attorney “misspoke, because my records clearly said it’s for consideration.” Reid
testified that she did not recommend the surgery. Reid testified that each year, she met with
plaintiffs and discussed the possibility of surgery. Further, Reid said that she would not have
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performed the surgery if she did not believe that it was medically appropriate.
Reid also testified that her records contained patient history regarding Morgan and that
the information would have been provided by the parents. In one of the notes prepared before
surgery, it indicated that Morgan had a recent episode of incontinence during a daytime nap and
that “usually she’s wet at night.”
When questioning Reid, defense counsel referred to a table, later marked and admitted as
defense exhibit 17. Plaintiffs’ counsel said that she did not object. When Reid first saw Morgan,
Morgan would have fallen into the first quadrant of the table which recommended antibiotic
treatment. Later, Morgan would have fallen into the follow-up treatment category, which
indicated surgery if the reflux remained persistent.
Plaintiffs’ counsel questioned Reid about a subsequent article in 2002 that indicated the
1997 AUA guidelines were outdated and that other treatment options were available. Reid
acknowledged the 2002 article. Then, she stated that the chart in defense exhibit 17 was part of
the 2002 article listing a new treatment option of endoscopic surgery approved in 2001.
However, according to Reid she did not have the equipment to perform the endoscopic surgery.
Dr. Myles Gibbons
Dr. Myles Gibbons testified for plaintiffs as an expert witness. Gibbons said that Reid
violated the standard of care within a reasonable degree of medical certainty on several points.
Regarding the first surgery on June 30, 2003, he testified that he believed that the surgery was
performed prematurely and without indication. Gibbons also testified that he believed Morgan’s
antibiotic treatment was “very well managed.” The treatment plan indicated a benchmark age of
five years. According to Gibbons, Reid violated that plan. Gibbons said that most children
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outgrow reflux. Morgan’s testing showed improvement. At that time, other treatment
alternatives existed, but Reid failed to discuss those options with Morgan’s parents.
Gibbons said that Morgan was a very, very critically ill girl following the surgery on June
30, 2003, and that if the situation “would have been allowed to go on untreated and untended to
she would have died.” Gibbons then testified that it was his opinion that the trauma of the three
surgeries caused Morgan’s voiding dysfunction.
Following the surgeries, Gibbons knew that Morgan’s parents asked to be referred to a
different urologist, Coplen. Gibbons said that he was familiar with Dr. Coplen. Then, plaintiffs’
counsel attempted to admit into evidence records from Coplen’s office. Defense counsel
objected on the grounds that the documents were hearsay. The trial court sustained the objection.
Gibbons said that he was under the impression that the issue of bed-wetting was minimal
before the surgery and increased after the operation. Defense counsel asked if Gibbons
considered other alternative explanations for the bed-wetting, such as a divorce. When asked if
he agreed that family stress can contribute to bed-wetting in small children, Gibbons said,
“certainly not in all situations.”
On redirect, he stated that it was not his opinion that Morgan’s bed-wetting was caused
by her parents’ divorce. Further, he said that if Morgan began bed-wetting in 2003 following the
surgery and her parents did not divorce until 2005, there would be no contemporaneous
relationship between the two.
Ken Jackson
On the next day, January 15, 2009, plaintiffs’ counsel called Ken Jackson (Ken) to testify.
Ken testified that he was Morgan’s father and that he divorced Morgan’s mother in August 2005.
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In June 2003, he met with Reid. Ken did not remember much of a discussion regarding surgery.
Ken said “the tests were done, and we were pretty much told that she [Reid] felt that it [reflux]
was still there, and that we would just go ahead and have the surgery done, and it would be taken
care of now.” Reid made him feel comfortable because this “was her specialty.” Reid told them
she performed the procedure many times, and it “would be a very quick process, and Morgan
would be back to normal within the week.”
On cross-examination, Ken stated that he relied upon Dr. Reid. Ken further stated that in
May 2003, he and his wife called Reid to meet and discuss Morgan’s test as they did every year.
He said that he did not want Morgan to have an operation and did not call Reid’s office because
he wanted to talk about having surgery done.
