Ruffin v. Boler

FIRST DIVISION
June 25, 2008

No. 1-06-3437

TANISHA RUFFIN, by Her Mother and ) Appeal from the
Next Friend, Sonya R. Sanders; and ) Circuit Court of
SONYA R. SANDERS, Individually, ) Cook County.
)
Plaintiffs-Appellees, )
)
v. ) No. 00 L 6049
)
LEO BOLER, JR., ) The Honorable
) John E. Morrissey
Defendant-Appellant. ) and
) Bill Taylor,
) Judges Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The plaintiffs, Tanisha Ruffin, by her mother and next friend,

Sonya R. Sanders, and Sonya R. Sanders individually, sued the

defendant, Dr. Leo Boler, Jr., for medical malpractice. At the

time of Tanisha's delivery, her shoulder became impacted with Ms.

Sander's pelvic bone, a condition known as shoulder dystocia. At

birth, Tanisha was diagnosed with an injury to the brachial plexus

nerve network located at the shoulder area.

The plaintiffs' theory of the case was that Dr. Boler caused

Tanisha's injury by using excessive lateral traction when freeing

her impacted shoulder. Dr. Boler's theory was that Tanisha's

injury was caused by the natural "propulsive forces" of labor. To
No. 1-06-3437

support his theory, Dr. Boler sought to present expert testimony

from Dr. Michele Grimm, a biomedical, biomechanical engineer.

After holding a hearing pursuant to Frye v. United States, 293 F.

1013 (D.C. Cir. 1923), the Honorable John E. Morrissey allowed Dr.

Grimm's testimony.

The jury found for Dr. Boler. The plaintiffs moved for a new

trial, arguing Dr. Grimm's testimony should have been barred. The

plaintiffs also contended Dr. Boler improperly read from material

in medical journals to introduce the opinions of doctors that did

not testify at trial and improperly used medical textbooks that

were not established as authoritative. Because Judge Morrissey had

retired by the time the motion was argued, the Honorable Bill

Taylor presided. Judge Taylor agreed with the plaintiffs'

contentions and granted a new trial.

Dr. Boler petitioned this court pursuant to Supreme Court Rule

306(a)(1) (210 Ill. 2d R. 306(a)(1)) for leave to appeal. We

allowed the petition and now reverse and remand.

BACKGROUND

On July 20, 1996, Sonya Sanders went into labor. She went to

Mount Sinai Hospital, where she was treated by Dr. Boler, a board-

certified obstetrician/gynecologist. At the hospital, Ms. Sanders'

cervix was dilated to eight or nine centimeters, meaning her labor

was proceeding rapidly. She was also experiencing

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"hypercontractile" labor, an unusual pattern where contractions

occur every minute. Tanisha was delivered in 4 hours, whereas

normal labor usually takes 10 to 12 hours.

During the delivery, Dr. Boler recognized shoulder dystocia,

a condition that can compromise the infant's oxygen supply. Dr.

Boler was able to free the shoulder and deliver Tanisha. Dr. Boler

informed Ms. Sanders that Tanisha suffered from Erb's palsy in her

left arm, a condition resulting in weakened arm muscles.

On October 18, 2005, the plaintiffs filed a four-count first-

amended complaint alleging Dr. Boler improperly applied a vacuum

extraction cup and excessive traction to free the shoulder

dystocia, causing Tanisha's injury. The trial court granted Dr.

Boler's request to answer the first-amended complaint by the

following day. Trial commenced on October 21, 2005.

Dr. Leo Boler

Dr. Boler, called as an adverse witness in the plaintiffs'

case, testified there were several techniques or maneuvers used to

free shoulder dystocia, including the "McRoberts maneuver," where

the mother's thighs are pushed against her abdomen, and "suprapubic

pressure," where pressure is applied to the mother's abdomen.

Although Dr. Boler did not specifically recall Tanisha's birth, his

custom and practice was to first use the McRoberts maneuver,

followed by suprapubic pressure. He also identified his attending

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No. 1-06-3437

note in the medical record, which indicated he applied a vacuum

extractor cup and "gentle" traction to Tanisha's head.

According to Dr. Boler, gentle traction is the only type of

traction the standard of care permits a doctor to apply during the

delivery of an infant. In Dr. Boler's opinion, he complied with

the standard of care by not applying excessive lateral traction

when he delivered Tanisha.

Dr. Boler also explained there are two forces at play during

normal labor: (1) the contraction forces from the uterus; and, (2)

the voluntary labor pushing of the mother. In his view, Tanisha's

injury was caused by a combination of these forces, which he

believed are strong enough to injure a fetus during labor.

Dr. Stuart Edelberg

The plaintiff presented expert testimony from Dr. Edelberg, a

board-certified obstetrician/gynecologist. Dr. Edelberg testified

that Dr. Boler breached the standard of care by applying excessive

lateral traction. According to Dr. Edelberg, Tanisha's injury was

permanent.

On direct examination, Dr. Edelberg concluded Dr. Boler

applied excessive lateral traction because that is the only way in

which Tanisha's injury could have been caused, based on the medical

record. Dr. Edelberg based his opinion in part on "all of the

essential or standard textbooks that are in our field" which

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indicate "the most common injury to the brachial plexus occurs

during shoulder dystocia." According to Dr. Edelberg, the

literature he referenced did not contain any examples of cases

where the doctor admitted to applying excessive lateral traction.

Pursuant to Dr. Boler's request, the trial court instructed the

jury that Dr. Edelberg's reference to books and literature not in

evidence was for the limited purpose "of deciding what weight, if

any, you will give the opinions testified to by this witness."

Illinois Pattern Jury Instructions, Civil, No. 2.04 (1995).

