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    "parties": [
      "DWAYNE NOAKES, Plaintiff-Appellee, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant-Appellant."
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        "text": "PRESIDING JUSTICE GALLAGHER\ndelivered the opinion of the court:\nThis action arises under the Federal Employers\u2019 Liability Act. 45 U.S.C. \u00a7 51 et seq. (1988) (FELA). Plaintiff, Dwayne Noakes, appeals the trial court order granting defendant\u2019s motion for directed verdict. We reverse and remand.\nBACKGROUND\nPlaintiff was employed as a mechanic since 1988 by defendant, National Railroad Passenger Corporation, which was doing business as Amtrak. After years of working there, plaintiff developed bilateral carpal tunnel syndrome (CTS). Plaintiffs CTS was surgically treated in August 1993 and September 1993, and plaintiff returned to his position as a mechanic with defendant in March 1994. In June 1995, plaintiff was diagnosed with bilateral rotator cuff tendonitis, ulnar nerve injury and repetitive motion micro trauma, as well as a reinjury of his carpal tunnel condition. Plaintiff resigned in July 1995.\nThe details of the procedural history of this case can be found in Noakes v. National R.R. Passenger Corp., 312 Ill. App. 3d 965, 729 N.E.2d 59 (2000) (Noakes I). We will summarize that history here. Plaintiff originally sued defendant in 1993. In his original suit, plaintiff claimed that his duties at work caused his CTS. He voluntarily dismissed the action in 1998.\nPlaintiff subsequently filed a two-count complaint. One count alleged that plaintiff\u2019s return to his work in 1994 aggravated the preexisting CTS and further caused him to develop shoulder and elbow complaints. The other count was a refiling of the original action and was dismissed as time-barred. This court affirmed that ruling in Noakes I. Thus, the instant case involves only the remaining count, which deals with alleged work-related injuries that occurred from March 1994 until July 1995. The case was finally tried in 2003.\nAt trial, plaintiff had four witnesses: himself; two treating physicians, Dr. Madhav and Dr. Sherin; and a vocational rehabilitation counselor, Terry Cordray. Defendant brought several motions in limine regarding the ability of plaintiff\u2019s witnesses to testify regarding his condition and the relationship of his work to the condition. Although certain of these motions had previously been denied by another judge when heard with defendant\u2019s motion for summary judgment, the trial judge revisited the issue. After a hearing, the trial court granted defendant\u2019s motions and ruled that the treating physicians could not testify that plaintiffs injuries were caused or aggravated by his work. The trial court also granted defendant\u2019s motion to bar evidence that plaintiffs original CTS was caused by his work as a mechanic for defendant on the additional ground that this claim was barred by the statute of limitations and any evidence of the cause of plaintiff\u2019s preexisting CTS was irrelevant. Additionally, the trial court barred Cordray from expressing an opinion on the cause of plaintiffs CTS or from testifying that plaintiffs return to work for defendant aggravated his CTS.\nOn May 1, 2003, after plaintiff rested his case, defendant moved for a directed verdict on the ground that plaintiff failed to present a prima facie case for relief under the FELA. The trial court granted defendant\u2019s motion and subsequently denied plaintiffs posttrial motion seeking relief from that ruling. Plaintiff filed this timely appeal.\nANALYSIS\nPlaintiff argues on appeal that the trial court erred in excluding certain testimony and contends that, had the evidence in question been admitted, he would have established a prima facie case and no directed verdict would have been allowed. Thus, we shall consider whether the trial court erred in barring the testimony in question.