Jody Jackson
Jody Jackson (Jody) testified that she was previously married to Ken Jackson and that
Morgan was her daughter. Jody said that Morgan wets the bed every night without exception.
Jody explained that Morgan wears pull up diapers, that she equipped the bed with extra cloth for
absorbency and washes the bedding a couple of times per week. According to Jody, before the
surgery, Morgan was potty trained and only occasionally wet the bed. Jody said that since the
surgery, there had not been any change in Morgan’s bed-wetting, either before or after her
divorce from Morgan’s father. On cross-examination, Jody stated that she recalled that Reid
highly recommended surgery because there was very little chance that the reflux would resolve
itself.
Christopher Cooper
Christopher Cooper testified as the defense’s expert witness. Cooper testified that he
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reviewed Methodist hospital records and records from Reid and Dr. Kimberly Marshall, along
with deposition transcripts and formed an opinion within a reasonable degree of medical
certainty that Reid met the standard of care when treating Morgan from 1999 until 2003. He
explained that most children with reflux outgrow the condition, and therefore, a treatment plan
involving antibiotics is typical. If the reflux does not resolve itself, then one must consider
whether to perform surgery or continue treatment with the antibiotics.
Cooper said that the 1997 AUA guidelines were not out of date and contained good
information which he still used. He further believed that Morgan was an appropriate candidate
for surgery in June 2003. Since Morgan’s condition did not improve on the right side, Cooper
believed that by age four, it was very unlikely that the reflux would go away.
On cross-examination, plaintiffs’ counsel asked Cooper if there was a standard of care as
to when a bladder leak should be diagnosed. Cooper responded, “No, it’s such a rare
complication that there’s no, ‘This is how you handle this when this occurs.’” Further, he
believed that there was not a standard of care regarding fluid management or whether a drain
should be left in place following surgery.
Dr. Churphena Reid
Defense counsel called Reid to testify on her own behalf. At the end of Reid’s testimony,
defendants rested. Plaintiffs did not offer any rebuttal evidence.
Exhibits and Closing Arguments
Outside the presence of the jury, the trial court addressed the issue of exhibits with the
attorneys. Defense counsel sought admission of defense exhibit 17 which counsel described as a
table or compilation of the American Urological Association’s guidelines. Plaintiffs’ counsel
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objected to exhibit 17 because the chart was part of a medical article, and medical articles are not
admissible. Plaintiffs’ counsel stated that the trial court ruled prior to trial that medical articles
would not be admitted pursuant to defendant’s motion in limine. The trial court said that it was
admitting the chart, exhibit 17, and it would go to the jury during deliberations.
Following closing arguments and the jury’s deliberations, the jury returned a verdict for
defendants and against plaintiffs. On March 20, 2009, plaintiffs filed a posttrial motion claiming
that due to errors which occurred during the trial, plaintiffs were entitled to a new trial. The trial
court denied plaintiffs’ posttrial motion for new trial on June 9, 2009. On June 12, 2009,
plaintiffs filed a timely notice of appeal.
ANALYSIS
On appeal, plaintiffs raise five claims of error. First, plaintiffs argue that the trial court
erroneously denied plaintiffs’ motion for mistrial. Second, plaintiffs argue that the trial court
committed error by refusing to allow plaintiffs’ counsel to question Reid about medical articles
which she reviewed and later destroyed. Alternatively, plaintiffs contend that the trial court
should have granted their motion to bar Reid’s opinion testimony. Third, plaintiffs argue that the
trial court erred by admitting defense exhibit 17 into evidence and then allowing the jury to
consider the exhibit during deliberations. Fourth, plaintiffs argue that the trial court erred by
allowing defense counsel to question witnesses that Morgan’s bed-wetting was caused by her
parents’ divorce. Finally, plaintiffs argue that the trial court improperly denied plaintiffs’ request
to admit Dr. Coplen’s medical records into evidence.
Motion for Mistrial
Plaintiffs argue that the trial court should have granted the request for mistrial because
20
defendants violated the order in limine on two occasions during the first day of trial. Defendants
respond that the trial court correctly denied plaintiffs’ motion for mistrial.