As evidence of his expertise in this field, Dr. Edelberg

testified that he has written on the subject of shoulder dystocia

with Dr. Allen, from John Hopkins University, "who has done

extensive publications on shoulder dystocia."1 Dr. Edelberg

explained that he and Dr. Allen co-authored three letters to the

editor critiquing published articles about shoulder dystocia.

On cross-examination, counsel for Dr. Boler sought to question

Dr. Edelberg about his letters. Counsel asked Dr. Edelberg whether

his first letter, written in November 2000, was in disagreement

with an article authored by Drs. Sandmire and DeMott concerning the

1
Dr. Edelberg's testimony does not further explain Dr.

Allen's qualifications. However, material in the record reveals

Dr. Allen is an engineer, not a medical doctor.

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No. 1-06-3437

cause of brachial plexus injuries. The plaintiffs objected,

arguing Drs. Sandmire and DeMott's writings had not been

established as authoritative. The trial court overruled the

objection.

Dr. Edelberg acknowledged the first paragraph of his November

2000 letter indicated Sandmire and DeMott "opine that brachial

plexus injury is probably caused by propulsive forces of labor

rather than external traction." Another objection by the

plaintiffs was overruled. The examination continued,

"Q. Do you agree or disagree with this

statement, Doctor, in that very same page that

your letter to the editor appears on, further

evidence for the propulsive nature of the

stretching of the involved nerves comes from

Gonic--that's Dr. Gonic, correct?"

A. That is correct.

Q. --et al., that means and his other

authors, correct?

A. Correct.

Q. Who, using engineering principles,

recently concluded the endogenous forces--that

means the internal forces?

A. Correct.

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Q. Are four to nine times greater than

the value calculated for clinician-applied

forces?

A. That's what they said."

Defense counsel next questioned Dr. Edelberg whether his

second letter to the editor, written in 2001 and stating he

disagreed with "the fact that propulsive and contractile forces of

labor caused these injuries," was in response to the opinion of Dr.

Bernard Gonik, an obstetrician/gynecologist, and Dr. Michele Grimm,

a biomedical engineer. Dr. Edelberg agreed. Defense counsel then

questioned whether Dr. Edelberg's third letter expressed

disagreement with another article by Drs. Sandmire and DeMott in

which they "reviewed and supplied 22 citations to the literature

that supported the opinion that brachial plexus injuries have

causes other than traction." The plaintiffs again objected. The

court initially overruled the objection but subsequently asked

counsel for the parties to approach the bench. The court explained

its request:

"Obviously [defense counsel] may cross-

examine the doctor about the content of his

letters to the editor which tends to impeach

him. But you're referring to several doctors

in the field of OB/GYN. And as you refer to

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No. 1-06-3437

those doctors, you--the foundation that's

required for impeachment in this area is that

the author is a reliable authority or is a

reliable piece of literature from the field on

which you're cross-examining him.

* * *

The way you're doing this is unusual.

And it is causing--you're using letters that

he wrote disagreeing with the opinions that

others in the field have. And you are--

without asking him, do you recognize the

people you disagree with as being

authoritative in this field and the follow-up

from there and these are the opinions they

hold, you are referring to his letter to show

that there is an opinion out there that is

different from his own. And the way you're

doing it, it's almost as if you are trying to

use the letters to the editor as substantive

evidence of the credibility of the doctors."

Counsel for the plaintiffs argued that defense counsel was

attempting to "introduc[e] and suggest[]" that Dr. Grimm, one of

Dr. Boler's expert witnesses, is an "accepted--a realized

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authority." The plaintiffs moved for a mistrial, contending the

testimony elicited during the improper cross-examination was

significantly prejudicial. After considering further arguments,

the court denied the motion for a mistrial, deciding instead to

strike the objected-to testimony. The court instructed the jury

"to disregard questions and answers put to the doctor about the

person[s] named in Dr. Edelberg's letters to the editor referred to

by [defense counsel] on cross-examination. The names used in the

doctor's letters and the opinions in the *** letters that he, Dr.

Edelberg, disagrees with are not relevant. They're stricken from

the evidence at this trial."

Continuing his cross-examination testimony, Dr. Edelberg

acknowledged that there is a body of literature that supports his

opinion that brachial plexus injuries are traction-related, as well

as a body of literature that disagrees with his position. Dr.

Edelberg testified he is familiar with the publication "Precis," a

teaching textbook published by the American College of Obstetrics

and Gynecology. He testified Precis contained "errors" but

acknowledged it is a good and reliable source of information on how

to handle shoulder dystocia. Over the plaintiffs' objections, Dr.

Edelberg testified he disagreed with the statement in Precis that

"the exact sequence of events that leads to brachial plexus trauma

has not been clearly elucidated." However, Dr. Edelberg agreed

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No. 1-06-3437

with Precis' statement that "[o]ther factors such as intrauterine

maladaption and endogenously exerted expulsion forces may

contribute to this type of injury," as that statement included the

word "may." Over the plaintiffs' objections, Dr. Edelberg also

testified he disagreed with the notation in Precis that "in a

recent study of a mathematical model for shoulder dystocia, reflex,

uterine and maternal expulsive forces were found to exert

significant compression over the site of fetal impaction behind the

symphysis-pubis [bone]."

Dr. Edelberg also acknowledged the textbook "Williams

Obstetrics" (Williams) is "reliable," but stated there were

sections of it with which he disagreed. Dr. Edelberg agreed with

Williams' statement that "the propulsive efforts of normal delivery

may cause brachial nerve stretching and damage," because the text

said "may." Dr. Edelberg, over the plaintiffs' objection, also

agreed with Williams' statement that "with achievement of full

cervical dilation, the great majority of women cannot resist the

urge to bear down or push each time the uterus contracts.

Typically, a laboring woman contracts her abdominal musculature

repetitively with vigor to generate increased intra-abdominal

pressure through the contractions. The combined force creates

contractions of the uterus and abdominal musculature propelling the

fetus downward."