\nGenerally, the decision of whether to admit expert testimony lies within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling will not be reversed. Snelson v. Kamm, 204 Ill. 2d 1, 24, 787 N.E.2d 796, 809 (2003); see also Turner v. Williams, 326 Ill. App. 3d 541, 553, 762 N.E.2d 70, 81 (2001) (admission of an expert\u2019s testimony lies within the sound discretion of the trial court and its ruling on the issue will be reversed when the error was prejudicial or the result of the trial was materially affected). This standard is also applicable to lay testimony. See Mulloy v. American Eagle Airlines, Inc., 358 Ill. App. 3d 706, 711-12, 832 N.E.2d 205, 210 (2005) (trial court is similarly vested with the discretion to determine relevance and admissibility of lay testimony and it does not err in excluding testimony that does not bear on matters at issue in the case).\nThe first issue we shall address is whether the trial court erred in granting defendant\u2019s motions in limine limiting the testimony of plaintiff\u2019s medical experts, Dr. Madhav and Dr. Sherin. Defendant contends that, in an FELA action, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), applies to the admissibility of the testimony of plaintiffs treating physicians. We disagree.\nWhere an FELA action is brought in state court, courts have noted that the admissibility of evidence is governed by state law. See, e.g., Marlow v. Atchison, Topeka & Santa Fe Ry., 671 P.2d 438 (Colo. App. 1983); Padilla v. Southern Pacific Transportation Co., 131 Ariz. 533, 642 P.2d 878 (App. 1982) (and cases cited therein). Although state procedural rules must give way if they would lessen or destroy a federal substantive right (see, e.g., Castro v. Chicago Rock Island & Pacific R.R. Co., 83 Ill. 2d 358, 361, 415 N.E.2d 365 (1980), cert, denied, 452 U.S. 941, 69 L. Ed. 2d 956, 101 S. Ct. 3086 (1981)), that is not the case here.\nAs the Illinois Supreme Court explicitly noted in People v. Basler, 193 Ill. 2d 545, 740 N.E.2d 1 (2000), Illinois courts follow Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court observed as follows:\n\u201cJust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.\u201d Frye, 293 F. at 1014.\nSee also In re Marriage of Bates, 212 Ill. 2d 489, 518, 819 N.E.2d 714, 729 (2004). The use of the Frye test as the Illinois standard was reaffirmed by our supreme court in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 77, 767 N.E.2d 314, 323 (2002). As the Donaldson court stated: \u201cIllinois law is unequivocal: the exclusive test for the admission of expert testimony is governed by the standard first expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).\u201d Donaldson, 199 Ill. 2d at 76-77, 767 N.E.2d at 323. Under the Frye standard, commonly called the \u201cgeneral acceptance\u201d test, \u201cscientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is \u2018sufficiently established to have gained general acceptance in the particular field in which it belongs.\u2019 \u201d Donaldson, 199 Ill. 2d at 77, 767 N.E.2d at 324, quoting Frye, 293 F. at 1014.\nNevertheless, courts apply the Frye test only where the scientific principle, technique, or test offered by the expert to support his or her conclusion is \u201cnew\u201d or \u201cnovel.\u201d In re Marriage of Bates, 212 Ill. 2d 489, 519, 819 N.E.2d 714, 730 (2004); People v. Basler, 193 Ill. 2d 545, 550-51, 740 N.E.2d 1 (2000). As our supreme court has explained:\n\u201cFrye does not make the trial judge a \u2018gatekeeper\u2019 of all expert opinion testimony. The trial judge\u2019s role is more limited. The trial judge applies the Frye test only if the scientific principle, technique or test offered by the expert to support his or her conclusion is \u2018new\u2019 or \u2018novel.\u2019 [Citation.] Only novelty requires that the trial court conduct a Frye evidentiary hearing to consider general acceptance. We recognize that a \u2018new\u2019 or \u2018novel\u2019 scientific technique is not always easy to identify, especially in light of constant scientific advances in our modern era. Generally, however, a scientific technique is \u2018new\u2019 or \u2018novel\u2019 if it is \u2018original or striking\u2019 or does \u2018not resembl[e] something formerly known or used.\u2019 \u201d Donaldson, 199 Ill. 2d at 78-79, 767 N.E.2d at 324-25, quoting Webster\u2019s Third New International Dictionary 1546 (1993).\nNo Frye hearing was conducted in the instant case, but there was no need to conduct a Frye hearing. Nobody asserted that any theory in the instant case was \u201cnew\u201d or \u201cnovel.