Schuler v. Mid-Central Cardiology, No. 4-99-0752
4th District, 15 May 2000
| CAROLYN SCHULER, as Administratrix of the Estate of RICHARD SCHULER, Deceased, Plaintiff-Appellant, v. MID-CENTRAL CARDIOLOGY, a Professional Corporation, and PATRICK B. MURPHY, M.D., Defendants-Appellees, and ROBERT McENTYRE, M.D., Defendant. | Appeal fromCircuit Courtof McLeanCounty No. 97L28 HonorableLuther H.Dearborn,JudgePresiding. |
PRESIDING JUSTICE COOK delivered the opinion of the court:
Carolyn Schuler (plaintiff) appeals a jury verdict in favor of Patrick Murphy, M.D. (Dr. Murphy), and his professionalcorporation, Mid-Central Cardiology (collectively referred to as defendants). Plaintiff brought this medical malpracticeaction after the death of her husband, Richard Schuler (Schuler). Schuler died as a result of heart vessel blockage, whichoccurred during "stress test" procedures being performed by Dr. Murphy. Plaintiff asserts that the circuit court committed avariety of evidentiary errors that prejudiced her case and justify reversal. We affirm the judgment in favor of defendants.
I. BACKGROUND
On the evening of February 3, 1995, Schuler went to BroMenn Regional Medical Center complaining that he had beenexperiencing chest pains for two days. Robert McEntyre, M.D. (Dr. McEntyre), an emergency room (ER) physician,attended to Schuler and ordered a battery of tests. Schuler's electrocardiogram (EKG) came back abnormal, but his labresults were within normal limits. Dr. McEntyre decided to obtain a telephone consultation with a cardiologist, Dr. Murphy.The doctors agreed that Schuler's condition was stable and that a follow-up EKG should be performed. Dr. Murphyinstructed Dr. McEntyre to call him again after the second EKG.
The results of Schuler's second EKG showed improvement but were still abnormal. Dr. McEntyre's initial inclination was toadmit Schuler for a 23-hour observation, but, after discussing the matter with Dr. Murphy, the doctors decided that Schulershould not be hospitalized. Dr. McEntyre noted in the hospital records that Schuler was experiencing "noncardiac chestpain," and he was released with instructions to follow up with Dr. Murphy.
Dr. Murphy subsequently evaluated Schuler on February 10, 15, and 16. Dr. Murphy scheduled a stress test for February16, which is a method of evaluating a patient's physical state before, during, and after strenuous activity. Schuler diedduring the stress test procedures on February 16, 1995.
Plaintiff filed suit against Mid-Central Cardiology, Dr. Murphy, BroMenn Healthcare, and Dr. McEntyre. The suit againstBroMenn Healthcare was later dismissed on plaintiff's motion. Dr. McEntyre settled with plaintiff prior to trial. The caseproceeded to trial against Mid-Central Cardiology and Dr. Murphy on July 6, 1999. In essence, plaintiff claims that Dr.Murphy gave Schuler inadequate medical treatment and should not have required or permitted Schuler to submit to thestress test. The jury returned a verdict in favor of defendants. This appeal followed.
II. ANALYSIS
Plaintiff first argues that the circuit court committed reversible error when it denied plaintiff's motion to strike thesupplemental opinions of one of defendants' experts. Plaintiff also claims that the circuit court erred when it refused topermit plaintiff's expert to testify that Dr. Murphy breached the standard of care if he instructed Dr. McEntyre to change hisdiagnosis to indicate that Schuler was discharged with "noncardiac" as opposed to "cardiac" pain. Finally, plaintiff assertsthat the circuit court should not have allowed defense witnesses to utilize a demonstrative exhibit to explain the evaluationprocess doctors and cardiologists use with patients complaining of chest pain.
A. The Supplemental Opinions and Related Testimony of Defendants' Experts Were Properly Admitted
Defendants initially disclosed Dr. Gerald Wolff and Dr. Joseph Messer as opinion witnesses who would testify at trial ontheir behalf. Defendants made generic opinion disclosures, indicating that, based upon the doctors' review of the records andtheir education and experience, they would testify that Dr. Murphy complied with the standard of care applicable to him inhis care and treatment of Schuler. Plaintiff had not issued Supreme Court Rule 213(g) interrogatories requesting thisinformation; rather, the disclosure was made pursuant to the circuit court's case-management order. 177 Ill. 2d R. 213(g);166 Ill. 2d R. 218. The case-management order required the parties to disclose the "gist" of their opinion witnesses'testimony. The case-management order also provided for disclosure of opinion witnesses and completion of discoverypursuant to Rule 218(c). 166 Ill. 2d R. 218(c) (completion of discovery not later than 60 days before trial).
At the time of defendants' initial disclosure, plaintiff's opinion witnesses had already been deposed. Subsequently, Dr.Wolff and codefendant Dr. McEntyre's two opinion witnesses were deposed. Dr. Messer's discovery deposition was takenon March 19, 1999, as the final opinion witness deposition in the case. The deposition was brief, spanning only 22 pages.