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No. 1-06-3437

After Dr. Edelberg completed his testimony, the trial court,

outside the presence of the jury, added to his ruling on the

plaintiffs' motion for mistrial.

"I want to add to the record that all of

the matters discussed at sidebar during Dr.

Edelberg's testimony concerning learned

treatises eventually was properly brought out

on further cross-examination of the doctor.

So the portion of his testimony about letters

that he wrote to the editor, which I struck,

becomes harmless and moot. Those are further

reasons for me to have denied plaintiffs[']

motion for a mistrial."

The plaintiffs' objected, stating no testimony established

Precis and Williams as authoritative. Counsel unsuccessfully

renewed his motion for a mistrial.

Dr. Thomas Carver

Dr. Thomas Carver, an obstetrician/gynecologist expert witness

on behalf of Dr. Boler, testified that Dr. Boler complied with the

standard of care to alleviate Tanisha's shoulder dystocia. In his

opinion, Tanisha's injury was not caused by excessive lateral

traction, because the medical records failed to indicate that Dr.

Boler applied excessive traction. Although Dr. Carver did not know

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No. 1-06-3437

what caused Tanisha's injury, he opined that maternal forces of

labor can lead to a brachial plexus injury before shoulder dystocia

is recognized by the doctor.

Dr. Michele Grimm: Frye Hearing

Dr. Boler next sought to present testimony from Dr. Michele

Grimm. Outside the presence of the jury, the trial court held a

hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir.

1923). Under Frye, novel scientific evidence may be admitted at

trial if the principles upon which the evidence is based are shown

to be generally accepted in the relevant scientific community.

Dr. Grimm was the only witness to testify at the Frye hearing.

Dr. Grimm testified she is a biomedical engineer, an associate

professor of biomedical engineering at Wayne State University, and

a co-author of three articles published in the American Journal of

Obstetrics and Gynecology, a peer-reviewed journal, concerning the

forces of labor and shoulder dystocia.

Dr. Grimm was contacted by Dr. Gonik about conducting research

in the area of the forces of childbirth. Drs. Grimm and Gonik

developed a two-dimensional mathematical model that looked at

contact forces between an infant's shoulder and the maternal pelvis

during delivery. In 2000, the doctors published their findings in

their first article: Bernard Gonik, MD, et al., Mathematic Modeling

of Forces Associated with Shoulder Dystocia: A Comparison of

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Endogenous and Exogenous Sources, Am. J. Obstetrics & Gynecology,

Mar. 2000, at 689.

The doctors continued their research, developing a more

detailed three-dimensional model to mimic brachial plexus injuries

using the Mathematical Dynamic Model, "a commercially available

software program," used in biomedical research, known by its

acronym, "MADYMO." MADYMO is used in automobile crash tests,

"designed to take rigid bodies and look at how they interact with

their environment." The basic scientific principles behind MADYMO

are Newton's laws of equilibrium of forces and conservation of

momentum. The development of the MADYMO model led to the

publication of the doctors' second article: Bernard Gonik, MD, et

al., Defining Forces that are Associated with Shoulder Dystocia:

The Use of a Mathematic Dynamic Computer Model, Am. J. Obstetrics

& Gynecology, Apr. 2003, at 160. They also published a third

article: Bernard Gonik, MD, et al., Prediction of Brachial Plexus

Stretching During Shoulder Dystocia Using a Computer Simulation

Model, Am. J. Obstetrics & Gynecology, Oct. 2003, at 154.

The doctors' MADYMO model seeks to describe the contact forces

that are experienced between the infant's shoulder and the maternal

pelvis during labor and the forces required to deliver the infant

when shoulder dystocia occurs. According to Dr. Grimm, "It was

recognized that more contact force was seen between the shoulder

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No. 1-06-3437

and the pelvis through maternal forces than resulted through

physician-applied traction." The model "indicated that significant

stretch occurs in the brachial plexus, both through maternal forces

and through physician-applied forces, with the maternal forces

actually causing more stretch in the nerve than physician-applied

forces if those forces are applied along the axis of the baby's

neck."

Like all models, the MADYMO model made several assumptions.

Dr. Grimm explained it is "standard practice in the biomedical

community to look for surrogates." The MADYMO model used a goat's

neck to mimic the neck of a fetus because it was "next to

impossible to get actual data from human fetuses." According to

Dr. Grimm, a goat's neck has been widely accepted in peer-reviewed

literature as a "good estimate of the properties of a juvenile

neck." To assume the properties of the brachial plexus, Dr. Grimm

looked at rabbit tibial nerves. She also based the anatomy of the

fetus on the "95th percentile anthropology measurements that are

documented in the medical literature." The fetus model was

developed from a crash dummy modeled on a nine- month-old infant.

Abstracts of the articles were presented at two conferences of

the Society of Maternal Fetal Medicine, where they received awards

for research excellence, and at a conference sponsored by the

American Society of Mechanical Engineers. The 2000 article was

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referenced in Precis, while the 2003 articles were referenced in

Williams. According to Dr. Grimm, the research models are based on

generally accepted methodology and principles in the fields of

engineering and obstetrics. Dr. Grimm explained:

"The conclusions that we've drawn are

based on solid principles that have been

understood and accepted in the biomechanic[,]

biomedical engineering communities for a long

time.

The model has been validated to the

greatest extent possible against other works

of literature in terms of the forces that we

expect to occur compared to forces that have

been measured experimentally.

And it has been accepted for presentation

at conferences both in the clinical area and

in the engineering area."

Dr. Grimm also acknowledged that her opinions and conclusions

had been professionally criticized by others in the fields,

specifically through letters to the editor authored by Drs.

Edelberg and Allen.

