Stapleton v. Moore: Cross-examination of a medical expert with a learned treatise

Supreme Court Rule 213(g) requires a party to reasonably notify the other side of any experts it intends to call and documents it intends to use. The argument has been made that, generally speaking, if a party can reasonably foresee that he or she will be using or relying on a particular treatise to cross-examine an expert on the other side, that party should notify the other party in advance. At least that has been the understanding of the rule for many, especially before the 2002 amendment of the rule, which added language regarding cross-examination under 213(g).

In Stapleton v. Moore, 2010 Ill. App. Lexis 572 (1st Dist. 2010), the appellate court, in an opinion authored by Justice Toomin, declared that a party need not disclose in advance of trial under Rule 213(g) that it intends to cross-examine the other party’s expert witness with a particular treatise or learned text. In Stapleton, the trial judge allowed defense counsel to cross-examine plaintiff’s expert with a medical article that was not disclosed in discovery. The appellate court affirmed, with a spirited dissent from Justice Lavin.

The appellate court declared the issue to be whether the use of a medical journal article on cross-examination of an expert witness is permissible when only the reliability of the author is established and not the reliability of the particular article or the text itself. In this case, the infant Keenan Stapleton suffered a permanent left-side brachial plexus injury known as Erb’s palsy. A note made on the medical chart shortly after birth described a normal spontaneous vaginal birth with shoulder dystocia, which means a difficult delivery of the baby’s shoulders.

Plaintiff mother, as guardian of the child, contended this was the result of malpractice by the attending physician during birth. She contended that the defendant, Doctor Monica Moore, applied too much traction to the baby’s head, causing him to sustain the brachial plexus injury. Dr. Moore contended she complied with the standard of care and applied an appropriate level of traction to the baby’s head during delivery and that the injury resulted from the force of uterine contractions on the infant’s body when his left shoulder became caught on a ridge in the sacral promontory area of the mother’s spine. Dr. Moore denied that she pulled or twisted the baby’s head during delivery.

Plaintiff’s expert, Dr. Stuart Edelberg, board certified in obstetrics and gynecology, had been practicing in the field for more than 40 years. He testified that the shoulder dystocia that occurred during delivery was a medical emergency. Accordingly, he testified, such a delivery requires the McRoberts maneuver and the application of suprapubic pressure.

The McRoberts maneuver involves flexing the mother’s legs toward her shoulders as she lies on her back, thus expanding the pelvic outlet. Suprapubic pressure involves applying pressure at the pubic bone, not at the top of the uterus. This should allow the shoulder enough room to move under the pubis symphysis. Dr. Moore asserted that suprapubic pressure was applied and that she performed the McRoberts maneuver properly.

Dr. Edelberg offered the expert opinion that the injury to the newborn occurred because Dr. Moore placed excess lateral traction on Keenan’s head during delivery. Dr. Edelberg testified that traction places pressure on the baby’s head, which stretches the brachial plexus. Dr. Edelberg testified that an application of greater-than-gentle lateral traction caused the baby’s permanent injury and was a deviation from the standard of care. He testified further that transient brachial plexus injuries can result from pressure inside the womb and without any physician negligence, but permanent brachial injuries, as in this case, are different because they result from lateral force.

Over plaintiff’s objections, Edelberg was also confronted with an article written by Doctors Harry Lerner and Eva Salamon, which reported a case of a baby born vaginally without physician traction that resulted in permanent brachial plexus injury. Edelberg later testified that the article related to a case in which Dr. Lerner was the defense expert for Dr. Salamon.

Although plaintiff objected on the basis of foundation and nondisclosure pursuant to Supreme Court Rule 213, the court allowed the testimony for impeachment purposes. Edelberg discounted the validity and application of the article to the case at trial.

He was also cross-examined about the 2005 PRECIS, a text by the American College of Obstetrics and Gynecology, which acknowledged that, although there is support for the view that brachial palsy is caused by the application of excess lateral traction, recent evidence suggests that most brachial palsies are not caused by traction and occur in uncomplicated deliveries. That text suggests that these injuries occur because of the way the infant presents in the mother’s pelvis during delivery.

