{ "id": 3430974, "name": "MARIA E. DENNY, Plaintiff-Appellant, v. CARL E. BURPO, M.D., Defendant-Appellee", "name_abbreviation": "Denny v. Burpo", "decision_date": "1984-05-14", "docket_number": "No. 83\u201422", "first_page": "73", "last_page": "80", "citations": [ { "type": "official", "cite": "124 Ill. App. 3d 73" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "102 S. Ct. 140", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "70 L. Ed. 2d 117", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "454 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6279709, 6279434, 6278860, 6280729, 6280974, 6278158, 6278514, 6281238, 6280022, 6280505, 6279133 ], "opinion_index": 0, "case_paths": [ "/us/454/0836-06", "/us/454/0836-05", "/us/454/0836-03", "/us/454/0836-09", "/us/454/0836-10", "/us/454/0836-01", "/us/454/0836-02", "/us/454/0836-11", "/us/454/0836-07", "/us/454/0836-08", "/us/454/0836-04" ] }, { "cite": "417 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "84 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045513 ], "weight": 6, "year": 1981, "pin_cites": [ { "page": "193" }, { "page": "194" }, { "page": "194" }, { "page": "194" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0186-01" ] }, { "cite": "206 N.E.2d 311", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 2d 349", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5286190 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/56/0349-01" ] }, { "cite": "190 N.E.2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "28 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363269 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "121" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0116-01" ] }, { "cite": "392 N.E.2d 1103", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "74 Ill. App. 3d 319", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268462 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/74/0319-01" ] }, { "cite": "566 F.2d 541", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 902120 ], "opinion_index": 1, "case_paths": [ "/f2d/566/0541-01" ] }, { "cite": "417 N.E.2d 1332", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "102 S. Ct. 140", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "70 L. Ed. 2d 117", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 1 }, { "cite": "454 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6279709, 6279434, 6278860, 6280729, 6280974, 6278158, 6278514, 6281238, 6280022, 6280505, 6279133 ], "opinion_index": 1, "case_paths": [ "/us/454/0836-06", "/us/454/0836-05", "/us/454/0836-03", "/us/454/0836-09", "/us/454/0836-10", "/us/454/0836-01", "/us/454/0836-02", "/us/454/0836-11", "/us/454/0836-07", "/us/454/0836-08", "/us/454/0836-04" ] }, { "cite": "84 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045513 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/ill-2d/84/0186-01" ] } ], "analysis": { "cardinality": 822, "char_count": 18140, "ocr_confidence": 0.762, "pagerank": { "raw": 9.094846200723206e-08, "percentile": 0.5057964769374586 }, "sha256": "5c06a30929cfc96d270ea91c97451ae616375f8860f3a08f6d91bc2efeb1f4b8", "simhash": "1:5253978e6bd62c3f", "word_count": 2858 }, "last_updated": "2023-07-14T22:48:36.140001+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARIA E. DENNY, Plaintiff-Appellant, v. CARL E. BURPO, M.D., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nPlaintiff Maria E. Denny appeals a judgment in favor of defendant Carl E. Burpo, M.D. The judgment followed a jury trial in the circuit court of St. Clair County, wherein plaintiff alleged that she had developed a vesicovaginal fistula (an opening in her urinary bladder) as a result of surgical procedures negligently performed by defendant. Two issues are presented on appeal. Plaintiff first alleges that the trial court erred in admitting certain testimony of defendant\u2019s expert witness during cross-examination. Plaintiff also alleges that she was unfairly limited in her examination of potential jurors during voir dire.\nThe testimony which plaintiff alleges was improperly admitted occurred during plaintiff\u2019s cross-examination of defendant\u2019s expert witness, Dr. Willard Scrivner, regarding Dr. Scrivner\u2019s opinion of a written statement by Dr. Matingly, author of a previously identified textbook on operative gynecology, in a separate article published in the American Journal of Obstetrics and Gynecology. The cross-examination proceeded in the following manner:\n\u201c[PLAINTIFF\u2019S COUNSEL]: Doctor, are you aware of-I think I may have given you another article, the American Journal of Obstetrics and Gynecology, an article by Dr. Matingly. He is the man who wrote the fifth edition of this text, I believe. Would you agree with the statement, \u2018In view of our experience with recognized bladder injury repair at the time of operation; [sic] however, we do not believe that the fistulas result from incision or laceration at the time of the operation but rather from inclusion of a bit of the bladder wall within a suture during closure and peritonation of the vaginal vault.