The trial court concluded Dr. Grimm was qualified to testify

under Frye, reasoning: "the doctor's principles are sound and that

15
No. 1-06-3437

her scientific data or method is directly related to the

conclusions hypothesized in this case."

Dr. Michele Grimm: Trial Testimony

At trial, Dr. Grimm testified she has a Ph.D., she is not a

medical doctor, and that biomedical engineering is the science of

"using engineering to look at the human body, to look [at] how

things interact with the human body." She explained that in

pursuing her degrees, she took the same anatomy and physiology

classes as first-year medical students. Dr. Grimm testified that

her three articles were published in the American Journal of

Obstetrics and Gynecology, and that her work had been referenced in

Precis and Williams.

Dr. Grimm listed the three forces involved in childbirth: (1)

the internal forces from the uterus; (2) the forces of the

voluntary "pushing" of the mother; and, (3) physician-applied

forces. Dr. Grimm testified that in her opinion, within a

reasonable degree of biomedical engineering certainty, the vacuum

extractor applied by Dr. Boler did not cause or contribute in any

way to Tanisha's injury. She testified that excessive traction did

not cause Tanisha's injury because maternal forces caused more

stretch in the brachial plexus nerve network based on the medical

record that spoke only of gentle traction application. To a

reasonable degree of biomedical engineering certainty, Dr. Grimm's

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opinion was that the maternal forces of labor were sufficient to

cause Tanisha's injury. Dr. Grimm explained Ms. Sanders had a

rapid labor, indicating "strong uterine contractions." According

to Dr. Grimm, these forces "were the predominant cause of the

injury in this case."

The jury returned a verdict for Dr. Boler, and the trial court

entered judgment on the verdict.

Posttrial Proceedings

The plaintiffs filed a motion for a new trial, arguing (1) Dr.

Grimm should have been barred from testifying, and (2) defense

counsel improperly relied on medical literature to introduce the

opinions of doctors who did not testify at trial and improperly

read from textbooks that had not been established as authoritative.

The motion was argued before Judge Taylor on November 6, 2006,

after Judge Morrissey retired. The plaintiffs argued Dr. Grimm

should have been barred from testifying in this case, as she was

barred from testifying by another Cook County circuit court judge

in a then-pending medical malpractice case involving shoulder

dystocia.2 The plaintiffs argued that Dr. Grimm was a "mechanical

2
As a point of information, the unpublished decision in the

appeal in that case did not reach whether Dr. Grimm was qualified

17
No. 1-06-3437

engineer" and that her model was based on "basically a crash dummy

model of a nine-year-old."3 The plaintiffs argued Dr. Grimm's

methods were unreliable and not generally accepted to establish

admissibility under Frye.

The trial court granted the motion, stating:

"After careful consideration, even reading the

transcripts of the trial that I was not a

party to, I[] find that the limitations by

introducing the medical opinions of doctors

who cannot be cross-examined, that its experts

were [im]properly bolstered by the testimony

of the defendant's expert engineer and that

the defendant improperly read from literature

which had not been established as

authoritative, and also for failure to--based

upon the acceptability of the scientific

community on the Frye standards."

ANALYSIS

to testify under Frye, issued under Supreme Court Rule 23.
3
Counsel's argument inaccurately described Dr. Grimm as a

"mechanical engineer" and was wrong in his reference to the use

of a crash model based on a nine-year-old child.

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No. 1-06-3437

On appeal, Dr. Boler contends the trial court erred in

granting the plaintiffs' motion for a new trial.

Generally, a trial court's ruling on a motion for a new trial

is reviewed for an abuse of discretion. Redmond v. Socha, 216 Ill.

2d 622, 642, 837 N.E.2d 883 (2005). The trial court's decision is

subject to this deferential standard because the trial judge " ' "

has the benefit of his previous observation of the appearance of

the witnesses, their manner in testifying, and of the circumstances

aiding in the determination of

credibility." ' " Redmond, 216 Ill. 2d at 632-33, quoting Maple v.

Gustafson, 151 Ill. 2d 445, 456, 603 N.E.2d 508 (1992), quoting

Buer v. Hamilton, 48 Ill. App. 2d 171, 174, 199 N.E.2d 256 (1964),

quoting Hulke v. International Manufacturing Co., 14 Ill. App. 2d

5, 47, 142 N.E.2d 717 (1957).

In this case, because Judge Morrissey retired, Judge Taylor

was placed in the position of reviewing the claimed errors based on

the transcripts of the trial, as a court of review would. Judge

Taylor found each of the claimed errors warranted a new trial.

According to Judge Taylor, Judge Morrissey erred in allowing Dr.

Grimm's testimony under Frye and allowing certain impeachment of

Dr. Edelberg. Each of the alleged errors is subject "to its own

standard of review." Redmond, 216 Ill. 2d at 633.

"The trial court's Frye analysis *** is now subject to de novo

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review." In re Commitment of Simons, 213 Ill. 2d 523, 531, 821

N.E.2d 1184 (2004).

Regarding the claimed improper impeachment of Dr. Edelberg as

an independent basis for granting a new trial, we question whether

an abuse of discretion standard ought to apply because it is

doubtful that Judge Taylor's ruling involved an exercise of

discretion. See Redmond, 216 Ill. 2d at 634 (an issue "is reviewed

under an abuse of discretion only when the trial court actually

engages in an exercise of discretion"). Nonetheless, we look first

to the ruling by Judge Morrissey to determine whether impeachment

error occurred. If no error occurred, it necessarily follows that

Judge Taylor abused his discretion in ordering a new trial on this

basis. See Najas Cortes v. Orion Securities, Inc., 362 Ill. App.

