Chicago Daily Law Bulletin

Expert witness - testimony barred

July 1, 2011

In a stroke-disabled attorney's action against a hospital, the trial court's discretion properly included conditions under which an expert witness could testify.

The Illinois Appellate Court, 1st District, 3rd Division, has affirmed a judgment by Cook County Circuit Judge Allen S. Goldberg.

At 6:15 a.m. on July 1, 1995, David Blutcher went to Roseland Community Hospital complaining of shortness of breath. Dr. Niluardo Cay examined Blutcher at 7 a.m. and ordered an EKG, which was done at 7:30 a.m. At 9 a.m., Blutcher again complained that his chest felt tight. His blood pressure was 166/93.

Blutcher's physician, Dr. Hugh Russell, arrived around noon and asked to have Blutcher transferred to Trinity Hospital. At 2 p.m., an ambulance took Blutcher to Trinity, where a second EKG showed that Blutcher was having a heart attack. Doctors there administered a thrombolytic drug.

Blutcher recovered from the heart attack and returned to work as a private practice attorney, though he cut back sharply on his hours.

In December 1997, Blutcher had a stroke that left him with a severe, permanent language deficit, despite a year of intensive therapy. He was never again able to work as an attorney.

He sued, inter alia, Roseland, Trinity, Russell and Cay, alleging that their malpractice caused him to suffer the stroke. Blutcher later settled his action against Russell and filed a separate action against Cay.

In the action against Roseland, Blutcher presented evidence that Cay had lied on his application for credentials at Roseland, falsely stating that he was board certified in internal medicine and that he'd never been sued for malpractice.

Blutcher also alleged that the nurses at Roseland should have performed a second EKG, which would have shown the heart attack sooner and allowed much earlier treatment, thus minimizing the damage to his heart and potentially preventing the stroke.

The jury found in favor of Trinity but against Roseland and awarded Blutcher $800,000 in damages, though nothing for past medical expenses.

The court granted Blutcher's motion for a new trial on damages only.

In this second trial, Blutcher presented an expert witness to testify as to Blutcher's lost income; Roseland did likewise, using an expert named David Knowles. When Knowles was called, Blutcher's attorney moved for an order directing Knowles to disclose his annual income before testifying as an expert witness. The court so ordered, but Knowles refused.

The court then offered to seal the record and also suggested that Knowles could testify to the hours he worked as an expert and his hourly fee, leaving the jurors to calculate his total income, but again Knowles refused. The court suggested that Knowles could testify, but the court would instruct the jurors that they could draw an inference adverse to Roseland and Knowles because Knowles refused to reveal his income. Roseland refused this option.

Finally, with Roseland and Knowles providing no suggestions of their own, the court barred Knowles from testifying.

The jury assessed total damages of nearly $3.2 million, including $86,000 for past medical expenses. Roseland appealed, arguing, inter alia, that the trial court erred when it barred Knowles from testifying.

"A witness 'does not have the right to choose what questions he will answer once he takes the stand,'" the court wrote. "The trial court has discretion to devise a sanction when a witness refuses to answer questions on cross-examination.

"Because Knowles and Roseland rejected every accommodation the trial court offered to permit Knowles to testify despite his refusal to answer a legitimate, relevant question on cross-examination, the trial court did not abuse its discretion when it barred Knowles from testifying."

David Blutcher v. Roseland Community Hospital, No. 1-09-2787. Justice P. Scott Neville Jr. wrote the court's opinion. Justices Michael J. Murphy and John Owen Steele concurred. Released May 25, 2011.