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Sears v. Rutishauser





Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.


On August 9, 1977, the plaintiff, Shirley Sears, filed a complaint in the circuit court of McLean County alleging that (1) the defendant, Julie Rutishauser, negligently operated her automobile, and (2) as a direct and proximate cause of the defendant's negligent acts the plaintiff sustained permanent personal injuries. Following a jury trial, the trial court entered a judgment against the defendant on June 24, 1982, awarding the plaintiff $40,000 in damages. The defendant appeals. We affirm.

On appeal, the defendant maintains that (1) the trial court erred in refusing to allow the defendant to cross-examine one of the plaintiff's treating physicians about the number and frequency of patient referrals which that physician had received from plaintiff's counsel, (2) the trial court erred in allowing plaintiff to introduce into evidence certain cross-examination testimony which allegedly was beyond the scope of the defendant's direct examination, and (3) the closing rebuttal argument of plaintiff's counsel was so prejudicial as to deny the defendant her right to a fair trial.

Because no question is raised concerning the sufficiency of proof, we discuss the evidence only briefly. The plaintiff testified at trial that at approximately 8:15 a.m. on February 14, 1977, she was proceeding eastbound on Vernon Avenue, a four-lane street in Normal. Noting that the roads were slippery because of a recent snowfall, the plaintiff drove in the lane next to the curb at a speed of approximately 15 miles per hour. Immediately prior to the accident, the plaintiff observed the defendant's vehicle traveling westbound on Vernon Avenue and estimated its speed at 40 miles per hour. As the defendant's vehicle drew near it went into a skid, spun around into the eastbound lane, and the right rear portion of the defendant's vehicle struck the left fender and hood of the plaintiff's vehicle while both vehicles were still moving.

The defendant's testimony concerning the circumstances surrounding the accident was substantially similar to that of the plaintiff. However, the defendant did state that after her vehicle hit a patch of ice, crossed the center line and came to rest against the south curb of Vernon Avenue, she had been stopped for less than five seconds when plaintiff's vehicle struck the rear of defendant's vehicle. The defendant also stated that she had been traveling at a rate of 25 miles per hour immediately before she encountered the patch of ice.

The plaintiff testified that following the accident she developed pain and stiffness in her neck and in the right top portion of her body. As to her symptoms at the time of trial, the plaintiff stated that (1) her right hand and arm felt as though they were asleep and she had a loss of strength in that arm, and (2) she was unable to raise her right hand or arm above her head and her neck was stiff and painful.

During the approximately five-year period between the automobile accident and the jury trial, the plaintiff was treated by various doctors. At trial, the plaintiff relied primarily on the testimony of three of those doctors. Dr. John Wright testified that, in his opinion, the plaintiff had an acute cervical strain with contractures and disuse changes caused by the automobile accident. In his evidence deposition, Dr. Hugh McMenamin stated that the plaintiff had cervical radiculitis and shoulder encapsulitus, or frozen shoulder. Dr. Donald Rumer, the plaintiff's treating physician at the time of the trial, stated that (1) the plaintiff had thoracic outlet syndrome, and (2) the plaintiff's permanent injuries were among the worst he had ever treated.

The defendant introduced the testimony of Dr. Rieber Hovde, the plaintiff's family doctor at the time of the accident. Dr. Hovde testified that (1) the plaintiff had osteoarthritis which had existed prior to the automobile accident, (2) her injuries resulting from the accident were minor, (3) she had only a slight loss of motion in her neck which was both psychological and physiological in nature, and (4) she did not have thoracic outlet syndrome.

Prior to trial, the defendant filed a motion in limine requesting that the trial court prohibit the plaintiff from offering the testimony of Dr. Rumer, unless the doctor personally appeared at trial and produced the files of all the patients he had treated in the preceding four years on referral from attorney Jerome Mirza. Although Mr. Mirza was not trial counsel, his firm was representing plaintiff. During a hearing on this motion, the defendant argued that she should be allowed to introduce evidence concerning the number and frequency of client referrals from Mr. Mirza to Dr. Rumer in order to question Dr. Rumer's credibility by showing bias and interest on his part in testifying for the plaintiff, who had also been referred to Dr. Rumer by Mr. Mirza. Relying on the case of Davis v. Gulf, Mobile & Ohio R.R. Co. (1971), 130 Ill. App.2d 988, 272 N.E.2d 240, the trial court determined that Dr. Rumer could be asked whether he had received other referrals from Mr. Mirza, but he could not be asked about the number or frequency of those referrals.

