Adams v. Sarah Bush Lincoln Health Center

NO. 4-06-0284 Filed 1/23/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

KATHERINE ADAMS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County,
SARAH BUSH LINCOLN HEALTH CENTER, ) No. 03L55
and KELLIE JONES-MONAHAN, M.D., )
Defendants-Appellants. ) Honorable
) Dale A. Cini,
) Judge Presiding
_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court

Plaintiff, Katherine Adams, sued defendants, Dr. Kellie

Jones-Monahan and Sarah Bush Lincoln Health Center, alleging that

Dr. Jones-Monahan was negligent in removing Adams’s gallbladder.

The jury returned a verdict in Adams’s favor and assessed damages

against defendants in the amount of $561,389.90. The trial court

denied defendants’ motion for a new trial. On appeal, defendants

argue that the trial court abused its discretion when it refused

to allow defendants to present certain portions of Dr. Steven

Strasberg’s testimony during cross-examination or in their case

in chief and that the trial court abused its discretion by

allowing plaintiff to question defendants’ expert Dr. Mark

Kadowaki regarding his knowledge of Dr. Strasberg’s views of Dr.

Kadowaki’s preferred surgical technique. We affirm.

I. BACKGROUND
 Plaintiff went to Sarah Bush Lincoln Health Center on

November 15, 2002, for routine laparoscopic gallbladder-removal

surgery, also known as cholecystectomy. The surgery was

performed by Dr. Kellie Jones-Monahan. Prior to the surgery, Dr.

Jones-Monahan warned plaintiff of possible complications that

could result from the surgery, including injury to the common

bile duct. Dr. Jones-Monahan also informed plaintiff of the

possibility that she may have to convert the surgery from a

laparoscopic procedure to open surgery if she encountered any

problems. Plaintiff consented.

During the surgery, Dr. Jones-Monahan noted the

gallbladder was intrahepatic, meaning it was almost completely

encased by the liver. Dr. Jones-Monahan also noticed chronic

scarring in the area of the bile ducts. During the surgery

plaintiff’s gallbladder was removed. However, Dr. Jones-Monahan

also divided plaintiff’s common bile duct, which is not supposed

to be severed during this type of surgery. This created a

serious injury to plaintiff’s remaining biliary system. While

still in the operating room after the surgery, Dr. Jones-Monahan

conducted an X-ray, called a cholangiogram. The cholangiogram

allowed Dr. Jones-Monahan to discover plaintiff had been injured.

Also while still in the operating room, Dr. Jones-Monahan

contacted Dr. Steven Strasberg, who was a surgeon specializing in

hepatobiliary surgery at Barnes-Jewish Hospital in St. Louis,

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Missouri (Barnes). The injury to plaintiff’s common bile duct

required her to be transported to Barnes via ambulance. At

Barnes, Dr. Strasberg became plaintiff’s treating physician. In

February 2003, Dr. Strasberg performed surgery to repair the

injury to plaintiff’s common bile duct.

At trial, plaintiff presented Dr. Richard Vasquez as an

expert witness. Dr. Vasquez testified that it was his opinion

that Dr. Jones-Monahan did not comport with the standard of care

in performing plaintiff’s cholecystectomy. Dr. Vasquez explained

the relevant anatomy and fundamentals of the surgery to the

court. First, he explained that the liver creates bile and that

the gallbladder acts as a reservoir for bile created by the

liver. Its function is to break down the fats in food. Dr.

Vasquez explained that the bile is carried through the liver by

the right and left hepatic ducts. These two ducts join to form

the common hepatic duct. The cystic duct from the gallbladder

joins the common hepatic duct. Above this junction, the duct is

referred to as the hepatic duct. Below this junction, it is

called the common bile duct. The common bile duct empties bile

into the opening of the small intestine, which is called the

duodenum.

To remove the gallbladder, a doctor must identify and

cut the cystic duct and the cystic artery. Nothing else need be

cut to remove the gallbladder. Doctors may use what is called

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the triangle of Calot to identify the structures properly. The

triangle of Calot is an area bordered by the cystic artery, the

cystic duct, and the common hepatic duct. If the doctor is

uncertain whether she has identified the right structures, she

may perform a cholangiogram, which is an X-ray conducted in the

operating room that uses dye to show the doctor the location of

the ducts. The doctor may also choose to open the patient’s

abdomen and perform open surgery.

Dr. Jones-Monahan did conduct a cholangiogram on

plaintiff but not until after she had divided structures inside

of her. Dr. Vasquez testified that Dr. Jones-Monahan should have

used a cholangiogram prior to cutting any structures. Dr.

Vasquez stated that Dr. Jones-Monahan was not operating within

the triangle of Calot. He stated that failure to dissect within

the triangle of Calot was a deviation from the standard of care.

Dr. Vasquez said that Dr. Jones-Monahan’s notes from the

operation indicate that the cystic duct, which was the intended

duct to dissect, was isolated. However, Dr. Vasquez points out

that her notes never indicate that she had identified that duct

or the cystic artery. Instead, Dr. Vasquez surmises that she was

looking at the common bile duct, which she eventually cut. Dr.

