Freeman v. Crays

2018 IL App (2d) 170169

98 N.E.3d 571

Lawanda FREEMAN, as Special Administrator of the Estate of Terrance Freeman, Deceased, Plaintiff–Appellant,

v.Gayle R. CRAYS, M.D., Defendant–Appellee.

No. 2–17–0169

Appellate Court of Illinois, Second District.

Opinion filed January 26, 2018

Susan E. Loggans & Associates (Susan E. Loggans and Patrick J. Condron, of counsel), Law Office of Harry C. Lee (Harry C. Lee, of counsel), and Debra A. Thomas, all of Chicago, for appellant.

Clausen Miller, P.C., of Chicago (Kimbley A. Kearney and Melinda S. Kollross, of counsel), for appellee.

OPINION

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 This appeal arises out of a wrongful-death action brought by plaintiff, Lawanda Freeman, as special administrator of the estate of her deceased husband, Terrance Freeman, against defendant, Gayle R. Crays, M.D. Plaintiff alleged that defendant's negligent treatment of Terrance's cardiovascular disease was the proximate cause of Terrance's death. Just before the trial was set to begin, the trial court ruled that plaintiff's only medical expert witness was unqualified to offer any opinions on the issue of causation, thus creating an evidentiary gap in plaintiff's case. In response to the trial court's ruling, plaintiff moved to voluntarily dismiss her complaint. The trial court granted the voluntary dismissal in case No. 12–L–348 without prejudice. Shortly thereafter, plaintiff refiled her complaint in case No. 16–L–116. Upon learning that plaintiff intended to disclose an additional medical expert witness to offer opinions on the issue of causation, defendant moved to adopt the rulings from case No. 12–L–348 and to bar any testimony from plaintiff's newly disclosed expert witness pursuant to Illinois Supreme Court Rule 219(e) (eff. July 1, 2002). After the trial court granted defendant's motion, defendant moved for summary judgment based on plaintiff's inability to satisfy the element of causation. The trial court granted defendant's motion for summary judgment and plaintiff now appeals. Plaintiff contends that (1) the trial court abused its discretion by barring her original medical expert witness from offering any opinions on the issue of causation and (2) the trial court improperly applied Rule 219(e) in case No. 16–L–116. We affirm in part, reverse in part, and remand the cause with directions for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 We note that the record from case No. 12–L–348 is not included in the record on appeal. Our recitation of the facts from that case is therefore derived from the orders and reports of proceedings that are attached to the pleadings in case No. 16–L–116.¹

¶ 4 The record reflects that Terrance suffered a cardiac arrest and died suddenly on November 23, 2009, at the age of 37. According to plaintiff's complaint, defendant was practicing in the field of family medicine when she provided Terrance with medical care and prescribed him medication for the treatment of hypertension. Plaintiff generally alleged that defendant had breached the standard of care applicable to family practitioners by failing to diagnose Terrance's enlarged heart or his severe coronary artery disease and by failing to refer him to a cardiologist. These allegations were supported by the opinion letter of Finley W. Brown Jr., M.D., a board certified family practitioner.

¶ 5 A. No. 12–L–348

¶ 6 As the case proceeded toward trial, plaintiff determined that Dr. Brown would be her only medical expert witness. During the final pretrial conference, conducted on March 9, 2016, the trial court ruled on numerous motions in limine filed by both parties. Two of these rulings are relevant here. First, the trial court granted plaintiff's motion in limine No. 14, which sought to bar testimony from any undisclosed witnesses. Second, defendant's motion in limine No. 16 sought to bar Dr. Brown from offering any opinions as to the standard of care for a cardiologist or as to any treatment modalities that a cardiologist would have recommended. When plaintiff's counsel made no objection to the motion, the following colloquy took place:

"THE COURT: * * * 16, bar Plaintiff's expert Dr. Brown from offering opinions to what a reasonably careful cardiologist would have done. You have no objection to that?

MR. GUNZBURG [ (PLAINTIFF'S COUNSEL) ]: Right, because [Dr. Brown] is not a cardiologist, so—

THE COURT: So tell me again what he's going to say on proximate cause? He can't say what a reasonably careful cardiologist would do. What's he going to say?

MR. GUNZBURG: Well, he's going to say that, you know, had the blood pressure medications—the blood pressure medications should have been tweaked, he should have been treated with cholesterol reducing medications, he should have been referred to a cardiologist, he should have—

THE COURT: And had all of those things been done, he would still be alive today?

MR. GUNZBURG: Yes.

