Illinois Birth Injury Case to Be Retried: Will Include Previously Barred Expert Testimony

The Illinois appellate court recently overturned a $12 million Illinois medical malpractice jury verdict, ordering a new trial with a new jury. The new trial involving Northern Trust Co., et al. v. Burandt, et al., No. 2-08-0193, will include evidence brought by defendant’s medical expert that had been barred from being heard at the previous trial.
Burandt is an Illinois birth injury lawsuit filed by the parents of a child born with neurological injuries. The Illinois brain injury claim was brought against a family practice physician, alleging that the Illinois doctor contributed to the child’s injury by delaying a Cesarean delivery.
The claims specifically accused the doctor of being too slow to obtain an operating room for the C-section and in negligently slowing down the mother’s contractions before deciding to proceed with the C-section. The plaintiffs alleged that the child’s brain injuries were the result of a decreased flow of oxygen during his delayed delivery.

In Illinois, prior to trial both parties can bring motions in limine, which are essentially documents aimed at limiting the evidence the other side can bring at trial. The purpose behind motions in limine is to prevent evidence from being presented that might sway the jury’s opinion and verdict.
In Burandt the trial judge granted the plaintiff’s motion in limine barring the defendant’s expert witness from testifying that the child’s injuries were caused by a pre-existing infection and not a lack of oxygen during his delivery. The trial judge’s reasoning for granting the plaintiff’s motion was that the defendant’s expert’s testimony was speculative and not supported by the medical records. Because of the judge’s decision the jury did not hear this testimony and returned a verdict in favor of the plaintiff’s for $12 million.
Defendants appealed the judge’s decision to bar their expert witness’s testimony, which was in essence the central piece of the defendant’s defense. The Illinois Appellate Court found in favor of the defendants and reversed the trial court’s findings. In its decision, the appellate court determined that there was evidence in the medical records to support the defendant’s expert’s testimony.
The defense expert’s opinion was that the baby’s pre-existing infection was due to an infection in the mother’s amniotic cavity and placenta. According to the expert, this infection then caused a “cascade of cytokines” that resulted in the child developing fetal inflammatory response syndrome, which in turn caused the brain damage. The appellate court referred to the child’s positive blood culture at birth as support of the defense expert’s claims in the medical records. The court’s finding voided the judge’s reasoning that there was no support for these claims in the medical records, thus eliminating the arguments against presenting the defense expert’s evidence.
The appellate court ordered that the case go back to the trial court and allow the defendants to introduce the evidence supporting the medical experts’ infection-causation theory of the injuries. A new trial is typically ordered only if the incorrectly barred evidence is relevant and could result in a different jury verdict. This reasoning obviously applies in Burandt where the evidence at issue essentially supplies the jury with an alternate cause for the injury, when they had previously only been supplied with the plaintiff’s version of events.
Kreisman Law Offices has been handling Illinois birth injury lawsuits for over 30 years, serving those areas in and near Cook County, including Tinley Park, Chicago, Deer Park, and Hoffman Estates.
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