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Melecosky v. Mccarthy Brothers Co.





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 30, 1987.

Plaintiff, Stanley Melecosky, brought this action in the circuit court of Champaign County for injuries suffered in a construction-site accident, claiming that his injuries were caused by violations of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69). Defendant, C. Iber and Sons, Inc., was the coordinating contractor for the project, while defendant McCarthy Brothers Company was a prime contractor responsible for the erection of structural steel. The jury returned a verdict in favor of plaintiff, and against both defendants, in the amount of $40,000. Plaintiff appealed, claiming that the trial court improperly excluded the evidence deposition of one of plaintiff's medical experts. Plaintiff's appeal asked for a new trial as to damages or, alternatively, a new trial as to damages and liability. The appellate court affirmed. (141 Ill. App.3d 84.) This court granted plaintiff's petition for leave to appeal. See 103 Ill.2d R. 315.

In this court, plaintiff raises two questions for review: (1) Did the trial court err in refusing to admit the evidence deposition of a nontreating physician whose opinions were based in part upon plaintiff's subjective statements? and (2) Did the trial court err in refusing to admit part of the evidence deposition containing the physician's opinion which was allegedly based only upon his objective observations?

Plaintiff was injured on October 9, 1980, while working as an ironworker on the construction of a building on the campus of the University of Illinois in Urbana. Plaintiff was sitting on a beam underneath a steel girder which had been suspended by a rope. The rope broke, causing the girder to fall. The girder landed on the back of plaintiff's head, which was partially protected by his welding helmet, and on plaintiff's upper back. Immediately after the injury he was taken to the Carle Clinic in Champaign, where he was diagnosed as having a sprained back and a chip fracture of the third lumbar vertebra.

Dr. Bharat Mehta, an orthopedic surgeon who treated plaintiff, testified on plaintiff's behalf. Dr. Mehta first saw plaintiff about three weeks after the accident. At this time he diagnosed plaintiff's condition as a lumbosacral strain, a chip fracture of the third lumbar vertebra, and a cervical strain in both shoulders. At a later time Dr. Mehta added to this diagnosis the belief that plaintiff had suffered a compression fracture of the third lumbar vertebra as well as the chip fracture. It was Dr. Mehta's opinion that these injuries were causally related to the accident as related to him by plaintiff.

In Dr. Mehta's view plaintiff's soft-tissue injuries were much more serious and disabling than his bone injuries. He testified that, although people often recover from soft-tissue sprains, the long persistence of plaintiff's disabilities led him to believe that the disabilities would be permanent. He expressed the opinion that plaintiff would never be able to return to heavy lifting as an eight-hour-a-day job. In Dr. Mehta's opinion plaintiff should avoid any work involving heavy and strenuous use of his legs or lower back, should avoid awkward positions such as bending, stooping, or climbing, should avoid any overhead work which requires him to bend his neck upward, and should not sit in one position for extended periods of time.

Plaintiff also offered the evidence deposition of Dr. Donald S. Miller, an orthopedic surgeon who examined plaintiff shortly before trial. Dr. Miller did not treat plaintiff in any way, but instead was engaged solely to examine plaintiff for purposes of rendering an opinion at trial. He reviewed plaintiff's medical history as recorded by plaintiff's previous physicians, and listened to plaintiff's own recounting of his accident and symptoms. He also performed various tests upon plaintiff. Nearly all of these tests required plaintiff's subjective input as to when and where he felt pain or discomfort. Dr. Miller's opinions were similar to those of Dr. Mehta. He believed that plaintiff would have permanent pain, and a permanent functional loss and restriction of agility.

The trial court ruled that Dr. Miller's opinions as to plaintiff's injuries were all based in part on plaintiff's subjective statements and symptoms. The court therefore refused to admit any of Dr. Miller's deposition into evidence.

Defendant's sole witness with regard to damages was Dr. Robert Mussey, a physician who, like Dr. Miller, examined plaintiff solely in order to render an opinion at trial. Dr. Mussey examined earlier X rays of plaintiff's back, and compared them to new X rays which he took at the time of the examination. He also observed plaintiff's sidebending and leg raising, which he found to be normal, and backbending, which he found to be somewhat restricted. Dr. Mussey testified that he did not ask plaintiff for a history of his injuries, did not ask plaintiff to relate his symptoms, and did no examinations which required plaintiff's subjective input. Based solely on these limited objective observations Dr. Mussey concluded that plaintiff had not suffered a fractured vertebra, but instead had calcium deposits of unknown origin. In addition, from his examination, he could find no reason why plaintiff could not return to the heavy lifting required of most ironworking. On cross-examination Dr. Mussey admitted that his opinion was based almost entirely upon the X rays of plaintiff's bones. Except for his observation of plaintiff's sidebending and backbending and leg raises, his opinion did not consider potential soft-tissue damage, which would have required the plaintiff's subjective input.

Traditionally in Illinois, subjective statements made to a physician for purposes of treatment have been admissible as an exception to the rule against hearsay. (Shell Oil Co. v. Industrial Com. (1954), 2 Ill.2d 590, 602.) This hearsay exception, however, does not extend to statements made to a nontreating physician who was consulted solely for purposes of rendering an opinion at trial. (Jensen v. Elgin, Joliet & Eastern Ry. Co. (1962), 24 Ill.2d 383, 388; Greinke v. Chicago City Ry. Co. (1908), 234 Ill. 564, 571.) Moreover, this court has held that the expert opinion of a nontreating physician is inadmissible if based upon the subjective statements of the party being examined. Jensen v. Elgin, Joliet & Eastern Ry. Co. (1908), 24 Ill.2d 383, 389; Greinke v. Chicago City Ry. Co. (1962), 234 Ill. 564, 571.

However, in Wilson v. Clark (1981), 84 Ill.2d 186, the court held that a physician may rely upon hospital records in forming an opinion even when the records are not themselves admitted into evidence. Citing as an example Rules 703 and 705 of the Federal Rules of Evidence, the court decided, in the case of hospital records, to follow the modern trend, which is to allow expert witnesses to base their opinions upon facts not already in evidence so long as the facts relied upon are sufficiently reliable. (84 Ill.2d 186, 194-95.) The Wilson court thus held that, "due to the high degree of reliability of hospital records," an expert may base his or her opinion on hospital records even if the records are not themselves in evidence. 84 Ill.2d 186, 194.

Although Wilson dealt only with the admissibility of an expert opinion based upon hospital records, the language of the Wilson opinion indicates a general approval of the rationale of Rules 703 and 705. (See also People v. Lang (1986), 113 Ill.2d 407, 464; People v. Anderson (1986), 113 Ill.2d 1, 13.) Rule 703 allows expert witnesses to base an opinion upon inadmissible facts or data:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." (Fed. R. Evid. 703.)

Rule 705 allows the expert to give an opinion without stating the particular facts or data relied upon; however, such facts and data can ...

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