The defendant argues that the trial court erred in refusing to allow Dr. Rumer to be cross-examined concerning the number and frequency of patient referrals which he had received from Mr. Mirza. The defendant points out that (1) the plaintiff's expert, Dr. Rumer, and the defendant's expert, Dr. Hovde, disagreed as to the cause and extent of the plaintiff's injuries, and (2) this conflict between the experts made the credibility of Dr. Rumer and Dr. Hovde an important consideration.

The Davis case is the only Illinois case dealing with the issue of whether a party's treating physician may be cross-examined concerning the frequency of referrals he has received from the party's counsel. Although the final form of the Davis opinion is disputed, the court clearly held that no error resulted merely because the trial court permitted such cross-examination. The court indicated that whether to permit the cross-examination was a matter of discretion for the trial court. Analogy was drawn to McMahon v. Chicago City Ry. Co. (1909), 239 Ill. 334, 88 N.E. 223, where the court held that a similar discretion existed concerning the frequency with which a physician had testified for the various street car lines of Chicago. In McMahon, the trial court had exercised its discretion by allowing the cross-examination. Courts> in other States have held that allowance of cross-examination of a physician as to the frequency of referrals to him by the opposing party's counsel was not error. See Wilson v. Stilwill (1981), 411 Mich. 587, 309 N.W.2d 898, and Ager v. Baltimore Transit Co. (1957), 213 Md. 414, 132 A.2d 469.

We also note that Professors Cleary and Graham state in section 705.2 of their treatise that:

"Inquiry into compensation [of expert witnesses] is a matter of right. [Citation.] Prior employment by the same party may be brought out [McMahon], as well as referrals from the same attorney [Davis]; but refusal to permit questions as to a consistent pattern of testifying for parties with similar interests in other cases has been sustained. Chicago & Eastern Illinois R.R. Co. v. Schmitz (1904), 211 Ill. 446, 71 N.E. 1050. In the latter situation, if the showing is sufficient to cast substantial doubt on the good faith and integrity of the witness, the inquiry would seem in principle to be allowable within the discretion of the trial judge, despite the risk of collateral issues." E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 705.2, at 385 (3d ed. 1979).

We conclude that the issue of whether to allow cross-examination of an expert medical witness concerning the frequency of his patient referrals from a party's attorney is within the discretion of the trial court. However, in this case, the issue involves matters collateral to the question of the extent of the party's injury. Here, defendant's offer of proof indicated that Dr. Rumer was uncertain as to the frequency of the referrals. Defense counsel's request for Dr. Rumer's records indicated that lengthy questioning might be necessary if the matter was pursued. The trial court seemed to be under the impression that because of the precedent of Davis it "probably" could not properly permit the cross-examination. However, the court's remarks permit the inference that it would not have permitted the cross-examination even if it had discretion. The court's ruling was not error.

The defendant's next contention concerns the introduction of Dr. Hugh McMenamin's testimony which was relied upon by the plaintiff at trial. This testimony consisted of portions of Dr. McMenamin's cross-examination by plaintiff during an evidence deposition taken by defendant. The defendant maintains that (1) this cross-examination exceeded the scope of the direct examination conducted by defense counsel in taking the evidence deposition, and (2) the procedure used allowed the plaintiff to present Dr. McMenamin's entire course of treatment of the plaintiff through the use of leading questions.

Defense counsel's direct examination of Dr. McMenamin, which dealt primarily with his opinion concerning the use of two drugs prescribed by Dr. Rumer for the plaintiff, included the following questions:

"Q. Did you feel that when you saw this woman and treated her that there would be any guarantee that this particular drug of Prednisone would give any significant relief to her?"

"Q. Now, as far as Prednisone, would you use that in reference to the treatment of a woman with the ...

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