Vasquez said that the cholangiogram, if performed prior to

cutting, would have shown Dr. Jones-Monahan that she was wrong.

He also testified that Dr. Jones-Monahan’s failure to convert the

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surgery into an open procedure violated the standard of care.

Dr. Vasquez stated that variations in anatomy do not

excuse injury. Any variations or abnormalities encountered by

the doctor can be clarified by X-ray or by converting the

procedure into an open surgery rather than laparoscopic. Dr.

Vasquez agreed that telling a patient of the risks inherent in

cholecystectomy surgery does not allow a doctor to injure the

duct.

Dr. Jones-Monahan’s testimony agreed with Dr. Vasquez’s

account of how the injury to plaintiff’s common bile duct

occurred. Dr. Jones-Monahan admitted a misidentification

occurred and that the common bile duct had been mistakenly

dissected. She said that at the conclusion of the procedure it

appeared to her that plaintiff’s hepatic duct had been divided.

Dr. Jones-Monahan said that she would not refer to plaintiff’s

anatomy as abnormal. She said there was inflammation of the

gallbladder, but that is to be expected of a patient who is

having her gallbladder removed.

Dr. Jones-Monahan testified that she believed the

hepatic duct may have been hiding or looped behind the cystic

duct. She then said that it was possible that she put a clip on

both and subsequently divided both structures. She testified

that her theory about the ducts being looped around each other

occurred to her after surgery and that she had no evidence that

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this was, in fact, what happened. She agreed that she still was

unsure of how plaintiff’s injury occurred.

Dr. Jones-Monahan testified that she used the critical-

view technique to identify the structures. This technique

involves finding the cystic duct and cystic artery and isolating

them before cutting. She agreed that the failure to achieve a

critical view of these structures is an indication that the

surgery should be converted to an open procedure. Based on the

fact that the wrong structures were ultimately cut, Dr. Jones-

Monahan stated that she had not obtained a critical view of the

proper structures.

Dr. Jones-Monahan testified that at the time of the

surgery she believed that her dissection of all the tissues to

expose the ducts and arteries was complete and only realized that

she had performed an incomplete dissection after the surgery.

She agreed that an incomplete dissection was a deviation from the

standard of care. Although she thought she divided the cystic

duct, she admitted she instead cut the hepatic duct.

Dr. Strasberg was the treating physician who

subsequently performed surgery on plaintiff to repair her injury.

Plaintiff conducted an evidence deposition of Dr. Strasberg. To

expedite the deposition, defendants and plaintiff agreed to

reserve all objections except those based on form. Plaintiff’s

counsel questioned Dr. Strasberg. Defendants’ counsel cross-

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examined. Plaintiff’s counsel then conducted his redirect,

stating that he was conducting his redirect subject to an

objection he intended to make at trial regarding the scope of

some of defense counsel’s questions on cross-examination.

During the evidence deposition of Dr. Strasberg, which

was taken prior to trial, plaintiff’s attorney indicated he

intended to object to portions of defense counsel’s cross-

examination of Dr. Strasberg. At trial, plaintiff’s attorney

moved to strike portions of defendants’ cross-examination of Dr.

Strasberg for being beyond the scope of his direct examination.

Plaintiff argued that he had not questioned Dr. Strasberg

regarding standard of care and that defendants’ cross-examination

questioned Dr. Strasberg on the applicable standard of care.

Defendants argue that plaintiff’s counsel opened the door to

cross-examination regarding the applicable standard of care

during direct examination. Defendants contend that during direct

examination, plaintiff’s counsel referenced articles that Dr.

Strasberg had written and that these articles discuss the

standard of care.

During direct examination, plaintiff’s attorney asked

Dr. Strasberg whether his articles were authoritative. Dr.

Strasberg said that they were. Defendants argue that this opened

the door for questions about a specific article on cross-

examination. Plaintiff never introduced any articles at trial.

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Defendants’ questions on cross-examination included questions

such as:

"Q. First of all, is it true that in a

lap-coli, a laparoscopic cholecystectomy[,]

there are several accepted ways of

identifying the cystic bile?

* * *

Q. And secondly, regardless of which

method is used to identify the cystic duct,

not one single method has proven to be

infallible; would you agree with that?

* * *

Q. And would you also agree that

because we can’t eliminate the risk of a bile

duct injury, it is standard of care to warn

the patient preoperatively that this is a

potential complication from the laparoscopic

cholecystectomy?

* * *

Q. And some of these various methods of

finding the cystic duct that you just

identified have become more popular with some

surgeons or others, but throughout their 15

years there still has been a recognized

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 complication rate?

* * *

Q. Okay. And has the--has the

complication rate for bile duct injuries say

leveled off now that we’ve been more than

five and ten years past the beginning or the

introduction of the procedure here in the

United States?

* * *

Q. *** Nevertheless, it’s still standard

of care for you and for every surgeon to warn

the patient in advance that this very thing

could happen?"

The trial court granted plaintiff’s motion to strike

portions of defendants' cross-examination of Dr. Strasberg on the

ground that the challenged questions on cross-examination

impermissibly went into the issue of standard of care.

