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MONICA MOORE, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE TOOMIN\ndelivered the opinion of the court:\nIn this appeal, we determine whether the use of a medical journal article on cross-examination of an expert is permissible when only the reliability of the author is established and not the reliability of the particular article or text itself. Plaintiff, Felicia Clark, individually, and on behalf of Keenan Stapleton, a minor, appeals from the entry of judgment on a jury verdict in favor of defendant in her action for medical malpractice arising from an injury suffered by Keenan during delivery. Plaintiff asserts the following errors: (1) the trial court erred in allowing defendant to use a journal article in cross-examining plaintiffs expert because, inter alia, the article was not disclosed prior to trial; (2) the trial court erred in instructing the jury as to the proper standard of care; (3) the trial court erred in granting defendant\u2019s motion in limine, barring any testimony as to whether an \u201carrest of labor\u201d took place; and (4) the testimony of the attending resident doctor, Dr. Meininger, at trial that his medical record notation was in error violated Supreme Court Rule 213 (210 Ill. 2d R. 213). For the following reasons, we affirm.\nBACKGROUND\nKeenan Stapleton was born on July 17, 2003, at about 38 weeks of gestation. During the birth, Keenan\u2019s mother, plaintiff Felicia Clark, was told by her doctor, Dr. Monica Moore, that the baby was being \u201cstubborn\u201d and that she should push to help in the delivery. After the delivery, Dr. Moore told plaintiff that she should probably get Keenan\u2019s arm checked out. However, Dr. Moore did not explain why she said this. Plaintiff described Keenan\u2019s arm as very limp and hanging to the side. No one at Rush Memorial Hospital explained to plaintiff what was wrong with Keenan\u2019s arm. Keenan was otherwise healthy and weighed 9 pounds, 5 ounces.\nDr. Moore\u2019s chart indicates a note made shortly after Keenan\u2019s birth that there was a normal spontaneous vaginal delivery with shoulder dystocia, which means a difficult delivery of a baby\u2019s shoulders. Shoulder dystocia is a medical emergency because the baby must be delivered in a short time frame or it could die or sustain brain damage. Shoulder dystocia can be addressed in a variety of ways, the McRoberts maneuver, where the mother is repositioned with her legs up and back, or through the application of suprapubic pressure. The suprapubic pressure is intended to push and dislodge the baby\u2019s trapped anterior shoulder. In plaintiffs case, the McRoberts maneuver and application of suprapubic pressure were successfully used. Dr. Moore\u2019s note indicates only 40 seconds passed from the time she recognized the shoulder dystocia to the time Keenan was actually delivered. However, this note also includes a cross-out, now illegible, notation with the word \u201cerror\u201d written next to it.\nKeenan suffered a permanent left-side brachial plexus injury called Erb\u2019s palsy. The brachial plexus is a group of nerves that extends from the spinal cord, at the cervical and thoracic vertebrae, down to the muscles of the shoulder, arm, forearm and hand. These nerves can become permanently damaged in babies as a result of stretching between the neck and shoulder on either side, occurring most often during shoulder dystocia.\nPlaintiff filed the instant proceedings against Dr. Moore, alleging that in the course of the delivery Dr. Moore had applied greater-than-gentle traction to Keenan\u2019s head, causing him to sustain the brachial plexus injury. In defense, Dr. Moore maintained that the injury was not caused by any traction applied by her, but rather from the force of uterine contractions on Keenan\u2019s body when his left shoulder caught on a ridge in the sacral promontory area of plaintiffs spine.\nDr. Moore\u2019s notes do not indicate the orientation of Keenan\u2019s head or which shoulder was involved with the shoulder dystocia. However, the chart entries include a note written by a medical student, Alex Meininger, indicating a \u201cnormal spontaneous delivery with shoulder dystocia for 40 seconds reduced with McRoberts maneuvers and su-prapubic pressure and secondary perineal laceration.\u201d Meininger also noted \u201cLOA,\u201d indicating left shoulder dystocia anteriorly, meaning that Keenan\u2019s left shoulder was positioned toward the front, under plaintiff\u2019s pubic symphysis. However, this notation conflicted with Meininger\u2019s further notation that Keenan\u2019s head was also \u201cLOA.\u201d Meininger testified that he obtained this information from directly observing the delivery, the residents, and from Dr. Moore. Meininger testified that he must have been confused when he indicated left shoulder dystocia anteriorly in the chart, because with LOA, the right shoulder would be anterior. He had only been documenting in patient charts for 7 to 10 days at that time, and this notation seemed to be an error. Further, this was the only conflict in the records, as the delivery note and the labor and delivery summary both indicated LOA for Keenan\u2019s position.\nDr. Moore testified that while she had received training regarding treatement of shoulder dystocia, prior to Keenan\u2019s case she had encountered only one instance of that condition. According to the doctor, there was no point in time that she believed she needed to get Keenan delivered quickly because his life was in jeopardy. Dr. Moore explained that she called in a pediatric resident, Dr. Emily Sifferman, because of fetal decelerations occurring with pushing. Dr. Moore testified she was not too concerned with the decelerations but called Siffer-man just in case something happened. With respect to Meininger\u2019s note, Dr. Moore stated that because of the LOA position of Keenan\u2019s head, the left shoulder could not have been anterior. Dr. Moore testified she did not know how Meininger got the information about the left shoulder being anterior.\nDr. Moore independently recollected plaintiff\u2019s labor and the delivery of Keenan. Also present at the delivery were a resident, Dr. Carrie Smith, a nurse, and the pediatric resident, Dr. Sifferman. Dr. Moore remembered that the nurse had one of plaintiffs legs up and back, but could not recall which leg, and could not remember who was holding plaintiffs other leg. Dr. Smith applied the suprapubic pressure. Dr. Moore told plaintiff she really needed to push to help get the baby out. After a very short period of time, Dr. Moore guided the anterior shoulder out, and Dr. Smith pushed down and Keenan\u2019s shoulder \u201cpopped right out.\u201d According to Dr. Moore, the simultaneous combination of a last contraction by plaintiff, traction applied by Dr. Moore, and the suprapubic pressure caused the anterior shoulder to pop out and the rest of Keenan\u2019s body to be delivered.