Defendants subsequently served a "supplemental disclosure of opinions," setting forth detailed opinions that Dr. Messerwould provide at trial. These supplemental opinions were in addition to those elicited at Dr. Messer's deposition. Thecertificate of service indicates that the supplemental disclosure was sent via facsimile and regular mail to plaintiff and co-defendant on Thursday, May 6, 1999, 61 days before trial. However, the supplemental disclosure was not file-stamped bythe circuit court until Monday, May 10, 1999, which was 57 days before trial.
In response, plaintiff filed a motion to strike the supplemental disclosure and to bar further opinions. Plaintiff argued that(1) Dr. Messer's deposition had been taken, (2) the time for disclosure of opinions was past, (3) the additional opinions werenot provided in either the initial disclosure or at the time of the discovery deposition, and (4) the late disclosure would notallow time for an additional deposition, to forward those disclosures to plaintiff's opinion witnesses, and to disclose rebuttalopinions. Plaintiff asked the circuit court to bar Dr. Messer from giving any opinions other than those disclosed in hisdiscovery deposition.
Defendants replied to plaintiff's motion to strike, asserting that their disclosure was appropriate pursuant to Supreme CourtRule 213. 177 Ill. 2d R. 213. Defendants contend that the supplemental disclosure was necessary to address Dr. Messer'sopinions that plaintiff did not specifically cover during the deposition. Further, they argue that the rules of discovery do notrequire them to conduct their own direct examination of Messer at the deposition, and the written supplemental disclosurewas the appropriate procedure. Defendants also allege that none of the supplemental opinions disclosed would cause unduesurprise or prejudice the plaintiff.
At a pretrial hearing on July 2, 1999, the circuit court heard arguments relating to various motions in limine, includingplaintiff's motion to bar Messer's supplemental opinions. The circuit court denied plaintiff's motion. The circuit court heldthat although the supplemental opinions were more specific than those previously provided, no surprise or prejudice toplaintiff resulted that would warrant striking Dr. Messer's additional disclosures. The circuit court granted plaintiff leave toredepose Dr. Messer in light of the supplemental disclosure. Plaintiff declined, claiming there was insufficient time beforetrial to take the additional deposition and offer additional rebuttal testimony from plaintiff's own experts. On appeal,plaintiff argues that the circuit court's decision was an abuse of discretion. Warrender v. Millsop, 304 Ill. App. 3d 260, 268,710 N.E.2d 512, 518 (1999) (decision whether to exclude witness as sanction for nondisclosure will not be reversed absentabuse of discretion). We disagree.
We recently reiterated that the goal of Illinois' discovery process is full disclosure. Discovery is not a tactical game but isintended to be a mechanism for the ascertainment of truth for the purpose of promoting either a fair settlement or a fair trial.Boland v. Kawasaki Motors Manufacturing Corp., 309 Ill. App. 3d 645, 651, 722 N.E.2d 1234, 1239 (2000). Morespecifically, the purpose of the discovery rules requiring timely disclosure of expert witnesses and their opinions is to avoidsurprise and to discourage tactical gamesmanship. Boland, 309 Ill. App. 3d at 651, 722 N.E.2d at 1239-40. At the outset, wenote that we find no basis in the record to indicate that defendants made their supplemental disclosure in an attempt to gainan unfair tactical advantage over plaintiff.
Illinois Supreme Court Rule 213(g) provides that, upon written interrogatory, a party must disclose the qualifications of anopinion witness, including the subject matter upon which the opinion witness will testify, as well as the conclusions andopinions of the opinion witness and the bases therefor, and provide all reports of the opinion witness. 177 Ill. 2d R. 213(g).Rule 213(g) is designed to promote disclosure and to allow the opponent to take a thorough deposition of an opinionwitness.
In a typical case, Rule 213(g) interrogatories are issued; the opponent answers the interrogatories in compliance with Rules213(g)(i) through (iii); the issuing party reviews the answers and resolves any disputes relating to the adequacy of thedisclosures that might frustrate the party's ability to take a thorough deposition, i.e., noncompliance with Rules 213(g)(i)through (iii); and the opinion witness depositions proceed and all opinions to be offered at trial are disclosed. If thissequence of events is followed, postdeposition supplemental disclosure of opinions would rarely be needed. While certaincases may require postdeposition supplemental disclosure, they should be the exception, rather than the rule. See Lucht v.Stage 2, Inc., 239 Ill. App. 3d 679, 692, 606 N.E.2d 750, 759 (1992) (an expert, acting in good faith, may know more at theend of discovery than at the beginning).
Here, however, defendants' initial disclosure of opinion witnesses and the "gist" of their opinions was not made in responseto written Rule 213(g) interrogatories but, rather, was in response to the circuit court's case-management order. Plaintiffproceeded with Dr. Messer's deposition, knowing only that Dr. Messer believed Dr. Murphy complied with the applicablestandard of care (the ultimate conclusion every medical malpractice defense expert reaches). Dr. Messer's deposition wasextremely brief. Following the deposition and a review of the transcript, defendants found themselves in a difficultsituation. Dr. Messer had many opinions that were helpful to their case but had not been brought out at the deposition. In anattempt to preserve their ability to utilize these opinions, defendants disclosed the additional opinions in written form.
