dissenting:
My problem with this case involves the answers to two questions: first, did the plaintiff establish that the condition complained of was the result of the “el” accident of September 27, 1970; and second, were the other accidents or incidents in which plaintiff was involved properly eliminated as possible causes of the condition complained of. I think the answer is “no” to both questions. Therefore, in my opinion, plaintiff did not sustain her burden of proof. For that reason I would reverse.
As has been meticulously detailed in the majority opinion, nine doctors testified in the trial, and the findings of an additional two were brought out during the course of the testimony. Five of the doctors testified for the plaintiff, while four testified for the defendant. Only plaintiff’s witness, Dr. Klawans, diagnosed her condition as multiple sclerosis (hereinafter M.S.). Yet, interestingly enough, Dr. Klawans acknowledged that his interns who took the plaintiff’s case history did not agree with his objective findings.
The trial court stated that it was persuaded by the clear and convincing testimony of plaintiff’s witness, Dr. Klawans. At the outset it is recognized that where there is conflicting testimony and the trier of fact had the opportunity to observe the witnesses as they testified, and to determine the credibility of the witnesses and the weight to give to their testimony, a reviewing court will not reverse unless the finding is manifestly against the weight of the evidence. See Spankroy v. Alesky (1st Dist. 1977), 45 Ill. App. 3d 432, 359 N.E.2d 1078.
However, this court has also held “the weight of an expert’s opinion must be measured by the reasons given for the conclusion and the factual details marshalled in support thereof.” St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1st Dist. 1973), 12 Ill. App. 3d 165, 179, 298 N.E.2d 289; Mullen v. General Motors Corp. (1st Dist. 1975), 32 Ill. App. 3d 122, 131, 336 N.E.2d 338.
Expert witnesses testifying about cause and effect in medical cases are permitted rather broad latitude in expressing an opinion as to an ultimate issue in a case. However, as a safeguard upon the reliability of such testimony, the expert witness, no matter how skilled or experienced, will not be permitted to guess or state a judgment based on mere conjecture. Boose v. Digate (3rd Dist. 1969), 107 Ill. App. 2d 418, 422, 246 N.E.2d 50.
The plaintiff was injured in an “el” train accident on September 27, 1970. The record indicated that the plaintiff was also involved in the following accidents and incidents:
(1) in 1965, she received a whiplash injury;
(2) June 1970, she received a bruised left side in a car accident;
(3) November 1970, she sustained a broken arm as the result of a fall in her home; and
(4) February 1973, she received a whiplash in a car accident. Thus plaintiff had the burden of establishing that the condition complained of was the result of the September 27, 1970, “el" accident, and as stated by the trial court, that burden required clear and convincing evidence.
In Dixon v. Industrial Com. (1975), 60 Ill. 2d 126, 131, 324 N.E.2d 393, our supreme court repeated what it had said earlier: “We would note parenthetically that we have recognized that where medical knowledge of a disease is limited, as is so in the case of multiple sclerosis, medical evidence as to causation may not be unqualified and unequivocal. (National Castings Division of Midland-Ross Corp. v. Industrial Com. 55 Ill. 2d 198.)”
Commencing with the testimony of the doctor who first examined the plaintiff foUowing the September 27,1970, “el” accident until February 6, 1974, there is no evidence in the record that any examining or treating physician diagnosed plaintiff’s problem as M.S. Then in February 1974, in connection with this lawsuit filed in October 1970, Dr. Klawans examined plaintiff. It is important to remember that at the time of initially seeing plaintiff, Dr. Klawans had been furnished a typed history of the plaintiff prior to the February 1974 visit; however, the author of that document was not identified. Thus, relying on this prepared history and aided by the records and reports of other hospitals and examining physicians, Dr. Klawans gave plaintiff a neurological examination. She was then admitted to a hospital for tests in connection with his diagnosis of M.S.
The issue of whether plaintiff had M.S. is clearly disputed. Not one doctor who examined her, other than Dr. Klawans, diagnosed her problem as M.S. It is recognized that Dr. Klawans is an expert, but so was Dr. Cascino, the neurosurgeon retained by the defendant who examined plaintiff in August 1974, who found no M.S.
Thus the trial court was confronted with the testimony of four examining or treating physicians who examined plaintiff between September 27, 1970 through 1973, and none of them noted any sign of M.S. On the other hand, the court was confronted with the testimony of Dr. Klawans. My reading of all of that testimony leads me to the conclusion that because of the nature of the evidence — the dates and circumstances of the examinations — plaintiff failed to establish that she was suffering from M.S.
But assuming, arguendo, that plaintiff did establish she had M.S., the next question is, does the record establish a causal relationship between the accident of September 27,1970 and M.S.? My answer is no. I think the conclusion of the trial court is clearly against the manifest weight of the evidence.
At the outset it is to be noted that Dr. Klawans testified that his findings relating to the precipitation of M.S. would be based on the accuracy of the history plaintiff provided. That is the typed statement whose authorship is unknown. It is to be noted that the record indicated contradictions between plaintiff’s testimony and other evidence. For example, (i) the question of plaintiff’s ability to talk at the hospital following the “el” accident; (ii) whether the incident in November 1970 was caused by tripping on a rug or her leg giving out; (iii) the question of whether she reported to the hospital a condition of dizziness, loss of balance, or double vision; and (iv) the question of comparing her characterization to the doctors of her condition of health, such as the condition of her neck or right side of her face and the numbness of her fingers or hand. Strangely enough, only to Dr. Klawans — in the typed history — were all the classical symptoms of M.S. disclosed. Thus, in my opinion, the accuracy of plaintiff’s history given to Dr. Klawans is against the manifest weight of the evidence. And, as Dr. Klawans admitted, his conclusions “would be based on the accuracy of the history that she gave me.”
Even accepting the verity of the history, it is necessary to examine the record to determine the causal relationship between the September 27, 1970, accident and M.S. If there is a causal connection, Dr. Klawans provided it.
As for the September 27,1970, accident, his testimony in response to a question “based upon a reasonable degree of medical certainty as to whether the condition of multiple sclerosis might or could have been precipitated or aggravated by the trauma experienced in the accident” was “I think that it could well be.” Whether it was “precipitated” or “aggravated” was never clarified.
It is revealing that Dr. Klawans also testified that plaintiff’s fall suffered in November 1970, and the accident of February 1973, may have precipitated M.S.
In my opinion the plaintiff had the burden under the facts in this case to prove not only that the “el” accident could have caused the condition complained of, but that it probably did. Cf. Cohenour v. Smart (1951), 205 Okla. 668, 240 P.2d 91, 93; 31 Am. Jur. 2d Expert & Opinion Evidence §185 (1967).
Dr. Klawans did not eliminate the four other accidents or incidents as possible causes of the condition complained of. In fact he testified that two other incidents or accidents could have precipitated the M.S. How then can one say the September 27, 1970, incident was the cause of plaintiff’s problem? Dr. Klawans’ conclusion is too conjectural and should be rejected. (See Boose v. Digate.) In my opinion, the judgment of the trial court is clearly against the manifest weight of the evidence.