Defendants then moved to have Dr. Strasberg’s cross-examination

entered as part of defendants' case in chief. Plaintiff objected

because of the use of leading questions, and the court denied

defendants’ motion.

Plaintiff presented the trial court with a videotape of

Dr. Strasberg’s evidence deposition. Dr. Strasberg said that in

the past 15 years, he had repaired about 120 injuries to the

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bile-duct system created after another doctor attempted a

laparoscopic cholecystectomy. Dr. Strasberg said that the

primary purpose of plaintiff’s first admission to Barnes was to

"stabilize her for later reconstruction of the biliary injury,

diagnosis, and stabilization." Dr. Strasberg said that after a

biliary injury occurs, it sometimes progresses postoperatively

because the blood vessels supplying the bile ducts may also be

injured. He categorized the type of injury that plaintiff

sustained as an E4 injury in which the left and right bile ducts

were separated from each other. He said that there was no common

bile duct left after surgery either because of scarring or

because it had been completely removed during surgery. Dr.

Strasberg testified that he had to reconnect the remaining bile

duct with the intestine. The name of the procedure was an

anterior hepaticojejunostomy. The procedure included a "Roux-en-

Y," which was a way of preparing a piece of intestine to be

reconnected to a new structure, and was not specifically related

to this specific type of biliary surgery.

Dr. Strasberg said he first identified where the bile

duct was injured and then joined the piece of intestine he had

performed the Roux-en-Y on to the two ducts. The part of the

bile duct that is connected to the intestine replaces the bile

duct that had been removed or injured.

Dr. Strasberg said after the reconstruction surgery in

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February 2003, he continued to follow plaintiff’s progress. He

said that during the first six months after surgery it is

important to make sure that the incisions heal well, that the

patient is maintaining nutritional status, and that the patient

is returning to normal activity. Another reason he continued to

monitor plaintiff was to observe whether the repair was working

well and that her liver was functioning appropriately. He said

that plaintiff’s liver function is a long-term interest that will

likely be followed for about five years.

Dr. Strasberg said that his records indicated plaintiff

was feeling well until February 2005. After a magnetic resonance

imaging (MRI), Dr. Strasberg said the radiologist who conducted

the test was concerned about a stenosis, which meant a narrowing

at the place where Dr. Strasberg had attached the right bile duct

to the intestine. Dr. Strasberg decided to monitor plaintiff

because she appeared asymptomatic. However, in March 2005,

plaintiff’s alkaline phosphatase level had risen to a point that

concerned Dr. Strasberg. He decided to check on her levels again

in six months. That six-month period was about to conclude at

the time of Dr. Strasberg’s deposition. Dr. Strasberg testified

that it is his practice to monitor patients for up to five years,

although some doctors may choose to monitor patients the rest of

their lives and others choose not to monitor a patient’s liver

function at all unless the patient appears symptomatic.

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 Dr. Strasberg said the standard of care does not

require doctors to monitor patients the rest of their lives.

However, Dr. Strasberg said that although rare, there have been

occurrences of patients needing repairs of their bile duct

reconstruction 30 years after the initial surgery. Patients

remain at a risk of restenosis the rest of their lives.

"Restenosis" is the term for a narrowing of the area that

connects the bile duct to the intestine after reconstructive

surgery. Dr. Strasberg, however, stated that the highest rates

of stenoses, however, occur two to five years after surgery.

Defendants’ expert, Dr. Mark Kadowaki, began his

testimony by showing a videotape of himself performing portions

of a cholecystectomy. Dr. Kadowaki explained that four

techniques were used to perform a gallbladder removal and that

Dr. Jones-Monahan had not used the critical-view technique.

During cross-examination, plaintiff’s attorney reminded him that

Dr. Jones-Monahan testified earlier in the trial that she had

used the critical-view technique during plaintiff’s surgery. Dr.

Kadowaki responded that more than one technique could be employed

during a single surgery.

Dr. Kadowaki stated that it was his opinion that Dr.

Jones-Monahan met the standard of care in performing plaintiff’s

surgery. Dr. Kadowaki stated that an adequate dissection is

included in the applicable standard of care for a

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cholecystectomy. Dr. Kadowaki said that there was no conclusive

identification of the structures in this case. During

plaintiff’s cross-examination of Dr. Kadowaki, the following

exchange occurred:

"Q. Would you agree that Dr. Monahan

did not do an adequate dissection in this

case?

A. No.

Q. Because, she says she didn’t do an

adequate dissection as she reflects upon it

now. So, you disagree with her?

A. Yes.

* * *

Q. Does the standard of care require an

adequate dissection?

A. Yes, at the time of surgery. In

retrospect, you can look at things

differently.

* * *

Q. In fact, in this case, the critical

view wasn’t obtained because the wrong

structures were clipped and divided, is that

true?

A. I don’t think I would go from one to

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 the other. The wrong structures were

clipped. There was a misidentification. At

the time, the dissection was deemed to be

adequate. In retrospect, it is deemed not to

be. This is true."

Dr. Kadowaki said that the standard of care requires

the doctor to use a technique for gallbladder removal with which

she is comfortable. He testified that no technique is guaranteed

to completely avoid injuries to the common bile duct. He said

that the complication rate for this surgery consists of injuries

that occur absent negligence.

