Cross Examination of Expert Witnesses, Illinois State Bar Association Trial Practice Seminar, 2002 by Robert H. Hanaford
In many regards, cross-examination of expert witnesses is no different than other witnesses. For instance, general rules apply such as impeachment based upon prior inconsistent testimony or impeachment by evidence of conviction of crime. This article provides case law pertaining to various methods of cross-examining experts. Examples include disclosure of bias and financial interest, use of material the expert did not rely upon and use of books, articles and treatises.
- Broad Latitude Allowed During Cross-Examination
Illinois courts have recognized the importance of allowing broad latitude in the cross examination of witnesses. Piano v. Davison, 157 Ill.App.3d 649, 110 Ill.Dec. 35, 510 N.E.2d 1066 (1st Dist. 1987). In many regards, the expert witness is no different than any other witness. For instance, general rules apply such as impeachment based upon prior inconsistent testimony or impeachment by evidence of conviction of crime.
Cross-examination has long been recognized as the best way to disclose bias, financial interest, partisanship or error in a witness' testimony. The widest latitude must be accorded counsel to cross-examine a witness bias, financial interest and the bases of his opinion. Sears v. Rutishauser, 102 Ill2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210 (1984); Trower v. Jones, 121 Ill2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297 (1988); Niewold v. Fry, 306 Ill.App. 3d 735, 239 Ill.Dec. 785, 714 N.E.2d 1082 (2nd Dist. 1999). Cross-examination is a matter of right and an important aspect of due process. Tsoukas v. Lapid, 351 Ill.App.3d 372, 248 Ill.Dec. 148, 733 N.E.2d 823 (1st Dist.2000).
The Supreme Court noted in Tzystuck v. Chicago Transit Authority, 124 Ill2d 226, 124 Ill.Dec. 544, 529 N.E.2d 525 (1988), that Athe character and scope of cross-examination and rebuttal rests largely within the sound discretion of the trial court, and a party may cross-examine a witness about matters which explain, modify or discredit his or her testimony on direct examination.
The Federal Rules of Evidence provide a reference for general rules applicable to cross examination. Federal Rule 609, which has been adopted by Illinois, provides generally that conviction of a crime punishable by death or imprisonment in excess of one year shall be admissible, subject to Rule 403 which excludes relevant evidence on grounds of unfair prejudice, confusion of the issues, or misleading the jury.
Federal Rule 611(b) notes the general rule that cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
Federal Rule 612 provides that a witness may be cross examined with any document used to refresh his recollection either before testifying or while testifying.
Federal Rule 613(b) states the requirement that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same.
Impeachment by use of a prior inconsistent statement Amust be completed by later offering evidence of the inconsistent statement if the witness denies making it. Morris v. Milby, 303 Ill.App.3d 224, 234 Ill.Dec. 509, 703 N.E.2d 121 (4th Dist. 1998).
- Nature of Expert Opinion-Basis of Opinion
An expert may base an opinion upon facts and data not in evidence, including hearsay, if reasonably relied upon. The Supreme Court in Wilson v. Clark, 84 Ill. 2d 186, 49 Ill.Dec. 308, 417 N.E.2d 322 (1981). adopted Rules 703 and 705 of the Federal Rules of Evidence whereby an expert may render an opinion based upon facts not in evidence so long as reasonably relied upon by experts in the particular field. Since Wilson there have been hundreds of cases addressing what constitutes reasonable reliance by an expert.
Significantly, the expert may read to the jury the hearsay upon which she relies. In People v. Pasch, 152 Ill. 2d 133, 178 Ill.Dec. 38, 604 N.E.2d 294 (1992), it was found proper for a psychiatrist to rely upon, and to disclose, the contents of the opinions of other non-testifying psychiatrists. The court noted that it is Awell settled that experts may consider not only medical and psychological records commonly relied upon by members of their profession in forming their opinions ..., but they may testify as to the contents of these records as well.
While reports and other documents not in evidence may form the basis of an expert=s opinion, the opponent must always be vigilant to object to testimony that is primarily designed to get otherwise inadmissible information in front of the jury. In People v. Pasch, the court noted that:
- Case law supports the proposition that an expert can testify as to non-testifying expert's findings and conclusions. Likewise, it is logical that the attorney may also refer to this source in posing his questions, as long as he is not attempting to elicit inadmissible hearsay.