THE COURT: Without going into what the cardiologist would have done?

MR. GUNZBURG: That's right. I mean, that—what he's saying is you could have ordered an echo, you could have ordered an EKG, or you could have just avoided that and sent him straight to a cardiologist. Now, Dr.—you know, Dr. Sorrentino [ (the defense's cardiology expert) ] is going to testify to—

THE COURT: Right, what a cardiologist would or wouldn't have done.

MR. GUNZBURG: Right.

THE COURT: But you don't have a cardiologist to do that?

MR. GUNZBURG: That's right.

THE COURT: Okay.

MR. GUSTAFSON [ (DEFENSE COUNSEL) ]: If I can weigh in just for a moment, the comment that meds should have been tweaked is not a disclosed opinion from Dr. Brown. I guess we can fight that at another time. Maybe the elephant in the room here is that all of the opinions that Dr. Brown has given point to [a] cardiologist, and they don't have a cardiologist, so I'm—

THE COURT: I haven't seen any motions for summary judgment filed based on defendant's—the plaintiff's inability to prove up a case. You know, that would have possibly been something to raise at the motion in limine level, too. I'm just saying—that's why I'm asking these questions.

MR. GUSTAFSON: No, I understand.

THE COURT: Because I—you know, you've got a cardiologist and he doesn't.

MR. GUSTAFSON: Yes.

THE COURT: So—

MR. GUSTAFSON: Judge, can I ask: Are we granted leave to file that kind of motion this late?

THE COURT: Well, probably not. I mean, it is, you know, the Wednesday before trial, but your motion in limine to bar Dr. Brown from commenting on what a reasonably careful cardiologist would have done had [Terrance] been referred is granted, so he's not going to testify as to cardiology standard of care opinions.

MR. GUSTAFSON: Or treatment modalities?

THE COURT: Or treatment modalities that the cardiologist would have done."

¶ 7 Dr. Brown's evidence deposition was conducted on March 11, 2016, just two days after the final pretrial conference. Dr. Brown testified that he had a duty to refer patients to specialists for problems that were outside of his "skill set" as a family practitioner. He explained, "for instance, if they have cardiovascular issues, I can do the work-up, I can try to make a diagnosis. But 100 percent of the time, I need to call in a cardiologist to complete the evaluation of the patient and—and often, to complete the treatment of the patient." After reviewing Terrance's autopsy report, Dr. Brown testified that Terrance had suffered from cardiomegaly, or an enlarged heart, and severe coronary artery disease. This meant that Terrance had an increased risk of sudden cardiac death. Despite the trial court's ruling on defendant's motion in limine No. 16, plaintiff's counsel asked Dr. Brown whether defendant's failure to refer Terrance to a cardiologist deprived him of a chance to survive. Dr. Brown answered that it did, explaining that a cardiologist would have taken steps to improve Terrance's cardiac circulation. Dr. Brown admitted that he was not certain how a cardiologist would have treated Terrance. However, he stated that he had worked closely with cardiologists and was familiar with the different treatments that might have been administered. These included bypass surgery, angioplasty, stent placement, or medications for lowering blood fats. Dr. Brown added that he had taken a special interest in the field of advanced lipidology. He had attended several lectures and completed a two-day course. These experiences made him "quite skilled" at evaluating and treating patients with high blood fats. Dr. Brown acknowledged, however, that it was still necessary for a cardiologist to determine whether it was safe to administer lipid-lowering drugs.

¶ 8 During the course of Dr. Brown's evidence deposition, defendant objected several times on the basis that plaintiff's questions violated the restrictions set forth in defendant's motion in limine No. 16. Many of these objections were sustained when the parties appeared in court on March 14, 2016. As a result, Dr. Brown was barred from opining that a cardiologist would have prevented Terrance's sudden death, through the use of lipid-lowering medications or otherwise. In so ruling, the trial court noted Dr. Brown's opinion at one point during the deposition that a cardiologist would have initiated lipid-lowering therapy to improve Terrance's circulation, thereby preventing his sudden death. However, Dr. Brown repeatedly admitted elsewhere during the deposition that he could not say precisely what a cardiologist would have done. The trial court commented in relevant part:

"I've read and reread these pages over and over again, and I've come to the conclusion that, as the defendants already stated and argued, all roads in this case lead to a cardiologist. There is simply no way for [Dr. Brown], a family doctor, to testify as to causation without the qualified testimony of a cardiologist because every single thing that he testifies is a deviation of the standard of care for [defendant] results in a referral to a cardiologist. Every single

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