Evidence and Practice Tips By: Joseph G. Feehan Heyl, Royster, Voelker & Allen, P.C., Peoria

Transcription

1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 21, Number 3 ( ) Evidence and Practice Tips By: Joseph G. Feehan Heyl, Royster, Voelker & Allen, P.C., Peoria First District Holds that Trial Court Properly Allowed Defense Medical Expert to Rely Upon Police Report and Vehicle Photographs as Basis for Medical Opinion Testimony In Han v. Holloway, No , 2011 WL (Ill. App. 1st Dist. March 1, 2011), plaintiff Hye Ra Han sued defendant William Holloway for negligence, alleging personal injuries arising from a 2002 motor vehicle accident in Chicago. The plaintiff alleged that she was injured when her car was struck from behind by the defendant Holloway s vehicle. The case proceeded to trial in At trial, Holloway testified that his vehicle was stopped behind the plaintiff s vehicle at a red light. When the light turned green, the cars in front of the plaintiff s vehicle began to go through the intersection and the plaintiff s vehicle also began to move forward. Holloway testified that he began to slowly move forward, but then saw Han s brake lights come on. Holloway testified that Han suddenly stopped her vehicle, approximately a car length before the intersection. Holloway applied his brakes and honked his horn but was unable to avoid striking the rear of the plaintiff s vehicle. Holloway testified that he was going about one or two miles per hour when the front of his car contacted the rear of the plaintiff s vehicle. Holloway testified that his license plate made a scratch on Han s rear bumper but there was no other noticeable damage to either vehicle. After the accident, both of the vehicles were drivable and the parties agreed to drive to the nearest police station to file a report. Han and Holloway both spoke to the police officer at the police station and the plaintiff told the police officer that she was okay. The police report showed that the officer checked a box which described the accident as No Injury/Drive Away. At trial, Han testified that she began to experience low back pain soon after the accident and received treatment from her family physician, Dr. Roberto Diaz. Dr. Diaz then referred her to a pain management specialist, Dr. James Diesfeld. Dr. Diesfeld treated the plaintiff by administering trigger point injections and epidural steroid injections at various levels of the lumbar spine. At trial, both Dr. Diaz and Dr. Diesfeld testified, to a reasonable degree of medical certainty, that the plaintiff suffered a lumbar spine sprain/strain, diffuse disk bulge, and an annular tear as a result of the accident. Defendant s medical expert was a board-certified neurologist named Dr. Glantz. At trial, Dr. Glantz agreed that the plaintiff suffered a soft tissue injury, which is also known as a sprain or strain to the lower lumbar area as a result of the accident. However, Dr. Glantz testified that any lumbar sprain/strain plaintiff might have sustained would have been completely resolved within two months of the accident. Dr. Glantz also testified that even if an annular disk tear was present, it was unlikely that it was caused by the accident. Dr. Glantz based his opinions on the police report s statement that there was no injury to either driver. Dr. Glantz testified that his opinions were also based on a review of photographs of the vehicles, which showed little or no damage. (The photos of the vehicles were introduced into evidence during the plaintiff s case-inchief.) Dr. Glantz testified that the lack of significant damage to the vehicles indicates that there was only minimal force to plaintiff s vehicle and that it was unlikely that such a minor collision would cause an annular Page 1 of 6