3d 1043, 1046, 842 N.E.2d 162 (2005), quoting Koon v. United

States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 414, 116 S. Ct. 2035,

2048 (1996) (" 'The abuse-of-discretion standard includes review to

determine that the discretion was not guided by erroneous legal

conclusions' ").

I. The Admissibility of Dr. Grimm's Testimony

Dr. Boler contends Judge Morrissey properly allowed Dr. Grimm

to testify and that Judge Taylor erred in "overruling" that

determination. As Dr. Boler correctly notes, the admissibility of

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a causation opinion of a biomedical engineer in a medical

malpractice action has not been previously addressed in an Illinois

published opinion.

Before expert testimony will be admitted at trial, the

proponent of the evidence must persuade the trial court to make

three preliminary determinations: (1) the witness may be of

assistance to the trier of fact; (2) the witness is qualified to

give the testimony sought; and, (3) the testimony sought is

supported by adequate facts, data, or opinions. M. Graham, Cleary

& Graham's Handbook of Illinois Evidence §702.1, at 610 (7th ed.

1999); see Snelson v. Kamm, 204 Ill. 2d 1, 24, 787 N.E.2d 796

(2003) ("[e]xpert testimony is admissible if the proffered expert

is qualified by knowledge, skill, experience, training, or

education, and the testimony will assist the trier of fact in

understanding the evidence"). Where the expert testimony concerns

a novel scientific methodology, the proponent must show the

methodology upon which the proposed evidence is based meets the

standard enunciated in Frye: general acceptance in the relevant

scientific community. In re Commitment of Simons, 213 Ill. 2d 523,

529-30, 821 N.E.2d 1184 (2004). The trial court's determination to

admit expert testimony is reviewed for an abuse of discretion. In

re Commitment of Simons, 213 Ill. 2d at 530-31. The trial court's

21
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Frye analysis, however, is reviewed de novo. In re Commitment of

Simons, 213 Ill. 2d at 531.

In this case, Dr. Boler argues Judge Morrissey properly

allowed Dr. Grimm's testimony because (1) Dr. Grimm was qualified

to testify as to a possible cause of Tanisha's injury, and (2) Dr.

Grimm satisfied Frye because her methodology and conclusions

derived therefrom are generally accepted within the scientific

community.

A. Need for a Medical Expert on Causation

Independent of the Frye-related issues, the plaintiffs contend

Dr. Grimm should have been barred from testifying as to causation

because the question before the jury requires an assessment of the

causation evidence to "a reasonable degree of medical certainty"

and Dr. Grimm is not a medical doctor. The plaintiffs contend that

the expert in a medical malpractice case "must be a licensed member

of the school of medicine about which he seeks to render an

opinion, and the expert must show she is familiar with the methods,

procedures and treatments ordinarily observed by other physicians,

in either the defendant[']s community or a similar community."

This "same school of medicine" rule was first announced in

Dolan v. Galluzzo, 77 Ill. 2d 279, 285, 396 N.E.2d 13 (1979):

"[I]n order to testify as an expert on the standard of care in a

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given school of medicine, the witness must be licensed therein."

The plaintiffs, however, read this rule too broadly. The

restriction as to who may serve as an expert applies to testimony

"concerning the standard of care." (Emphasis added.) Greenberg v.

Michael Reese Hospital 83 Ill. 2d 282, 291-92, 415 N.E.2d 390

(1980), citing Dolan v. Galluzzo, 77 Ill. 2d 279, 283, 396 N.E.2d

13 (1979).

In Greenberg, it was the defendant hospital that took the

position the plaintiffs take in this case. The defendant hospital

argued that allowing the plaintiffs to withstand the hospital's

motion for summary judgment with a counteraffidavit by a "health

physicist," who gave an opinion as to the standard of care and its

deviation, "contravenes this court's holding in Dolan v. Galluzzo,

77 Ill. 2d 279, 396 N.E.2d 13 (1979)." Greenberg, 83 Ill. 2d at

291. The defendant hospital argued "that inasmuch as [the health

physicist] is not a practitioner of any school of medicine he

should not be permitted to testify concerning conduct which

involves a medical judgment." Greenberg, 83 Ill. 2d at 292. The

high court determined "that the rule of Dolan is inapplicable to

the facts of this case," as the claim against the defendant

hospital was one of institutional negligence as recognized by

Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326,

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211 N.E.2d 253 (1965). Greenberg, 83 Ill. 2d at 293.

While this case involves professional negligence, we likewise

conclude the Dolan rule is inapplicable to the facts of this case.

Our reason is simple: Dr. Grimm's testimony did not concern the

standard of care applicable to Dr. Boler; it was not offered to

explain a medical judgment. Dr. Grimm's testimony goes solely to

an independent cause defense.

It is beyond contention that generally, in medical malpractice

actions, the plaintiff must establish the causation element "to a

reasonable degree of medical certainty." Krivanec v. Abramowitz,

366 Ill. App. 3d 350, 357, 851 N.E.2d 849 (2006). The reasonable

degree of certainty showing follows from the need for medical

expert testimony to establish the standard of care and its

deviation. It is logical that causation be shown to a reasonable

degree of medical certainty because if the plaintiff believed

something other than the medical provider's alleged negligence

proximately caused the injury, the plaintiff's cause of action

would not sound of medical malpractice. However, because the

plaintiff's burden as to proximate cause must be established by

medical expert testimony, it does not necessarily follow that the

defendant is constrained to challenge the plaintiff's proximate

cause evidence by medical expert testimony as well.

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No. 1-06-3437

It is true that in virtually every medical malpractice case

where the defendant presents medical expert testimony as to the

standard of care and its alleged deviation, that expert directly or

indirectly addresses causation. A malpractice defendant, however,

is not limited to a medical expert where an independent cause

defense is asserted. It is the nature of the defense that dictates

the defendant's choice of field of expertise for his expert

witness.