- While the contents of reports relied upon by experts would clearly be inadmissible as hearsay if offered for the truth of the matter asserted, an expert may disclose the underlying facts and conclusions for the limited purpose of explaining the basis for his opinion.
Id at 55.
An expert may not merely testify that his opinions are corroborated by the opinions of other experts. In Kim v. Nazarian, 216 Ill.App.3d 818, 159 Ill.Dec. 758, 576 N.E.2d 427 (2nd Dist. 1991), defendant's radiology medical expert improperly testified that non-testifying colleagues agreed with his opinions concerning x-ray films being negative. The court noted that the expert did not rely on the opinions of the other radiologists concerning their reading of the x-rays. Allowance of this type of corroborative testimony would impermissibly circumvent the rule against hearsay.@ See also, Glassman v. St. Joseph Hospital, 259 Ill.App.3d 730, 197 Ill.Dec. 727, 631 N.E.2d 1186 (1st Dist. 1994) (Expert may not merely testify to opinions of other experts).
Whether the testimony provides the jury with improper hearsay under the guise of Areliance data is always a concern. Improper hearsay may not be elicited during the course of expert testimony. In Guerrero v. City of Chicago, 117 Ill.App.3d 348, 72 Ill.Dec. 892, 453 N.E.2d 767 (1st Dist. 1983), the court agreed with the trial judge that counsel for defendant could not cross examine the treating physician concerning a medical history, not prepared by the witness, which noted plaintiff fell on glass while running in an alley. The court noted that the holding in Wilson v. Clark was confined to the medical aspects of a hospital record.
Again, in Baily v. City of Chicago, 116 Ill.App.3d 862, 452 N.E.2d 680 (1st Dist.1983), the court denied cross examination concerning the contents of a medical record that indicated plaintiff accosted a little girl and hit his father. The cross-examination was properly limited to the medical aspects of the records.
In Barrar v. Clark, 136 Ill.App.3d 715, 483 N.E.2d 630 (1st Dist.1985), the plaintiff's expert opined that plaintiff was suffering from low back strain. His opinion was based upon a report prepared by another physician that contained a statement Athat [the plaintiff] ... was not interested in attempting to follow our diagnostic treatment plan. The defendant attempted to cross-examine the plaintiff's expert with regard to this statement and plaintiff's lack of cooperation. The trial court sustained the plaintiff's objection. On appeal, the court noted that Athe trial court has discretion to impose reasonable limits on cross-examination where the purpose is to bring out inadmissible hearsay rather than to undermine the expert's opinion.
A non-treating medical expert for the plaintiff may base his opinion upon subjective complaints of the plaintiff. Melecosky v. McCarthy Brothers Co., 115 Ill.2d 209, 104 Ill.Dec. 798, 503 N.E.2d 355 (1986).
An expert may give an opinion without stating the underlying facts in support. However, the opposing party may then cross-examine the expert on matters that weaken or negate the opinion. A An expert opinion is only as valid as the reasons for the opinion. When there is no factual support for an expert's conclusions, the conclusions alone do not create a question of fact. In Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill.App.3d 967, 229 Ill.Dec. 65, 691 N.E.2d 1 (1st Dist. 1998) a judgment notwithstanding the verdict for plaintiff was affirmed where the court found that the plaintiff's expert, during cross-examination, could not factually support a conclusion that a more timely CT scan would have led to treatment preventing or lessening patient's death from a cerebral hemorrhage. Plaintiff=s expert further conceded that he would defer to the opinion of a neurosurgeon concerning what if any surgical or pharmaceutical options were available to save decedent; the only two neurosurgeons at trial testified that an earlier CT scan would not have made a difference.
During cross-examination the weaknesses in the bases of an expert's opinion as well as the general soundness of the opinion may be explored by counsel. An expert's opinion is only as valid as the reasons underlying it. Thus, where an expert's opinion is totally lacking in factual support, it constitutes nothing more than conjecture and guess and should not be admitted. Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill.App.3d 383, 231 Ill.Dec. 401, 696 N.E.2d 697 (1998); Hawn v. Fritcher., 301 Ill.App.3d 248, 234 Ill.Dec. 497, 703 N.E.2d 112 (1998); Hajian v. Holy Family Hospital, 273 Ill.App.3d 932, 210 Ill.Dec. 156, 652 N.E.2d 1132 (1995).