\nDr. Moore denied applying any upward traction during Keenan\u2019s delivery, because this would work against the application of downward suprapubic pressure. Dr. Moore also denied applying any excessive downward traction, and also denied pulling or twisting Keenan\u2019s head. After Keenan\u2019s head was delivered, plaintiff moved far up on the bed, and Dr. Moore\u2019s hands were on Keenan\u2019s head for some portion of the distance that plaintiff moved up and away. Dr. Moore conceded that she had testified at her deposition that during the time plaintiff was pushing, about 10 seconds, she applied \u201cprobably medium\u201d force on Keenan\u2019s head. Dr. Moore agreed that the standard of care would allow for the use of gentle lateral traction to deliver a baby when shoulder dystocia is present, although Dr. Moore maintained what is \u201cgentle\u201d differs from person to person and is subjective. Dr. Moore agreed that using greater-than-gentle lateral traction on a baby with shoulder dystocia would be a deviation from the standard of care absent a life-threatening scenario. She further testified that the amount of traction she applied was \u201cnowhere near excessive\u201d and that she does not know why Keenan suffered his injury. Dr. Moore remembers after the delivery thinking it was strange that Keenan\u2019s left shoulder was injured, because his right shoulder was the one under plaintiff\u2019s pubic bone. Dr. Moore denied violating the standard of care in Keenan\u2019s case and had the opinion, within a reasonable degree of medical certainty, that nothing she did caused the injury.\nPlaintiffs obstetric expert, Dr. Stuart Edelberg, was board certified in obstetrics and gynecology and had been practicing in obstetrics for over 40 years. Dr. Edelberg indicated he thought Meininger\u2019s \u201cLOA\u201d notation was mistaken and should have indicated \u201cROA\u201d (right occiput anterior) for Keenan\u2019s head position, which would have been consistent with Keenan\u2019s left arm being anterior. Dr. Edelberg reviewed the labor and delivery summary and felt that the left shoulder was anterior because anterior shoulder dystocia is statistically more likely. In any event, the left arm could have been injured whether the left shoulder was anterior or posterior, and the actual position did not impact Edelberg\u2019s opinions.\nIn Edelberg\u2019s opinion, shoulder dystocia is a medical emergency. The standard of care requires a physician to perform the recognized maneuvers for delivery of a shoulder dystocia, including the McRob-erts maneuver and the application of suprapubic pressure. Any pressure on the head used to relieve shoulder dystocia has to be gentle lateral pressure. Edelberg opined that Keenan\u2019s brachial plexus injury occurred because there was \u201cexcess lateral traction\u201d placed by Dr. Moore on Keenan\u2019s head. Traction refers to placing pressure on the baby\u2019s head, which stretches the brachial plexus. If the left shoulder was anterior during Keenan\u2019s birth, excess downward lateral traction was applied. Even accounting for the inconsistency in the medical records, if the left shoulder was posterior, then excess upward lateral traction was applied. In Keenan\u2019s case, according to Edelberg, the application of greater-than-gentle lateral traction caused Keenan\u2019s permanent injury and was a deviation from the standard of care. Edel-berg eliminated all other possible causes of the injury, including mal-positioning during labor, which usually involves very small babies descending down the birth canal with a neck presentation or a prolapse arm. According to Edelberg, transient brachical plexus injuries can result from pressure inside the womb, and without any physician negligence, but permanent brachial plexus injuries are different because they result from lateral force. Also, any uterine contractions or forces would result in bruising of the skin and muscular tissue and would be equally exerted on the baby, not greater on one side.\nOn cross-examination, Dr. Edelberg was questioned about various medical journal articles expressing the view that brachial plexus injuries are more likely caused by the endogenous forces of the mother during delivery of the baby, rather than external traction. However, according to Edelberg, some of these opinions were based on research using a computer model and, for the most part, related to transient, rather than permanent, brachial plexus injuries. Although defendant sought to introduce the testimony of Dr. Michele Grimm, one of these authoring doctors, regarding the use of computer model information, the trial court barred such testimony, finding that it did not comply with Frye\u2019s general acceptance requirement. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).\nOver plaintiffs objections, Edelberg was also confronted with an article written by Dr. Lerner and Dr. Salamon, which reported a case of a baby born vaginally without physician traction that resulted in permanent brachial plexus injury. Edelberg later testified that the article related to a case in which Dr. Lerner was the defense expert for Dr. Salamon. Although plaintiff objected on the basis of nondisclosure pursuant to Supreme Court Rule 213, the court allowed the testimony for impeachment, notwithstanding Rule 213\u2019s proscriptions. Edelberg discounted the validity and application of the article to the case at trial.\nFurther, Edelberg was questioned about the 2005 PRECIS, a text by the American College of Obstetrics and Gynecology (ACOG), which acknowledges that though textbooks in the past stated that brachial plexus palsy is caused by the application of excessive lateral traction, evidence over the years emerged that in fact most brachial plexus palsies are not caused by traction and occur in uncomplicated vaginal deliveries. The PRECIS text also states most brachial plexus injuries occur because an infant presents in the mother\u2019s pelvis in the left oc-ciput anterior position, where the infant\u2019s right arm is more likely to get caught under the mother\u2019s pubic bone, but brachial plexus also occurs in the arm that presents posteriorly. Additionally, Dr. Edelberg was questioned concerning an article on brachial plexus palsy involving the posterior shoulder, stating that it is most likely that maternal expulsive forces of delivery may be partly or totally responsible where, for example, the posterior shoulder may become temporarily lodged behind the sacral promontory.\nPlaintiffs pediatric neurology expert, Dr. Steward Ater, was board certified in pediatrics and neurology with special qualifications in child neurology. Dr. Ater testified that Keenan had a left obstetrical brachial plexus palsy. Ater concluded that Keenan\u2019s brachial plexus injury occurred in the delivery process after the shoulder dystocia was encountered, that he suffers from Erb\u2019s palsy, and the injury was permanent. Dr. Annitta John, a board-certified pediatrician who had treated Keenan from the time he was two weeks old up to the time of trial, stated that Keenan could not extend his left arm out further than approximately a 100-degree angle, but did not note any loss of strength in that arm, a fact Dr. John attributed to the therapy he had received.