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Denny v. Burpo





Appeal from the Circuit Court of St. Clair County; the Hon. Thomas P. O'Donnell, Judge, presiding.


Plaintiff Maria E. Denny appeals a judgment in favor of defendant Carl E. Burpo, M.D. The judgment followed a jury trial in the circuit court of St. Clair County, wherein plaintiff alleged that she had developed a vesicovaginal fistula (an opening in her urinary bladder) as a result of surgical procedures negligently performed by defendant. Two issues are presented on appeal. Plaintiff first alleges that the trial court erred in admitting certain testimony of defendant's expert witness during cross-examination. Plaintiff also alleges that she was unfairly limited in her examination of potential jurors during voir dire.

The testimony which plaintiff alleges was improperly admitted occurred during plaintiff's cross-examination of defendant's expert witness, Dr. Willard Scrivner, regarding Dr. Scrivner's opinion of a written statement by Dr. Matingly, author of a previously identified textbook on operative gynecology, in a separate article published in the American Journal of Obstetrics and Gynecology. The cross-examination proceeded in the following manner:

"[PLAINTIFF'S COUNSEL]: Doctor, are you aware of — I think I may have given you another article, the American Journal of Obstetrics and Gynecology, an article by Dr. Matingly. He is the man who wrote the fifth edition of this text, I believe. Would you agree with the statement, `In view of our experience with recognized bladder injury repair at the time of operation; [sic] however, we do not believe that the fistulas result from incision or laceration at the time of the operation but rather from inclusion of a bit of the bladder wall within a suture during closure and peritonation of the vaginal vault.'

Do you agree with that statement?

A. I can agree only in part and my disagreement is the fact that as of two days ago attending a seminar at Washington University where Dr. Fair, chief of urology at Barnes Hospital, I posed this very case to him. He said, `Scrivner, no way.'

Q. Now, excuse me. Whatever another doctor says to a local doctor's response to a medical malpractice case, Your Honor, is not responsive to this question and I can't cross examine [sic] what this other doctor said in this case. There is no way.

THE COURT: Doctor, complete your answer.

A. On the line I was going, Your Honor?


A. I was just trying to say that we have literature, textbooks ten to fifteen years old. We have current literature that comes out weekly, every two weeks and every month. The most current thing would be the man who's in charge of the Department of Urology at Barnes Hospital, Washington University. I posed this question to him and he said, `Scrivner, its got to be devitalized scar tissue. No way because we use the very same suture to even repair bladder injuries with Dexon. That is as far as I can go.'

[PLAINTIFF'S COUNSEL]: I move to strike that as unresponsive, Your Honor.

THE COURT: Well, you asked about the percentages and whether or not he agreed and he just said he didn't agree because the facts are different today than they were in your book. Overruled."

Plaintiff's contention that Dr. Scrivner's report of Dr. Fair's statement constituted inadmissible hearsay testimony depends, in effect, upon a determination of the precise reference of Dr. Fair's reported opinion. If, as plaintiff maintains, Dr. Fair's statement was not in fact offered to Dr. Scrivner as an opinion regarding the specific assertion contained in Dr. Matingly's article, but rather as an opinion regarding the merit of plaintiff's malpractice action, Dr. Scrivner's report was properly characterized by plaintiff as unresponsive hearsay testimony, and was erroneously admitted at trial. Hearsay evidence is defined as "a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." (People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738, quoting McCormick, Evidence sec. 225 (1954).) "The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered." (People v. Carpenter (1963), 28 Ill.2d 116, 121.) If Dr. Fair's out-of-court statement was, then, a personal judgment that plaintiff's fistula was the result of devitalized scar tissue, and not the result of defendant's negligence in performing the surgical procedures, it was improperly admitted, since the empirical bases and rational calculations underlying this judgment could not be subject to challenge by means of ...

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