“The decision to deny a motion for a mistrial is committed to the sound discretion of a
circuit court.” Poulos v. Lutheran Social Services of Illinois, Inc., 312 Ill. App. 3d 731, 746
(2000) citing Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). “ ‘A mistrial should be declared
only as the result of some occurrence of such character and magnitude that a party is deprived of
its right to a fair trial, and the moving party must demonstrate actual prejudice as a result of the
ruling or occurrence.’ ” Poulos v. Lutheran Social Services of Illinois, Inc., 312 Ill. App. 3d at
746, quoting Baker v. CSX Transportation, Inc., 221 Ill. App. 3d 121, 138 (1991). This court has
previously ruled that in order for a “violation of an order in limine to be the basis of a new trial,
the order must be specific and the violation clear. Where the likelihood of prejudice is great, the
violation is reversible error.” Tomaszewski v. Godbole, 174 Ill. App. 3d 629, 634 (1988), citing
In re Estate of Loesch, 134 Ill. App. 3d 766 (1985).
We begin by examining the clarity of the trial court’s order in this case to determine if the
court abused its discretion when denying the motion for mistrial. Here, paragraph 10 of
plaintiffs’ motion in limine requested the exclusion of “[a]ny information regarding insurance,
including that Ken and Jody Jackson had insurance at the time of Morgan’s surgery, or that
Churphena Reid scheduled Morgan’s surgery on June 30, 2003, because Ken and Jody Jackson
were changing insurance coverage on July 1, 2003.” The trial court entered a written order
granting paragraph 10 of plaintiffs’ motion prior to trial. During opening statements at trial, the
court had an opportunity to provide further clarification of the written order in limine based on
the following circumstances.
21
When addressing the jury, during opening statements, defense counsel first told the jury
that Reid did not want to do surgery until Morgan was approximately five years old and planned
to see Morgan during August 2003. Defense counsel then said, “Now, the next thing that
happened wasn’t in August of 2003. It was in May. One of the parents called and said they want
to move the - .” At that point, plaintiffs’ counsel interrupted and objected.
In a side bar, defense counsel stated that he was going to say that the parents “called and
moved the appointments up.” The trial court then asked, “Why is it shown that they moved the
appointment, why do you think?” Significantly, the trial court specifically instructed defense
counsel that the court did not “want a reference made to they moved the appointment up. They
went in. They had an appointment. That’s it.” In our view, the judge’s verbal instruction to
counsel provided abundantly clear and concise direction for defendant and defense counsel
regarding the scope of the previous ruling on plaintiffs’ motion in limine.
Later that same day, when plaintiffs called Reid to testify as an adverse witness, the
following exchange occurred during the direct examination of Reid by plaintiffs’ counsel:
Q. But that isn’t what happened with Morgan; right? She
wasn’t continued on the antibiotics. You went ahead and did the
surgery?
A. At parents’ request, yes.
Q. Well, what’s this business about the parents – did the
parents come into your office and say, ‘We demand that you do
bilateral reimplantation on our child’?
A. They [Morgan’s parents] called and wanted the office
22
visit moved up so they can consider having the surgery done, yes,
because remember, she was already –”
The trial court excused the jurors from the courtroom and plaintiffs requested a mistrial
based on this testimony. The trial judge observed that plaintiffs had “a legitimate concern that
somebody might draw what I [trial judge] consider, Miss Corwin, a weak inference that – you
know, that the Plaintiffs are the ones pushing to have the surgery, a weak inference from the
change in the appointment.” Then the trial court recessed for the day. The next morning,
plaintiffs' counsel argued that the jurors had “been contaminated with that to the point that the
only option is a mistrial, and *** any other relief would be insufficient” due to the violations of
the order in limine by the defense. The judge denied the request for a mistrial.
In this case, the jurors first heard defense counsel’s opening statement which included a
comment, interrupted by plaintiffs’ objection, that “one of the parents called and said they want
to move the –.” At this point the trial court specifically instructed defense counsel that due to the
order in limine the court did not “want a reference made to they moved the appointment up.” In
spite of this admonishment, Reid’s non-responsive testimony created the prohibited inference
that the parents wanted the appointment moved up so they could accelerate the time table for
surgery.