\nDefendant\u2019s expert, Dr. Mark Neerhof, was board certified in general obstetrics/gynecology and in maternal-fetal medicine (high-risk obstetrics). Dr. Neerhof opined that Dr. Moore did not use excessive traction because there was nothing in the medical records indicating the use of excessive traction, no one in the room stated Dr. Moore used excessive traction, and Dr. Moore herself maintained that she used gentle traction. Neerhof testified that gentle downward traction is within the standard of care. A gentle downward traction should always be used in order to effect a delivery. Neerhof testified that, though he did not know exactly when or how Keenan sustained his injury, nothing Dr. Moore did or failed to do caused it. Dr. Neerhof further testified that it was very likely that Keenan\u2019s injury occurred during the labor process, because of the fact that the injury occurred to Keenan\u2019s posterior shoulder.\nDr. Neerhof based his opinion on the assumption that Keenan was LOA and that Keenan\u2019s left arm was the posterior arm. Neerhof opined that Meininger\u2019s note indicating that Keenan\u2019s left arm was anterior was wrong and that Meininger had confused anterior and posterior. He also concluded that the pediatric resident\u2019s notation of left shoulder dystocia was wrong. According to Neerhof, Keenan\u2019s right shoulder was anterior and there was a right shoulder dystocia that was relieved in 40 seconds without any injury to the right shoulder, but the left shoulder got hung up on the sacral promontory before the right shoulder got stuck behind the pubic bone. Neerhof maintained that excessive downward traction only causes injury to the anterior arm and would not cause injury to the posterior arm. According to Neer-hof, another possible cause of brachial plexus injury is the force of labor pushing down on the baby after the posterior shoulder gets hung up on the sacral promontory, which Neerhof opined most likely happened in this case. According to Neerhof, this conclusion is supported by medical literature indicating that permanent brachial plexus injuries occur to the posterior shoulder with or without shoulder dys-tocia. Neerhof maintained that the medical literature, including the article by Lerner, establishes that the forces of labor are a mechanism of brachial plexus injury and that brachial plexus injuries can occur in the absence of excessive downward traction. Neerhof denied that the literature establishes that a permanent brachial plexus injury, as opposed to a transient injury, indicates the doctor applied excessive traction. Neerhof also disagreed with Edelberg\u2019s testimony that if Keenan was LOA, then Dr. Moore must have used excessive upward traction because the only evidence of upward traction was after delivery of the anterior shoulder, and Dr. Moore demonstrated that she was cautious in guiding Keenan by cupping her hand under the posterior shoulder.\nFollowing the close of evidence, the jury returned a verdict in favor of defendant and against plaintiff. In turn, judgment was entered on the jury\u2019s verdict. The trial court denied plaintiffs posttrial motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Plaintiff filed a timely notice of appeal.\nANALYSIS\nPlaintiff first asserts that the trial court erred in allowing the defense to employ the journal article, H. Lerner and E. Salamon, Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, American Journal of Obstetrics and Gynecology (March 2008), on cross-examination of plaintiffs expert, Dr. Edelberg. Plaintiff maintains that the article was misleading, probably fraudulent, and not disclosed prior to trial in accordance with Supreme Court Rule 213 (210 Ill. 2d R. 213). Plaintiff also asserts that the trial court erred in limiting plaintiff\u2019s cross-examination of defendant\u2019s expert, Dr. Neerhof, concerning the Lerner article. Defendant responds that allowing use of such articles during cross-examination for impeachment is permissible and the article did not need to be disclosed pursuant to Rule 213.\nAn unbroken line of precedent holds that the admission of evidence and the scope of cross-examination are issues within the sound discretion of a trial court, and a reviewing court will not reverse such rulings absent an abuse of discretion. See Snelson v. Kamm, 204 Ill. 2d 1, 33, 787 N.E.2d 796, 814 (2003); People v. Ward, 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702 (1984), citing Veer v. Hagemann, 334 Ill. 23, 28, 165 N.E. 175, 177 (1929), Bosel v. Marriott Corp., 65 Ill. App. 3d 649, 654, 382 N.E.2d 587, 591 (1978), and Fullerton v. Robson, 61 Ill. App. 3d 93, 96, 377 N.E.2d 1044, 1047 (1978). See also Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 102, 658 N.E.2d 450, 459 (1995), citing Sweeney v. Max A.R. Matthews & Co., 46 Ill. 2d 64, 71, 264 N.E.2d 170, 173 (1970). Further, a party is not entitled to reversal unless the error in evidentiary rulings was substantially prejudicial and affected the outcome of the trial. Simmons v. Garces, 198 Ill. 2d 541, 566-67, 763 N.E.2d 720, 736 (2002).\nAt the outset, we address defendant\u2019s contention that plaintiff failed to preserve this argument by interposing the proper objection. Plaintiff objected to the article on the basis of Rule 213, also asserting a lack of foundation, but did not expressly object based on the article\u2019s lack of authoritativeness. A party is required to make specific objections to evidence, based on particular grounds, and the failure to do so results in a waiver of objections as to all other grounds not specified or relied on. Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 130, 478 N.E.2d 581, 589 (1985). Thus, we agree with defendant that plaintiff has forfeited her objection based on lack of authoritativeness.\nWe additionally find that defendant\u2019s claim of procedural default is enhanced by evidence supporting the defense assertion that Neerhof considered Dr. Lerner to be a rehable authority in the field of shoulder dystocia and brachial plexus injuries. A medical treatise or article may be proven to be authoritative on such cross-examination where \u201cthe cross-examiner proves the author\u2019s competence by a witness with expertise in the subject matter.\u201d Bowman v. University of Chicago Hospitals, 366 Ill. App. 3d 577, 587, 852 N.E.2d 383, 392 (2006), citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 336, 211 N.E.2d 253, 259 (1965). Thus, through Neerhof, the competence of Dr. Lerner as an authority in the field was established.\nAlthough plaintiff contends that the use of the Lerner article violated Rule 213, we find that contention to be of dubious merit. The disclosure requirements of Rule 213 simply do not apply to cross-examination of an opposing party\u2019s opinion witness. Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 32, 790 N.E.2d 67, 70 (2003), citing Maffett v. Bliss, 329 Ill. App. 3d 562, 577, 771 N.E.2d 445, 458 (2002). \u201cSupreme Court Rule 213(g) does not require that a party disclose journal articles that the party intends to use in cross-examining the opposing party\u2019s opinion witness.\u201d Maffett v. Bliss, 329 Ill. App. 3d 562, 577, 771 N.E.2d 445, 458 (2002). As the Maffett court recognized, \u201c[ijndeed, none of Rule 213\u2019s disclosure requirements applies to cross-examining an opposing party\u2019s opinion witness.\u201d Maffett, 329 Ill. App. 3d at 577, 771 N.E.2d at 458, citing 177 Ill. 2d R. 213(g).\nThe dissent maintains that the trial court committed not only error, but reversible error, \u201cbecause defendant was allowed to repeatedly utilize the article in cross-examination without a sentence of testimony stating that the article itself was reliable.\u201d 403 Ill. App. 3d at 170. The dissent finds problematic that Dr. Edelberg essentially endorsed the reliability of the author, rather than the article itself. We pause to reiterate the long-standing Illinois precedent requiring a proper foundation for impeachment of an opposing party\u2019s expert with medical articles and texts. It is well settled that \u201c[t]he author\u2019s competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.\u201d (Emphasis added.) Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259. Moreover, we recently noted our continued adherence to this abiding principle promulgated by Justice Walter Schaefer in Darling:\n\u201c \u2018An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues.\u2019 \u201d Ruffin v. Boler, 384 Ill. App. 3d 7, 25, 890 N.E.2d 1174, 1189 (2008), appeal denied, 229 Ill. 2d 695, 900 N.E.2d 1126 (2008), quoting Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259.\nThus, we also recognize the competence of the author, as expressed in his or her written journal articles or texts, as well as the authoritativeness of medical texts and treatises. Through perhaps imprecise reference to the holding in Darling, the rule may have manifested a seeming dichotomy between establishing either an author\u2019s competence by judicial notice, or establishing the authoritativeness of a treatise or text by an expert witness. In People v. Johnson, 206 Ill. App. 3d 875, 564 N.E.2d 1310 (1990), this court stated:\n\u201c[C]ross-examination of an expert with reference to a recognized text or treatise is proper where either the court has taken judicial notice of the author\u2019s competence (see Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259) or, absent concession by the witness, the cross-examiner proves the text or treatise is authoritative (see Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259; People v. Behnke (1976), 41 Ill. App. 3d 276, 283, 353 N.E.2d 684, 689).\u201d Johnson, 206 Ill. App. 3d at 879, 564 N.E.2d at 1313.\nThis recitation by no means changed the rule announced by our supreme court in Darling. In Bowman, we reiterated our belief that \u201ccross-examination of an expert witness with material from \u2018a recognized text or treatise is proper where either the court has taken judicial notice of the author\u2019s competence [citation] or, absent concession by the witness, the cross-examiner proves the text or treatise is authoritative [citations].\u2019 \u201d Bowman, 366 Ill. App. 3d at 587, 852 N.E.2d at 392, quoting Johnson, 206 Ill. App. 3d at 879, 564 N.E.2d at 1313. However, we also recited the original rule from Darling, that \u201c[a]n author\u2019s competence can be established by a witness with expertise in the subject matter.\u201d Bowman, 366 Ill. App. 3d at 587, 852 N.E.2d at 392, citing Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259.\nThus, Darling\u2019s, broad reach confirms the understanding that an author\u2019s competence may be established either by judicial notice by the court or by an expert witness at trial. See Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259. In other words, an expert witness at trial may establish the authoritativeness or reliability of an author in the relevant field; the rule is not restricted to only proving the authoritativeness of treatises, articles and texts. Here, Dr. Neerhof testified that he found Dr. Lerner to be a reliable authority. Accordingly, impeachment through the use of Lerner\u2019s views in his article was proper given that Neerhof recognized Lerner as a reliable authority in the field.\nUnder prevailing practice, medical texts themselves may also be recognized as authoritative. In Ruffin, 384 Ill. App. 3d at 26, 890 N.E.2d at 1190, under facts that essentially mirrored those in the case at bar, the plaintiffs medical malpractice action was founded upon an injury sustained upon delivery when the infant\u2019s shoulder became impacted with the mother\u2019s pelvic bone. In Ruffin, as here, the plaintiffs theory was that the doctor caused the infant\u2019s injury by using excessive lateral traction. In defense, the doctor argued that the injury was caused by the natural \u201cpropulsive forces\u201d of labor. Ruffin, 384 Ill. App. 3d at 9, 890 N.E.2d at 1176. Although the jury returned a verdict for the doctor, the trial court ordered a new trial, based, in part, on its finding of error in allowing the use of certain undisclosed medical texts during cross-examination of plaintiffs expert, Dr. Stuart Edelberg, apparently the same expert who testified in the case sub judice. On appeal, we found no error in allowing impeachment on cross-examination of Edelberg based on the medical texts given that he acknowledged the texts as authoritative. Ruffin, 384 Ill. App. 3d at 26, 890 N.E.2d at 1190. We likewise held that any error occasioned by the use of letters to a journal editor was rendered harmless when proper cross-examination was allowed using the medical texts and the jury was properly admonished. Ruffin, 384 Ill. App. 3d at 26, 890 N.E.2d at 1190.\nIt is, of course, axiomatic that treatises and textbooks may also be established as reliable authorities in and of themselves, as very often these are compendia or published not by an individual author or authors, but rather by an entity. For example, the PRECIS textbook used in the proceedings below is published by the ACOG. However, the practice of establishing such texts as authoritative in their own right must not be confused with the proper procedure of establishing the reliability of an expert author of a journal article in a field of expertise, through an expert witness at trial.\nWe find further instructive Downey v. Dunnington, 384 Ill. App. 3d 350, 381-82, 895 N.E.2d 271, 296-97 (2008), where the Fourth District addressed the precise issue we are presented here. In Downey, the trial court refused to allow plaintiffs attorney to cross-examine an expert with an article because the plaintiff failed to prove that the specific article, as opposed to its author, was authoritative. The Downey court, relying on Darling, held that the trial court erred in refusing to allow the exhibit to be used during cross-examination of the expert. Downey, 384 Ill. App. 3d at 382, 895 N.E.2d at 297. However, in light of all the other learned publications that the plaintiff used to impeach the expert, the court found the error to be harmless. Downey, 384 Ill. App. 3d at 382, 895 N.E.2d at 297.