Inconsistent Expert Testimony Leads to Decision for Doctor; Smeilis. v. Lipkis

The Illinois Appellate Court affirmed a trial judge’s decision in a medical negligence claim brought by Kathleen Smeilis. She developed a progressive neurological condition called cauda equina syndrome, which requires prompt surgical treatment to prevent permanent nerve damage.

In this case, Ms. Smeilis was admitted to Glenbrook Hospital in August 1999 and then transferred to a nursing home operated by Dr. Lipkis, the defendant. Lipkis personally examined Ms. Smeilis for the first time on Aug. 14, 1999. No unusual neurological activity was found until she was transferred back to Glenbrook Hospital four days later. Ms. Smeilis was then transferred to Evanston Hospital for immediate surgery. She suffered permanent nerve damage because she was not immediately diagnosed with cauda equina syndrome.

In 2001, the plaintiff and her husband brought a negligent lawsuit against Glenbrook Hospital, Dr. Lipkis and several others. They relied on the expert testimony of a neurosurgeon, Gary Skaletsky, M.D., who testified that Ms. Smeilis should have had surgery by Aug. 10, 1999, to avoid the neurological damage. In September 2007, after the discovery was completed, all defendants, except Dr. Lipkis, settled with Ms.

Smeilis and her husband for $3.2 million, and the case against those defendants was voluntarily dismissed. In October 2007, Ms. Smeilis and her husband filed a new complaint against Dr. Lipkis and his corporation alleging that he was the proximate cause of Ms. Smeilis’s injury.

In this new case, Ms. Smeilis used a different medical expert whose testimony stated that she needed surgery within a few days of Aug. 14, 1999 and that the Glenbrook Hospital doctors were not at fault for her injuries.

Dr. Lipkis filed an affirmative defense claiming judicial estoppel, which prevents a party to a lawsuit from taking a position that contradicts an earlier claim. The trial court converted this into a motion to dismiss and granted the motion after a hearing.

Ms. Smeilis and her husband appealed to the Illinois Appellate Court and argued that the expert opinions cannot be barred by judicial estoppel because plaintiffs made no assertions during the 2001 proceedings against the other defendants to bind them. Additionally, they argue there was no showing that the settlements arose from Dr. Skaletsky’s opinion testimony such that any benefit accrued from a prior inconsistent position.

The appellate court addressed the judicial estoppel argument, stating that the doctrine applies when a party takes two positions that are factually inconsistent in separate cases, with the intent that the trier of fact accept the facts alleged as true and has succeeded in the first proceeding and received some benefit. In this case, obviously, Ms. Smeilis and her husband received $3.2 million, perhaps contributed from the opinion of Dr. Skaletsky.

The Smeilis’ appeal cited Ceres Terminals, Inc. v. Chicago City Bank & Trust Co. and Department of Transportation v. Grawe for the argument that the court said was distinguishable because neither case was a medical malpractice matter. Also neither case involved medical expert witness testimony regarding causation.

The plaintiffs argued that the 2001 settlement was because of Dr. Skaletsky’s opinion, and therefore it had to be proven that was the basis of the settlement. And they argued that to impose judicial estoppel it must be proved that that was the reason for the settlement. The court rejected that argument, stating that it is the inconsistent positions that matter, not the truth of either position. One appellate court justice dissented, arguing that the complaints were essentially the same between 2001 and 2007, and that not all five requirements for judicial estoppel were met.

Kathleen Smeilis and Willard Smeilis v. Evan Lipkis, M.D. and Evan Lipkis, M.D., S.C., 2012 Ill.App. (1st) 103385.

Kreisman Law Offices has been handling medical malpractice cases, birth injury matters and nursing home abuse cases for individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas, including Chicago (Riverdale), Dolton, Calumet City, Harvey, Midlothian, Chicago Ridge, Worth, Palos Hills, Franklin Park, Chicago (Sauganash), and Villa Park, Illinois.

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