Illinois Appellate Court Reverses Medical Malpractice Defense Verdict for Erroneous Rulings Regarding the Scope of Cross-Examination


The Illinois Appellate Court for the Fourth District reversed a jury’s verdict for defendants, which included OSF Healthcare System, in the Circuit Court of McLean County.  The case centered around an injury and subsequent death of a 3-year-old boy, Christian Rivera, in 2003. The jury trial was held in July 2011. 

During the trial, the family of Christian offered its expert witness, Dr. Finley Brown, to testify as a medical expert in family practice.

The defendants were allowed by the trial judge to cross-examine Dr. Brown for the issue related to his annual earnings as an expert witness for an 8-year period. Plaintiff’s counsel had argued against the broad timeframe, but the trial judge denied plaintiff’s motion to limit the timeframe. Defense used this testimony to say the jury that Dr. Brown was a “go-to guy for expert opinions.”

In addition, the trial judge prevented plaintiff’s counsel from rehabilitating Dr. Brown or to point out and redirect that Dr. Brown had often times been asked to act as a medical expert for the defendants’ law firm. In fact Dr. Brown had served as an expert by the defendants’ law firm many times, yet the trial prevented plaintiff’s counsel from allowing the jury to hear that. 

The appellate court found that the trial judge had erred in several ways that prevented the plaintiff from having a fair trial. The appellate court ordered a new trial after reversing the jury’s verdict. 

The appellate court found that in a medical negligence case, a jury must decide whether the defendant physician deviated from applicable standard of care based upon the expert medical testimony given at the trial. Although it is permissible to cross-examine an expert witness about the amount and percentage of income that he or she generates from work as an expert, it is not a proper function of cross-examination to harass expert witnesses or to unnecessarily invade their legitimate privacy. Trower v. Jones, 121 Ill.2d 211 (1988). Although the Trower case did not limit the number of years in which an expert witness could be cross-examined as to income as an expert witness, the appellate court found that an 8-year period was an abuse of discretion. 

In addition, the trial court was found to have abused its discretion and compounded the prejudice when it denied the plaintiff an opportunity to rebut the defendants’ attacks with evidence showing that the defendants’ attorneys had retained Dr. Brown as an expert witness in several cases in the past. 

Further, the appellate court found that the defendants’ use of the U.S. Bureau of Labor statistics to show that Dr. Brown made an inordinate amount of money compared to other family practice physicians was an abuse of discretion for a number of reasons.  One was that the publication was not authenticated. Another was that the publication had little probative value for the purposes for which it was used.

The appellate court also criticized the trial judge for allowing hearing on a late filed motion for summary judgment brought by the defendants. 

In sum, the case was reversed and cause remanded for a new trial in line with the court’s opinions. 

Pontiac National Bank, Administrator of the Estate of Christian Rivera, deceased v. OSF Healthcare System, et al., 2013 IL App. (4th) 111088.

Kreisman Law Offices has been handling medical negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Crystal Lake, Vernon Hills, Algonquin, Cary, Fox River Grove, Hoffman Estates, Carol Stream, Bensenville, Glendale Heights, Villa Park, Westmont, Summit, Dolton, Calumet City and Romeoville, Ill.

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