\nThe Downey court also recognized this court\u2019s continued adherence to Darling:\n\u201cThe First District takes the same view. It holds that a learned text is admissible for impeachment on cross-examination in any of the following three circumstances: (1) the trial court takes judicial notice of the author\u2019s competence, (2) the witness concedes the author\u2019s competence, or (3) the cross-examiner proves the author\u2019s competence by a witness with expertise in the subject matter.\u201d Downey, 384 Ill. App. 3d at 382, 895 N.E.2d at 297, citing Bowman, 366 Ill. App. 3d at 587, 852 N.E.2d at 392.\nAlthough we note the dissent\u2019s reliance on Iser v. Copley Memorial Hospital, 288 Ill. App. 3d 408, 680 N.E.2d 747 (1997), we find such reliance misplaced as lacking any support for the dissent\u2019s contentions. In Iser, the plaintiffs attempted to elicit testimony concerning the authoritative nature of certain journal articles during direct examination of the plaintiffs expert in that case. Iser, 288 Ill. App. 3d at 409-10, 680 N.E.2d at 748. However, the plaintiffs expert had testified at his deposition that he was unaware of and did not review any articles for the case. The appellate court held that the plaintiffs expert witness could not give a new opinion that was contrary to his deposition testimony. Iser, 288 Ill. App. 3d at 412, 680 N.E.2d at 750. Conversely, the issue here is use of a treatise for impeachment on cross-examination, which does not implicate the requirements of Supreme Court Rule 213. Thus, citation to Iser on this point is not well grounded and, therefore, we reject it.\nThe dissent also takes umbrage with the element of surprise allowed by such broad use of treatises on cross-examination, stating \u201c[i]t 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.\u201d 403 Ill. App. 3d at 171. However, as noted, the salutary provisions of Supreme Court Rule 213 do not restrict or limit cross-examination of an opposing party\u2019s opinion witness, nor does the rule prohibit the use of undisclosed treatises in the conduct of such examinations. Further, Supreme Court Rule 213 specifically allows the eliciting of even new, previously undisclosed opinions on cross-examination: \u201cWithout making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness.\u201d (Emphasis added.) 210 Ill. 2d R. 213(g).\nWe find puzzling the dissent\u2019s observation that Maffett, a Fourth District case, is not binding upon this court. See 403 Ill. App. 3d at 170. Although that observation may be accurate in the abstract, it has scant application here given that Skubak, a First District case, expressly adopted the holding and rationale of Maffett:\n\u201c[T]he position expressed in Maffett is also reflected in the supreme court\u2019s amendments to Rule 213 (effective July 1, 2002), preserving the freedom to cross-examine. The amended rule provides, \u2018[wjithout making disclosure under this rule *** a cross-examining party can elicit information, including opinions, from the witness.\u2019 177 Ill. 2d R. 213(g).\u201d Skubak, 339 Ill. App. 3d at 38, 790 N.E.2d at 74.\nMoreover, in Skubak, we addressed and resolved the same concern of the dissent here and stated the following:\n\u201cDispositive is the holding that Rule 213 does not apply to testimony elicited from an opposing party\u2019s opinion witness. Maffett, 329 Ill. App. 3d at 577. In Maffett, the trial court properly allowed defendants to use previously undisclosed journal articles on cross-examination, finding \u2018none of Rule 213\u2019s disclosure requirements applies to cross-examining an opposing party\u2019s opinion witness.\u2019 Maffett, 329 Ill. App. 3d at 577. \u2018In this regard, we agree with what the appellate court wrote in Southern Illinois Airport Authority v. Smith, 267 Ill. App. 3d 201, 206, 641 N.E.2d 1240 (1994): \u201cIf the cross-examiner, to use a clich\u00e9, must telegraph his punch, cross-examination would lose its effectiveness. *** By eliminating the spontaneity, we would certainly avoid surprises. We may also be limiting the ability to ascertain the truth.\u201d \u2019 Maffett, 329 Ill. App. 3d at 577.\u201d Skubak, 339 Ill. App. 3d at 37, 790 N.E.2d at 74.\nThus, contrary to the dissent\u2019s view that this district does not allow impeachment of experts through articles written by authors acknowledged to be authoritative, we have followed Darling since that case was decided. There has been no recent authority, either from our supreme court or in our own district or other appellate court districts, holding otherwise. Further, given the clear guidance shown by the 2002 amendment of Supreme Court Rule 213, we have no difficulty in concluding that allowing the use of the Lerner article on cross-examination was proper and did not constitute any error, much less reversible error. We discern no reason in this case to depart from our previous determination in Skubak to follow Maffett, nor do we discern any reason to depart from the clear guidance in the amendment of Supreme Court Rule 213.\nWe further find the dissent\u2019s argument is blunted by our appraisal that, even assuming any error occurred, the admission of testimony regarding the article did not result in any prejudice to plaintiff. Although the dissent views the use of the Lerner article on cross-examination as extensive and highly damaging, our review of the record reveals that the Lerner article was but one of various articles and texts used to impeach plaintiffs expert. Notably, Dr. Edelberg was also questioned extensively about various other articles also espousing the view that brachial plexus injuries can occur spontaneously during delivery without any excessive traction by the physician. In particular, the 2005 PRECIS, published by the ACOG, specifically stated that evidence emerged over the years that in fact most brachial plexus palsies are not caused by physician traction and occur in vaginal deliveries.\nFurther, we find no prejudice inured to plaintiff from the trial court\u2019s limitation of cross-examination of Neerhof regarding the circumstances of litigation concerning the case examined in the Lerner article. Although defendant urges us to find forfeiture of this issue because plaintiff did not make an offer of proof of the evidence sought to be introduced (Snelson, 204 Ill. 2d 1, 787 N.E.2d 796), \u201c \u2018[i]t is not necessary that an offer of proof be made where the question shows the purpose and materiality of the evidence.\u2019 \u201d Carter v. Azaran, 332 Ill. App. 3d 948, 956, 774 N.E.2d 400, 408 (2002), quoting Creighton v. Elgin, 387 Ill. 592, 606, 56 N.E.2d 825, 831 (1944).\nWe find the court properly exercised its discretion in granting in part and denying in part defendant\u2019s motion in limine to prevent cross-examination of Dr. Neerhof concerning the article to prevent a \u201ctrial within a trial.