A hypothetical example illustrates this point. An individual

is in an automobile accident while on his way to the hospital for

an operation to be performed by Dr. Jones. The individual does not

believe he is injured in the accident, does not mention the

accident to Dr. Jones, and goes ahead with the surgery. While

recovering from the surgery, the individual dies from an abdominal

injury. In the resulting medical malpractice action, the plaintiff

sues Dr. Jones, alleging her negligence during the surgery caused

the abdominal injury. Dr. Jones's theory is that the abdominal

injury was caused by the force of the individual's seatbelt in the

automobile accident. It is undisputed that the abdominal injury

was the cause of death. To prove her case, the plaintiff has the

burden of establishing the standard of care, Dr. Jones's deviation

from that standard, and causation. To establish causation, the

25
No. 1-06-3437

plaintiff must present medical expert testimony to show, within a

reasonable degree of medical certainty, that it was more likely

than not that Dr. Jones's deviations from the standard of care

caused the abdominal injury, resulting in the patient's death.

On the defense side, because the amount of force a seatbelt

imposes on the abdomen in an accident is beyond the common

knowledge of the jury, Dr. Jones may present expert testimony to

support her defense that something other than her alleged

negligence caused the patient's death. However, a medical doctor

would not have the expertise to support her theory that the force

imposed by a seatbelt caused the injury. Rather, such an expert

would be a biomechanical engineer, who is competent to testify that

the abdominal injury was caused by the impact of the seatbelt. See

Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299, 308, 443 N.E.2d

575 (1982) (plaintiff's proximate cause expert, a biomechanical

engineer, testified the impact from the seatbelt caused the

decedent's abdominal injuries).

In this case, Dr. Grimm's testimony was offered to show that

the injury suffered by Tanisha was the result of a cause other than

Dr. Boler's alleged negligence. Because Dr. Grimm's testimony did

not address the standard of care applicable to Dr. Boler's actions,

there is no basis to exclude Dr. Grimm's testimony merely because

26
No. 1-06-3437

she is not a medical doctor. See Miller v. Eldridge, 146 S.W.3d

909 (Ky. 2004) (in a medical malpractice case, biomedical engineer

found qualified to refute plaintiff's theory that a portion of a

blood clot, negligently treated, traveled against blood flow,

causing the decedent's death; biomedical engineer testified theory

was "impossible").

B. Need for Dr. Grimm's Testimony

Regarding Tanisha's injury, it is undisputed that Tanisha's

shoulder became impacted during her birth and that she suffered an

injury to her brachial plexus nerve network. What is disputed is

whether the injury occurred because Dr. Boler breached the standard

of care by using excessive traction in delivering Tanisha or as a

result of the natural forces of labor. The former theory must be

supported by expert medical testimony, which Dr. Edelberg provided,

challenged by the medical testimony of Drs. Boler and Carver. The

"natural forces of labor" theory does not require medical expert

testimony; it was as to this theory that Dr. Boler sought to

introduce Dr. Grimm's testimony.

The plaintiffs do not challenge Dr. Grimm's qualifications as

an expert in biomedical engineering. Dr. Grimm testified she has

a Ph.D. in biomedical engineering and that she was an associate

professor of the subject. She also testified she had done

27
No. 1-06-3437

extensive research in the forces at play during childbirth and that

her findings had been published in peer-reviewed literature,

including the American Journal of Obstetrics and Gynecology, and

presented at engineering conferences.

Because the amount of force occurring during normal labor is

beyond the common knowledge of the jury, an expert witness,

qualified to explain labor-generated forces, was required to

testify in support of this theory. Through Dr. Grimm's testimony,

Dr. Boler sought to show "evidence that negates causation."

Leonardi v. Loyola University, 168 Ill. 2d 83, 94, 658 N.E.2d 450

(1995).

To the extent Dr. Grimm qualifies under Frye, it is clear her

testimony as to the forces working within the body during labor

would assist the jury's understanding of the forces at work during

the shoulder dystocia. Dr. Grimm's field of training of biomedical

engineering, the science of "using engineering to look at how

things interact with the human body," was precisely the field of

expertise that would assist the jury in understanding Dr. Boler's

causation defense based on the natural forces of labor.

Judge Morrissey did not abuse his discretion in making his

preliminary determinations under Snelson that Dr. Grimm was

qualified to testify as an expert witness in the field of

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No. 1-06-3437

biomedical science and that her testimony would be of assistance to

the jury. Judge Morrissey was correct to then address the question

whether Dr. Grimm's proposed testimony also satisfied Frye.

C. Satisfied Frye Test

The rule for admissibility of novel scientific evidence in

Illinois is based on Frye: " 'scientific evidence is admissible at

trial only if the methodology or scientific principle upon which

the opinion is based is "sufficiently established to have gained

general acceptance in the particular field in which it belongs." '

" People v. McKown, 226 Ill. 2d 245, 254, 875 N.E.2d 1029 (2007),

quoting In re Commitment of Simons, 213 Ill. 2d at 529-30, quoting

Frye, 293 F. at 1014. Because Dr. Grimm's principles and

methodology had not previously been established as generally

accepted, Judge Morrissey conducted a Frye hearing. See, e.g.,

McKown, 226 Ill. 2d at 254 (a court may determine the general

acceptance of scientific testimony in two ways: (1) by holding a

Frye hearing; or, (2) "by taking judicial notice of unequivocal and

undisputed prior judicial decisions or technical writings on the

subject").

Dr. Boler contends Dr. Grimm's methodology is generally

accepted within the field of engineering because it is based on

such established theories as Newton's law of equilibrium and forces

29
No. 1-06-3437

and conservation of momentum. Dr. Boler points out MADYMO is a

commercially available software program that has been used in the

engineering community for over 20 years and that it is common

within the biomedical engineering community to base studies on

animal parts, such as a goat's neck and rabbit tibial nerves.