When defense counsel addressed plaintiffs’ request for mistrial, counsel admitted the
defense attempted to show the parents wanted surgery because they were “fed up” with the
situation that was unresolved by antibiotics. Defense counsel said:
“[I]f they [Morgan’s parents] wanted to continue on with the plan, they
could have had the antibiotic therapy in August. Everything would have stayed
23
the same and then come back the next August and the next August. But they were
fed up with it. I mean, that’s an inference we can draw.” (Emphasis added.)
The court found the “weak inference” created by Reid’s testimony was a legitimate concern for
plaintiffs.
We reject defendants’ contention that plaintiffs have waived the issue of a mistrial
because plaintiffs did not accept the trial court’s offer to give a curative instruction to the jury.
However, the fact that the court felt a curative instruction was warranted is significant. Plaintiffs
sought a mistrial as the remedy for a violation of the order in limine, and this is the context for
the trial court’s exercise of discretion.
A pivotal issue in this case was the timing of the surgery and whether Morgan was an
appropriate candidate for surgery just after her fourth birthday. Reid’s testimony violated the
court’s clear verbal directive regarding the scope of the pretrial order in limine and resurrected
the inference that Morgan’s parents, rather than Reid, dictated when the surgery would occur.
Reid injected an unfair inference into the trial which the court clearly directed the defense to
avoid in order to insure a fair trial for plaintiffs. The character and nature of the violation of the
in limine order which followed and then built upon the implication mentioned by defense counsel
during opening statements, created a unique set of circumstances that ultimately denied plaintiffs
a fair trial. See Juarez v. Commonwealth Medical Associates, 318 Ill. App. 3d 380 (1st Dist.
2000). Based upon the foregoing, we conclude that the court abused its discretion and should
have allowed plaintiffs’ motion for mistrial.
Reid’s Opinion Testimony
A brief review of the procedural history is in order. First, defendants disclosed Reid as an
24
expert witness pursuant to Supreme Court Rule 213(f)(3) (210 Ill. 2d R. 213(f)(3)). The
disclosure provided that Reid would testify regarding “the standard of care and causation issues”
and that “she met the standard of care.”
Prior to Reid’s discovery deposition on June 19, 2007, plaintiffs’ counsel sent notice of
the deposition. The deposition notice was accompanied by plaintiffs’ request for Reid to produce
“[c]opies of articles, texts, or other documents which Defendant, Dr. Reid, has reviewed in
preparation for the deposition or in connection with the treatment of, and claim by, Morgan
Jackson.” During Reid’s deposition, it became clear to plaintiffs’ counsel that Reid conducted
research prior to the deposition which she did not produce, as requested by plaintiffs, during the
deposition. Subsequently, pursuant to Supreme Court Rule 237(b) (210 Ill. 2d R. 237(b)),
plaintiffs requested defendants to produce:
“All medical articles, articles, journals, treatises, texts, or other
materials (including, but not limited to, those reviewed by
Churphena Reid prior to her deposition which Plaintiff requested,
and Defendants refused to produce) considered authoritative by
defendant at the time of the occurrence, or since, regarding the care
and treatment given by Defendant to Morgan Jackson.”
Following plaintiffs’ request for the production of Reid’s research, the defense filed a
motion in limine seeking to prevent plaintiffs from questioning Reid concerning the medical
research she conducted and/or later discussed with her attorney. After the hearing on defendants’
motion in limine, the trial court found Reid’s research was subject to work product or attorney-
client privilege because Reid was a named party.
25
The trial court decided that an expert witness, who is also a party to the litigation,
possesses additional privileges not applicable to other experts. Consequently, the judge
prohibited plaintiffs from stating or implying or questioning witnesses in a manner that would
imply Reid or her counsel concealed, hid or prevented disclosure of these articles. Further, the
court restricted plaintiffs’ cross-examination of Reid to the issue of whether she reviewed any
articles that were contrary to her opinion.