\u201d The trial court permitted inquiry as to whether Neerhof was aware that the co-author of the Lerner article was a defendant in a medical malpractice case, that Dr. Lerner was the retained expert in that case, and that the ethical procedures regarding the article and its use in another trial are the subject of investigation. The trial court did not allow only one further question, \u201cAre you aware that the record indications for shoulder dystocia were altered and deleted by the defendant physician?\u201d in that case. Then the court sustained an objection to questioning concerning the investigation of that case based on foundation, hearsay, and relevance.\nIn our view, we find the trial court properly exercised its discretion concerning the alteration of records in the case study highlighted in the Lerner article. \u201cRelevant evidence\u201d is that which has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.\u201d Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303, 309 (1998). Here, further questions concerning the specific factual details of alterations to the medical records in the case study would not have had any tendency to make the existence of any fact of consequence to the resolution of the case sub judice more or less probable. The trial court properly refused to allow further questioning concerning the alteration of records in that other case because \u201cgo[ing] into what the records in another trial showed\u201d was \u201ctoo far.\u201d However, the court ruled that plaintiff could ask whether Dr. Neerhof was aware there was an alteration of the medical records in that case and allowed ample cross-examination regarding this issue. Further, as defendant persuasively argues, it is highly unlikely the jury based its verdict solely on the Lerner article or that the verdict would have been different had plaintiff been allowed to use the article to cross-examine defendant\u2019s expert. Thus, we find no prejudice resulted from the trial court\u2019s rulings regarding the Lerner article.\nAdditionally, we find plaintiffs reliance on Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 755 N.E.2d 1021 (2001), is readily distinguishable. In Prairie, one of the trial errors requiring reversal was the admission of a medical treatise as substantive evidence. One of the plaintiffs experts testified at his discovery deposition that the treatise supported his opinion that certain drugs would prevent a patient from suffering atrial fibrillation. Prairie, 324 Ill. App. 3d at 580, 755 N.E.2d at 1032. However, at trial the expert admitted that he had erred and the treatise in question did not, in fact, support his opinion. Prairie, 324 Ill. App. 3d at 580, 755 N.E.2d at 1032. As such, the admission of the treatise as substantive evidence constituted error, and though the trial court did not place as much weight on this error as upon other errors, the cumulative errors committed during that trial required reversal. Prairie, 324 Ill. App. 3d at 581, 755 N.E.2d at 1032.\nPlaintiff next maintains the trial court erred in instructing the jury as to the proper standard of care. Defendant responds that the trial court properly instructed the jury, consistent with the evidence in the case. Whether to give or deny a jury instruction is within the trial court\u2019s discretion. Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 121, 801 N.E.2d 1127, 1142 (2003). \u201c \u2018[T]he test in determining the propriety of tendered instructions is whether the jury was fairly, fully, and comprehensively informed as to the relevant principles, considering the instructions in their entirety.\u2019 \u201d Mikus v. Norfolk & Western Ry. Co., 312 Ill. App. 3d 11, 25, 726 N.E.2d 95, 107 (2000), quoting Leonardi v. Loyola University, 168 Ill. 2d 83, 100, 658 N.E.2d 450, 458 (1995). In Illinois, \u201c \u2018[a] litigant has the right to have the jury clearly and fairly instructed upon each theory which [is] supported by the evidence.\u2019 \u201d LaFever v. Kemlite Co., 185 Ill. 2d 380, 406, 706 N.E.2d 441, 454 (1998), quoting Leonardi, 168 Ill. 2d at 100, 658 N.E.2d at 458. The question of whether the evidence at trial raised an issue, thus requiring a particular jury instruction, is within the sound discretion of the trial court. Dixon, 383 Ill. App. 3d at 466, 706 N.E.2d at 431, citing LaFever, 185 Ill. 2d at 406, 706 N.E.2d at 455. In general, we will reverse a trial court\u2019s ruling on a jury instruction only if the trial court committed a clear abuse of its discretion. Stift v. Lizzadro, 362 Ill. App. 3d 1019, 1025-26, 841 N.E.2d 126, 132 (2005), citing Linn v. Damilano, 303 Ill. App. 3d 600, 606-07, 708 N.E.2d 533, 538 (1999). A new trial should not be granted because of improper jury instructions unless a party\u2019s right to a fair trial has been seriously prejudiced. Bulger, 345 Ill. App. 3d at 121, 801 N.E.2d at 1142.\nPlaintiffs citation to Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 901 N.E.2d 329 (2008), for the proposition that a party is entitled to have the jury instructed on his or her theory of the case is puzzling, considering that the jury here indeed was instructed on plaintiff\u2019s theory of the case, that excessive traction was applied to Keenan by Dr. Moore. Plaintiff essentially takes issue with the use of the word \u201cexcessive\u201d traction, as opposed to using plaintiffs preferred verbiage, \u201cgreater than gentle\u201d lateral traction. Yet, based on our review of the record, we find that the trial court gave the correct instruction based on the evidence, which established that the appropriate standard of care prevented \u201cexcessive traction.\u201d Both Edelberg and Neerhof predominately discussed \u201cexcessive\u201d traction. Edelberg, plaintiff\u2019s own expert, testified that defendant violated the standard of care by using \u201cexcessive\u201d traction. We find no error in the instruction given by the trial court.\nWe next address plaintiff\u2019s third claim, that the trial court erred in granting defendant\u2019s motion in limine, barring any testimony as to whether an \u201carrest of labor\u201d took place. Defendant counters that the trial court was within its discretion in barring such testimony, as there was no expert testimony to support such a theory. We agree with defendant. The trial judge has broad discretion to grant a motion in limine as part of her inherent power to admit or exclude evidence. DiCosola v. Bowman, 342 Ill. App. 3d 530, 535, 794 N.E.2d 875, 879 (2003). Plaintiffs theory was that if there was no \u201carrest of labor,\u201d then Keenan could not have been stuck on plaintiffs sacral promontory. However, here there was no disclosed expert opinion concerning an \u201carrest of labor\u201d and no trial testimony as to this issue. Indeed, the only such testimony was during the deposition of the resident, Dr. Trevor Miller, when plaintiffs counsel used that phrase and asked Dr. Miller whether plaintiff had an \u201carrest of labor.