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Lawler v. Macduff

October 25, 2002

LAURA LAWLER AND RONALD LAWLER, PLAINTIFFS-APPELLEES,
v.
ROGER MACDUFF; KEVIN JONES; ELMHURST CLINIC; ELMHURST MEMORIAL HEALTH SYSTEMS, D/B/A ELMHURST CLINIC; ELMHURST MEMORIAL HOSPITAL; EMH REFERENCE LABORATORY; FRED SCHMITT; AND INDRA SHANKAR, DEFENDANTS
(MICHAEL LOMONT AND ASSOCIATED PATHOLOGY CONSULTANTS-GOTTLIEB, S.C., DEFENDANTS-APPELLANTS).



Appeal from the Circuit Court of Du Page County. No. 99-L-555 Honorable Hollis L. Webster, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

UNPUBLISHED

Defendants Michael Lomont and Associated Pathology Consultants-Gottlieb, S.C., appeal a judgment of the circuit court of Du Page County entered in favor of plaintiffs, Laura and Ronald Lawler. Following a jury trial, Laura was awarded $3,800,000 and Ronald was awarded $50,000. On appeal defendants seek a new trial or, in the alternative, a remittitur. For the reasons that follow, we affirm.

The instant appeal arises out of a medical negligence action. Plaintiffs alleged that defendants had failed to properly read Laura's Pap smears. As a result, Laura contracted cancer and was subsequently forced to undergo a hysterectomy. Defendants conceded liability, and a jury trial was held solely on the issue of damages. At the time of the trial, only Dr. Lomont and Associated Pathology Consultants-Gottlieb, S.C., remained as defendants. The jury awarded Laura $2,500,000 for pain and suffering, $1,200,000 for the loss of a normal life, and $100,000 for disfigurement. It also awarded Ronald $50,000 on his loss-of-consortium claim. Relevant facts will be discussed as they pertain to the issues that follow.

I. OPINION

Defendants raise six issues in this appeal. First, they contend plaintiffs violated Supreme Court Rule 213 (177 Ill. 2d R. 213) by failing to properly disclose an opinion of one of their experts. Second, they assert that the trial court erred by failing to instruct the jury regarding the burden of proof. Third, they argue that the trial court improperly permitted plaintiffs to exercise a peremptory challenge to prevent an elderly juror from being empaneled. Fourth, they complain that plaintiffs improperly indoctrinated the jury during voir dire. Fifth, they allege error because the trial court permitted an expert witness to testify when the expert witness could not fully identify how he was to be compensated for his testimony. Sixth, they claim that they are entitled to a remittitur because Laura failed to prove damages for the loss of a normal life. We will address these issues seriatim.

A. Violation of Supreme Court Rule 213

Defendants first contend that the trial court erred in permitting Dr. Cook, one of plaintiffs' expert witnesses, to give an opinion that, defendants claim, was not disclosed as required by Supreme Court Rule 213 (177 Ill. 2d R. 213). Supreme Court Rule 213 requires parties to disclose "the conclusions and opinions of [an] opinion witness and the bases therefor." 177 Ill. 2d R. 213(g). It is permissible for a witness to elaborate on a properly disclosed opinion. Becht v. Palac, 317 Ill. App. 3d 1026, 1037 (2000). Furthermore, that trial testimony is more precise than a disclosed opinion does not necessarily result in a violation. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 576 (2001). Whether an opinion has been adequately disclosed is a matter that lies within the discretion of the trial court. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537 (1998). We will overturn a trial court's exercise of discretion only where no reasonable person could agree with the position that it takes. Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1042 (2001).

Through a videotaped evidence deposition, Dr. Ronald Potkul testified regarding the Delgado scoring system. The Delgado system is used to predict the chances of the recurrence of cancer in victims such as Laura. Using this system, Dr. Potkul testified that Laura had an 85% chance of surviving five years. At trial, Dr. Cook criticized the Delgado system because it fails to take into account vascular and lymphatic invasion. Defendants contend that this criticism was not disclosed. We disagree.

In response to defendants' Rules 213(f) and (g) (177 Ill. 2d Rs. 213(f),(g)) interrogatories, plaintiffs stated that it was anticipated that Dr. Cook would testify to the following:

"[A]ll women who suffer from invasive squamous cell cancer of the cervix face risk of cancer recurrence. Frequently these cancers will occur within two years of initial diagnosis, and that [sic] therefore the lack of recurrence in Laura Lawler can be considered a good sign. However, such cancers can recur or metastasize subsequent to two years or even five years. This is particularly true in the case of Laura Lawler because of the size of the lesion and the fact that there was lymphatic and vascular invasion. Although methods and systems exist that purport to predict chances of recurrence, these methods and systems are not statistically reliable and are limited to five-year survival rates."

Defendants claim that, although they anticipated that Dr. Cook would criticize the Delgado system based on the fact that it was limited to a five-year period, they could not have anticipated that he would criticize the system for failing to take into account vascular and lymphatic invasion.

Defendants' position is untenable. Plaintiffs' Rule 213 disclosure clearly states that cancers such as Laura experienced can recur beyond five years. It goes on to elaborate that this is particularly true in her case "because of the size of the lesion and the fact that there was lymphatic and vascular invasion." The passage concludes that statistical systems are not reliable and are limited to five-year periods. These concepts appear in consecutive sentences; the nexus between them is clear. A very reasonable reading of this passage is that statistical systems, like the Delgado system, are unreliable in cases, like Laura's, where there is lymphatic and vascular invasion. A reasonable person could agree with this very reasonable interpretation. Since a trial court abuses its discretion only where no reasonable person could agree with the position it takes (Nasrallah, 326 ...


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