Plaintiffs’ counsel stated to the court that, in light of the court’s rulings on defendants’
motion in limine, she was filing a written motion to bar opinion testimony from Reid. Plaintiffs’
counsel stated that it was her position that Reid deliberately destroyed pertinent research records.
The following morning, before jury selection, the trial court indicated that he would allow Reid’s
opinion testimony as an expert witness.
On appeal, plaintiffs assert that the court should have allowed plaintiffs’ counsel to test
the basis of Reid’s opinion testimony by cross-examining her concerning the articles she
reviewed in preparation for her deposition and then later destroyed, whether she relied on those
articles or not. Alternatively, plaintiffs argue that the trial court erred by refusing to bar Reid’s
opinion testimony as a discovery action.
Supreme Court Rule 213 identifies three types of opinion witnesses as follows: lay
witnesses under Rule 213(f)(1), independent expert witnesses under Rule 213(f)(2), and
controlled expert witnesses under Rule 213(f)(3). 210 Ill. 2d Rs. 213(f)(1) through (f)(3). In this
case, defendants identified Reid as a Rule 213(f)(3) witness. Within each category, the rule
defines the nature of the information that the proponent of the expert witness must disclose to the
opposing party before trial.
26
In this case, pursuant to Rule 213(f)(3) the defense was required to disclose the subject
matter of Reid’s testimony, her opinions and the foundation for that opinion along with her
qualifications, and any reports Reid prepared about the case. 210 Ill. 2d R. 213(f)(3). The rule is
significant because the rule provides that Reid’s direct examination should be limited to those
topics disclosed by the defense pursuant to Rule 213(f)(3). 210 Ill. 2d R. 213(g).
However, the scope of disclosure required by Rule 213(f)(3) does not limit or restrict the
scope of cross examination for plaintiffs when testing Reid’s opinion testimony. According to
the committee comments, Supreme Court Rule 213(g) was intended to provide an opposing
party with wide latitude during cross-examination. 210 Ill. 2d R. 213(g), Committee Comments.
The wide latitude for cross-examination of an expert witness, addressed in the committee
comments, is very consistent with longstanding and well accepted case law.
In Wilson v. Clark, 84 Ill. 2d 186 (1981), cert. denied, 454 U.S. 836, 70 L. Ed. 2d 117,
102 S. Ct. 140 (1981), our supreme court adopted the Federal Rules of Evidence, which provide
that an expert may base an opinion or inference upon facts or data made known to him at or
before the hearing and that such facts or data need not be admissible in evidence. Relying on the
Wilson v. Clark rule, the court in Piano v. Davison, 157 Ill. App. 3d 649 (1987), concluded that
counsel “must be given the widest latitude during cross-examination to demonstrate any interest,
bias, or motive of the expert witness to testify, and to test his accuracy, recollection and
credibility.” Piano v. Davison, 157 Ill. App. 3d at 671. Adopting the analysis in Piano, our
supreme court later held that “ ‘the expert may be cross-examined with respect to material
reviewed by the expert but upon which the expert does not rely.’ ” Leonardi v. Loyola University
of Chicago, 168 Ill. 2d 83, 105 (1995), citing 1 J. Strong, McCormick on Evidence §13, at 56-57
27
(4th ed. 1992). In People v. Wagener, 196 Ill. 2d 269 (2001), the court again stated that an expert
may be cross-examined about materials reviewed by the expert even though not relied upon by
the expert in forming his or her opinion. People v. Wagener, 196 Ill. 2d at 274.
We reject the notion that plaintiffs in this case should have been restricted in the scope of
Reid’s cross-examination by the work product rule or the principles of attorney-client privilege.
The work product rule protects documents prepared by counsel. Monier v. Chamberlain, 35 Ill.
2d 351, 359-60 (1966). Here, the articles, which plaintiffs’ counsel sought to discuss during
cross-examination, were not prepared by defense counsel. Thus, work product rule does not
apply.
Further, attorney-client privilege protects statements made by a client to counsel in
confidence. Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 584 (2000).
