Rock v. Pickleman

PRESIDING JUSTICE RAKOWSKI,

specially concurring:

I concur, for reasons set forth in the majority opinion, that Dr. Milner was qualified to testify as an expert with respect to a post-operative standard of care. For this reason I agree that the motion in limine should have been denied.

Where the majority and I differ is with respect to whether Dr. Milner could properly rely upon and utilize Dr. Pomerantz’s letter in the formulation of his opinion. I respectfully submit that he could not. While it is true that Dr. Milner had an opinion that there was a breach of the applicable standard of care in a post-operative setting, he had no opinion whatsoever as to whether defendant’s actions were proper in a surgical setting; he relied exclusively upon the Pomerantz letter. In effect, rather than utilize the Pomerantz letter in the formulation of his own opinion, Dr. Milner is expressing Dr. Pomerantz’s opinion with respect to an area (surgery) in which he (Milner) has no expertise. It is for this reason that the Pomerantz letter is not the type of outside data “reasonably relied upon by experts in the particular field in forming their opinions.” See Fed. R. Evid. 703; Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.

Thus, while I agree that a doctor may consider opinions of other doctors in the formulation of his own opinion, he should not be allowed to adopt another doctor’s opinion as his own with respect to an area in which he has no expertise. Contrary to the majority, I find nothing in Melecosky v. McCarthy Brothers Co. (1986), 115 Ill. 2d 209, 503 N.E.2d 355, or Federal Rule 703 that would sanction such a result. More applicable to the present situation is the case of Denny v. Burpo (1984), 124 Ill. App. 3d 73, 463 N.E.2d 1074. There the court held that a consulting expert’s opinion of a case could not be characterized as information of the type “reasonably relied upon” in the field because the consulting expert was speaking with regard to a specific case, not from general medical knowledge. (124 Ill. App. 3d at 77-78.) It is my opinion that Dr. Milner’s reliance upon and utilization of the Pomerantz letter would amount to inadmissible hearsay in accord with Denny.