Dr. Edelberg was cross-examined about an additional article which suggested that it is most likely that maternal expulsive forces of delivery may be partly or totally responsible for an injury of the type that occurred here.

Defendant’s expert, Dr. Mark Neerhof, a board certified physician in obstetrics/gynecology, opined that the available evidence did not suggest that Dr. Moore applied excessive traction. He testified that the gentle downward traction applied by Dr. Moore during delivery was within the standard of care. Although he agreed that the baby’s injury occurred during delivery, he testified that nothing that Dr. Moore did or did not do caused that injury. The jury returned a verdict for Doctor Moore.

On appeal, plaintiff contended that the trial court erred in allowing the defense to use the Lerner and Salamon article to impeach plaintiff’s expert, Dr. Edelberg. Plaintiff argued the article was misleading, fraudulent, and not disclosed in accord with Supreme Court Rule 213(g).

The appellate court noted that such issues are reviewable on an abuse of discretion standard and that, further, a party is not entitled to reversal unless the evidentiary ruling was substantially prejudicial and affected the outcome of the trial, citing Simmons v. Garcia, 198 Ill. 2d 541, 566-67 (2002).

The court observed that defendant was able to secure testimony from her expert, Dr. Neerhof, that Dr. Lerner was a reliable authority in the field of shoulder dystocia and brachial plexus injuries. Accordingly, the appellate court found that defendant demonstrated the authoritativeness of the article used to impeach plaintiff’s expert through the testimony of defendant’s expert, Dr. Neerhof.

The appellate court declared that Rule 213(g) does not require that a party disclose journal articles that the party intends to use in cross-examining the opposing party’s opinion witness, citing Maffett v. Bliss, 329 Ill. App. 3d 562, 577 (4th Dist. 2002). The appropriate section of Rule 213(g) reads:

Without making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness.

A clear reading of Rule 213(g) would seem to support the majority’s position. The majority opinion observed that the sentence cited above was reflected in the Illinois Supreme Court’s amendment to Rule 213, effective July 1, 2002. The majority noted, however, that, unlike the situation under Federal Rule of Evidence 803(18), the learned treaty exception to the hearsay rule, where such learned treatises or medical articles may be read into the record as substantive evidence, under Illinois rules they are not admitted into evidence and are merely allowed for impeachment purposes.

In his dissent, Justice Lavin asserted that Rule 213 is designed not only to prevent surprise at trial but also to provide litigators with a ready guide to the evidentiary issues that will be dealt with by the expert witnesses who testify. The purpose of the discovery rule is to discourage surprise and strategic gamesmanship, he observed. Allowing a party to employ undisclosed medical articles is “contrary to the letter and spirit of the rule and it should be condemned by the court,” he declared.

Justice Lavin argued that it was unfair that on direct examination an expert is not permitted to refer to the findings of any literature or treatise even if he would testify that his opinions are based, in part, on the literature in question, while he can be cross-examined utilizing reliable and authoritative literature. He observed this situation results in a conundrum where medical literature cannot be effectively utilized to support an expert’s theory on direct examination but can be used as a sword to undermine an opposing expert’s testimony.

Justice Lavin observed that the use of the medical article violated Rule 213(g). He questioned whether defendant had presented an adequate foundation for the authoritativeness of the article in question. He noted that the publisher had launched an inquiry into that article.

Justice Lavin also suggested defendant did not lay a sufficient foundation for the article used in cross examination of the expert. He asserts that a witness with sufficient knowledge should be able to testify that the article is authoritative.

However, the majority declared that a learned text is admissible for impeachment purposes if the cross-examiner proves the author’s competence by a witness with expertise in the subject matter, citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 336 (1965). In addition, the majority notes, Dr. Edelberg was questioned extensively concerning several other articles supporting the view that brachial plexus injuries can occur spontaneously during delivery without excessive traction by the physician. ■