dissenting:
I do not share the majority’s view that Dr. Scrivner’s explanation of his disagreement with a learned article by Dr. Matingly was unresponsive and contained inadmissible hearsay requiring reversal of the judgment in favor of Dr. Burpo. Asked whether he agreed with a statement which concluded that “*** fistulas result *** from inclusion of a bit of the bladder wall within a suture during closure ***,” Scrivner responded, “I can agree only in part ***.” The rest of his answer explained that he could give only limited agreement to the quoted statement because of a comment made to him two days before by Dr. Fair, the chief of urology at Barnes Hospital, during a seminar at Washington University. Dr. Fair’s comment to Scrivner addresses the same issue raised by Dr. Matingly’s article, that is, the relationship between fistulas and sutures, but arrives at a contrary conclusion: “Scrivner, its [sic] got to be devitalized scar tissue. No way because we use the very same suture to even repair bladder injuries with Dexon. That is as far as I can go.”
The appellant objects that Scrivner’s recitation of Fair’s statement is inadmissible because it is hearsay, but the wisdom of certain exceptions to the bar against hearsay has long been recognized, particularly that exception allowing the use of learned treatises. (6 Wigmore on Evidence secs. 1690, 1691 (Chadbourn rev. 1976).) The Federal Rules of Evidence 703 and 705, adopted by Illinois, contemplate an even more expansive exception for hearsay reasonably relied upon by an expert witness in forming his opinion on the matter at hand. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1332, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.) The Advisory Committee recognized that physicians base their opinions on “information from numerous sources and of considerable variety *** including *** opinions from nurses, technicians and other doctors ***.” (Fed. R. Evid. 703, advisory committee note.) There is nothing in the rule or committee notes which requires data to be presented in written form. Unless the court requires him to do so, the expert may testify as to his opinion and inferences without prior disclosure of the data upon which he relies for his views. (Fed. R. Evid. 705.) It is the burden of the cross-examiner to elicit the basis of the expert’s opinion. (Bryan v. John Bean Division of FMC Corp. (5th Cir. 1978), 566 F.2d 541.) The heart of the inquiry is whether the data made known to the expert is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject ***.” (Fed. R. Evid. 703.) In fact, Montefusco v. Cecon Construction Co. (1979), 74 Ill. App. 3d 319, 392 N.E.2d 1103, cited by the appellant, supports this view. There the court said that it was permissible for an expert to base his opinion upon information communicated to him orally by a person who did not testify at trial. The weight to be given to the opinion could be challenged by cross-examination.
In the present case, Scrivner’s identification of Fair as chief of urology at Barnes Hospital suggests that information coming from Fair could be reasonably relied upon by obstetricians and gynecologists who must deal with urological problems in their practice. Scrivner further explains that it was the currency of Fair’s views which influenced him to disagree with Matingly’s article. It does not appear unreasonable that a doctor would rely on up-to-date information in forming his opinions. If, in fact, Scrivner had been unreasonable in relying on Fair as a factor in forming his medical opinion, probing cross-examination could have revealed the unreasonable reliance and affected the weight to be given to Scrivner’s opinion.
Were I to conclude, as the majority does, that the admission of Scrivner’s testimony was error, I would nevertheless consider it harmless error. During direct examination, Scrivner stated before the jury his opinion that sutures made with Dexon would not have caused Denny’s fistula. He explained that his opinion was “based on the record and my experience and other sources” including literature supplied by the makers of the suture and conversation “with eminent people in the field of urology” who used Dexon. Denny did not object to any of the sources of data on which Scrivner relied although they include direct conversations with eminent urologists. At most, Scrivner’s statements during cross-examination were cumulative.