The jury returned a verdict in favor of plaintiff in

the amount of $561,389.90. The jury awarded plaintiff $95,570.90

for necessary medical care, treatment, and services; $3,819 in

lost earnings; $250,000 for pain and suffering; and $212,000 for

loss of normal future life experience. Defendants filed a

posttrial motion requesting a new trial. Defendants again argued

that their cross-examination of Dr. Strasberg was proper and

should have been allowed either as cross-examination or in

defendants’ case in chief and that plaintiff’s cross-examination

of defendants’ expert, Dr. Kadowaki, was improper. The trial

court denied defendants’ posttrial motion. This appeal followed.

II. ANALYSIS

A. The Trial Court’s Refusal To Allow Defendant’s Cross-
Examination of Dr. Strasberg Was Not an Abuse of Discretion

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 Defendants first argue that the trial court erred when

it barred portions of defendants' cross-examination of Dr.

Strasberg. Before reaching the merits of defendants' argument,

this court notes that the record is incomplete. The testimony

was presented in court via videotape. It was not reported. A

copy of that videotape is not contained within the record on

appeal even though the trial court stated the following before

issuing its ruling on the posttrial motion:

"Let me first note counsel that the file

contains a copy of the transcript of Dr.

Strasburg’s [sic] [e]vidence [d]eposition,

but it is not the edited transcript. If

you’ll recall a [sic] trial I had what I

might call a work copy, and I was making

notes on it in connection with objections

that were made, and rulings, and portions of

the doctor’s testimony that were stricken. I

believe the file also has a disk of the

testimony, but I am not entirely certain

about that. So if this case goes up on

appeal you might recall for the Appellate

Court that [p]laintiff’s [e]xhibit [No.] 15

'A' is an unedited portion of the transcript

of Dr. Strasburg’s [sic] [e]vidence

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 [d]eposition."

The unedited transcript is in the record. The record

also contains defendants’ DVD (digital video disc) of the

portions of Dr. Strasberg’s cross-examination that were stricken

by the trial court, but this court does not have computers

capable of reading DVDs. No edited transcript or DVD of the

testimony from Dr. Strasberg’s evidence deposition that was

actually played for the jury is contained in the record on

appeal. Furthermore, defendants’ brief did not direct this court

to plaintiff’s exhibit No. 15 "A".

An incomplete record is a violation of the supreme

court rules. Supreme Court Rule 323(a) requires that the record

on appeal "shall include all the evidence pertinent to the issues

on appeal." 134 Ill. 2d R. 323(a). It is the appellants’ duty

to supply a complete record to the reviewing court. Kim v.

Evanston Hospital, 240 Ill. App. 3d 881, 888, 608 N.E.2d 371, 375

(1992). The record should allow the reviewing court to be fully

informed of the pertinent issues. Kim, 240 Ill. App. 3d at 888,

608 N.E.2d at 375. Absent a sufficient record, the reviewing

court presumes that the trial court conformed to the law and that

its rulings were supported by the evidence. Kim, 240 Ill. App.

3d at 888, 608 N.E.2d at 375.

Although noncompliance with Rule 323(a) is grounds for

summary affirmance of the trial court, having pieced together Dr.

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Strasberg’s testimony from the line references in the transcript,

we will address the merits. Since the record contains a

reference to the lines of the transcript of Dr. Strasberg’s

deposition that were stricken, we can discern Dr. Strasberg’s

digitally recorded testimony from the record.

Defendants also present this court with an extensive

analysis of a recent Third District Appellate Court Rule 23

order, Andris v. Clemson, No. 3-05-0396 (June 5, 2006)

(unpublished order under supreme Court Rule 23), which they argue

is factually analogous to the present case and should be followed

by this court. Defendants also attach this order to their brief.

Rule 23(e) states that an unpublished order is not precedential

and may not be cited by any party except to support contentions

of double jeopardy, res judicata, collateral estoppel, or law of

the case. Defendant is not using Andris for any of these

purposes. Andris is not controlling.

When a party challenges a trial court’s evidentiary

ruling, the standard of review is abuse of discretion. Leonardi

v. Loyola University of Chicago, 168 Ill. 2d 83, 92, 658 N.E.2d

450, 454-55 (1995). Clearly, the scope and extent of

cross-examination and recross-examination are within the

discretion of the court. People v. Kirchner 194 Ill. 2d 502,

536, 743 N.E.2d 94, 112 (2000); Johns-Manville Products Corp. v.

Industrial Comm'n, 78 Ill. 2d 171, 181, 399 N.E.2d 606, 611

- 17 -
(1979). "[C]ross-examination should be kept within fair and

reasonable limits, and it is only in a case of clear abuse of

such discretion, resulting in manifest prejudice to the

defendant, that a reviewing court will interfere." People v.

Halteman, 10 Ill. 2d 74, 86, 139 N.E.2d 286, 294 (1956).

