dissenting:
While I agree with the majority that the court properly instructed the jury and that the defense verdict below was not otherwise inherently contrary to the manifest weight of the evidence, I respectfully dissent on the rather significant issues of the whether the use of the medical article in the cross-examination of plaintiffs expert violated Supreme Court Rule 213 and whether defendant laid an adequate foundation for the use of the article.
The use of medical literature is commonplace in civil and criminal courts. By its very nature, medical literature is chockablock with opinions that are based upon numerous tests, studies and statistics. The question of how to properly utilize such literature has occasionally vexed our courts and has led to maintenance of two different rules regarding its use at trial. On direct examination, an expert is not permitted to refer to the findings of any literature or treatises, even if he would testify that his opinions are based, in part, on the literature in question. People v. Anderson, 113 Ill. 2d 1, 12 (1986); Schuchman v. Stackable, 198 Ill. App. 3d 209, 230 (1990); Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d 42, 54 (1984). This rule is based upon the theory that it would be unfair to allow this sort of testimony where the author of the article is not subject to cross-examination. See Schuchman, 198 Ill. App. 3d at 230. Though given an opportunity, our supreme court has declined to specifically approve the use of medical literature on direct examination. Anderson, 113 Ill. 2d at 9-10.
On the other hand, cross-examination of an expert utilizing reliable and authoritative literature has clearly been embraced in Illinois, despite the fact that the author is still not subject to cross-examination himself. Bowman v. University of Chicago Hospitals, 366 Ill. App. 3d 577, 587 (2006). This dichotomy often leads to the awkward practice of a party establishing the reliability of an article through his own expert, in order to cross-examine the opposing party’s expert with the article. It also sets up a conundrum in which medical literature cannot be effectively utilized to support an expert’s theory on direct examination but can be used as a sword to undermine an opposing expert’s testimony.
In order to utilize a medical article or treatise in cross-examination of any witness, a party must first lay an appropriate foundation for the article in question. Bowman, 366 Ill. App. 3d at 587. Generally speaking, a witness with sufficient knowledge must testify that the article is “authoritative” on an issue that is relevant before the jury. Expert witnesses, however, have long been loathe to admit that an article or text is authoritative for fear that their credibility might be undermined by the contents of the writing. Fortunately, this court has recognized that there is no particular magic to the term “authoritative,” permitting a foundation to be laid with terms like “standard,” “well respected,” “a good source” or “a very good book.” Bowman, 366 Ill. App. 3d at 587.
The majority chides plaintiff for a supposed failure to make a proper foundation objection, but it is abundantly clear from the record that plaintiff’s counsel not only stated that the “foundation” was deficient, but he also exactingly delineated the reasons that defendant would be unable to lay a proper foundation because the article itself was unreliable for multiple reasons. The majority seems to argue that since plaintiffs counsel did not utter the statement, “this article is not reliable (or authoritative),” that this issue is forfeited. As noted above, this sort of hypertechnical jurisprudence has been discredited in this rather limited area of the law, to say the least. See Bowman, 366 Ill. App. 3d at 587. If plaintiffs counsel had merely used the word “foundation” without explaining the nature of the inadequate foundation, I might be persuaded to join my colleagues in their articulate and thorough analysis of the muddled mess that is Illinois case law on the use of medical literature at trial. But this simply was not the case in the trial of this matter. Even if counsel failed to supply the magic word (“unreliable” or “nonauthoritative”) that the majority would seemingly require, he clearly supplied the trial court with ample reasons that defendant would never be able to lay a foundation that this particular article was either reliable or authoritative.
Plaintiff’s counsel, in his objection to the use of the article in cross-examination of Dr. Edelberg, stated:
“[T]his article was recently rejected. The author of this article, and what they did was, this was in conjunction with a medical malpractice defendant and his expert witness and when AGOG found out about that, they actually launched an investigation into that physician based on his failure to disclose. He was doing this investigation on behalf of a litigation defendant as opposed to medical research. We have fundamental issues with the validity of the article on its face that we’ve got substantial problems with.” (Emphasis added.)
The court then overruled plaintiff’s Rule 213 objection and asked about the “other objection.” Plaintiffs counsel repeated that there was a problem with the foundation, going directly to the issue of the unreliability of the article:
“The foundation for itself — the publisher actually launched an investigation as to this article itself because of the underlying information. It wasn’t disclosed as part of the publication that the author in their study — there was a relationship between the medmal defendant and him being his expert witness, brought into question his credibility in writing the article and ACOG has actually gone and launched an investigation into that physician’s credentials for actually doing this.” (Emphasis added.)
