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Defense attorney’s line of attack goes a bit too far; plaintiff gets new trial

BRIAN W. DOHERTY
Law Bulletin columnist

Published: May 23, 2017

Dr. Jae S. Roh extracted several of Nancy Yanello’s teeth and replaced them with implants. The implants caused Yanello nerve pain, loss of function and required revision. Yanello later brought a professional negligence claim against Roh.

The case went to trial. Both parties called experts in support of their positions. Several issues related to the examinations of the experts arose that would be relevant to the appeal that would follow, Yanello v. Park Family Dental, 2017 IL App (3d) 140926.

The defendant confronted the plaintiff’s expert on cross-examination with a “code of ethics” applicable to oral and maxillofacial surgeons. The defendant contended the code prohibited the expert from testifying at trial against a colleague.

The plaintiff objected and argued the defendant should not have been able to cross-examine the expert with this line of questioning, but was overruled.

When the defendant’s expert testified, he used an exemplar human skull to demonstrate and support several parts of his testimony, concluding that Roh complied with the applicable standard of care.

The plaintiff objected to the use of the skull, arguing that its use was misleading the jury, among other things.

The defendant’s expert also testified that a “synergy” of medical conditions, including rheumatoid arthritis and osteopenia, caused the plaintiff’s implants to fail. The plaintiff objected to this testimony, arguing that the defendant’s expert was not qualified to render such opinions.

The jury found for Roh on all counts. Yanello appealed.

The 3rd District Appellate Court heard the appeal. It first focused on the use of the human skull during the defendant’s expert testimony.

Physical objects admitted into evidence are either “real” or “demonstrative” evidence. Something that took a direct part in the incident at issue or that has probative value in and of itself is real evidence.

Demonstrative evidence does not have any direct part in the incident at issue and is only used to illustrate or explain testimony to the jury. It has no probative value in and of itself.

Demonstrative evidence is valuable because it helps the jury understand testimony, so courts look upon it favorably. However, demonstrative evidence can be misleading in certain contexts. In ruling on whether such evidence should be admitted, the considerations are relevancy and fairness.

The evidence must be relevant to explaining testimony and its value must not be substantially outweighed by prejudice, confusion of issues or misleading the jury. Demonstrative evidence cannot be used substantively to show the basis of a medical expert’s opinion.

In this case, the defendant’s expert used a human skull, but did not use it solely as a visual aid or to illustrate his testimony — demonstratively. Instead, he used the skull substantively to support his own opinions and to undermine the plaintiff’s theory of the case. He equated the exemplar skull with the plaintiff’s skull and used that to support his opinion.

During closing arguments, the defense counsel told the jury that the exemplar skull showed the curvature of the jaw and showed that the defendant’s placement of the implants was proper. The defense expert used the skull to show that the plaintiff’s X-rays, which the plaintiff used to support her case, were not necessarily reliable.

Because the skull was used substantively, it had to be properly disclosed pursuant to Supreme Court Rule 213(f). It was not. Accordingly, the use of the skull was improper. Further, no witness offered the opinion that the exemplar skull was an accurate representation of the plaintiff’s skull. For this reason, there was no proper foundation for the skull’s use.

The appellate court noted that the problem with allowing the defense to use the skull substantively was that it went to the “heart” of the malpractice claim and was highly prejudicial.

The skull improperly served as powerful visual substantive evidence and this may have misled and ultimately persuaded the jury to accept the expert’s opinions. Accordingly, allowing its use was reversible error. The appellate court ordered a new trial.

Before sending the case back to the trial court, the appellate court discussed the other issues brought up on appeal because they were likely to come up during the retrial.

It was improper for the trial court to allow the defense expert to testify that rheumatoid arthritis and osteopenia caused or contributed to bone loss in the area of the implants. Such opinions are only allowed if the expert is qualified by knowledge, skill, experience or training in the appropriate field.

Further, any opinion must have a proper foundation. An expert cannot opine on an injury based on nonexistent facts. A pre-existing medical condition does not come into evidence absent a causal connection between it and the current injury.

The defense expert had no basis for testifying that the plaintiff had rheumatoid arthritis. In fact, the plaintiff’s primary care doctor testified that she did not have it. Although it appeared in a history given by the plaintiff, no doctor formally diagnosed her with the condition.

Further, the presence of osteopenia in the plaintiff’s forearm was not a basis for concluding it was in the areas where the dental implants were done. It was an abuse of discretion to allow these opinions before the jury. On retrial, the opinions would be excluded.

The appellate court then looked at the issue of cross-examining the plaintiff’s expert with a “code of ethics” from his professional society.

The court held the cross-examination was improper and should not have been allowed.

Private accrediting bodies cannot stop their members from acting as expert witnesses. As such, cross-examination on the subject was improper and against public policy. On retrial, any such examination would be disallowed.

Following the appellate court’s order, the case was remanded for a new trial.

Brion W. Doherty is a trial attorney at Motherway & Napleton LLP. His practice is focused on representing people who have been injured by the negligence or wrongdoing of others. He can be reached at bdoherty@mnlawoffice.com.


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