2 disk tear. Further, Dr. Glantz testified that the plaintiff would have experienced significant low back pain immediately after the accident if she had torn a disk during the accident. Dr. Glantz also testified that the nature and extent of medical treatment provided to Han was unreasonable under the circumstances. As noted above, the plaintiff underwent multiple trigger point and epidural injections and her medical bills were in excess of $41,000 by the time of trial. Dr. Glantz testified that it was not reasonable to perform both epidural injections and trigger point injections at the same time. According to Dr. Glantz, accepted medical practice requires that a patient undergo either one or the other procedure. The jury returned a verdict in favor of defendant. The trial court subsequently denied the plaintiff s motion for a new trial and the plaintiff appealed. On appeal, the plaintiff argued that the trial court erred in allowing Dr. Glantz to rely upon a portion of the police report to formulate his opinion that she suffered only a minor soft tissue injury in the accident. At trial, Dr. Glantz testified that the police report described the accident as No Injury/Drive Away and stated that the report provided one piece of the puzzle in forming his opinions. Dr. Glantz testified that it is his custom and practice as a medical expert witness to rely upon police reports when determining the nature and extent of an injury. Plaintiff argued that Dr. Glantz s reliance upon a portion of the police report was improper based on the Illinois Supreme Court s decision in Wilson v. Clark, 84 Ill. 2d 186 (1981), which adopted Federal Rule of Evidence 703. Federal Rule 703 provides that the facts or data upon which an expert bases an opinion need not be admissible in evidence [i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. The plaintiff argued that Rule 703 applies only to reports made and utilized during the course of a physician s medical practice, and not to documents reviewed by a physician for litigation purposes. The plaintiff contended that it is unlikely that a neurologist such as Dr. Glantz would customarily utilize or rely upon police reports as part of his medical practice. Han, 2011 WL , at *4. The Illinois Appellate Court First District rejected Han s argument that Rule 703 and the Wilson v. Clark decision should be applied so narrowly. The appellate court found that it was proper for the trial court to allow Dr. Glantz to rely upon the police report during his testimony because the trial judge gave Illinois Pattern Jury Instruction No The appellate court noted that the trial court instructed the jury that certain witnesses relied upon records not in evidence during their testimony for a limited purpose, and that the material referred to during the testimony was not considered to be evidence in the case. Han also argued that the trial court erred in allowing Dr. Glantz to rely upon photographs of the vehicles to reach the conclusion that the minimal damage to the vehicles made it less likely that the plaintiff suffered a significant injury. The appellate court also rejected this argument, stating: Plaintiff argues there was no indication that Dr. Glantz had the education, training, experience, knowledge or qualifications to opine that, based on the minimal damage shown in photographs of the vehicles, the force of impact was minimal and the likelihood of significant injury therefore was low. *** Here, Dr. Glantz, a board-certified neurologist with experience treating auto accident patients, testified that he relied, in part, on the photographs showing little or no vehicle damage in forming his opinion as to the injuries sustained by plaintiff in the accident. Dr. Glantz testified,... that with minimal accident injury to the motor vehicle and therefore minimal force it s not likely that there was any significant injury that was suffered to any individual with minimal force of that kind. *** The trial court properly allowed Dr. Glantz to opine that, based in part on the photographs of the vehicles involved in the accident, the force of impact was minimal and the likelihood of significant injury therefore was low. Id. at *5-6. Page 2 of 6

3 Plaintiff also argued that the trial court improperly allowed Dr. Glantz to opine that trigger point injections and epidural injections should not be given at the same time. The plaintiff contended that such testimony improperly referred to a standard of care which was not disclosed in advance of trial and which Dr. Glantz was not qualified to provide. The Second District noted, however, that the reasonableness of the medical treatment and the cost associated with the treatment were at issue because the plaintiff sought compensation for the cost of various medical procedures. Holloway s Rule 213(f)(3) disclosure stated that Dr. Glantz would testify with respect to the plaintiff s alleged injuries, the reasonableness of any alleged bills for treatments received by the plaintiff and the appropriateness of alleged treatments in this matter. Accordingly, the appellate court concluded that defendant had properly disclosed that Dr. Glantz would be providing opinions regarding the reasonableness of the treatment received by the plaintiff and the cost of said treatment. Id. at *6-7. The Han decision highlights the importance of properly disclosing that controlled and independent medical experts may provide opinion testimony regarding the reasonableness of the medical bills and the nature and extent of treatment. Holloway s Rule 213 disclosure provides guidance on the appropriate language to be utilized to properly disclose such medical opinions. First District Holds that Non-Resident Expert Witness in Medical Malpractice Case is Subject to Personal Jurisdiction in Subsequent Breach of Contract and Negligence Lawsuit Against Expert In McNally v. Morrison, No , 2011 WL (Ill. App. 1st Dist. March 15, 2011), the plaintiffs Terri McNally, Sean Mulroney, and J. Brian Pierce sued defendants Dr. Greg Morrison, M.D., and TASA Group, Inc. ( TASA ) alleging breach of contract, consumer fraud, fraud, and professional negligence. The lawsuit arose out of a previous medical malpractice claim filed in Cook County on behalf of McNally by her attorneys, Mulroney and Pierce. In the malpractice action, McNally alleged that plastic surgeon Dr. Mark Zutkowski negligently performed ultrasonic and traditional liposuction procedures. In the course of preparing the malpractice claim against Dr. Zutkowski, Mulroney and Pierce contacted TASA, a referral service that connects testifying and consulting experts with clients in law, industry and government. Mulroney and Pierce informed TASA that they wanted to retain a physician who could testify as an expert witness regarding liposuction procedures such as the one performed on McNally by Dr. Zutkowski. TASA provided Mulroney and Pierce with the names and contact information for several plastic surgeons who met the plaintiffs specifications, including Dr. Greg Morrison of Ohio. After speaking with each of the prospective experts via telephone, Mulroney and Pierce decided to retain Dr. Morrison. On October 10, 2005, Attorney Pierce sent a retention letter to Dr. Morrison at his address in Ohio. The letter also enclosed several documents for Dr. Morrison to review and confirmed that the plaintiffs had accepted Dr. Morrison s proposed rates and fees for his services. The rate sheet included rates for out-ofoffice depositions and court appearances. Over the next few months, the plaintiffs counsel continued to provide Dr. Morrison with various medical records, surgical photographs, and a transcript of Dr. Zutkowski s discovery deposition. On December 1, 2006, Dr. Morrison mailed his expert witness report to the plaintiffs counsel at their office in Chicago. Dr. Morrison s report contained the opinion that Dr. Zutkowski had deviated from the standard of care while performing the liposuction procedures. Upon receiving Dr. Morrison s report, the plaintiffs disclosed him as a controlled expert witness. Defense counsel arranged to take Dr. Morrison s discovery deposition in February In order to accommodate Dr. Morrison s private practice, all attorneys agreed to conduct the deposition at Dr. Morrison s Page 3 of 6