The United States Supreme Court has noted that "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
- Broad Latitude Allowed During Cross-Examination
- Specific Subjects Of Cross-Examination
- Bias, Financial Interest, Partisanship
The cases dealing with cross-examination of expert witnesses to disclose bias, financial interest and other motives to testify as an advocate for a particular side all recognize that the task of going against a skilled expert is not easy. It has been well established that matters tending to show an interest, bias or motive to testify falsely of a witness may be brought out on cross-examination, even if those matters were not brought out on direct examination.
The Illinois Supreme Court has noted that cross-examination has been made more difficult in part by the increased latitude given experts when rendering their opinions. Also Aadding to the importance of effective cross-examination is the proliferation of expert locator services and the growth of professional witnesses. Trower v. Jones, 121 Ill2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297 (1988). The court quoted a portion of an article by Professor Michael Graham:
- In combating testimony of the expert witness, opposing counsel must rely upon his skill in probing at weaknesses in the basis and reasoning of the witness whether or not disclosed upon direct, without letting the witness reinforce his testimony in the process. He must do this with an expert witness more familiar with the subject matter. Of course, counsel also has available the use of learned treatises to assist him in fencing with the witness. Unfortunately, fencing with the witness is the impression the cross-examination of an expert witness often leaves with the jury, an impression trial counsel would prefer to avoid. The difficulty in conducting a successful cross-examination is compounded by the growing number of experts whose livelihood is dependent in large part upon the litigation process. Such experts with their vast amount of litigation experience become exceptionally proficient in the art of expert witness advocacy. Graham, Impeaching the Professional Expert Witness by Showing of Financial Interest, 53 Ind.L.J. 35, 40 (1977).
Id at 139.
Proper to cross-examine medical expert concerning prior testimony for the same party, attorney or attorney's law office; annual income and percentage of income derived from litigation activities; and the percentage of cases for plaintiffs and for defendants. Sears v. Rutishauser, 102 Ill2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210 (1984); Pappas v. Fronczak, 249 Ill.App.3d 42, 188 Ill.Dec. 308, 618 N.E.2d 878 (1993). It is proper to examine expert witness concerning frequency of testimony on behalf of either the defense or plaintiff, and to argue alleged bias and financial interest. Snelson v. Kamm, 204 Ill.2d 1, 787 N.E.2d 796, 272 Ill.Dec. 610 (2003).
- Income From Expert Witness Activity
The amount of income an expert derives from testifying is a proper subject for cross-examination as such evidence may be relevant to a witness' financial interest in giving such testimony. Trower v. Jones, 121 Ill.2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297 (1988). As noted by the court in Trower, Ait was proper to inquire how much [a medical expert] was earning annually from services relating to rendering expert testimony, and we find no impropriety in inquiring into such income for the two years immediately preceding trial.
- Referrals From Attorney
Prior referrals to a medical expert by the same attorney or his law firm is relevant to on the issue of the whether the witness may be biased. In Sears v. Rutishauser, 102 Ill2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210 (1984), the court noted that a medical expert could properly be cross-examined concerning the number and frequency of referrals received from an attorney. Such cross-examination should be strictly limited to the number of referrals, their frequency, and the financial benefit derived from them. The court also noted that the defense attorney could not subpoena a doctor's medical records on the referral issue because it would violate the doctor-patient privilege.
- Relationship With Attorney
An expert witnesse's relationship with trial counsel or another attorney in the law firm may be relevant as an indication of bias. In Lebrecht v. Tuli, 130 Ill.App. 3d 457, 85 Ill.Dec. 512, 473 N.E.2d 1322 (4th Dist. 1985), the court noted that Atestimony establishing that [a medical expert] and her spouse were friends of the referring attorney or an attorney within the law firm would tend to establish interest or bias on [the expert's] part.
Evidence that medical expert's brother was a former associate at plaintiff's attorney's office was appropriate subject of cross-examination. The medical expert had been retained by his brother; however, at the time of trial he was no longer an associate with the firm and there was no evidence he had a financial interest in the case. The court found that the jury could reasonably infer that the brother was retained because he might be expected to give a friendly analysis of the issues. In addition, plaintiff Awas given ample opportunity on redirect examination to dispel any unfavorable inferences. Flores v Cyborski, 257 Ill.App.3d 119, 195 Ill.Dec. 766, 692 N.E.2d 74 (1st Dist. 1993). Inferring a relationship between an attorney and an expert without support may be grounds for reversal. Cancio v. White, 297 Ill.App. 3d 422, 232 Ill.Dec. 7, 697 N.E.2d 749 (2nd Dist. 1999).