Defense counsel then argued that this objection had nothing to do with the “foundation of the substance of this,” but plaintiffs counsel retorted, “It has everything to do with the foundation because ACOG themselves says, ‘Wait a minute, this is way out of line. Having had any knowledge of these shenanigans we would never have even allowed this to go on. In addition to that we’re now going and doing our own investigation into what actually happened because of this.’ ”
Despite this rather detailed assault on the article’s lack of reliability because of the ethical issues raised, the majority blithely states that plaintiff failed to “expressly object based on the article’s lack of authoritativeness.” 403 Ill. App. 3d at 156. Nothing could be further from the reality of what happened in the trial court. Plaintiffs counsel objected on the basis of Rule 213 and objected that there was an inadequate foundation because the article itself was unreliable. That is the only fair reading of the objection made at trial.
In the case sub judice, defendant did not disclose the name of any witness who would testify that the article was, in fact, authoritative. The method that defendant utilized was to cross-examine plaintiffs expert with the article, despite the fact that plaintiffs expert specifically did not believe that the article was reliable because the co-authors failed to disclose, inter alia, that the article was based on litigation in which one testified as an expert for the other. In order to provide the necessary foundation, defense counsel chose to use her expert, but that witness, Dr. Neerhof, did not testify that the article itself was reliable or authoritative. He merely testified that one of its authors was a reliable authority in the field. This foundation might barely pass muster in some circumstances, but it is completely inadequate here because of the article’s numerous credibility and reliability problems that were brought to the trial court’s attention. Just saying that a doctor is reliable does not mean that everything he writes is reliable. This article in this case is exquisite proof of the truth of that statement.
In my view, the trial court’s ruling was reversible error because defendant was allowed to repeatedly utilize the article in cross-examination without a sentence of testimony stating that the article itself was reliable. The argument that the use of the article was merely impeaching as opposed to substantive evidence lacks merit when one reads the rather effective drilling of the expert with the article’s potent words on the most important issues in this medical malpractice trial. Sanctioning this practice could empower a party to marshal stacks of articles for use in cross-examination of her opponent’s expert, without disclosing a single witness who would vouch for the reliability or authoritativeness of any article. One can easily imagine a scenario where numerous articles are handed over just before trial, without any direction as to which might actually be utilized during cross-examination, not to mention who might supply the necessary foundation for the authoritativeness of the article. Forcing one’s opponent to absorb this level of technical information while waiting to see which specific article is utilized and which expert might vouch for its reliability might strike some as clever strategy, but it is inconsistent with the purpose of discovery and is a straightforward recipe for incurable prejudice.
Maffett v. Bliss, 329 Ill. App. 3d 562 (2002), relied upon by defendant and cited favorably by the majority, might seem to validate some of this methodology, namely, the lack of a discrete requirement in Rule 213 to identify medical articles that might be used in cross-examination, but it does not stand for the proposition that there is no requirement to identify a witness to establish the bona fides of a medical article. A statement that an article from a medical journal is reliable is quintessentially an opinion, after all, and undisclosed opinions regarding medical literature should not be heard by the trier of fact. Iser v. Copley Memorial Hospital, 288 Ill. App. 3d 408, 410-11 (1997). Furthermore, Maffett is a Fourth District case, which is not binding upon this court. See O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008). Further, the majority’s reliance on Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30 (2003), which cited Maffett, does not, in my judgment, validate Maffett’s holding.
Supreme Court Rule 213 is designed not only to prevent surprise, but to provide the litigants with a ready guide to the evidentiary issues that will be dealt with by the expert witnesses who testify. See Spaetzel v. Dillon, 393 Ill. App. 3d 806, 812 (2009) (purpose of discovery rules, including Rule 213, is to discourage surprise and strategic gamesmanship). Allowing a party to utilize undisclosed medical articles that may or may not be authenticated by unidentified witnesses is contrary to the letter and the spirit of the rule and it should be condemned by the court. It is manifestly unfair to allow undisclosed articles to be freely used on cross-examination, especially when no witness has been properly identified as being willing to vouch for the reliability of the many opinions contained within the literature.
Turning again to the facts of the matter sub judice, it is abundantly clear that plaintiffs expert was wholly unsupportive of the findings of the article by Drs. Lerner and Salamon. It is also uncontradicted that this article was not specifically identified in any pretrial disclosure or deposition. Plaintiff made a timely objection, pursuant to Rule 213, and the court considered it at sidebar. During this conference, plaintiffs counsel revealed that the article also suffered from an infirmity as a result of the fact that one of the authors had testified for the co-author in a malpractice case that served as the medical and factual foundation for the article. This fact was not mentioned when the article was published.
