Illinois Appellate Court Reverses Jury Verdict in Personal Injury Case on the Issue of Cross Examination of Medical Expert

Etta Moore was born with spina bifida, which paralyzed her from the knees down.  She often traveled using a motorized scooter.

On Sept. 30, 2015, a motor vehicle that was operated by Teresa Mandell struck Moore while she was crossing a roadway on her scooter. Moore was taken to a hospital and treated for injuries, which included a dislocated right shoulder and severe pain. She was discharged on Oct. 2, 2015.

Moore had surgery to repair a torn rotator cuff and extensive physical therapy, but began to develop pain and soreness on her right shoulder and neck, which eventually spread to her left shoulder. Moore filed suit against Mandell on Sept. 19, 2017.

Following Mandell’s admission of negligence, the trial began only on the issue of damages. Mandell sought to admit evidence of a prior injury to the right rotator cuff for which Moore had sought medical attention in 2009. Moore brought at trial a number of physicians to testify to the severity of the rotator cuff tear and to the likelihood that she would never recover full functionality or be free of pain as she was prior to this incident.

Mandell brought a single expert witness to testify that in his opinion, Moore’s shoulder was dislocated in the incident but that the rotator cuff was not torn by the impact. The doctor also opined that Moore was “magnifying her symptoms” and that any pain likely stemmed from AC joint arthritis.

This was a jury trial wherein the jury returned a verdict of $818,655.03, $700,000 of which was for loss of normal life and pain and suffering. Mandell appealed.

On appeal, Mandell asserted the trial judge erred in limiting her cross-examination of an expert witness, or a 213(f)(2) witness for  Moore who was her treating physician. The trial judge barred cross-examination on the subject of prior disciplinary reprimands, the doctor’s history of serving as a controlled expert witness for plaintiffs and his income from this, and communications where Moore offered to pay the doctor to author a written report prior to him treating her.

Moore admitted this was an error by the circuit court, but argued that it was not prejudicial. The appellate court disagreed, emphasizing that Moore’s doctor’s testimony was the only one relating to future disability, a significant part of the jury’s verdict, and the closing argument relied heavily on his testimony.

The appellate court held that the trial judge erred in limiting the scope of the cross-examination of the Moore expert, finding that the same scope was permitted for treating physicians as for controlled experts. Because the Moore expert offered opinions not cumulative with the other medical experts and a harsher opinion of Moore’s overall outcome, the appellate court’s decision, and reasoning that it was error in preventing a cross-examination which was prejudicial and warranted reversal. Thus, the case was remanded back to the trial court for a new trial.

Moore v. Mandell, 2023 IL App (5th) 220289, May 26, 2023.

Kreisman Law Offices has been handling intersection crash lawsuits, bicycle accident lawsuits, truck accident cases, medical negligence lawsuits, and traumatic brain injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Schiller Park, Schaumburg, Inverness, Lyons, Elmhurst, Palos Hills, University Park, Orland Park, Chicago (Rogers Park, Wicker Park, Ukrainian Village, Andersonville, Uptown, Back of the Yards, Pullman, South Shore), Mundelein, Des Plaines, Deerfield and Glenview, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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