- Medical Expert's Involvement as Defendant in Malpractice Case
Medical malpractice defendant's involvement as a defendant in a medical malpractice case was improper grounds for cross-examination. Miceikis v. Field, 37 Ill.App. 3d 783, 347 N.E.2d 320 (1st Dist. 1976). Having been the subject of prior malpractice litigation is of questionable relevance when weighing the doctor=s testimony regarding the medical standard [malpractice case].
- Member of Same Medical Malpractice Insurance Program
It is not proper to cross-examine a defense medical malpractice expert on the basis that he is a member of the same malpractice insurance program. Golden v. Kishwaukee Community Health Service, 269 Ill.App. 3d 37, 206 Ill.Dec. 314, 645 N.E.2d 319 (1st Dist. 1994). This case bases its opinion on the general rule that evidence of insurance is not admissible. See also, Pappas v. Fronczak, 249 Ill.App.3d 42, 188 Ill.Dec. 308, 618 N.E.2d 878 (1993).
However, where a medical expert was also involved in reviewing cases filed against members of an insurance exchange, evidence of the relationship may be admitted. The court in Golden found cross-examination concerning work for an insurance exchange proper because the expert had more than a cursory interest in the case. Rather, the doctor had Aperformed significant economic services for the [insurance] Exchange in reviewing claims.... Therefore, there was a Apossibility of some significant question of bias exceeding potential prejudice....
- Disciplinary Proceeding
Evidence that plaintiff's medical expert had a pending disciplinary charge against him in California was considered an improper subject for cross-examination since it was a collateral matter to the issues in plaintiff's medical malpractice claim. Poole v. University of Chicago, 186 Ill.App.3d 554, 134 Ill.Dec. 400, 542 N.E.2d 746 (1st Dist. 1989). Importantly, the court did not hold that evidence of disciplinary proceedings is inadmissible, but that denial by the expert may foreclose further collateral evidence.
- Testimony in Other Cases
A witness may be cross-examined on the basis that he gave a statement or testified differently on an earlier occasion. AIt is appropriate to test the credibility of a witness by demonstrating that on a prior occasion the witness made statements inconsistent with his trial testimony. Kotvan v. Kirk, 321 Ill.App.3d 733, 254 Ill.Dec. 633, 747 N.E.2d 1045 (1st Dist. 2001). However, Ato be used for impeachment, a witness= prior statement must be materially inconsistent with his ... trial testimony. Id. at 646. See also, Preston v. Simmons, 321 Ill.App.3d 789, 254 Ill.Dec. 647, 747 N.E.2d 1059 (1st Dist. 2001).
Expert may be impeached by use of testimony given in a deposition for an unrelated case. Proponent of the deposition must be sure to comply with any discovery obligation to produce the statement of any witness. Mitchell v. Palos Community Hospital, 249 Ill.App.3d 42, 251 Ill.Dec. 395, 740 N.E.2d 476 (1st Dist.2000).
Trial court did not err in denying cross-examination of a medical malpractice expert concerning his prior testimony on behalf of the defendant physician in another malpractice case. The court noted that plaintiff was allowed to question the expert concerning how often he worked as an expert on behalf of doctor's being sued, how often defense counsel referred cases to him, and that [he] knew [defendant doctor] from prior neurological conferences. The ruling, therefore, resulted in little to plaintiff as [the expert's] defense bias was disclosed. Pappas v. Fronczak, 249 Ill.App.3d 42, 188 Ill.Dec. 308, 618 N.E.2d 878 (1993).
The Pappas case is an instance of the Appellate court deferring to the trial court's discretion in matters concerning cross-examination. The court noted that the Supreme Court in Sears v. Rutishauser, 102 Ill2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210 (1984), Aexpressly states that [a] medical expert can be questioned about ... prior testimony for the same party. Prior testimony cross-examination, however, is not without limitations since questioning about a prior deposition in a case for the same defendant may interject another lawsuit into the case. Note that cross-examination with a prior deposition where conflicting testimony was given on a relevant issue should be allowed in accordance with Mitchell v. Palos Community Hospital and Kotvan v. Kirk.
