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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No. 1-06-3437
"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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No. 1-06-3437
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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No. 1-06-3437
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
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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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No. 1-06-3437
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
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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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No. 1-06-3437
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
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No. 1-06-3437
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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No. 1-06-3437
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.
24
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
28
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
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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.
38
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