\u2019\nDo you agree with that statement?\nA. I can agree only in part and my disagreement is the fact that as of two days ago attending a seminar at Washington University where Dr. Fair, chief of urology at Barnes Hospital, I posed this very case to him. He said, \u2018Scrivner, no way.\u2019\nQ. Now, excuse me. Whatever another doctor says to a local doctor\u2019s response to a medical malpractice case, Your Honor, is not responsive to this question and I can\u2019t cross examine [sic] what this other doctor said in this case. There is no way.\nTHE COURT: Doctor, complete your answer.\nA. On the line I was going, Your Honor?\nTHE COURT: Yes.\nA. I was just trying to say that we have literature, textbooks ten to fifteen years old. We have current literature that comes out weekly, every two weeks and every month. The most current thing would be the man who\u2019s in charge of the Department of Urology at Barnes Hospital, Washington University. I posed this question to him and he said, \u2018Scrivner, its 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.\u2019\n[PLAINTIFF\u2019S COUNSEL]: I move to strike that as unresponsive, Your Honor.\nTHE COURT: Well, you asked about the percentages and whether or not he agreed and he just said he didn\u2019t agree because the facts are different today than they were in your book. Overruled.\u201d\nPlaintiff\u2019s contention that Dr. Scrivner\u2019s report of Dr. Fair\u2019s statement constituted inadmissible hearsay testimony depends, in effect, upon a determination of the precise reference of Dr. Fair\u2019s reported opinion. If, as plaintiff maintains, Dr. Fair\u2019s statement was not in fact offered to Dr. Scrivner as an opinion regarding the specific assertion contained in Dr. Matingly\u2019s article, but rather as an opinion regarding the merit of plaintiffs malpractice action, Dr. Scrivner\u2019s report was properly characterized by plaintiff as unresponsive hearsay testimony, and was erroneously admitted at trial. Hearsay evidence is defined as \u201ca statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.\u201d (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, quoting McCormick, Evidence sec. 225 (1954).) \u201cThe fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered.\u201d (People v. Carpenter (1963), 28 Ill. 2d 116, 121.) If Dr. Fair\u2019s out-of-court statement was, then, a personal judgment that plaintiff\u2019s fistula was the result of devitalized scar tissue, and not the result of defendant\u2019s negligence in performing the surgical procedures, it was improperly admitted, since the empirical bases and rational calculations underlying this judgment could not be subject to challenge by means of cross-examination. (Cf. Adamaitis v. Hesser (1965), 56 Ill. App. 2d 349, 206 N.E.2d 311.) It is, as the supreme court noted in Carpenter, for the purpose of avoiding the prejudice inherent in such unchallengeable judgments, opinions, or assertions of fact that the tradition precluding hearsay testimony is firmly established in Anglo-American law. See also 5 Wigmore on Evidence sec. 1361 et seq. (3d ed. 1974).\nDefendant contends, however, that Dr. Fair\u2019s reported statement was not in fact a judgment on the merit of plaintiff\u2019s malpractice claim, but rather a professional opinion regarding the assertion in Dr. Matingly\u2019s article quoted by plaintiff\u2019s counsel. Defendant argues that the views, expressed orally, of one in Dr. Fair\u2019s professional position constitute information of the type reasonably relied upon by experts in Dr. Fair\u2019s professional field, and, as such, constitute a recognized exception to the hearsay rule. In defendant\u2019s view, then, Dr. Fair\u2019s statement merely comprised data upon which Dr. Scrivner\u2019s own professional opinion, subject to challenge on cross-examination, was founded. Defendant concludes that Dr. Fair\u2019s statement, thus being of the character relied upon by experts in the urological field, is fully admissible according to the rule of Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, wherein the supreme court explicitly adopted Rule 703 of the Federal Rules of Evidence. The rule states:\n\u201c \u2018The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\u2019 \u201d Wilson v. Clark (1981), 84 Ill. 2d 186, 193.