Plaintiff offered Dr. Strasberg’s evidence deposition

as the testimony of a treating physician in this case, not

plaintiff’s expert. Dr. Vasquez testified as plaintiff’s expert

in the case. Dr. Strasberg’s direct testimony during his

videotaped evidentiary deposition was limited to the

reconstructive surgery he performed on plaintiff. Dr. Strasberg

stated that he had written several articles and chapters on

laparoscopic bile duct injuries. Plaintiff asked, "As an

example, there’s an article you authored, 'Laparoscopic Bile Duct

Injuries,' which is it the--which journal did that appear in?"

Dr. Strasberg replied:

"Well, you would have to show me the

particular article, because I’ve authored a

number of them. This looks like it’s a

chapter as a--in a book, and I’m not sure

what chapter it is to tell you the truth,

because I’ve written a lot of chapters. I’m

not sure when this particular one was done

just from looking at it because it’s--it’s--

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 there’s nothing on here that indicates which

chapter this is. But it is something that I

wrote. It doesn’t say the date or the place

where it was published. I’ve probably

written 30 articles and chapters on this

subject, so I can’t identify a particular

chapter without a little more information."

Plaintiff then asked, "And would you consider your

articles to be authoritative on the subject of laparoscopic bile-

duct injuries?" Dr. Strasberg replied, "yes." The only other

time this article or chapter came up was when Dr. Strasberg

requested that he be able to point out the injuries plaintiff

sustained using a diagram in the chapter rather than the one the

attorney had provided.

The trial court sustained plaintiff’s objection to

defendants' cross-examination of Dr. Strasberg regarding the

issue of standard of care because it was beyond the scope of

plaintiff’s direct examination of the witness. Defendants'

cross-examination begins by questioning Dr. Strasberg about

different methods of performing a laparoscopic cholecystectomy,

which is a subject he had not testified to during direct

examination. Defendants’ questioning began by asking Dr.

Strasberg, "[I]s it true that in a lap-coli, a laparoscopic

cholecystectomy[,] there are several accepted ways of identifying

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the cystic bile?" Defendants also asked Dr. Strasberg, "And

would you also agree that because we can’t eliminate the risk of

a bile-duct injury, it is standard of care to warn the patient

preoperatively that this is a potential complication from the

laparoscopic cholecystectomy?" Defendants’ cross-examination

continued to question Dr. Strasberg about these different methods

as well as his personal experience performing laparoscopic

cholecystectomies.

Defendants argued that plaintiff’s reference to

articles Dr. Strasberg had written opened the door to the issue

of standard of care because these articles addressed that issue.

However, the articles were never introduced into evidence.

In ruling on defendants' posttrial motion for a new

trial, the trial court held:

"It’s probably an oversimplification to say

that there’s a heart of any medical

malpractice case, but with that in mind, I am

certainly of the opinion that the heart of

any medical malpractice case almost, without

exception, is the testimony of expert

witnesses with regard to standard of care and

claimed breaches thereof.

In my review of Dr. Strasburg’s [sic]

deposition and in particular his direct

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examination, I noted the following:

Plaintiff’s attorney asked no questions about

standard of care in regard to laparoscopic

cholecystectomies. He asks no questions

about acceptable ways of identifying the

cystic duct during surgery. He asks no

questions about risks attendant to

laparoscopic cholecystectomy procedures. He

asked no questions about the appropriate pre-

operative warnings to be given a patient. He

asked no questions about the critical-view

method of identifying the cystic duct during

surgery. He asked no questions about the

infundibular approach. He asked no questions

about the use of intra-operative

colanalgiagrams [sic]. He asks no questions

about tracing the cystic duct to form the

common bile duct and identifying all three by

dissection. And he asks no questions about

complication rates.

From my review of the direct

examination[,] it is abundantly and

overwhelmingly clear that the plaintiff’s

attorney steered clear, and well clear, of

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 making any inquiries about standard of care

or the breach thereof, and the many subjects

which I have previously noted. Given this

method of direct examination of the expert

witness who repaired the injury suffered by

the plaintiff, I remain convinced that the

cross-examination conducted by [defendants'

attorney] which was stricken by the [c]ourt

was clearly outside the scope of direct and

was clearly not permissible by reason of a

contention that the plaintiff[] somehow

opened the door to all of these inquiries by

asking about whether certain articles or a

certain article was authoritative.

I want to be clear in my remarks. I

think [defendants' attorney] suggested that

the questions posed by the plaintiff’s

attorney on the subject of 'the articles

opened the door a wee bit or a tiny bit' and

I don’t think so. I don’t think it was

opened even a crack."

"A trial court abuses its discretion only if it 'act[s]

arbitrarily without the employment of conscientious judgment,

exceed[s] the bounds of reason and ignore[s] recognized

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principles of law [citation][,] or if no reasonable person would

take the position adopted by the court.'" Schmitz v. Binette,

368 Ill. App. 3d 447, 452, 857 N.E.2d 846, 851 (2006), quoting

Popko v. Continental Casualty Co., 355 Ill. App. 3d. 257, 266,

823 N.E.2d 184, 192 (2005). The trial court’s analysis of this

issue is a thorough, articulated, detailed, and well-reasoned

ruling that is firmly rooted in the prevailing law. Clearly the

court's well-reasoned explanation of its ruling is not arbitrary.