- Board Certification/Medical License Restrictions & Disciplinary Proceedings
Cross-examination regarding physician=s failure to pass board certification examination in internal medicine proper where physician was testifying as an expert in preventive medicine and lung diseases. Kurrack v. American Telegraph Co., 252 Ill.App.3d 885, 192 Ill.Dec. 520, 625 N.E.2d 625 (1st Dist. 1993). The court also allowed testimony that the physician tried and failed the board exam five times. But See, Gossard v. Kalra, 291 Ill.App.3d 180, 225 Ill.Dec. 725, 689 N.E.2d 410 (4th Dist. 1997), denying impeachment on basis of failed attempts at board certification where medical expert was board certified, and remained board certified, at all times during his treatment of plaintiff.
Evidence that a doctor failed to pass the Illinois medical licensing test on four occasions was not admissible where the doctor had subsequently passed the exam in another state. O'Brien v. Meyer, 196 Ill.App.3d 457, 143 Ill.Dec. 322, 554 N.E.2d 257 (1st Dist. 1983). The court reasoning was that:
- Once the qualifying threshold has been met, attempts to impeach the expert's opinion should have a clear link to facts and assumptions underlying the opinion, the methodology or testing used, the knowledge and experience of the expert in the matters to which he testifies, personal bias (such as the fact he or she is paid to testify), and so forth. Matters going to ... schooling and licensing are in a different category ... because of their attenuated relevance to the medical opinion in issue. Also, there is a practical consideration of where to draw the line. Should juries be allowed to consider the school rank of a witness, or the fact that he or she failed a course. Few would argue that the answer to that question should be no.
Cross-examination concerning restrictions on an expert's medical license is proper as it relates to credibility. In Creighton v. Thompson, 266 Ill.App.3d 61, 203 Ill.Dec. 195, 639 N.E.2d 234 (1994), the State of Washington imposed several restrictions on plaintiff's expert's medical license; namely, he could only practice medicine under supervision. The court held that Athis information was highly relevant to [the expert's] credibility because his testimony concerned only whether other physicians failed to exercise the appropriate standard of medical care....
Evidence that plaintiff's medical expert had a pending disciplinary charge against him in California was considered an improper subject for cross-examination since it was a collateral matter to the issues in plaintiff's medical malpractice claim. Poole v. University of Chicago, 186 Ill.App.3d 554, 134 Ill.Dec. 400, 542 N.E.2d 746 (1st 1989). Importantly, the court did not hold that evidence of disciplinary proceedings is inadmissible, but that denial by the expert may foreclose further collateral evidence.
- Articles, Books & Treatises
Experts may base their opinions upon facts and data not in evidence, including authoritative texts, articles and treatises (literature). During direct examination, the expert may testify that he relied upon a particular authoritative literature in support of his opinion and he may provide the title of the authoritative work; however, the expert on direct may not testify concerning specific statements in the literature.
The expert can be cross-examined with the specific contents of literature he relied upon. In addition, the expert can be cross-examined with literature he agrees is authoritative, or with literature that another expert has opined is authoritative. Generally, the authoritative nature of a writing may be established by agreement of the expert being cross-examined, by the cross-examiner's expert or, in some instances, by judicial notice.
For instance, Rule 803(18) of the Federal Rules of Evidence, excludes certain learned treatises from the rule against hearsay as follows:
- To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Experts may base their opinions upon literature without identifying it on direct exam; however, they may be cross-examined concerning the details of the literature they relied upon as well as other relevant literature. Becht v. Palac, 317 Ill.App.3d 1026, 251 Ill.Dec. 560, 740 N.E.2d 1131 (1st Dist. 2000), Mielke v. Condell Memorial Hospital, 124 Ill.App. 3d 42, 79 Ill.Dec. 78, 463 N.E.2d 216 (2nd Dist. 1984).
The date literature was published may be relevant to its use at trial. Literature published after an alleged act of malpractice, and containing medical knowledge not then available, cannot be used to establish the applicable standard of care. A physician ought not have his conduct judged by the state of medical knowledge and standards not in existence at the time his conduct is being criticized. Karr v. Noel, 212 Ill.App.3d 575, 156 Ill.Dec. 684, 571 N.E.2d 271 (5th Dist. 1991).