\nThe rationale of the supreme court in adopting Federal Rule 703 was essentially one of judicial efficiency. In explaining its decision, the court specifically referred to the note of the congressional advisory committee:\n\u201cAccording to the note, allowing expert testimony based on facts not in evidence dispenses with \u2018the expenditure of substantial time in producing and examining various authenticating witnesses. *** [The physician\u2019s] validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.\u2019 [Citations.]\u201d Wilson v. Clark (1981), 84 Ill. 2d 186, 194.\nThe central issue in Wilson engendering adoption of Rule 703 involved expert testimony based on certain hospital records admitted at trial without a proper foundation. The court commented upon the extreme inefficiency of a system requiring an attorney \u201cto call into court every person who made an entry in the hospital records.\u201d (Wilson v. Clark (1981), 84 Ill. 2d 186, 194.) Noting the high degree of reliability of contemporary hospital records, the court ruled that henceforth it would be proper for an expert to respond to hypothetical questions based on facts contained in hospital records when such records were not themselves in evidence. The court then logically extended this principle to the explicit adoption of Rule 705 of the Federal Rules of Evidence, which states:\n\u201c \u2018The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.\u2019 \u201d Wilson v. Clark (1981), 84 Ill. 2d 186, 194.\nThe court then commented upon the effect of the rule:\n\u201cUnder Rule 705 the burden is placed upon the adverse party during cross-examination to elicit the facts underlying the expert opinion. [Citation.] The advisory committee\u2019s note to Rule 705 allows an expert opinion without disclosure of underlying facts whether the opinion is based on firsthand or second-hand information. In light of Illinois\u2019 extensive pretrial discovery procedures, this does not place an undue burden on the cross-examining party.\u201d Wilson v. Clark (1981), 84 Ill. 2d 186, 194.\nThus, the policy underlying the supreme court\u2019s adoption of Federal Rules 703 and 705 is the promotion of judicial efficiency within the bounds of fairness to the respective parties, such fairness being assured through the extensive access, by means of discovery, to information comprising the foundation of an opposing expert\u2019s testimony, and the essential ability to challenge, by means of cross-examination, that same foundation and all inferences purportedly arising therefrom. It is our view, therefore, that if defendant\u2019s characterization of Dr. Fair\u2019s out-of-court statement as information of the type reasonably relied upon by other urologists in forming their own professional opinions were an accurate one, the statement would logically fall within the scope of admissible secondhand information envisioned by our supreme court in its adoption of Federal Rules 703 and 705, since Dr. Fair\u2019s statement, as a basis of Dr. Scrivner\u2019s expert testimony, would have been discoverable prior to trial and its premises and inferences subject to challenge within the natural course of Dr. Scrivner\u2019s cross-examination. It is our conclusion, however, that the record contains evidence insufficient to support a finding that Dr. Fair\u2019s out-of-court statement may properly be so characterized.\nEven if we were to accept the proposition, inherent in Dr. Scrivner\u2019s testimony, that oral statements of recognized professional leaders such as Dr. Fair may, under certain circumstances, constitute a foundation upon which other experts in the same field may base their own professional opinions, the actual dialogue at trial does not provide adequate indications that Dr. Fair\u2019s oral statement constituted such a foundation for Dr. Scrivner\u2019s professional opinion regarding the precise issue raised by Dr. Matingly\u2019s published work. Dr. Scrivner, having been questioned about the assertion in Dr. Matingly\u2019s article, proceeded to state that he (Dr. Scrivner) had \u201cposed this very case\u201d to Dr. Fair, and that Dr. Fair had responded, \u201cScrivner, no way.