The plaintiffs contend Dr. Grimm's methodology is not

generally accepted because of the "assumptions" her computer model

makes, including her reliance on animals and on a model fetus

developed from a crash dummy representing a nine month-old infant.

According to the plaintiffs, "[Dr. Boler] fails to provide any

evidence or testimony, besides that of [Dr.] Grimm herself, which

supports the claim that biomedical engineer practices and methods

are accepted within the applicable scientific community in

investigating how a human fetus reacts to pressures and forces

during the medical procedure of child labor." (Emphasis in

original.)

Both parties point our attention to Mitchell v. Palos

Community Hospital, 317 Ill. App. 3d 754, 740 N.E.2d 476 (2000).

In that case, the plaintiff sued the defendant hospital and

doctors, alleging their failure to properly treat her for a

placental abruption caused her infant's cerebral palsy. The

defendants' theory was that the injury to the infant occurred at

30
No. 1-06-3437

the time the plaintiff first experienced her symptoms. By the time

she arrived at the hospital, the damage was irreversible. To

support their theory, the defendants sought to present expert

causation testimony from Dr. Jeffery Phelan. The trial court

conducted a Frye hearing where numerous witnesses testified for

both parties by deposition. It was established at the hearing that

Dr. Phelan had developed a method to evaluate neurological injury

to an infant by looking at the level of nucleated red blood cells

(NRBCs) and other enumerated factors to determine the timing of the

placental abruption. Several doctors testified that Dr. Phelan's

testimony was generally accepted in the medical community based

upon articles Dr. Phelan had written that were published in

numerous "highly prestigious" obstetric and gynecological journals.

Mitchell, 317 Ill. App. 3d at 762.

On review, this court held that the defendants sufficiently

established that Dr. Phelan's theory had gained general acceptance

in the scientific community.

"There are several ways a proponent of

evidence subject to Frye can prove the

'general acceptance' of the proffered

evidence. The proponent may use scientific

publications, prior judicial decisions,

31
No. 1-06-3437

practical applications, as well as the

testimony of scientists as to the attitudes of

their fellow scientists. [Citation.]

Plaintiff has pointed out that Dr.

Phelan's studies on NRBCs are new and have not

been tested. However, as professor Graham has

written:

'Newness alone is not a bar to

admissibility, for every scientific

technique that is eventually

accepted must have its first day in

court. Moreover, neither lack of

absolute certainty nor lack of

uniformity of expert opinion

precludes a court from finding on

the basis of expert witness

testimony and other evidence

admitted at trial that *** the

scientific test's reliability is, or

clearly would be when brought to the

attention of the appropriate

experts, generally accepted in the

32
No. 1-06-3437

particular scientific field in which

the test belongs.' "

Mitchell, 317 Ill. App. 3d at 762, quoting M.

Graham, Clearly & Graham's Handbook of

Illinois Evidence §702.4, at 563 (6th ed.

1994).

As recognized in Mitchell, the newness of the theory is not an

automatic bar to the admissibility of testimony supporting that

theory. While the admissibility of Dr. Grimm's theory is a matter

of first impression in an Illinois court of review, her articles

concerning the forces of labor and shoulder dystocia, published in

a peer-reviewed journal, date back a number of years: her first

article was published in 2000, followed by the articles published

in 2003. The articles themselves were published in the American

Journal of Obstetrics and Gynecology, one of the same "highly

prestigious medical journals" noted in Mitchell. Dr. Grimm's

research has gained such prominence as to be referenced in two

medical textbooks, Precis and Williams. The plaintiffs presented

no direct evidence to challenge Dr. Grimm's methods, relying

instead to cast doubt on her methodology and principles during

cross-examination. Dr. Grimm's claim that her model had been

generally accepted in both the engineering and obstetric

33
No. 1-06-3437

communities is amply supported by evidence at the Frye hearing.

But our de novo review of Judge Morrissey's Frye analysis is

not limited to the evidence presented at the Frye hearing. We may

also consider, "where appropriate, sources outside the record,

including legal and scientific articles, as well as court opinions

from other jurisdictions." In re Commitment of Simons, 213 Ill. 2d

at 531.

The plaintiffs note Dr. Grimm was barred from testifying in a

subsequent case in the circuit court of Cook County. Dr. Boler,

however, in his motion to cite supplemental authority, points to a

recent decision by a federal district court that found Dr. Grimm's

methods, techniques, and opinions "reliable and admissible" in a

shoulder dystocia medical malpractice case. Silong v. United

States, No. CV F 06-0474 LJO DLB (E.D. Cal. August 31, 2007).

Because that case arose in federal court, the court analyzed the

issue pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 589-92, 125 L. Ed. 2d 469, 480-82, 113 S. Ct. 2786, 2794-

96 (1993), the focus of which is whether the expert's opinions are

based on scientific knowledge. A factor in this determination,

however, is "whether the theory is generally accepted in the

relevant scientific community." Silong, slip op. at ___. The

court rejected the plaintiff's challenges to Dr. Grimm's testimony,

34
No. 1-06-3437

which, like those raised by the plaintiffs in this case, attacked

the use of animals and Dr. Grimm's other assumptions. The court

held:

"The evidence further shows that Dr.

Grimm's work has gained acceptance in the

medical and biomechanical communities. She

has received multiple awards for research

excellence based on her research on fetal

brachial plexus strain during shoulder

dystocia. Dr. Grimm has been asked to present

her findings on this issue at several

international biomedical and biomechanical

conferences. Additionally, Dr. Grimm's

maternal labor force theory is supported by

other existing literature. Finally, Dr. Grimm

presents evidence that her scientific

techniques were based on accepted scientific

methodologies and learned treatises." Silong,

slip op. at ___.