However, in a case where the diagnostic capabilities of an ultrasound in 1982 to detect a particular lesion was relevant, it was proper to use literature published after 1982 Ato show the diagnostic capabilities of ultrasound, not to show standard of care. Granberry by Granberry v. Carbondale Clinic, 285 Ill.App.3d 54, 220 Ill.Dec. 284, 672 N.E.2d 1296 (5th Dist.1996).
- Facts & Data Not Relied Upon by Expert-Scope of Cross-Examination
Cross-examination may focus on facts and data not relied upon by the expert. It is not improper to allow questioning to discover what potentially relevant information [the] expert may have failed to consider in reaching an opinion. Tsoukas v. Lapid, 351 Ill.App.3d 372, 248 Ill.Dec. 148, 733 N.E.2d 823 (1st Dist.2000). In general, facts and data forming a basis of an expert=s opinion that are not disclosed during direct examination may be disclosed during cross-examination. Piano v. Davison, 157 Ill.App.3d 649, 110 Ill.Dec. 35, 510 N.E.2d 1066 (1987).
Defense psychiatrist could be cross-examined concerning psychological reports of non-testifying psychiatrists that concluded defendant was sane even though the defense expert stated he did not review or rely upon the reports. People v. Pasch, 152 Ill. 2d 133, 178 Ill.Dec. 38, 604 N.E.2d 294 (1992). The court noted that it is well established that Aif an expert admits relying upon a report, that [expert] may be impeached with the contents of that report. However, the issue before the court in Pasch was to what extent an expert may be questioned regarding the reports and conclusions of other experts which he did not rely upon in coming to his conclusions.
The court noted that cross-examination of an expert with reports he has not relied upon has been held improper where cross-examining counsel is merely attempting to introduce hearsay evidence before the jury. Citing, Bobb v. Modern Products, Inc., 648 F2d 1051 (5th Cir. 1981) and Martin v. Zucker, 133 Ill.App.3d 982, 88 Ill.Dec. 980, 479 N.E.2d 1000 (1st Dist. 1985). The court in Pasch concluded that:
- [T]he prosecutor's cross-examination of [defendant's expert] as to other experts= findings was isolated and sporadic. In our view, the data and conclusions drawn from the other expert's reports through the prosecutor's inquiries were not introduced substantively. At no time did the State try to establish that the other doctor's declared defendant to be sane. Instead, the inquiries were utilized to determine if [defendant's expert] had referred to them in making his determination.
Id at 57.
A psychiatric expert may properly be cross-examined with the contents of a police report concerning information he did not rely upon in opining on defendant's insanity defense. In People v. Wagener, 196 Ill.2d 372, 256 Ill.Dec. 550, 752 N.E.2d 430 (2001), the Supreme Court noted that opposing counsel is allowed to cross-examine an expert with respect to material which he has reviewed but upon which he did not rely. Indeed, counsel may venture beyond the facts supported by the record in inquiring what changes of conditions would affect his opinion.
A medical expert may be cross-examined concerning emergency room records upon which he neither relied upon in forming his opinions nor reviewed if those reports are truly used as tools of impeachment, rather than as a Trojan Horse used to slip hearsay evidence into the trial. Jager v. Libretti, 273 Ill.App.3d 960, 210 Ill.Dec. 144, 652 N.E.2d 1120 (1st Dist. 1995). In Jager, the court held that where a treating doctor testified that an automobile accident caused injury to plaintiff's neck, the defense should have been allowed to cross-examine plaintiff's treating doctor with emergency room records which indicated plaintiff made no complaints of neck pain.
The decision is instructive for distinguishing the type of questioning that is, and is not, permissible. Improper questioning sought to have the emergency room records read into evidence with regard to negative findings by the emergency physician. For instance, the doctor was asked: Calling your attention to the eighth line down on the physician's record; isn't there a notation with a circle and a line through it as to neck discomfort? The court concluded this type of questioning seeks to introduce substantively another doctor's opinion. On the other hand, the doctor could be questioned: AWould the fact that the only thing noted by the doctor was a head contusion in [the emergency room] ... affect your opinion? This type of question allows counsel to test the expert's opinion by asking if other facts, data or opinions would alter his opinion. Id at 148.