\u201d As such, there simply was insufficient evidence in this case to support the admission of evidence as to this theory. As the court noted, it was \u201cterminology that hasn\u2019t heretofore been disclosed.\u201d The trial court also found that it \u201csound[ed] like two entirely different medical problems and issues.\u201d The judge properly exercised her discretion in barring such testimony. Further, the court specifically allowed for revisiting the issue at trial, and also specifically ruled that if the issue came out there would be an opportunity for rebuttal. However, plaintiff failed to renew her argument opposing defendant\u2019s motion in limine, and therefore forfeited the issue and cannot sustain a showing of prejudice. See Bergman v. Kelsey, 375 Ill. App. 3d 612, 627, 873 N.E.2d 486, 502 (2007).\nFourth, plaintiff asserts that Meininger\u2019s trial testimony that his notation was an error violated Supreme Court Rule 213 because defendant\u2019s disclosures indicated that Meininger\u2019s testimony at trial would be consistent with the medical records. However, plaintiff has forfeited this argument, as plaintiff never objected to this testimony at trial. The failure to raise an objection at trial results in forfeiture of that issue. Bergman, 375 Ill. App. 3d at 629, 873 N.E.2d at 503.\nFurther, even assuming plaintiff had preserved the issue, the explanation of the inconsistency in Meininger\u2019s notes in the medical records was completely within the province of proper cross-examination. Circumstances may be developed on cross-examination that explain, qualify, discredit, or destroy the witness\u2019s direct testimony, even though that material may not have been raised on direct examination. Leonardi, 168 Ill. 2d at 105-06, 658 N.E.2d at 461. The scope of allowed cross-examination rests within the sound discretion of the trial court and will not be disturbed on appeal absent abuse of that discretion. Leonardi, 168 Ill. 2d at 102, 658 N.E.2d at 459. Further, plaintiff opened the door for such testimony with questioning on cross-examination. In Bryant v. LaGrange Memorial Hospital, 345 Ill. App. 3d 565, 577-78, 803 N.E.2d 76, 86-87 (2003), we held that the trial court properly allowed the defendants\u2019 expert witness to testify regarding opinions not previously disclosed, where the plaintiff \u201copened the door\u201d to such testimony on redirect examination. Here, upon being prompted on cross-examination, Meininger simply explained the inconsistency in his notes, rather than offering a new \u201copinion.\u201d Meininger was not an expert witness in the case.\nLastly, plaintiff maintains that the trial court erred in denying her posttrial motion for a new trial or, alternatively, for judgment notwithstanding the verdict. We weigh the evidence and will set aside the verdict and order a new trial only if the verdict is contrary to the manifest weight of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512 (1992). It is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide the weight to be given to the witnesses\u2019 testimony. Maple, 151 Ill. 2d at 452, 603 N.E.2d at 511-12. A verdict is against the manifest weight of the evidence where the opposite result is clearly evident or where the jury\u2019s findings are unreasonable, arbitrary, and not based on the evidence. Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512-13; York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 178-79, 854 N.E.2d 635, 652-53 (2006).\nWe review de novo a trial court\u2019s ruling on a motion for judgment notwithstanding the verdict. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999). \u201c[Vjerdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967).\nHere, the jury heard the testimony of two opposing experts, Dr. Edelberg and Dr. Neerhof, and the jury weighed their testimony and expert opinions and apparently chose to believe the testimony of Neer-hof that nothing defendant did or did not do caused Keenan\u2019s injury, but rather the injury was caused by the forces of labor as he descended the birth canal. Further, there was ample medical literature, including the PRECIS text, supporting the assertion that brachial plexus injuries can, and very often do, occur without any physician traction as part of a normal vaginal delivery. Even Edelberg, plaintiffs expert, acknowledged that there is literature supporting the view that the natural maternal propulsive forces of labor may be partly or totally responsible for posterior arm injuries, and that most brachial plexus injuries are not caused by the physician, though he disagreed with this view. Edel-berg also acknowledged that the automatic assignment of responsibility for a brachial plexus injury to the physician is inappropriate. Further, Edelberg conceded that the medical records did not indicate excessive traction was used, and that none of the other residents or professionals present during the delivery testified that defendant applied excessive traction.\nIn opposition to plaintiff\u2019s theory, Dr. Neerhof explained the mechanism by which a brachial plexus injury can occur without excessive physician traction in that the baby\u2019s shoulder can get \u201chung up\u201d on the mother\u2019s sacral promontory. Neerhof further explained that excessive downward traction could not have caused Keenan\u2019s injury, because his injury was to his posterior arm. Also, defendant had testified that it took her only 40 seconds to resolve the issue during the delivery, which was noted in the medical records. We find there was no evidence of excessive traction by defendant, other than Edelberg\u2019s unsupported opinion that this must have been the cause. Here, the manifest weight of the evidence supports the jury\u2019s verdict in favor of defendant and against plaintiff. See Bowman v. University of Chicago Hospitals, 366 Ill. App. 3d 577, 852 N.E.2d 383 (2006) (jury verdict against plaintiff affirmed where the evidence from the experts and physician witnesses was balanced but sufficiently favorable to defendants, in medical malpractice action based on the death of an infant allegedly due to failure to obtain cultures and administer antibiotics sooner).\nCONCLUSION\nFor the foregoing reasons, we affirm.\nAffirmed.\nFITZGERALD SMITH concurs.\nWe note as an aside that perhaps some confusion may arise among practitioners due to familiarity with Federal Rule of Evidence 803(18), the learned treatise exception to the hearsay rule. There, \u201c[t]o the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets\u201d may be admitted as substantive evidence as an exception to hearsay if such materials themselves are \u201cestablished as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.