The federal court's analysis in Silong is consistent with our

supreme court's pronouncement in In Re Commitment of Simons, 213

Ill. 2d at 532: "Under the Frye standard, the trial court is not

35
No. 1-06-3437

asked to determine the validity of a particular scientific

technique. Rather, the court's responsibility is to determine the

existence, or nonexistence, of general consensus in the relevant

scientific community regarding the reliability of that technique."

We conclude that Dr. Grimm's methodology is generally accepted

within the relevant scientific communities. Accordingly, Dr.

Grimm's testimony was properly admitted at trial by Judge

Morrissey, and Judge Taylor erred in granting a new trial on this

basis.

II. Impeachment of Dr. Edelberg

Judge Taylor found reversible error based on improper

impeachment during cross-examination of Dr. Edelberg regarding

letters to the editor and texts not conceded to be authoritative.

During the course of the trial, Judge Morrissey struck much of the

objected-to testimony elicited during cross-examination regarding

the letters and instructed the jury accordingly. Judge Morrissey

also ruled Dr. Edelberg was properly cross-examined on passages in

the medical texts of Precis and Williams that covered much of the

same subject as the cross-examination that was stricken.

We preface our discussion of this issue with comments by

Justice Schaefer as to the importance of expert testimony in the

36
No. 1-06-3437

attainment of justice.

"An individual becomes an expert by studying

and absorbing a body of knowledge. To prevent

cross-examination upon the relevant body of

knowledge serves only to protect the ignorant

or unscrupulous expert witness. In our

opinion expert testimony will be a more

effective tool in the attainment of justice if

cross-examination is permitted as to the views

of recognized authorities, expressed in

treatises or periodicals written for

professional colleagues." Darling, 33 Ill. 2d

at 336.

This reminder is necessary because of our concern over the

reluctance of witnesses, carrying the mantle of "expert" before

juries, to acknowledge certain texts as authoritative.

It goes without saying that a witness does not become an

"expert" based on his own view on a particular subject. A person

becomes an expert by "studying and absorbing a body of knowledge."

The body of knowledge exists independent of the view of any

individual expert. We see no reason for reluctance on the part of

an expert witness (or counsel) to acknowledge a treatise as

37
No. 1-06-3437

authoritative, even if there exists disagreement on a particular

point of knowledge contained in the text. As noted, it is often

these treatises, known to every well-trained professional in the

field, that serve as the fountain of knowledge for the acquired

expertise of the witness.

Regarding the reversible error found by Judge Taylor, based on

our review of the record, Dr. Edelberg did acknowledge, with

perhaps some reluctance, that both Precis and Williams are

authoritative texts in the field of obstetrics (see, e.g., People

v. Johnson, 206 Ill. App. 3d 875, 879, 564 N.E.2d 1310 (1990)

(witness's testimony that she was familiar with text and had used

it in the past was sufficient to establish its reliability, even

though witness did not specifically state she relied upon it)), as

he was professionally compelled to do. See Roach v. Springfield

Clinic, 223 Ill. App. 3d 597, 585 N.E.2d 1070 (1991), rev'd in

part, 157 Ill. 2d 29, 623 N.E.2d 246 (1993) (Precis III

authoritative as used by obstetricians to prepare for board exams);

Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 367 N.E.2d 1250

(1977) (Williams Obstetrics authoritative as information contained

therein probative on foreseeability issue). Consequently, we find

no error in the cross-examination of Dr. Edelberg based on the

passages in Precis and Williams.

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No. 1-06-3437

We also agree with Judge Morrissey that any error, which may

have occurred by the cross-examination of Dr. Edelberg as to the

substance of the exchanges in the letters to the editor, to the

extent the claimed error was not cured by the striking of the

examination coupled with the instruction to disregard to the jury,

was rendered harmless when proper cross-examination was conducted

on the same subjects based on the passages in Precis and Williams.

See People v. Sims, 167 Ill. 2d 483, 512, 658 N.E.2d 413 (1995)

("It is well established that the trial court's decision to sustain

a defense objection, and the trial court's instruction to the jury

to disregard the remark, will cure any prejudicial impact").

Because any error resulting from any improper impeachment of

Dr. Edelberg was cured by the actions of Judge Morrissey and no

prejudice lingered because subsequent proper cross-examination

occurred, a new trial based on these claimed errors is unwarranted.

Consequently, Judge Taylor abused his discretion when he ordered a

retrial on this basis as well.

CONCLUSION

For the reasons stated, the order of the circuit court of Cook

County granting a new trial is reversed. The cause is remanded to

the circuit court with instructions to reinstate the jury's verdict

for Dr. Boler.

39
No. 1-06-3437

Reversed and remanded.

CAHILL, P.J., and WOLFSON, J., concur.

40
No. 1-06-3437

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

TANISHA RUFFIN, by Her Mother and Next Friend, Sonya R. Sanders; and
SONYA R. SANDERS, Individually,
Plaintiffs-Appellees,
v.
LEO BOLER, JR.,
Defendant-Appellant.
________________________________________________________________

No. 1-06-3437

Appellate Court of Illinois
First District, First Division

Filed: June 25, 2008
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

CAHILL, P.J., and WOLFSON, J., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable John E. Morrissey and Bill Taylor, Judges Presiding.
_________________________________________________________________

For PLAINTIFF - Larry R. Rogers, Jr.
RESPONDENT Power Rogers & Smith, P.C.
70 West Madison Street, Suite 5500

41
No. 1-06-3437

Chicago, Illinois 60602

For DEFENDANT - Marilee Clausing
PETITIONER, Diane I. Jennings
Charles C. Bletsas
Anderson, Rasor & Partners, LLP
55 E. Monroe Street, Suite 3650
Chicago, Illinois 60603

42