A Doctor that did an autopsy could be cross-examined concerning aspects of the autopsy that he did not testify to during direct examination. Kurrack v. American Telegraph Co., 252 Ill.App.3d 885, 192 Ill.Dec. 520, 625 N.E.2d 625 (1st Dist. 1993). The doctor testified on direct examination that the cause of death was mesothelioma. The defense was allowed to pose questions during cross-examination that exceeded the scope of the opinion on direct, such as the pathologic criteria for a diagnosis of asbestosis; a diagnosis not made by the doctor. The court concluded that Athe scope of cross-examination is not limited to the actual material discussed during direct examination, but to the subject matter of direct examination and the extent of cross-examination is left to the broad discretion of the trial court.
In People v. Pitts, 104 Ill.App.3d 451, 432 N.E.2d 1062 (1982), a murder defendant's expert psychologist changed opinion that defendant was insane when showed reports he had never reviewed which contained statements defendant made to others concerning drug use and that defendant did not remember anything about the murder.
Cross-examination exceeded the scope of direct in Neal v. Nimmagadda, 279 Ill.App.3d 834, 216 Ill.Dec. 364, 665 N.E.2d 424 (1st Dist. 1996). Medical malpractice defense experts testified on direct that the defendant was not negligent in removing plaintiff's thyroid, even though a pathology report from Mayo Clinic was negative for cancer. However, the defense experts at their depositions also testified concerning post-operative care provided by defendant; namely, that he should not have sent plaintiff home with a decreasing calcium level and without treatment to stabilize the calcium level. Plaintiff was hospitalized for four days with a life threatening calcium deficiency.
The court found that the issue of whether defendant was negligent in removing plaintiff's thyroid was an entirely separate issue from post-operative care. The court noted that one may go outside the scope of direct examination to test the credibility of the witness. [Citation omitted]. However, we fail to see how cross-examination of the expert's regarding Neal=s discharge would test the expert's credibility.
A non-testifying physician's report may form the basis for cross-examination where the testifying expert reviewed the report, but did not agree with or rely upon the report. Halleck v. Coastal Building Maintenance Co., 269 Ill.App.3d 887, 207 Ill.Dec. 387, 647 N.E.2d 387 (2nd Dist. 1995). Plaintiff's treating physician (Dr. Greco) was cross-examined with another doctor's report (Dr. Brackett) that was in his file. Dr. Greco testified he agreed with Dr. Brackett's diagnosis, but disagreed with his conclusion that plaintiff could return to regular work. The court noted that Athe facts, data and opinions which form the basis of the expert's opinion, but which are not disclosed on direct examination, may be developed on cross-examination. In recognizing the broad latitude allowed in cross-examination, the court stated:
- [T]he scope of cross-examination is not defined by material actually relied upon by an expert in forming his conclusions. Rather, a trial court may permit cross-examination on materials reviewed by the expert, but upon which he did not choose to rely. Thus, the critical question in the instant case is whether Dr. Greco read and was aware of Dr. Brackett's report.... [Defendant] was properly allowed to cross-examine Dr. Greco as to which aspects of the report he accepted and which aspects he rejected.
Id at 396.
In Morris v. Milby, 303 Ill.App.3d 224, 234 Ill.Dec. 509, 703 N.E.2d 121 (4th Dist. 1998), the court found that defense counsel improperly cross-examined plaintiff's chiropractor concerning the contents of plaintiff's family physician=s records; records that the chiropractor testified he did not rely upon. The court found questions reciting findings and diagnosis in the family doctor's records to be an attempt to introduce the contents as substantive evidence, contrary to the rule against hearsay.
- Expert's Medical Reports From Other Cases
Defense medical expert could be impeached with reports he prepared in other cases where all the language was nearly identical concerning negative neurological findings. In fact, a former employee of the doctor testified he had a word processing command that automatically printed the desired wording for negative neurological findings. Moore v. Centerville Township Hospital, 246 Ill.App.3d 579, 186 Ill.Dec. 689, 616 N.E.2d 1321 (5th Dist.1993), rev'd on other grounds, 158 Ill.2d 543, 199 Ill.Dec. 748, 634 N.E.2d 1121 (1994).