Nonetheless, a client may waive the privilege and disclose communications with counsel. Lama
v. Preskill, 353 Ill. App. 3d 300, 305 (2004), citing Fischel & Kahn, Ltd. v. Van Straaten Gallery,
Inc., 189 Ill. 2d at 584. Here, once Reid elected to testify as an opinion witness, we conclude that
her expert opinions previously shared with counsel prior to trial are no longer protected because
the privilege has been waived, presumably in this case, with the approval of counsel.
Neither the case law nor Supreme Court Rule 213 provides authority for the proposition
that the cross-examination of a controlled expert, who is also a party, should be less rigorous than
cross-examination for any other expert. Consequently, we conclude that an expert witness, who
is also a party, is subject to the same scope of rigorous cross-examination as any other Rule
213(f) witness. Here, the trial court’s ruling on defendants’ motion in limine denied plaintiffs the
opportunity to test the reliability of Reid’s opinions which were offered by the defense for the
28
jury’s consideration. As a result, plaintiffs were denied a fair trial.
Evidentiary Rulings
Since we are remanding the matter for a new trial, and it is likely the same evidentiary
issues may arise, we briefly address those issues in the interest of judicial economy. The
admissibility of evidence is within the sound discretion of the trial court. Halleck v. Coastal
Building Maintenance Co., 269 Ill. App. 3d 887, 891 (1995). Such evidentiary determinations
will not be overturned on appeal unless there is clearly an abuse of discretion. Bosco v. Janowitz,
388 Ill. App. 3d 450, 463 (2009).
Defense Exhibit 17
Plaintiffs argue that the trial court erred by admitting a chart from a medical article
marked as defense exhibit 17 into evidence. Plaintiffs assert that the court compounded this error
by sending the exhibit with the jurors into the jury room. Defendants argue that the chart
summarized the guidelines of the American Urological Association for treatment of patients with
reflux, and therefore, was properly admitted by the trial court and sent to the jury room.
First, we address whether defense exhibit 17 was properly admitted into evidence. A
review of the record shows that defendant’s exhibit 17 is one page from a medical article entitled
“Vesicoureteral Reflux: A New Treatment Algorithm.” The article in question, which plaintiffs
attached to their posttrial motion for new trial, states:
“In 1997, the American Urological Association (AUA)
published guidelines for the treatment of pediatric vesicoureteral
reflux. *** Tables 1 and 2 [defense exhibit 17] summarize the
recommendations for children without and with renal scarring,
29
respectively.”
We agree with plaintiffs’ contention that exhibit 17 is a summary chart of AUA guidelines,
contained within a medical article, and does not represent guidelines or industry standards
authorized and issued by the American Urological Association. The case law provides “in
Illinois, scientific and medical treatises are hearsay and are inadmissible as proof of the
statements contained therein.” Lewis v. Stoval, 272 Ill. App. 3d 467, 470 (1995), citing Walski v.
Tiesenga, 72 Ill. 2d 249 (1978). Thus we conclude, the exhibit was inadmissable.
Section 2-1107 of the Code of Civil Procedure reveals that documents read or received
into evidence may be reviewed by the jury during their deliberations. 735 ILCS 5/2-1107(d)
(West 2008). The “decision of whether to send exhibits to the jury room rests within the sound
discretion of the trial court and will not be disturbed absent an abuse of discretion.” Malanowski
v. Jabamoni, 332 Ill. App. 3d 8, 14 (2002), citing Fultz v. Peart, 144 Ill. App. 3d 364, 379
(1986). However, we have concluded that the exhibit should not have been admitted into
evidence. Accordingly, the exhibit should not have been submitted to the jury for their
consideration during deliberations.
Bed-wetting
Plaintiffs claim that the trial court erred by allowing defense counsel to question
plaintiffs’ expert about whether the divorce of Morgan’s parents may have caused Morgan’s bed-
wetting. Plaintiffs claim that the evidence was irrelevant. The defense asserts that the trial court
properly allowed defense counsel to elicit testimony regarding other possible causes of Morgan’s
bed-wetting.
It is well established that only relevant evidence is admissible. Maffett v. Bliss, 329 Ill.
