Kreisman Law Offices Professional Corporation
Joyce Bonner was injured in a fall and lost four of her front teeth. She received treatment from dentist Dr. Elliott Ostro to repair the damage. Ostro recommended four implants to replace the teeth. However, Ostro did not take x-rays or make molds of Bonner’s mouth before starting his work.
More than a year later, Ostro still had not managed to complete the implant work. Bonner stopped seeing him and started with a new dentist in 2009. The new dentist gave his opinion that Ostro had not properly prepared Bonner for the implants and restoration of her teeth. Bonner later filed a lawsuit against Ostro.
At the trial, Bonner called dentist Dr. Loren Goldstein to testify as an expert witness as to the standard of care required for implant surgery. Goldstein testified that Ostro had deviated from the standard of care by failing to take x-rays or molds of Bonner’s mouth before starting surgery.
Ostro filed a motion in limine to disqualify Goldstein on the basis that Goldstein was a dentist and not an oral surgeon and in fact had not placed implants into patients’ mouths.
The trial court denied the motion and permitted Goldstein to testify. The jury eventually found in Bonner’s favor and awarded her $83,000 in damages. Ostro appealed.
On appeal, Ostro argued that the trial court was in error by denying the motion in limine to bar Goldstein from testifying.It was further argued by Ostro that Goldstein was not qualified to testify because he was only a general dentist and not an oral surgeon. Ostro contended that Goldstein was not able to testify to the jury as to the proper procedures for implant surgery.
The Illinois Appellate Court for the First District rejected Bonner’s argument, citing Silverstein v. Brander stating that even though Goldstein did not share Ostro’s specific expertise, he was nonetheless qualified to testify because the subject of his testimony, the presurgical procedure of implant installation, was within his own experience.
The appellate court also noted that Goldstein’s testimony concerned procedures that were not reserved solely for surgeons and that he had demonstrated experience with such procedure in his work history.
On the other hand, Ostro argued that he was denied a fair trial because Bonner and his attorneys repeatedly violated Illinois Supreme Court Rule 213 on disclosure of independent witness opinions. Ostro argued that Goldstein testified to several matters not previously disclosed in Bonner’s interrogatories or at deposition. That argument was rejected.
Further, Ostro argued that the trial court erred when it allowed Goldstein to testify to certain damage-related matters despite a ruling to bar such testimony in pretrial motions. Again, the court rejected that argument stating that the motion in limine in question only barred certain aspects of testimony and that the testimony allowed by the trial court was not barred.
The appellate court went on to state that Ostro did not demonstrate that the trial court abused its discretion in granting the motion in limine and that as a trial court’s ruling on a motion in limine was subject to change at trial, Ostro could not show such an abuse of discretion because the trial court altered its pretrial ruling.
Lastly, Ostro argued that Bonner’s counsel had shifted the burden of proof to Ostro in his closing argument comments by stating that Ostro had failed to testify that he had complied with the standard of care. The Illinois Appellate Court rejected that contention as well, stating that Ostro had forfeited his challenge by failing to cite any supporting authority or to challenge the statements at the trial.
The appellate court therefore affirmed the trial court’s ruling and the jury verdict stands.
Joyce Bonner v. Elliott Ostro.DDS, 2013 IL App. (1st) 103664-U.
Kreisman Law Offices has been handling medical negligence matters for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Warrenville, Palatine, Rolling Meadows, Chicago (Sauganash), Chicago (Albany Park), Berkeley, Melrose Park, Chicago Ridge, Blue Island, Hanover Park, Burr Ridge, Chicago (Edgebrook), Alsip and Joliet, Ill.