Counsel is not required to provide the opposing side copies of reports prepared by his expert in other cases. However, providing case captions and attorneys= names may be required. Salingue v. Overturf, 269 Ill.App.3d 1102, 207 Ill.Dec. 575, 647 N.E.2d 1068 (5th Dist.1995). While Moore v. Centerville Township Hospital dealt with admissibility of other reports, the court in Salingue noted that Athe preferred procedure [for obtaining reports] is ... to contact other plaintiff's counsel ... to secure copies of the desired reports. The court reached this conclusion, at least in part, in recognition of a person's privacy against disclosure of a medical report. However, the court also noted that an examination by a defense medical expert does not create a physician-patient relationship; in which case a consent to disclosure would be required.
- Hypothetical Questions
Defense counsel in an injury case will often ask the plaintiff's medical expert hypothetical questions in an effort to alter his opinion on causation. For instance, a common question is assuming the plaintiff's preexisting condition [e.g. degenerative disc disease], is it likely the plaintiff would have needed surgery anyway? The often heard objection, incomplete hypothetical, has no basis in the law. The cases note that an attorney asking a hypothetical may state the evidence as he perceives it to be, and the opponent is then free to question the expert adding any additional facts. The appropriate objection would be that the facts assumed are not supported by the evidence.
The trial court has discretion to allow a hypothetical question containing facts not in evidence if counsel assures the court the evidence will be produced later. If not produced, the unsupported facts should be stricken. Leonardi v. Loyola University, 168 Ill.2d 83, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995). In Leonardi, the court further noted that counsel may ask a hypothetical question containing only the facts he believes are in evidence. As the court stated:
- Counsel has a right to ask an expert witness a hypothetical question that assumes facts that counsel perceives to be shown by the evidence. The assumptions contained in the hypothetical question must be based on direct or circumstantial evidence, or reasonable inferences therefrom. The hypothetical question should incorporate only the elements favoring his or her theory, and should state facts that the interrogating party claims have been proved and for which there is support in the evidence. On cross-examination, the opposing party may substitute in the hypothetical those facts in evidence that conform with the opposing party's theory of the case.
Id at 975.
An attorney may change medical facts such as symptoms and findings for purpose of a hypothetical question so long as the facts assumed are reasonably supported by the evidence. It has been noted that Athe assumptions in a hypothetical are proper as long as they are within the realm of direct or circumstantial evidence or are reasonable inferences from the established facts. Granberry by Granberry v. Carbondale Clinic, 285 Ill.App.3d 54, 220 Ill.Dec. 284, 672 N.E.2d 1296 (5th Dist.1996). The court also noted that:
- [T]he facts suggested hypothetical questions need not be undisputed but need only be supported by the record, and [i]n presenting evidence by a hypothetical question, , counsel propounding the question has a right to ask it, assuming only the facts as he perceives them to be shown by the evidence .... Opposing counsel may then challenge the controverted facts by presenting his own hypothetical questions to the witness.
Id at 288.
In Granberry by Granberry, a medical expert was properly asked a hypothetical question that incorporated the findings testified to by another doctor; thus, the question had the proper evidentiary foundation. Id at 289.
The facts contained in a hypothetical need not be in evidence at the time the question is asked if there is assurance the facts will be admitted later. An expert witness may be cross-examined by way of a hypothetical question so long as the facts presented are in evidence, or will be in evidence. Moreover, the hypothetical may be based upon hearsay, such as the deposition testimony of a witness. It is within the discretion of the trial court to admit cross-examination based upon hearsay. Kotvan v. Kirk, 321 Ill.App.3d 733, 254 Ill.Dec. 633, 747 N.E.2d 1045 (1st Dist. 2001).
In Kotvan, the plaintiff in a medical malpractice case claimed that it was error to cross-examine plaintiff's medical expert with a statement made by one of the plaintiff's treating doctors at a deposition since the statement was hearsay. Significantly, the plaintiff's expert had never read the treating doctor's testimony. The court noted that Ait is within the trial court's discretion to allow a hypothetical question, although the supporting evidence has not already been adduced, if interrogating counsel provides assurances that it will be produced and connected.
The Supreme Court in People v. Pasch, 152 Ill. 2d 133, 178 Ill.Dec. 38, 604 N.E.2d 294 (1992), noted that a medical expert may be asked a hypothetical question incorporating the conclusions of other non-testifying medical experts to determine if the expert's testimony would change. However, questions posed merely to introduce hearsay before the jury is improper.
- Expert's Medical Reports From Other Cases
- Bias, Financial Interest, Partisanship