4 office in Ohio. Attorney Mulroney stated in an affidavit that he met with Dr. Morrison prior to the deposition to review his opinions and prepare for the deposition. Mulroney s affidavit attested that he became alarmed because Dr. Morrison informed him that he had never reviewed the deposition testimony of the plaintiff McNally and Dr. Zutkowski, nor had he looked at any of the surgical photographs. However, Dr. Morrison assured Mulroney that he firmly believed Dr. Zutkowski had breached the standard of care during the liposuction procedures. At Dr. Morrison s discovery deposition, he contradicted his expert report in its entirety and testified that Dr. Zutkowski s actions did not deviate from the standard of care. Soon thereafter, the plaintiffs counsel dismissed the malpractice claim against Dr. Zutkowski. Following the dismissal of the case against Dr. Zutkowski, the plaintiffs filed the lawsuit against Dr. Morrison and TASA. (The plaintiffs later agreed to dismiss TASA based on a disclaimer of liability contained on a TASA form and TASA was not a party to the appeal.) The claims against Dr. Morrison alleged breach of contract, consumer fraud, fraud, and professional negligence in his performance as an expert witness in the malpractice claim against Dr. Zutkowski. Dr. Morrison filed a motion to dismiss pursuant to 735 ILCS 5/2-619, contending that the trial court could not exercise personal jurisdiction over him. In support of his motion, Dr. Morrison submitted an affidavit which stated that he did not have any agreement or contract with the plaintiff McNally or her counsel. Rather, Dr. Morrison contended that any agreement or contract was between the plaintiffs counsel and TASA. Dr. Morrison s affidavit further stated that all billing and invoicing for his services was handled through TASA s office in Pennsylvania, that he did not ever initiate any contact by telephone with the plaintiffs counsel, that all of his work on the case occurred in Ohio, that he never visited Illinois for any purpose relating to the plaintiffs malpractice case, and that he has never practiced medicine in Illinois or testified in an Illinois court. Attorney Mulroney filed an affidavit in response to Dr. Morrison s motion to dismiss which described his communications with Dr. Morrison, including several telephone conversations discussing the case, the preparation of Dr. Morrison s expert report, and the events surrounding his deposition. The plaintiffs argued that the trial court should exercise personal jurisdiction over Dr. Morrison because he entered into an agreement to provide expert witness services to Illinois attorneys in an Illinois medical malpractice action. The trial court found that it did not have personal jurisdiction over Dr. Morrison and granted his motion to dismiss. On appeal, the Illinois Appellate Court First District performed a detailed analysis of the Illinois Long- Arm Statute (735 ILCS 5/2-209) and discussed various decisions issued by Illinois courts and the United States Supreme Court. The plaintiffs contended that jurisdiction was proper under three different sections of the Long-Arm Statute: doing business within Illinois, commission of a tort in Illinois, and the making or performance of a contract or promise substantially connected with Illinois. The appellate court noted that the Long-Arm Statute also includes a catchall provision in subsection (c), which provides that a court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States. 735 ILCS 5/2-209(c). The appellate court stated that this provision and federal due process requires that a non-resident defendant have certain minimum contacts with Illinois. The appellate court reviewed the pleadings and affidavits to determine whether Dr. Morrison had sufficient minimum contacts with Illinois to support an exercise of personal jurisdiction, stating: Both sides agree that Morrison never performed any physical activities in Illinois in conjunction with the medical malpractice case against Dr. Zutkowski, and neither party asserts that there is a written contract governing Morrison s services as an expert witness. Indeed, the record here is sparse regarding what Morrison did or did not do. However, the pleadings and affidavits in the record provide enough material to give rise to the inference that Morrison had entered into some sort of agreement with the plaintiffs Mulroney and Pierce, under which Morrison would provide expert witness services to the plaintiffs in their Illinois medical malpractice action. * * * Page 4 of 6