Defendants assert their supplemental disclosure was simply intended to comply with Rule 213. Had defendants failed tosupplement their initial disclosure with the opinions not touched upon at Dr. Messer's deposition, an argument could havebeen made that the additional opinions were barred under Rule 213(i):
"If a deposition of an opinion witness is taken, the witness' testimony at trial will be limited to the opinion expressedtherein, in addition to those opinions identified in answers to Rule 213(g) interrogatories." 177 Ill. 2d R. 213(i).
The express language of Rule 213(i) states that only those opinions disclosed in written form or those elicited at depositionwill be allowed at trial. We agree with defendants that the rules of discovery do not require them to conduct a directexamination of their expert at the deposition. However, parties should not be permitted to withhold opinions throughoutdiscovery and then ambush the opponent on the eve of trial with more specific opinions. The party propounding the expertis generally required to disclose the expert's opinion before the deposition, not at the deposition.
While we do not condone defendants' method of disclosure, we recognize that both parties can be faulted for the situationthat arose here. Defendants should have initially provided detailed opinion witness disclosures despite the fact that theywere only required to disclose the "gist" of those opinions pursuant to the case-management order. On the other hand, ifplaintiff determined that defendants' initial disclosure was not sufficient to permit a thorough deposition of Dr. Messer,plaintiff should have required defendants to provide more detailed disclosure before proceeding with the deposition.Plaintiff opted to take a brief deposition, without exhausting the bases for Dr. Messer's ultimate opinion that defendantscomplied with the standard of care when treating Schuler.
The circuit court considered the facts relating to the progress of discovery in this matter, as well as the nature and content ofthe supplemental disclosures, before concluding that the supplemental opinions would not cause undue surprise or prejudiceto plaintiff. As we previously noted, plaintiff was also given the opportunity to redepose Dr. Messer, but she declined. Wehave reviewed the record and conclude that, under these facts, the circuit court's decision was within its discretion.
Plaintiff also argues that the supplemental disclosure should have been barred as untimely pursuant to Rule 218(c). 166 Ill.2d R. 218(c). As we noted, the supplemental disclosure was sent via facsimile and regular mail to plaintiff on Thursday,May 6, 1999, 61 days before trial. It was file-stamped the following Monday, 57 days before trial. Illinois Supreme CourtRule 218(c) provides:
"All dates set for the disclosure of opinion witnesses and the completion of discovery shall be chosen to ensure thatdiscovery will be completed not later than 60 days before he date on which the trial court reasonably anticipates thetrial will commence." 166 Ill. 2d R. 218(c).
Supreme Court Rules 213(g), 213(i) and 218(c) work together to ensure that, upon written interrogatory and no later than 60days prior to the anticipated date of trial, parties disclose the subject matter, conclusions, opinions, qualifications, andreports of their opinion witnesses. Warrender, 304 Ill. App. 3d at 266, 710 N.E.2d at 516. Plaintiff initially argued that thecourt "filing date" of the supplemental opinions (57 days before trial) made them untimely. However, even assuming that iscorrect, plaintiff concedes that the circuit court has discretion to alter its case-management orders to permit otherwiseuntimely disclosures. While we discourage litigants from making "11th- hour" disclosures, we find that defendants'disclosure served via facsimile and regular mail 61 days before trial was permissible. Further, the circuit court was familiarwith the parties and the progress of discovery in this matter. It was within the circuit court's discretion to find defendants'supplemental disclosure was timely.
As a final matter related to Dr. Messer's supplemental opinions, we note that plaintiff waived any objection to the testimonyby failing to object at trial. The denial of a motion in limine does not preserve an objection to disputed evidence laterintroduced at trial. The moving party is obligated to object to the evidence when it is offered at trial or the objection will bewaived. Cunningham v. Millers General Insurance Co., 227 Ill. App. 3d 201, 206, 591 N.E.2d 80, 83 (1992).
Here, plaintiff referred to her pretrial motion to bar Dr. Messer's supplemental opinion as a "motion to strike" rather than a"motion in limine." That fact does not alter our finding of waiver. See People v. Drum, 307 Ill. App. 3d 743, 746-47, 718N.E.2d 302, 305-06 (1999) (State's pretrial evidentiary motion had purpose and effect of motion in limine and would betreated like motion in limine despite different title).
A motion in limine is a pretrial motion that seeks an order excluding inadmissible evidence and prohibiting questionsconcerning such evidence, without the necessity of having the questions asked and objections thereto made in front of thejury. People v. Williams, 188 Ill. 2d 365, 368, 721 N.E.2d 539, 542 (1999); see also M. Graham, Cleary & Graham'sHandbook of Illinois Evidence