Furthermore, the trial court’s decision that defendants’ cross-

examination went beyond the scope of plaintiff’s direct

examination is correct and does not constitute an abuse of

discretion.

B. Dr. Strasberg's Cross-Examination Was Permissibly Barred From
Being Introduced as Direct Examination in
Defendants' Case in Chief

Defendants argue that even if their cross-examination

of Dr. Strasberg was impermissible as cross-examination, they

should have been able to use Dr. Strasberg’s cross-examination

testimony in their own case in chief. Addressing this issue in

defendants' posttrial motion, the trial court held:

"My understanding of the appropriate

procedure under such circumstances is simply

this. For the plaintiff’s attorney in my

judgment so clearly and evidently steers

clear of asking questions on the surgical

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procedures, the standard of care, and any

claim reached or the standard of care, he

[sic] defense attorney has to know that under

our procedures, he or she is not going to be

able to make inquiry about--into those

subjects on cross.

That he or she then has the option[]

under our applicable rules to proceed

pursuant to the notice that was given

regarding the scheduling of the evidence

deposition to take the doctors [sic]

deposition for the defendants [sic] use

during their case-in-chief. This does not

appear to involve any particular additional

expenditure of time. I note that Rule 206(b)

provides 'that when a notice of the taking of

a deposition has been served, any party may

take a deposition under the notice, etc.’ In

plain English, I think it was abundantly

clear that the plaintiff’s attorney was not

going to touch on certain subjects during the

direct examination of the doctor in which

case the defendant’s [sic] attorney could

proceed to take the deposition of the doctor

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 at the same time and place and correct--and

proceed to conduct a direct examination of

the doctor with regard to the various

subjects which were, in my opinion, outside

the scope of the cross-examination.

I have also noted Rule 206(c)(2) which

says, 'the examination and cross shall be the

same as though the deponent was testifying at

trial.’ I can only tell you in this regard

if Dr. Strasburg had been testifying at

trial, I would have made the same rulings. I

would have barred the cross-examination and I

think the defendants would have had the same

option to take the direct examination of the

doctor on subjects which were not covered

during the plaintiff’s direct."

Supreme Court Rule 212(c) states that when a party

admits only a part of a deposition into evidence, the other party

may then use any other part of that deposition "which ought in

fairness to be considered in connection with the part read or

used." 210 Ill. 2d R. 212(c). "An evidence deposition is not

the 'property’ of the party who takes it, and any portion of an

evidence deposition may be offered by either side." Prince v.

Hutchinson, 49 Ill. App. 3d 990, 995, 365 N.E.2d 549, 552 (1977)

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(finding that the portion of the deposition not admitted was

permissibly excluded by the trial court on the grounds that it

was an impermissibly hypothetical question posed to the witness),

citing Dobkowski v. Lowe's, Inc., 20 Ill. App. 3d 275, 314 N.E.2d

623 (1974).

The trial court’s ruling that defendants’ cross-

examination was "clearly" beyond the scope of plaintiff’s direct

examination serves to inform this court that Dr. Strasberg’s

cross-examination, which defendants sought to admit, was based on

the trial court’s assessment of fairness to the parties.

Cross-examination during an evidentiary deposition must be

conducted the same as though the deponent were testifying at

trial. Dobkowski, 20 Ill. App. 3d 275, 314 N.E.2d 623. In

Dobkowski, the court stated:

"We believe that a party receives an unfair

advantage if he introduces an evidence

deposition in which he had the right to

cross-examine the deponent while the other

party was restricted to direct examination.

A party who takes an evidence deposition,

therefore, should have the opportunity to use

the deposition in his case." Dobkowski, 20

Ill. App. 3d at 279, 314 N.E.2d at 626-27.

Rule 212(c) does not state that when one party admits

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part of a deposition the other party automatically gets to admit

any other part of the deposition it chooses regardless of

content. Rather, the rule states that the other party is

entitled to admit parts of the deposition that should be

considered "in connection with the part read or used." 210 Ill.

2d R. 212(c). In this case, the trial court found that the

cross-examination testimony was barred because it was beyond the

scope of plaintiff’s direct. It is inherent in the court’s

ruling that the part defendants sought to admit was not

"connected" to the part of the deposition that was admitted.

Therefore, refusing to allow defendants' cross-examination of Dr.

Strasberg to be admitted separately as direct examination is not

a violation of Rule 212(c).

Defendants argue that the form of the questions should

not preclude using the cross-examination of Dr. Strasberg in

their case in chief. Defendants contend that they did not need

to establish Dr. Strasberg as a defense witness by asking his

name, background, training, and experience at the close of

plaintiff’s examination. However, defendants chose to cross-

examine Dr. Strasberg instead of conducting their own direct

examination. The trial court’s decision not to allow defendants’

cross-examination to be entered into evidence as direct testimony

in their case in chief does not, as defendants contend, emphasize

form over substance. The questions defendants posed to Dr.

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Strasberg were leading questions consistent with the form of

questions allowed on cross-examination. These types of questions

are not allowed on direct examination.