\u201d Nobody disputed that carpal tunnel syndrome exists. There also was no dispute that plaintiff had a carpal tunnel injury. No party disputed that carpal tunnel syndrome or carpal tunnel injuries can be caused by the repetitive trauma that occurs in some occupational activities. Defendant\u2019s ergonomic expert, David Ridyard, acknowledged the contribution of workplace factors. Defendant\u2019s counsel conceded that a number of authoritative studies have shown that repetitive movements were a risk factor for the development of carpal tunnel syndrome. Instead, the issue here was whether this plaintiffs carpal tunnel syndrome was aggravated (or even caused) by his job. Defendant asserted that the studies only applied where the repetitive nature of the job activities was at a high level and that plaintiffs job did not involve a sufficiently high level of activity. But, as we shall explain later, the actual basis of such an objection is lack of factual foundation.\nAs plaintiff noted below, this case does not involve some question of scientific causation, e.g., \u201cdoes exposure to radiation from cell phones cause a brain tumor?\u201d Neither physician offered a new or novel scientific principle, technique or test to support his conclusion that plaintiffs injuries were related to his job. This case involves a treating physician giving an opinion as to the cause of his patient\u2019s condition. Medical testimony is not novel.\nIn Turner v. Williams, 326 Ill. App. 3d 541, 762 N.E.2d 70 (2001), the court held that the trial court abused its discretion in excluding the testimony of a reconstruction expert retained by the defendants. The trial court had decided that the computer-generated data used by the expert in formulating his opinions did not satisfy the Frye standard. Turner v. Williams, 326 Ill. App. 3d at 554, 762 N.E.2d at 81. One of the bases of the trial court\u2019s ruling was that the testimony was without foundation because the expert did not input information extracted from the depositions, and therefore, did not take into account certain facts which the plaintiffs believed to be relevant. Turner v. Williams, 326 Ill. App. 3d at 554-55, 762 N.E.2d at 82. In reversing, the appellate court noted that the Frye test is used to test novel scientific evidence with no prior history or reliability and that accident reconstruction testimony is not novel. Turner v. Williams, 326 Ill. App. 3d at 554, 762 N.E.2d at 82.\nIn any event, even where a theory is considered \u201cnew\u201d or \u201cnovel,\u201d general acceptance applies to the underlying methodology used to generate the conclusion; it does not concern the actual conclusion reached. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 77, 767 N.E.2d 314 (2002). Another physician might disagree with the conclusions of Dr. Madhav and Dr. Sherin, but nonetheless would use their same methods. The testimony of the physicians showed that they used standard, accepted methods to arrive at their conclusions. They had their experience and training, general knowledge of literature on the subject, differential diagnoses eliminated, and their examinations, history and treatment.\nDr. Madhav testified that he was aware of peer-reviewed studies that actually establish a causal connection, as opposed to an association, between work and carpal tunnel syndrome. He was not aware of any studies that found that repetitive movements at a low level are associated with carpal tunnel syndrome. Nevertheless, he testified that the studies did not quantify the number of times the repetitive movement had to be performed to cause carpal tunnel syndrome. He also explained that the so-called \u201clow level\u201d of repetitive movements to which defendant\u2019s counsel referred was \u201cvery arbitrary in terms of that [sic] it could be low for you, but not for me.\u201d He also acknowledged that it was his personal feeling from experience that the people who got carpal tunnel syndrome had a propensity to get tissue injuries more than others and that, therefore, there had to be other factors involved.\nWe further note that other jurisdictions have made a distinction between (1) causation testimony based on \u201cstudies and tests\u201d and (2) \u201cpure opinion testimony\u201d that is based on an \u201cexpert\u2019s personal experience and training,\u201d or \u201ctestimony personally developed through clinical experience.