Illinois Appellate Court Affirms Order Barring Undisclosed Expert Opinion Testimony

This case arises out of an appeal taken after the Circuit Court of Cook County judge entered judgment on the verdict in favor of Dr. John Pantano and Suburban Lung Associates, S.C. in a medical malpractice action. The lawsuit, brought by the special administrator of the Estate of Viola Morrisroe, claimed that her death occurred after a bronchoscopy during which biopsies were performed by Dr. Pantano. It was asserted that the trial judge was in error for (1) barring Morrisroe’s expert from utilizing two CT scans during his testimony to demonstrate that the size of a mass in her lung had not increased in size; and (2) sustaining defense counsel’s objections to certain statements in plaintiff’s counsel’s closing argument relating to informed consent claim.

In 1999, Morrisroe was diagnosed with chronic obstructive pulmonary disease (COPD) and emphysema by pulmonologist Dr. Edward Diamond who was the president of Suburban Lung Associates, S.C. Her medical condition was monitored by Dr. Diamond and, in 2006, she began obtaining routine CT scans. In February 2009, a CT scan of her lungs indicated a new mass had formed in the upper right lobe. Dr. Diamond ordered further testing in the form of a PET scan. The PET scan indicated that, while unlikely, cancer could not be ruled out. Dr. Diamond discussed the results of the scans with her and recommended that another CT scan be performed in four months.

By 2009, Dr. Diamond’s examinations found that Morrisroe’s lung function had significantly decreased. While her lung function was at 40% in the beginning of the year, by the summer her lung function was only 26%, prompting Dr. Diamond to downgrade her COPD from “severe” to “very severe.”

On Sept. 29, 2009, she was admitted to the emergency room for stomach pain and shortness of breath. A CT scan was taken of her lungs. The following day, she was examined by Dr. Pantano. Having reviewed and compared the CT scans of her lungs from February and September 2009, Dr. Pantano concluded that the mass in her upper right lobe had increased in size. Dr. Pantano recommended a bronchoscopy and biopsy. Dr. Pantano informed her of the risks associated with the procedure, namely the risk associated with the type of anesthesia used and that bleeding could occur. She was not informed of the risk of death.

On Oct. 1, 2009, Dr. Pantano performed the bronchoscopy with Morrisroe under conscious sedation. While undergoing the biopsy near the mass in question, bleeding occurred. Dr. Pantano took steps to stop the bleeding and discontinued the bronchoscopy. However, later Morrisroe’s lung began to bleed again. She developed progressive respiratory failure and cardiac arrest, which caused her death.
On March 12, 2010, plaintiff filed a medical malpractice complaint and wrongful death action sounding in negligence against Dr. Pantano and Suburban Lung Associates, S.C. The core of the medical negligence complaint was that since the mass in Viola’s lung mass had not changed in size, Dr. Pantano’s decision to do the bronchoscopy was unreasonable and was a deviation from the standard of care. In addition, the complaint alleged that the defendants chose not to provide Viola with a proper informed consent in that she was not advised of the risk of death.

As part of the discovery, the plaintiff disclosed expert witnesses who were intended to be called at trial. One of those retained experts was Dr. Charles Grodzin, a pulmonologist. Although Dr. Grodzin disclosed opinions, included criticism that since the September 2009 radiology report noted that the mass was unchanged, the bronchoscopy ordered by Dr. Pantano was an unnecessary risk. However, the Rule 213(f)(3) disclosure of Dr. Grodzin did not contain any statements indicating that the doctor had measured the size of the mass as it appeared in the February and September scans.

In Dr. Grodzin’s discovery deposition, he stated that his opinion that the mass had not changed in size was based on his review of the scans, his measurements of the mass and the September 2009 radiologist’s report. Regarding his measurements, Dr. Grodzin could not unequivocally state he measured the mass and further testified that he could not recall what those measurements were. Dr. Grodzin did not state in either of the Rule 213(f)(3) disclosures or during the discovery deposition that his opinion that the mass had not changed in size was based on lowering the screen contrast on the CT scans. Nor did Dr. Grodzin disclose that the screen contrast of the CT scans affected the appearance of the size of the mass.

One of the defendant’s exhibits was an image of the mass from the February scan on one side and an image of the mass from the September scan on the other side. At trial, according to Dr. Grodzin, the February and September scans did not have comparable images, as they were not taken at the same level in the chest. In addition, the February scan was performed without contrast while the September scan did have contrast. Further, the scans were performed by different machines, with the February scan taking images further apart than the September scan, meaning that the September scan had “much” greater detail.

The defendants’ counsel objected to Dr. Grodzin’s testimony regarding the screen contrast of the scans, which was not previously disclosed as a basis for his opinion that the mass had not changed in size. The objection to these undisclosed opinions was sustained by the trial judge. Counsel for the plaintiff made a formal offer of proof outside of the presence of the jury. Dr. Grodzin testified that he compared each scan, “slice by slice,” and that formed the basis of his opinion that the mass had not changed. According to Dr. Grodzin, the defendants’ exhibit with the two scans side by side was not a fair representation of how the mass appeared on both February and September.

At trial, Dr. Pantano testified that he discussed the bronchoscopy with Dr. Diamond who agreed that it was proper. Dr. Pantano also testified that he did not inform Morrisroe that she could die from a bronchoscopy because the risk of death is so small, less than 1%. Dr. Pantano stated that he believed that there was a significant chance of improving her breathing if something was found in the airway that could be treated. Other experts for the defendants agreed that there was “an enlarging density in the right lung in a patient who is at significant increased risk of having lung cancer.”

At the close of the case, the jury returned a verdict in favor of both defendants. Her family appealed. The thrust of the appeal was the court’s order barring Dr. Grodzin from utilizing the two original scans to demonstrate that the size of the mass in her lung had not changed. In response, the defendants maintained that trial judge did not err in barring Dr. Grodzin’s testimony regarding the screen contrast of the scans because that testimony was a new basis for Dr. Grodzin’s opinion that the mass had not changed in size. Accordingly, the testimony was properly barred because it had not been previously disclosed in plaintiff’s Rule 213(f)(3) disclosures or in Dr. Grodzin’s discovery deposition. In this case, the appellate court found that there was no logical corollary to an opinion that had already been disclosed. Dr. Grodzin’s testimony set forth a new basis for his opinion that the mass had not changed in size. It is well established that the failure to disclose a new basis for an opinion is improper. For those reasons, the trial court’s entry of the verdict in favor of the defendants was affirmed.

William A. Morrisroe v. John E. Pantano, M.D. and Suburban Lung Associates, S.C., 2016 IL App (1ST) 143606-U (Oct. 14, 2016).

Kreisman Law Offices has been handling medical negligence cases, wrongful death lawsuits, birth trauma injury cases and hospital negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and surrounding areas, including Long Grove, Cicero, Evergreen Park, Lincolnwood, Hinsdale, Lake Forest, Lockport, Schaumburg, Western Springs, Winnetka, Elmhurst, Wood Dale, Des Plaines, Chicago (Lawndale, Garfield Park, Humboldt Park, Logan Square, Albany Park, West Ridge, Pulaski Park), Skokie, Morton Grove and Wheeling, Ill.