Since the trial court’s decision to grant plaintiff’s

objection to defendants' cross-examination of Dr. Strasberg was

proper, this court does not need to address the issue of whether

defendants were prejudiced by the trial court’s ruling.

Defendants apparently chose not to depose Dr. Strasberg directly.

Defendants should not be allowed to present evidence that is

otherwise inadmissible because they elected not to depose a

witness. The trial court’s ruling to prohibit Dr. Strasberg’s

cross-examination testimony to be used as evidence in defendants’

case in chief avoids an unfair result.

C. Plaintiff’s Questions to Dr. Kadowaki Regarding
Standard of Care Were Permissible

Defendants argue that plaintiff’s cross-examination of

Dr. Kadowaki was improper. The trial court’s decision to allow

plaintiff to question Dr. Kadowaki over defendants' objection is

reviewed by this court for abuse of discretion. Leonardi, 168

Ill. 2d at 92, 658 N.E.2d at 454.

Defendants first objected to plaintiff’s question,

"Okay. And so, Dr. Strasberg and Dr. Soper [(Dr. Strasberg's

former partner)] described, advocated, and wanted everybody to

use the critical view of safety technique, correct?" The trial

court overruled defendants' objection and allowed Dr. Kadowaki to

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answer plaintiff’s question. A few questions later, plaintiff

asked Dr. Kadowaki, "And they advise others to abandon your

technique, is that wrong?"

Defendants argue that plaintiff’s questions regarding

Dr. Kadowaki’s personal preferences were in violation of point VI

of defendants' motion in limine, which the trial court had

granted prior to trial. During the pretrial hearing on

defendants' motion in limine, plaintiff objected to the motion,

stating that it was plaintiff’s position that inquiries into

defendants' expert’s personal practices were allowed for the

purpose of credibility during cross-examination and to test the

expert’s opinion. Defense counsel responded:

"My concern was, more less [sic], with direct

examination, especially of Dr. Vasquez *** I

don’t really have a quarrel with the Gallina

[ v. Watson, 354 Ill. App. 3d 515, 821 N.E.2d

326 (2004)] case that is cited *** [i]t is

well-reasoned law ***. Gallina says that, on

cross-examination, if a witness has said

standard of care allows a certain procedure

to be done a certain way, then the witness

can be questioned, 'Well, don’t you yourself

prefer a different way.’ I don’t have a

problem with that. But, that is something on

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 cross[-]examination [sic] as it relates only

to credibility."

The trial court granted defendants’ motion in limine

stating, "In granting this, I am certainly not precluding cross-

examination as suggested in colloquy here that was designed to

impeach a witness, but I am granting the motion to preclude a

witness on direct from saying, this is how I do it."

In this case, the testimony of Dr. Kadowaki on direct

seemingly violates defendants' own motion in limine. Dr.

Kadowaki not only testified as to his personal practices and

preference but, over plaintiff’s objection, defendants presented

a DVD of Dr. Kadowaki performing a cholecystectomy. During the

video, defendants would pause the DVD, and Dr. Kadowaki would

explain to the court what structures were being viewed and what

actions he was taking as part of the surgery. Defendants contend

that the DVD’s purpose was purely to inform the jury of the

actual view the doctor has of the structures while she performs

the surgery.

Additionally, Dr. Kadowaki specifically cited Dr.

Strasberg’s approval of the "critical[-]view" technique to

perform cholecystectomies. The trial court found that during his

direct examination Dr. Kadowaki testified to the following:

"1. The technique he uses to identify the

cystic duct;

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 2. What active surgeons do and don’t do;

3. What he doesn’t do anymore;

4. That he doesn’t do what another surgeon

recommends;

5. The techniques he used in the film

presentation of his surgical procedure;

6. What his practice is;

7. What practice he employs to identify the

cystic duct;

8. That a certain procedure to identify the

cystic duct is not described in any textbook

or paper, and is, therefore, in his opinion,

unnecessary;

9. An accepted technique to identify the

cystic duct, known as 'the critical view,'

has been talked about by Dr. Strasberg;

10. His practice is to warn patients of

possible injuries to structures near the

gallbladder;

11. In his personal experience, pancreatic

tissue has been removed with the gallbladder

and reported by the pathologist."

The trial court ruled:

"The foregoing testimony offered by the

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defendants during the direct examination of

their expert clearly conveyed to the jury the

personal practices of that expert, his

disinclination or refusal to do what another

surgeon recommends or what no paper or

textbook discusses, an accepted technique

discussed by another surgeon and writer (Dr.

Strasberg), his practice regarding warnings

to his patients, his experience regarding

warnings to his patients, his experience

regarding the removal of pancreatic tissue in

connection with his own surgeries, and more.

*** Given this presentation, the [p]laintiff

was entitled to fully explore what other

practices or procedures, discussed or written

about, the expert does or does not follow.

*** The court is of the opinion that this

cross[-]examination was fair, given the

presentation on direct, even without

consideration of Gallina. With consideration

of Gallina, it was a fair approach to test

the 'credibility and persuasive value’ of the

expert’s opinions."