\u201d See, e.g., Hadden v. State, 690 So. 2d 573, 576 (Fla. 1997); Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993). \u201cPure opinion testimony\u201d is not subject to Frye. Rather, Frye is directed at expert testimony which \u201crelies on some scientific principle or test [because such testimony] implies an infallibility not found in pure opinion testimony.\u201d (Emphasis added.) Flanagan, 625 So. 2d at 828; cf. Donaldson, 199 Ill. 2d at 87, 767 N.E.2d at 329 (noting that the extrapolation method did not involve a new scientific technique that may instill a sense of false confidence because \u201cextrapolation by nature admits its fallibility \u2014 the lack of specific support to establish the existence of a known cause and effect relationship\u201d). Although the distinction between \u201cpure opinion testimony\u201d and causation testimony based on studies and tests has not been expressly noted in Illinois, we believe it is a valid distinction. We believe that plaintiffs medical experts here were offering \u201cpure opinion testimony\u201d that was \u201cbased solely on the expert\u2019s training and experience\u201d and was not subject to Frye,\nPure opinion testimony that does not involve a new or novel scientific technique or procedures or depend upon new or novel scientific principles to support its conclusion need not be subjected to a Frye test. Here, the testimony was not based on new or novel science but, instead, the physician\u2019s personal knowledge and practical experience.\nGenerally, in Illinois, pure opinion testimony of an expert is admissible if the expert is qualified by knowledge, skill, experience, training, or education in a field that has \u201c \u2018at least a modicum of reliability\u2019 \u201d and the testimony would assist the jury in understanding the evidence. Turner v. Williams, 326 Ill. App. 3d at 552, 762 N.E.2d at 80, quoting Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 799, 721 N.E.2d 614 (1999). An expert\u2019s opinion, however, is only as valid as the reasons for the opinion. Turner v. Williams, 326 Ill. App. 3d at 552-53, 762 N.E.2d at 80-81.\nDespite the references below to Frye and Daubert, it appears that the real basis of the trial court\u2019s granting of defendant\u2019s motion to bar the opinion testimony of plaintiffs treating physicians was that it lacked a sufficient factual basis. Defendant noted that carpal tunnel syndrome may have other causes or even no identifiable cause at all. The trial court agreed with defendant\u2019s argument that plaintiff\u2019s experts, because they did not know the particulars of plaintiffs job, were unable to articulate any factual basis for their bare conclusions that plaintiffs carpal tunnel syndrome was work related. We conclude that the trial court erred.\nThe Illinois Supreme Court has explained that the basis for a witness\u2019s opinion generally goes only to the weight of the evidence, not its sufficiency. Snelson v. Kamm, 204 Ill. 2d 1, 26-27, 787 N.E.2d 796, 810 (2003). In fact, the Snelson court emphasized that \u201cthe weight to be assigned to an expert opinion is for the jury to determine in light of the expert\u2019s credentials and the factual basis of his opinion.\u201d Snelson, 204 Ill. 2d at 27, 787 N.E.2d at 810. Also, in Turner v. Williams, the court decided that the information used or not used by the expert was not a sufficient basis to bar, as lacking foundation, the expert\u2019s testimony. Turner v. Williams, 326 Ill. App. 3d at 555, 762 N.E.2d at 82. As the court explained, the issue could have been adequately brought to light before the jury on cross-examination. Turner v. Williams, 326 Ill. App. 3d at 555, 762 N.E.2d at 82.\nAs the record shows, the opinions of the treating physicians had a sufficient factual foundation. The record makes clear that those physicians had reasonable understandings of the nature of the work that plaintiff performed, as well as the mechanics of carpal tunnel syndrome and other motion related injuries from which plaintiff suffered. They believed that those activities were aggravating his condition and that cessation of them was medically necessary to prevent further injury. The fact that there were various aspects of plaintiffs work that the physicians were unaware of, as noted by defendant, would affect the weight of the evidence and the credibility of the physicians, rather than the admissibility of that testimony. The issue can be adequately brought to light before the jury on cross-examination.