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01/19/88 Cindy R. Trower Et Al., v. Grant A. Jones

January 19, 1988

CINDY R. TROWER ET AL., APPELLEES

v.

GRANT A. JONES, M.D., APPELLANT



SUPREME COURT OF ILLINOIS

520 N.E.2d 297, 121 Ill. 2d 211, 117 Ill. Dec. 136 1988.IL.34

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Douglas County, the Hon. Frank W. Lincoln, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court. JUSTICE RYAN took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

In the circuit court of Douglas County, plaintiffs, Cindy R. Connour (now Cindy R. Trower) and Donald E. Connour, filed a two-count complaint against defendant, Grant A. Jones, M.D. In count I, Cindy Trower alleged that she suffered personal injuries as a result of defendant's negligence in the care and treatment of her condition. In count II, Donald E. Connour alleged that he suffered a loss of society as a result of the same negligent acts of defendant. The jury returned verdicts in favor of defendant, and the court entered judgment on the verdicts. Finding that the circuit court had erroneously permitted defendant to impeach plaintiffs' expert by inquiry into (1) the frequency with which he testifies for plaintiffs rather than defendants, and (2) the annual income derived from services related to testifying as an expert witness, the appellate court reversed the judgment of the circuit court and remanded for a new trial. (149 Ill. App. 3d 705.) Pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315), we granted defendant's petition for leave to appeal.

The trial testimony is set forth in detail in the appellate court's opinion and will be repeated here only to the extent necessary for a Discussion of the issues here presented. Plaintiffs called Dr. James K. Martins as their expert witness. His testimony during direct examination included a Discussion of his education, his experience as a physician, and other credentials. He also explained how he became involved in this case. He stated that he was a "fellow" of the American Board of Medical Legal Consultants (Board) and that the Board had asked him to review the case. He described the Board as "a group medical legal consultants that attempt to determine whether lack of standard of care, injuries, or malpractice has occurred in a variety of cases." He explained that when the Board sends him a medical file to review, the file comes with a check, the amount of which depends upon how voluminous the file is.

On cross-examination, Dr. Martins acknowledged that the Board is a for-profit organization and that its purpose is to review cases involving suspected malpractice and to furnish expert testimony. Dr. Martins further acknowledged that most of the Board's cases are obtained through attorneys. He further stated that 80% of his professional time is devoted to work for the Board. He stated that since 1983, when he began working for the Board, he had reviewed over 700 cases for the Board, had given depositions in approximately 60 of those cases and had given expert trial testimony in approximately 30 of those cases. He acknowledged that these trials had encompassed over a dozen States throughout the country, and had involved matters as diverse as alleged inadequate neurological examination, osteomyelitis (an infection in bone), septicemia following a cortisone injection, and alleged failure to diagnose a brain tumor. Over objection, he was asked the following question regarding the approximately 30 trials in which he has given expert testimony: "All of these cases have been for plaintiffs, or that is people suing doctors?" Dr. Martins responded, "Of the majority, yes." Also over objection, Dr. Martins was asked the following question regarding his work for the Board: "In

Defendant and amicus curiae Illinois Association of Defense Trial Counsel contend that it was within the discretion of the circuit court to permit inquiry into both the frequency with which Dr. Martins testifies for a particular class of party, i.e., plaintiffs, and the amount of annual income derived from testifying as an expert witness. They argue that the appellate court failed to recognize the discretion vested in the circuit court. They note that the appellate court apparently found the questions per se inadmissible. Plaintiffs and amicus curiae Illinois Trial Lawyers Association do not refute that the appellate court found the questions per se inadmissible. However, they contend that the appellate court's decision is fully supported both by precedent and sound policy considerations.

Many years ago this court indicated, in McMahon v. Chicago City Ry. Co. (1909), 239 Ill. 334, that an expert witness should not be questioned with regard to the number of occasions on which he has previously testified for a given category of party (such as plaintiffs or defendants). Specifically, McMahon held that it was error (though harmless) to permit a plaintiff (injured in a collision with a train) to ask a defendant's expert medical witness how many times he had testified on behalf of the various streetcar lines of Chicago. Several early decisions of this court also arguably indicate that an expert should not be questioned regarding compensation received for testifying in cases unrelated to the parties or their attorneys. (See, e.g., Chicago City Ry. Co. v. Smith (1907), 226 Ill. 178; Chicago & Eastern R.R. Co. v. Schmitz (1904), 211 Ill. 446.) In each of these several cases, however, the court held only that the circuit court did not abuse its discretion in excluding such evidence; the cases do not necessarily indicate that such evidence is always inadmissible.

Since these cited Illinois cases were decided many years ago, both the difficulty and paramount importance of thorough, comprehensive cross-examination of experts have increased markedly. Cross-examination has been made more difficult in part by the increased latitude given experts when rendering their opinions. For example, in Wilson v. Clark (1981), 84 Ill. 2d 186, this court adopted Rules 703 and 705 of the Federal Rules of Evidence (Fed. R. Evid. 703, 705) with respect to expert testimony. Accordingly, experts can now render opinions without prior disclosure of the underlying facts or data upon which those opinions are based. Further, experts can now render opinions based upon certain inadmissible evidence (if such evidence is reasonably relied upon by experts in the field in forming opinions upon the subject). Although we view this expansion as prudent, we do recognize the added burden which these changes place upon a party during cross-examination in attempting to discredit his opponent's expert, and we also recognize that these changes heighten the importance of such cross-examination. Adding to the importance of effective cross-examination is the proliferation of expert "locator" services which, as a practical matter, can help the litigants of either side of most any case find an expert who will help advocate the desired position. As this case helps illustrate, many experts today spend so much of their time testifying throughout the country that they might be deemed not only experts in their field but also experts in the art of being a persuasive witness and in the art of handling cross-examination. As was stated in Kemeny v. Skorch (1959), 22 Ill. App. 2d 160, little has the nonlitigating public (including the jury) realized "the true rhetorical masterpieces that came from the lips of medical experts." 22 Ill. App. 2d at 171.

The combined effect of both the greater latitude given expert witnesses during direct examination and the expertise of many expert witnesses as expert witnesses is aptly set forth by Professor Michael H. Graham as follows:

"In combating testimony of the expert witness, opposing counsel must rely upon his skill in probing at weaknesses in the basis and reasoning of the witness whether or not disclosed upon direct, without letting the witness reinforce his direct testimony in the process. He must do this with an expert witness more familiar with the subject matter. Of course, counsel also has available the use of learned treatises to assist him in fencing with the witness. Unfortunately fencing with the witness is the impression the cross-examination of an expert witness often leaves with the jury, an impression trial counsel would prefer to avoid. The difficulty in conducting a successful destructive cross-examination is compounded by the growing number of experts whose livelihood is dependent in large part upon the litigation process. Such experts with their vast amount of litigation experience become exceptionally proficient in the art of expert witness advocacy." Graham, Impeaching the Professional Expert Witness by Showing of Financial Interest, 53 Ind. L.J. 35, 40 (1977).

We have long recognized that the principal safeguard against errant expert testimony is the opportunity of opposing counsel to cross-examine, which includes the opportunity to probe bias, partisanship or financial interest. (Sears v. Rutishauser (1984), 102 Ill. 2d 402, 407; Chicago City Ry. Co. v. Handy (1904), 208 Ill. 81.) The considerations discussed above further illuminate the ever-increasing importance of bringing to ...


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