30
App. 3d 562, 574 (2002). “ ‘Evidence is considered to be relevant when it has “ ‘any tendency to
make the existence of any fact that is of consequence to the determination of the action more or
less probable than it would be without the evidence’ ” ’. ” Bergman v. Kelsey, 375 Ill. App. 3d
612, 636 (2007), quoting Clayton v. County of Cook, 346 Ill. App. 3d 367, 384 (2003), quoting
Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67, 73-74 (2003), quoting Wojcik v. City of
Chicago, 299 Ill. App. 3d 964, 971 (1998).
Prior to trial, plaintiffs’ counsel argued the divorce was irrelevant because the bed-
wetting began immediately following the surgery in 2003 and Morgan’s parents did not divorce
until 2005. We agree. Based on this record, it is clear that the child was suffering from
recurrent, nightly episodes of bed-wetting immediately following the surgery in 2003. An event
that occurred in 2005 could not have caused this bed-wetting to begin in 2003. Although
questions regarding the child’s household as it existed in 2003 may have been relevant, a final
judgment of dissolution in 2005 is not. Consequently, the 2005 dissolution of Morgan’s parents
was not probative regarding the cause for the onset of the bed-wetting condition and was not
relevant. Accordingly, the trial court erred in allowing defense counsel to question plaintiffs’
expert regarding the divorce of Morgan’s parents.
Admissibility of Dr. Coplen’s Medical Records
Plaintiffs claim that the trial court erred by refusing to admit Morgan’s medical records
from Dr. Coplen, a subsequent treating physician, into evidence based on hearsay considerations.
Plaintiffs offered the records to show that Coplen agreed with plaintiffs’ expert, Gibbons, that
Morgan suffered trauma from the surgeries and that Morgan’s voiding dysfunction was a direct
result of trauma from the surgery. As a result, plaintiffs claim they are entitled to a new trial.
31
We disagree.
The initial determination that a “particular statement constitutes hearsay is a legal issue
which does not require any exercise of discretion, fact finding, or evaluation of credibility.”
Halleck v. Coastal Building Maintenance Co., 269 Ill. App. 3d at 891, citing People v. Aguilar,
265 Ill. App. 3d 105, 109 (1994). Thus, a trial court's determination that a particular statement is
hearsay is subject to a de novo standard of review. People v. Aguilar, 265 Ill. App. 3d at 109.
In 1992, the Illinois Supreme Court amended Supreme Court Rule 236 to allow medical
records to be treated as a business record. See 145 Ill. 2d R. 236(b), Committee Comments, at
cxiv. Accordingly, medical records are admissible “as long as a sufficient foundation is laid to
establish that they are business records.” Troyan v. Reyes, 367 Ill. App. 3d 729, 733 (2006),
citing LoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684, 689-90 (1999); Lecroy v. Miller, 272
Ill. App. 3d 925, 935 (1995). A moving party must establish that the records were “made in the
regular course of any business, and *** was the regular course of the business to make such a
*** [memorandum or] record.” 145 Ill. 2d R. 236(a).
Here, plaintiff did not establish the foundation for admission as a business record through
the testimony of Gibbons, who did not testify that he was familiar with Coplen’s record keeping
practices. Thus, we conclude the records were not admissible based on this record.
Alternatively, plaintiffs argue that the records are admissible because defendants had
possession of the records, prior to trial, through the discovery process. Plaintiffs rely on
Kalalinick v. Knoll, 97 Ill. App. 3d 660 (1981), in support of this claim. Defendants respond that
Kalalinick is factually distinguishable from this case.
A review of Kalalinick reveals that the disputed business record in that case was a
32
memorandum prepared by one of the employees of the defendant insurance company. On appeal,
defendant insurance company claimed that the memorandum was inadmissible because the
document was hearsay, irrelevant, did not qualify as a business record, lacked foundation and the
author of the memorandum was not identified. However, defendant insurance company did not
raise those issues at the trial level, and accordingly, the Kalalinick court found the issue waived.