\nWe reverse the trial court\u2019s orders in limine barring the testimony of Dr. Madhav and Dr. Sherin. In view of this decision, we need not address the issue of whether the trial court erred in granting defendant\u2019s objections based upon violations of those orders in limine.\nPlaintiff also contends that the trial court\u2019s order in limine barring testimony regarding the original cause of plaintiffs carpal tunnel syndrome was error. He asserts that, as a result, he was unfairly denied the right to fully present and develop his case and his damages. Plaintiff contended below that it was a very important element of the case to show that plaintiff originally got his carpal tunnel syndrome while at that job to show what defendant knew. Plaintiffs counsel asserted below that it would show the jury why he was at risk when he came back to work, i.e., \u201c[t]hat by just putting him back to work at the same old job, making no changes in what he did, and lo and behold he came back to absolutely no one\u2019s surprise, because they just had him doing the same thing and in even greater repetitions.\u201d\nNonetheless, as defendant correctly notes, the original cause of plaintiffs carpal tunnel injury was never established because his claim with respect to that purported injury was time-barred. Any \u201ccausation\u201d testimony would have been pure speculation on an issue wholly irrelevant to plaintiffs current claim. As defendant noted below, it would be prejudiced by the admission of testimony that plaintiffs original surgeries were caused by his work, which would lead a jury to erroneously conclude that because defendant caused the carpal tunnel syndrome, it must have made it worse. The jurors heard without contradiction that plaintiff had preexisting carpal tunnel syndrome. That was all they needed to know with respect to the instant case or plaintiffs claim for damages resulting from the purported aggravation of this preexisting condition.\nWe next address plaintiffs argument that the trial court erred in granting defendant\u2019s objections to the testimony of Terry Cordray as to his experience and knowledge in handling railroad claims for repetitive motion injuries. We disagree. Our review of the record shows that defendant objected to Cordray\u2019s testimony based on lack of foundation for what was clearly medical testimony. The trial court correctly barred Cordray from giving medical opinion testimony, i.e., it barred Cordray from expressing an opinion on the cause of plaintiffs CTS or testifying that plaintiffs return to his work with defendant aggravated his CTS. Plaintiff faults defendant for failing to cite to any lack of disclosure in either answers to Rule 213 (177 Ill. 2d R. 213) interrogatories or in Cordray\u2019s deposition testimony. But we conclude that plaintiff has failed to show that the trial court abused its discretion in barring Cordray from giving medical testimony because of its lack of foundation.\nPlaintiff has also contended that the testimony of record, even with the limitations on testimony, was sufficient to let this case go to the jury. In view of our decision to reverse the orders in limine, this issue is moot.\nIn accordance with the foregoing, we reverse the decision of the circuit court of Cook County that granted defendant\u2019s motion for directed verdict. We remand this cause for further proceedings consistent with this order.\nReversed and remanded.\nO\u2019BRIEN and NEVILLE, JJ., concur.\nDefendant also argues in this appeal that plaintiffs experts were unqualified, but this argument is meritless.",
        "type": "majority",
        "author": "PRESIDING JUSTICE GALLAGHER"
      }
    ],
    "attorneys": [
      "Cooney & Conway, of Chicago (James Ocasek, of counsel), for appellant.",
      "Anderson, Rasor & Partners, LLP, of Chicago (Susan K. Laing and Diane I. Jennings, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "DWAYNE NOAKES, Plaintiff-Appellee, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1-04-2851\nOpinion filed February 24, 2006.\nCooney & Conway, of Chicago (James Ocasek, of counsel), for appellant.\nAnderson, Rasor & Partners, LLP, of Chicago (Susan K. Laing and Diane I. Jennings, of counsel), for appellee."
  },
  "file_name": "0851-01",
  "first_page_order": 869,
  "last_page_order": 878
}
