Sears v. Rutishauser

• Decision Date: 29 June 1984
• Docket Number: No. 59196,59196
• Citation: 466 N.E.2d 210,102 Ill.2d 402,80 Ill.Dec. 758
• Parties: , 80 Ill.Dec. 758, 39 A.L.R.4th 734 Shirley SEARS, Appellee, v. Julie RUTISHAUSER, Appellant.
• Court: Illinois Supreme Court

Page 210

466 N.E.2d 210

102 Ill.2d 402, 80 Ill.Dec. 758, 39

A.L.R.4th 734

Shirley SEARS, Appellee, v. Julie RUTISHAUSER, Appellant.

No. 59196.

Supreme Court of Illinois.

June 29, 1984.

Costigan & Wollrab, Bloomington, for Julie Rutishauser, appellant; Robert W. Neirynck, Bloomington, of counsel.

Jerome Mirza & Associates, Ltd., Bloomington, for Shirley Sears, appellee.

CLARK, Justice:

This appeal requires us to determine whether a trial judge should have allowed defense counsel to cross-examine plaintiff's expert witness concerning the number and frequency of referrals the expert had received from plaintiff's attorney. Plaintiff, Shirley Sears, filed suit on August 9, 1977, for personal injuries suffered in an auto crash with the defendant, Julie Rutishauser. The case was tried before a jury in McLean County, and plaintiff received a verdict of $40,000. A divided appellate court affirmed the judgment of the trial court (117 Ill.App.3d 61, 72 Ill.Dec. 696, 453 N.E.2d 1), and we granted defendant's petition for leave to appeal (87 Ill.2d R. 315(a)). We now reverse the judgments of the circuit and the appellate courts.

Sears allegedly suffered personal injuries when she was involved in an automobile accident with Rutishauser at approximately 8:15 a.m. on February 13, 1977. Sears was examined at Brokaw Hospital in Normal immediately after the accident, but she was not hospitalized, and returned home. Sears experienced neck pain the following day, and she began visiting the family doctor, Dr. Rieber Hovde, on a regular basis. Dr. Hovde ordered diathermy, medication, and a neck brace, but Sears continued to experience neck pain and stiffness on the right side of her body.

During the next three years, Sears was referred to Dr. John Wright, an orthopedic surgeon in Bloomington, Dr. Leonard Strichman, a neurosurgeon, and Dr. Hugh McMenamin, a physical therapy expert in Peoria. These doctors continued to prescribe conservative treatment such as traction, ice, and physical therapy. Sears continued to experience pain, and she consulted an attorney. The plaintiff's attorney referred the plaintiff to Dr. Donald Rumer, an orthopedic surgeon in Champaign. Dr. Rumer prescribed Phenlybutazone and Prednisone to alleviate the inflammation in Sears' neck. Dr. Rumer's treatments did not alleviate Sears' discomfort. She testified that she could not raise her right arm or hand above her head, and that her right arm and hand felt as if they were asleep. She continued to experience neck pain at the time of the trial.

At trial, Dr. Hovde testified that Sears' injuries were minor, and that her discomfort may have been caused by an arthritic condition that predated the automobile accident. Dr. Rumer's testimony directly contradicted the testimony of Dr. Hovde. Dr. Rumer testified that Sears' injuries were very serious, and that they were caused by the auto accident. Dr. Rumer also testified that Sears was afflicted with thoracic outlet syndrome, which caused the pain and loss of feeling in her arm.

When Dr. Rumer was deposed before trial, he stated that he had received two or three referrals a month from the plaintiff's attorney for the previous four years. Dr. Rumer was very reluctant to disclose this information. He originally stated that he did not know how many patients he had received from the plaintiff's attorney, and then admitted that he knew but would not reveal it. Finally, he estimated that he was treating between 20 and 40 patients that had been referred to him by the plaintiff's attorney. At a pretrial hearing on a motion in limine, defense counsel stated that he wanted to impeach Dr. Rumer by cross-examining him on the number and frequency of these referrals. The trial judge, however, ruled that defense counsel could only ask whether Dr. Rumer had received other patient referrals from the plaintiff's attorney. On appeal, the defendant contests this limitation to one question concerning Dr. Rumer's possible bias or financial interest in the litigation.