Kalalinick v. Knoll, 97 Ill. App. 3d at 668. The court went on to say:
“It was not necessary for the document to qualify as a
business record. That hearsay exception is relevant when a party
wishes to use its own business record or that of a non-party. Here,
however, the plaintiff introduced the statements of the insurer in
evidence as admissions by the insurer unfavorable to it. It is firmly
established that, as a general rule, any statement, written or not,
made by a party or in his behalf which is inconsistent with his
present position may be introduced into evidence against him.”
Kalalinick v. Knoll, 97 Ill. App. 3d at 668.
We do not find that Kalalinick stands for the proposition that because defendants simply
possessed the documents in question prior to trial, the documents become admissible at trial.
Such an interpretation would contravene the foundational requirements set forth by our supreme
court in Rule 236.
CONCLUSION
The judgment of the circuit court of Peoria County is affirmed in part, reversed in part
and remanded to the trial court for a new trial consistent with the terms of this order.
33
Affirmed in part and reversed in part; cause remanded with directions.
O’BRIEN, J. concurs.
JUSTICE CARTER, concurring in part and dissenting in part:
I concur in the majority’s analysis and conclusions on the issues, with one exception in the
instant case. I have an additional comment regarding the use of exhibit 17 at the trial. I dissent on
the issue regarding the examination of the plaintiff’s expert regarding bed-wetting.
I agree with the majority’s analysis that it was error for the trial court to admit the chart from
a medical article as defense exhibit 17 as substantive evidence. The error was compounded when
the exhibit was sent to the jury room. Under current Illinois law, the admissibility of information
from learned treatises is permitted under both direct examination, as part of the basis of the expert’s
opinion, and cross-examination, for impeachment, if the information is authenticated as a reliable
authority. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §§202.1, 703.1,
705.1, 705.2 (9th ed. 2009). However, in Illinois the information is still not admissible as
substantive evidence because of the absence of a “learned treatise” hearsay exception. See Costa v.
Dresser Industries, Inc., 268 Ill. App. 3d 1, 11, 642 N.E.2d 898, 905 (1994); Fornoff v. Parke Davis
& Co., 105 Ill. App. 3d 681, 690-91, 434 N.E.2d 793, 801 (1982); M. Graham, Cleary & Graham’s
Handbook of Illinois Evidence §§703.1, 705.1 (9th ed. 2009). Even under Federal Rules of Evidence
803(18), the “learned treatise” hearsay exception, the statements, if admitted and read into evidence,
are still not to be received as exhibits. Fed. R. Evid. 803(18).
I dissent from that part of the majority’s opinion regarding the plaintiff’s claim that the trial
court erred by allowing defense counsel to question plaintiff’s expert, Gibbons, about whether the
parents’ divorce may have caused the child’s bed-wetting, wherein the majority determined that the
34
evidence was irrelevant. In the instant case, the child’s continued bed-wetting is claimed as an
aspect of the injury as well as the damage suffered by the child. At the discovery deposition, the
expert indicated that family disturbances, such as divorce, could cause bed-wetting. At trial, defense
counsel questioned Gibbons regarding alternative explanations for the child’s bed-wetting, such as
divorce. Although the discovery deposition testimony arguably is not a direct contradiction to the
trial testimony, I believe that the prior discovery testimony was sufficiently inconsistent with the trial
testimony to allow defense counsel to question the expert on this matter as having a tendency to
impeach the witness. See Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67, 72, 790 N.E.2d 77,
81-82 (2003); Ogg v. City of Springfield, 121 Ill. App. 3d 25, 38-39, 458 N.E.2d 1331, 1340-41
(1984); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §§613.2, 705.2 (9th ed.
2009). In addition any permissible kind of impeaching matter is allowed to be developed in cross-
examination to test the credibility of a witness or the accuracy of a witness’s opinion. M. Graham,
Cleary & Graham’s Handbook of Illinois Evidence §705.2 (9th ed. 2009). Since the matter of bed-
wetting is a fact of consequence and material in this case, I would find it to be error not to allow
defense counsel to cross-examine on that point. Thus, I would find that the trial court properly
allowed defense counsel to cross-examine the plaintiff’s expert on other possible causes of bed-
wetting.
For the foregoing reasons, I respectfully concur in part and dissent in part.
35