Defendants' motion in limine prohibited plaintiff from

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establishing a prima facie case of negligence based on the

testimony of what another physician would have done differently.

However, an expert’s testimony on personal preference, such as

Dr. Kadowaki’s, is not per se inadmissible. Gallina, 354 Ill.

App. 3d at 521, 821 N.E.2d at 331. Testimony regarding personal

preference is admissible if it addresses issues of the witness’s

credibility and the persuasiveness of the expert’s testimony.

Gallina, 354 Ill. App. 3d at 521, 821 N.E.2d at 331. By

referencing Dr. Strasberg’s approval of Dr. Kadowaki’s own

preferred technique during his direct examination, defendants

opened the door to questions regarding Dr. Kadowaki’s knowledge

of Dr. Strasberg’s views on cholecystectomy techniques.

Therefore, the trial court’s ruling on defendants’ objection to

plaintiff’s questions during cross-examination was correct.

D. The Record Does Not Support Defendant’s Claim That Articles or
Treatises Were Presented to the Court as Substantive Evidence

Dr. Kadowaki referred to Dr. Strasberg’s critical-view

technique on direct examination when he said that Dr. Strasberg

has been associated with the critical-view technique. During

cross-examination of Dr. Kadowaki, plaintiff asked him questions

regarding Dr. Strasberg’s critical-view technique, which Dr.

Strasberg had not testified about. Defendants argue that

plaintiff’s cross-examination impermissibly allowed a publication

authored by Dr. Strasberg to be used as a substitute for direct

testimony.

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 While defendants did raise this issue in their

posttrial motion, no objection related to this issue was made at

the time of trial. To preserve an issue for appeal, the party

must both make an objection at the time of trial and in a

posttrial motion. Kim, 240 Ill. App. 3d at 892, 608 N.E.2d at

378. In this case, the record does not support defendants’

contention that plaintiff’s attorney was waving the article

around during Dr. Kadowaki’s cross-examination. Defendants claim

that the trial court and jury were fully aware of the article to

which plaintiff was referring when he asked about Dr. Strasberg’s

opinions. However, nothing in the record reflects plaintiff’s

alleged use of the article in the courtroom, and defendants make

no specific reference to any portion of the record that supports

their contention. Furthermore, nothing in the transcripts

suggest to this court that any text of an article was read and/or

admitted into evidence.

Regardless, an expert may be cross-examined with

literature that he relied on if that literature is used to

impeach that witness. The supreme court adopted Federal Rule of

Evidence 703 in Wilson v. Clark, 84 Ill. 2d 186, 196, 417 N.E.2d

1322, 1327 (1981). People v. Munoz, 348 Ill. App. 3d 423, 443,

810 N.E.2d 65, 80 (2004) (noting that in 1981 when the supreme

court adopted Rule 703, it read, "'The facts or data in the

particular case upon which an expert bases an opinion or

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inference may be those perceived by or made known to the expert

at or before the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in

evidence'"), quoting Fed. R. Evid. 703. Facts that are relied

upon by the expert in his case in chief are permissible grounds

for cross-examination. Rios v. City of Chicago, 331 Ill. App. 3d

763, 773, 771 N.E.2d 1030, 1038 (2002). Dr. Kadowaki’s reliance

on Dr. Strasberg’s approval of the critical-view method in his

direct opened the door for plaintiff’s questions regarding

methods condoned and condemned by Dr. Strasberg. Interestingly

enough, when plaintiff asked Dr. Kadowaki whether Dr. Strasberg

disapproved of Dr. Kadowaki’s preferred technique, which was the

infundibular method, Dr. Kadowaki answered "no."

Plaintiff’s questions concerning Dr. Strasberg’s method

were not being offered to prove the truth of the matter asserted,

and were not inadmissible hearsay. People v. Pasch, 152 Ill. 2d

133, 176, 604 N.E.2d 294, 311 (1992), cert. granted, 508 U.S.

959, 124 L. Ed. 2d 678, 113 S. Ct. 2927 (1993), order vacated by

510 U.S. 910, 126 L. Ed. 2d 245, 114 S. Ct. 337 (1993) (stating

that petitioner died in Pontiac, Illinois).

In this case Dr. Kadowaki relied on Dr. Strasberg’s

opinion explicitly in his direct examination. The supreme court

in Pasch held, "Clearly, if an expert admits relying upon a

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report, that party may be impeached with the contents of that

report." Pasch, 152 Ill. 2d at 178, 604 N.E.2d at 312. However,

no specific article of Dr. Strasberg’s was referenced by Dr.

Kadowaki when he testified about Dr. Strasberg’s opinion during

direct examination. Similarly, plaintiff’s cross-examination

only involved general references to Dr. Strasberg’s techniques.

Therefore, no error occurred regarding an alleged article being

used on cross-examination of Dr. Kadowaki when no specific

article is referenced in the record or in the parties’ argument

on appeal.

III. CONCLUSION

Therefore, based on the foregoing reasons, we find that

the trial court’s evidentiary rulings in this case did not

constitute an abuse of the trial court’s discretion, and we

affirm.

Affirmed.

APPLETON and McCULLOUGH, JJ., concur.

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