\u201d Fed. R Evid. 803(18). Further, such materials may then be admitted as substantive and read into evidence, though not submitted as exhibits. See Fed. R. Evid. 803(18). However, our jurisprudence interpreting Supreme Court Rule 213 since Darling allows that an author may also be acknowledged as authoritative in the field. Nonetheless, under our Rule 213 such materials are not admitted as substantive evidence as under the federal rule. See 210 Ill. 2d R. 213.", "type": "majority", "author": "PRESIDING JUSTICE TOOMIN" }, { "text": "JUSTICE LAVIN,\ndissenting:\nWhile 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.\nThe 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.\nOn 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\u2019s expert with the article. It also sets up a conundrum in which medical literature cannot be effectively utilized to support an expert\u2019s theory on direct examination but can be used as a sword to undermine an opposing expert\u2019s testimony.\nIn 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 \u201cauthoritative\u201d 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 \u201cauthoritative,\u201d permitting a foundation to be laid with terms like \u201cstandard,\u201d \u201cwell respected,\u201d \u201ca good source\u201d or \u201ca very good book.\u201d Bowman, 366 Ill. App. 3d at 587.\nThe majority chides plaintiff for a supposed failure to make a proper foundation objection, but it is abundantly clear from the record that plaintiff\u2019s counsel not only stated that the \u201cfoundation\u201d 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, \u201cthis article is not reliable (or authoritative),\u201d 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 \u201cfoundation\u201d 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 (\u201cunreliable\u201d or \u201cnonauthoritative\u201d) 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.\nPlaintiff\u2019s counsel, in his objection to the use of the article in cross-examination of Dr. Edelberg, stated:\n\u201c[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\u2019ve got substantial problems with.\u201d (Emphasis added.)\nThe court then overruled plaintiff\u2019s Rule 213 objection and asked about the \u201cother objection.\u201d Plaintiffs counsel repeated that there was a problem with the foundation, going directly to the issue of the unreliability of the article:\n\u201cThe foundation for itself \u2014 the publisher actually launched an investigation as to this article itself because of the underlying information. It wasn\u2019t disclosed as part of the publication that the author in their study \u2014 there was a relationship between the med-mal 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\u2019s credentials for actually doing this.\u201d (Emphasis added.)\nDefense counsel then argued that this objection had nothing to do with the \u201cfoundation of the substance of this,\u201d but plaintiffs counsel retorted, \u201cIt has everything to do with the foundation because ACOG themselves says, \u2018Wait 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\u2019re now going and doing our own investigation into what actually happened because of this.\u2019 \u201d\nDespite this rather detailed assault on the article\u2019s lack of reliability because of the ethical issues raised, the majority blithely states that plaintiff failed to \u201cexpressly object based on the article\u2019s lack of authoritativeness.\u201d 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.\nIn 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\u2019s numerous credibility and reliability problems that were brought to the trial court\u2019s 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.\nIn my view, the trial court\u2019s 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\u2019s 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\u2019s 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\u2019s 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.\nMaffett 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\u2019Casek v. Children\u2019s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008). Further, the majority\u2019s 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\u2019s holding.\nSupreme 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.\nTurning 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.\nThe record is quite clear that defense counsel quoted this article frequently during cross-examination. In sum, the article stood for the proposition that Erb\u2019s 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\u2019s 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\u2019s 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.\nThe 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\u2019s palsy could occur in the complete absence of any known shoulder dys-tocia, 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.\nThe final proof of prejudice can be found in defense counsel\u2019s closing argument in which the findings of the article are tied directly to defendant\u2019s sole proximate cause defense. The Lerner and Salamon article is self-described as noteworthy because it \u201cappears 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.\u201d 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\u2019s closing argument on sole proximate cause:\n\u201cThis 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\u2019s 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, mal-positioning. *** If you believe that those other causes, the forces of labor, the malpositioning in \u00fatero were the cause of Keenan\u2019s injury, then your verdict must be in favor of Dr. Moore.\u201d\nAs 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 \u201cheart\u201d of a defense to a malpractice claim.\nThere 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 \u201conly\u201d 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, \u201cI am trying to limit the damage on either side. But most importantly, I don\u2019t want the jury to hear a trial within a trial.\u201d 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.\nThe 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\u2019s 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.", "type": "dissent", "author": "JUSTICE LAVIN," } ], "attorneys": [ "John C. Wunsch and Karl E. Hunsicker, both of John C. Wunsch, PC., and William J. Harte and Joan M. Mannix, both of William J. Harte, Ltd., both of Chicago, for appellants.", "Jennifer A. Lowis, Lee A. Berger, and Mehreen S. Sherwani, all of Lowis & Gellen LLR of Chicago, for appellee." ], "corrections": "", "head_matter": "KEENAN STAPLETON, a Minor, By and Through His Parent and Next Friend, Felicia Clark, et al., Plaintiffs-Appellants, v. MONICA MOORE, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201409\u20140381\nOpinion filed June 11, 2010.\nRehearing denied August 13, 2010.\nLAVIN, J., dissenting.\nJohn C. Wunsch and Karl E. Hunsicker, both of John C. Wunsch, PC., and William J. Harte and Joan M. Mannix, both of William J. Harte, Ltd., both of Chicago, for appellants.\nJennifer A. Lowis, Lee A. Berger, and Mehreen S. Sherwani, all of Lowis & Gellen LLR of Chicago, for appellee." }, "file_name": "0147-01", "first_page_order": 163, "last_page_order": 189 }