The record is quite clear that defense counsel quoted this article frequently during cross-examination. In sum, the article stood for the proposition that Erb’s palsy could occur in the absence of noted shoulder dystocia and without any traction being applied. This, of course, was exactly contrary to the medical theory espoused by plaintiffs obstetrical expert. These issues raised by plaintiffs counsel went directly to the issue of the article’s reliability and should have given the trial court pause when considering whether to allow its use, especially because it would inevitably create a collateral and potentially confusing battle with none of the article’s authors appearing in court before the jury. The trial court did allow plaintiffs counsel some latitude in examining Dr. Neerhof, but that witness conveniently claimed a lack of knowledge on some of the critical shortcomings of the article, leaving the effectiveness of the examination very much in doubt.
The majority suggests that plaintiffs arguments about this article are much ado about nothing, because defendants also utilized several other articles in cross-examination of plaintiffs expert. This strikes me as a rather cynical suggestion, authorizing a party to slip in patently unreliable literature before the jury as long as one softens the blow with some reliable texts and articles. It is not hyperbole to suggest that the Lerner and Salamon article went to the very heart of the claim of malpractice in this case. It directly suggested that Erb’s palsy could occur in the complete absence of any known shoulder dystocia, merely as a result of the normal propulsive forces of labor. It also merits mention that the article in question is a case report and not a peer-reviewed article. A fair reading of the work product of this defendant/expert tag team suggests that the missive was penned more to assist litigants than to inform medical professionals, and this view was borne out by the testimony in the matter sub judice. More to the point, if defendant already had three other reliable sources at hand, the use of the facially unreliable article not only highlights the cumulative nature of the proof, but also its inherent prejudicial effect.
The final proof of prejudice can be found in defense counsel’s closing argument in which the findings of the article are tied directly to defendant’s sole proximate cause defense. The Lerner and Salamon article is self-described as noteworthy because it “appears to be the first unambiguous case report of a baby born vaginally without the occurrence of shoulder dystocia, that resulted in a permanent brachial plexus injury.” Thus, the article was used in cross-examination of plaintiffs expert to support the argument that the normal forces of labor and delivery can cause a brachial plexus injury and then masterfully reemphasized in the defendant’s closing argument on sole proximate cause:
“This instruction goes to the heart of this case, the heart of Bridge No. 2. We have demonstrated to you that the sole, the sole, the only cause, the sole proximate cause of Keenan’s injury was the expulsive forces of labor was his shoulder getting stuck on the sacral promontory while the forces of labor kept pushing him down the birth canal or as Dr. Neerhof suggested to you yesterday, malpositioning. *** If you believe that those other causes, the forces of labor, the malpositioning in útero were the cause of Keenan’s injury, then your verdict must be in favor of Dr. Moore.”
As the cited argument conclusively establishes, defendant not only used this dubious medical article to discredit plaintiffs expert, it was also utilized substantively to provide medical literature support for her sole proximate cause defense. It would be hard to develop a set of facts in which the improper use of medical literature could be more effectively tied to the very “heart” of a defense to a malpractice claim.
There is no question that the trial court was in a difficult position when dealing, in real time, with this undisclosed medical literature. The trial court surely felt it was on solid footing because the article did seem to impeach plaintiffs expert on his theory of how the injury occurred and it was “only” going to be used on cross-examination. It is clear that the court endeavored to be fair to both sides on this particular evidentiary issue, even stating on the record, “I am trying to limit the damage on either side. But most importantly, I don’t want the jury to hear a trial within a trial.” Unfortunately, in my view, the trial court was unsuccessful in both of these laudable goals. First, the plaintiff was clearly damaged by the use of this article, and second, this jury did hear a trial within a trial, but it never heard the full scope of the misleading nature of the Lerner and Salamon article.
The failure to disclose a witness who would supply the necessary foundation when coupled with the obvious problems inherent in the article itself, resulted in the type of prejudice that prevented plaintiff from getting a fair trial because the jury was allowed to consider very persuasive evidence on the very central issues of negligence and sole proximate cause from an undisclosed source and in a facially unreliable form. Allowing plaintiff to highlight some of the article’s infirmities did not adequately cure the prejudice, in my view. I would reverse the judgment and remand the case for a new trial on all issues and further rule that the Lerner and Salamon article not be used at trial.