The modern personal injury trial often becomes a battle between expert witnesses. This is particularly true in a case such as the one before this court. The severity of a soft-tissue or "whiplash" injury is beyond the knowledge of the average person, and a jury must ordinarily rely on the testimony of experts in reaching a verdict. In Kemeny v. Skorch (1959), 22 Ill.App.2d 160, 159 N.E.2d 489, our appellate court noted:

"An expert medical witness is an important part of the technique of personal injury litigation. He generally is a persuasive, fluent, impressive witness, able to make the jury understand that what he is telling them is the product of years of educational preparation and medical experience, with particular reference to and emphasis on the specialty involved. He will name his colleges and universities, his degrees, the medical societies to which he belongs, the national specialty groups to which he has been admitted, the hospitals in which he has interned or externed, and the hospital staffs on which he has held positions. * * * That he is being paid by one side is always skillfully lost in casual answers to cross-examining cynical questions, by a modest shrug indicating that a charge is made per hour or day, which seems wholly inconsequent to the large proportions from which his great capacities emerge. Thus is set the basis for the jury's finding on damages.

* * * [L]ittle did the non-litigating public know the true rhetorical masterpieces that came from the lips of medical experts on the witness stand and how they, as much as the lawyers, shattered the aerial limits of verdicts in personal injury cases and made hundreds of thousands grow where only thousands grew before." 22 Ill.App.2d 160, 170-71, 159 N.E.2d 489.

It is virtually impossible to prosecute an expert witness for perjury. As this court noted in Opp v. Pryor (1920), 294 Ill. 538, 128 N.E. 580:

"[T]he expert is often the hired partisan and his opinion is a response to a pecuniary stimulus. The opinion has the sanction of an oath but lacks the substantial safeguard of truth applied to testimony concerning facts observed by a witness which is afforded by the criminal law since the opinion is the result of reasoning, and no one can be prosecuted for defective mental processes. The field of medicine is not an exact science, and the expert being immune from penalties for perjury, his opinion is too often the natural and expected result of his employment." 294 Ill. 538, 545-46, 128 N.E. 580.

The principal safeguard against errant expert testimony is cross-examination. Generally, opposing counsel may probe bias, partisanship or financial interest of an expert witness on cross-examination. In Chicago City Ry. Co. v. Handy (1904), 208 Ill. 81, 69 N.E. 917, this court stated:

"It is competent to show that a witness * * * is in the employ of one of the litigants regularly or frequently as an expert witness, or to prove facts and circumstances which would naturally create a bias in the mind of the witness for or against the cause of either of the litigants." 208 Ill. 81, 83, 69 N.E. 917.

Thorough cross-examination of medical doctors must be tempered with protection of the doctor-patient privilege, and subtrials on issues remote from the subject of the lawsuit should be avoided. Limitation of cross-examination of a medical expert rests within the sound discretion of the trial judge. (McMahon v. Chicago City Ry. Co. (1909), 239 Ill. 334, 341, 88 N.E. 223.) A medical expert can be questioned about fee arrangements, prior testimony for the same party, and financial interest in the outcome of the case. Allen B. Wrisley Co. v. Burke (1903), 203 Ill. 250, 67 N.E. 818; Graham, Impeaching the Professional Expert Witness by a Showing of Financial Interest, 53 Ind.L.J. 35, 42-45 (1977).

Prior Illinois decisions have not clearly delineated the permissible bounds of cross-examination of medical experts. In Chicago City Ry. Co. v. Smith (1907), 226 Ill. 178, 80 N.E. 716, the trial judge sustained an objection to a question that implied the expert was employed to "hunt up claims." The court reasoned that medical experts could be cross-examined concerning motives and feelings, but not about cases having no relation to the litigation. (226 Ill. 178, 187, 80 N.E. 716.) References to prior testimony for the same party must be controlled by the trial judge. In Plambeck v. Chicago Railways Co. (1920), 294 Ill. 302, 128 N.E. 513, the defense counsel made the following statement to the jury:

"I want to say a word about Dr. Tinney, with his six-foot stature and his handsome Adonis form, testifying in behalf of the street car company. He didn't undertake to say he testified one hundred times, more or less, in the last year. Where there comes a conflict between a man like that and Dr. Loeser,--a plain old family doctor,--his business is to cure sickness. Tinney's business,--a large part of it,--is to testify to defeat the claims of the injured. Where it comes to these two men on a scientific proposition, which are you going to give credence to?" 294...