\u201d Dr. Scrivner\u2019s statement that he had posed the \u201ccase,\u201d and not the \u201cquestion\u201d or \u201cissue,\u201d to Dr. Fair, most reasonably indicates a context in which the specific malpractice action against Dr. Burpo, and not the published assertion of Dr. Matingly regarding the origin of vesicovaginal fistulas, was the subject matter of the conversation and, therefore, of the opinion proffered by Dr. Fair. While Dr. Scrivner, elaborating on Dr. Fair\u2019s opinion, specifically stated, \u201cI posed this question to [Dr. Fair]\u201d (emphasis added), the context of Dr. Scrivner\u2019s statement is ambiguous, rendering it unclear whether the \u201cquestion\u201d was a reference to Dr. Matingly\u2019s published assertion or Dr. Burpo\u2019s alleged surgical negligence. Dr. Fair\u2019s answer, reported by Dr. Scrivner, that \u201c[i]t\u2019s got to be devitalized scar tissue *** because we use the same suture to even repair bladder injuries with Dexon,\u201d appears, according to the logical and grammatical structure of the dialogue, more sensibly responsive to the narrower question of the origin of plaintiff\u2019s specific injury than to the broader question of the validity of Dr. Matingly\u2019s statement regarding the origin of such injuries in general.\nOur review of the record thus compels us to conclude that plaintiff\u2019s counsel was correct in characterizing Dr. Scrivner\u2019s report of Dr. Fair\u2019s statement as one unresponsive to the question of Dr. Scrivner\u2019s professional opinion of the published statement of Dr. Matingly regarding the origin of vesicovaginal fistulas. Dr. Scrivner\u2019s testimony thus constituted inadmissible hearsay evidence. Since the testimony purported to refute published authoritative medical evidence offered by plaintiff for the purpose of impeaching defendant\u2019s expert witness, and since the critical question before the jury \u2014 i.e., the origin of plaintiff\u2019s injury \u2014 was largely contingent upon the credibility of the respective experts, the admission of Dr. Scrivner\u2019s testimony was inherently prejudicial to plaintiff\u2019s case. We therefore reverse the judgment of the trial court overruling plaintiff\u2019s objection to the testimony, and remand the cause for a new trial. Our disposition of this issue renders unnecessary a consideration of plaintiff\u2019s allegation that the voir dire examination was unfairly limited.\nReversed and remanded.\nKASSERMAN, J., concurs.", "type": "majority", "author": "JUSTICE HARRISON" }, { "text": "JUSTICE KARNS,\ndissenting:\nI do not share the majority\u2019s view that Dr. Scrivner\u2019s 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 \u201c*** fistulas result *** from inclusion of a bit of the bladder wall within a suture during closure ***,\u201d Scrivner responded, \u201cI can agree only in part ***.\u201d 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\u2019s comment to Scrivner addresses the same issue raised by Dr. Matingly\u2019s article, that is, the relationship between fistulas and sutures, but arrives at a contrary conclusion: \u201cScrivner, 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.\u201d\nThe appellant objects that Scrivner\u2019s recitation of Fair\u2019s 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 \u201cinformation from numerous sources and of considerable variety *** including *** opinions from nurses, technicians and other doctors ***.\u201d (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\u2019s 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 \u201cof a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject ***.\u201d (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.\nIn the present case, Scrivner\u2019s 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\u2019s views which influenced him to disagree with Matingly\u2019s 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\u2019s opinion.\nWere I to conclude, as the majority does, that the admission of Scrivner\u2019s 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\u2019s fistula. He explained that his opinion was \u201cbased on the record and my experience and other sources\u201d including literature supplied by the makers of the suture and conversation \u201cwith eminent people in the field of urology\u201d 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\u2019s statements during cross-examination were cumulative.", "type": "dissent", "author": "JUSTICE KARNS," } ], "attorneys": [ "Stephen M. Tillery, of Eassly, Bone, Becker, Dix & Tillery, P.C., of Belleville, for appellant.", "Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard M. Roessler and William P. Gavin, of counsel), for appellee." ], "corrections": "", "head_matter": "MARIA E. DENNY, Plaintiff-Appellant, v. CARL E. BURPO, M.D., Defendant-Appellee.\nFifth District\nNo. 83\u201422\nOpinion filed May 14, 1984.\nEARNS, J., dissenting.\nStephen M. Tillery, of Eassly, Bone, Becker, Dix & Tillery, P.C., of Belleville, for appellant.\nGundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard M. Roessler and William P. Gavin, of counsel), for appellee." }, "file_name": "0073-01", "first_page_order": 95, "last_page_order": 102 }