5 Indeed,... Morrison had an agreement with the plaintiffs. Morrison engaged in a course of correspondence with Mulroney and Pierce that spanned over a year s time. In the course of this correspondence, plaintiffs requested that Morrison review several different documents relating to the medical malpractice action and come up with an expert opinion as to whether Dr. Zutkowski the plastic surgeon who had operated on McNally had deviated from the standard of care during his treatment of McNally. Morrison prepared multiple drafts of an expert witness report, incorporating comments and requests from plaintiffs into later drafts. He attended a deposition for use in the malpractice action and, as may be inferred from the fee structure that he provided to TASA, Morrison at the very least contemplated testifying at trial in the malpractice case. The only logical inference to be drawn from the facts is that Morrison agreed to serve as an expert witness in the plaintiffs malpractice case. * * * Thus, all of Morrison s actions created a substantial connection [citation] with Illinois. (Citation omitted.) He was serving as an expert witness in an Illinois medical malpractice case. Thus, even though the only services that he had actually performed took place in Ohio, Morrison s services were intended to produce a result in Illinois. We fail to see how these expert witness services were not purposefully directed [citation] at Illinois residents, namely McNally and her attorneys, Mulroney and Pierce. McNally, 2011 WL , at *7-8 Based on the foregoing, the appellate court concluded that the course of dealings between the parties created an oral agreement with Dr. Morrison. Therefore, it found that a contract or promise substantially connected with Illinois existed between the parties. 735 ILCS 5/2-209(7). The First District also analyzed whether Dr. Morrison is subject to personal jurisdiction under the catchall provision contained in subsection (c) of the Illinois Long-Arm Statute, stating: First, the burden on Morrison to defend in Illinois does not appear to be unduly great. Ohio and Illinois are relatively close geographically and a change of venue would solve (sic) any problems posed by the distance between the two states. In addition, by agreeing to serve as an expert witness in an Illinois case, Morrison agreed to comply with the Illinois rules of civil procedure and trial practice. Nor has he shown how defending a suit in Illinois under Illinois law would be unduly burdensome when he had already agreed to testify in an Illinois case. Second, Illinois has a substantial interest in adjudicating this dispute because it concerns the conduct of an expert witness in an Illinois tort case. Third, exercising jurisdiction would further the plaintiffs interest in obtaining convenient and effective relief. Plaintiffs will have to establish how Morrison s acts and omissions affected a medical malpractice case that arose out of actions in Illinois, was pursued in Illinois, and was ultimately decided in an Illinois court. Fourth, the interstate judicial system s interest in obtaining the most efficient resolution of controversies also supports an exercise of jurisdiction. All of the effects of Morrison s acts and omissions occurred in Illinois, namely the dismissal of plaintiffs case against Dr. Zutkowski. Because of the substantial effect that Morrison s actions had in Illinois, Illinois is the most efficient forum to litigate this suit. Finally, it is in the interest of the several states to hold citizens of one state accountable for their actions that have a substantial impact on citizens of another state. Thus, Illinois interest in protecting its citizens from predation by citizens of other states, at least in this matter, outweighs Ohio s interest in protecting its citizens from the inconvenience of defending a lawsuit in another state. Id. at *9. Page 5 of 6

6 Accordingly, the court found that there were sufficient minimum contacts between Dr. Morrison and the state of Illinois such that Dr. Morrison would have reasonably anticipated being brought into court in Illinois. The appellate court remanded the case to the trial court for further proceedings. About the Author Joseph G. Feehan is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he concentrates his practice in commercial litigation, products liability and personal injury defense. He received his B.S. from Illinois State University and his J.D. cum laude from the Northern Illinois University College of Law. Mr. Feehan is a member of the ISBA Tort Law Section Council and is also a member of the Peoria County, Illinois State and American Bar Associations. He can be contacted at jfeehan@hrva.com About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 21, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL , , idc@iadtc.org Page 6 of 6