Ghostanyans v. Goodwin ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2022.07.05
12:22:38 -05'00'
Ghostanyans v. Goodwin, 2021 IL App (1st) 192125Appellate Court CHRISTINE GHOSTANYANS and TADEH GHOSTANYANS,
Caption Individually and as Parents and Next Friends of Landon Ghostanyans,
a Minor, Plaintiffs-Appellants, v. PAMELA GOODWIN, M.D., and
NORTHSHORE ASSOCIATES IN GYNECOLOGY &
OBSTETRICS, S.C., Defendants-Appellees.
District & No. First District, Sixth Division
No. 1-19-2125
Filed March 26, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 15-L-9669; the
Review Hon. Elizabeth M. Budzinski, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas G. Siracusa, of Power, Rogers & Smith, LLP, of Chicago, for
Appeal appellants.
Karen Kies DeGrand and Laura Coffey Ieremia, of Donohue Brown
Mathewson & Smyth LLC, and Mark J. Smith and Samantha N.
LaFata, of Smith Blake Hill LLC, both of Chicago, for appellees.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Connors concurred in the
judgment and opinion.
OPINION
¶1 Plaintiffs Christine Ghostanyans and Tadeh Ghostanyans, individually and as parents and
next friends of Landon Ghostanyans, a minor, appeal a judgment following a jury trial for
defendants Pamela Goodwin, M.D., and Northshore Associates in Gynecology & Obstetrics,
S.C. (Associates). On appeal, plaintiffs contend that (1) the court erred in instructing the jury,
and approving a special interrogatory, on sole proximate cause, (2) the court erred by allowing
cross-examination of plaintiffs’ expert to elicit his opinions regarding negligence of a
codefendant who had settled, and (3) the jury’s verdict was against the manifest weight of the
evidence. For the reasons stated below, we affirm.
¶2 I. JURISDICTION
¶3 Plaintiffs brought this civil action against defendants, including Goodwin and Associates,
and went to trial against only Goodwin and Associates after the other defendants were
dismissed pursuant to a settlement. On May 9, 2019, following trial, the jury issued verdicts in
favor of Goodwin and Associates, and the court entered judgment on the verdicts. On June 5,
2019, the court granted plaintiffs until June 14 to file their posttrial motion, which plaintiffs
did on that day. The court denied the posttrial motion on September 19, 2019, and plaintiffs
filed their notice of appeal on October 16, 2019. Accordingly, we have jurisdiction over this
cause, pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI,
§ 6) and Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017).
¶4 II. BACKGROUND
¶5 This is a medical malpractice case regarding the August 24, 2012, birth of Landon
Ghostanyans to plaintiffs, delivered by physicians, including Goodwin and Loren Hutter,
M.D., at a hospital of Northshore University Health System (System). Goodwin was an
employee of Associates, and Hutter was an agent or employee of System. During Landon’s
birth, Goodwin diagnosed a shoulder dystocia, which occurs when a fetus’s shoulder gets
blocked by or caught upon the mother’s pubic bone during birth. Before trial, it was undisputed
that downward traction was applied in an attempt to relieve the shoulder dystocia, but the
parties disputed whether Goodwin, Hutter, or someone else did so and whether any of
Goodwin’s acts or omissions proximately caused any injuries to Landon. Shortly before trial,
Hutter and System were dismissed as defendants pursuant to a settlement. At trial, the jury
found for Goodwin and Associates and found by special interrogatory that the conduct of some
person other than Goodwin was the sole proximate cause of Landon’s injury. This appeal
followed the denial of plaintiffs’ posttrial motion.
-2-
¶6 A. Pretrial
¶7 The original complaint in September 2015 named Goodwin, Associates, and System as
defendants and named respondents in discovery, including Hutter. Plaintiffs alleged that
plaintiff Christine was a patient of Goodwin on and before August 24, 2012, and received
prenatal care from Goodwin and Associates. On August 23, Christine was admitted to System’s
hospital as she was in labor, and Goodwin monitored her labor that day into the next. Goodwin
“identified a turtle sign at the time of delivery of the fetal head” and “diagnosed a shoulder
dystocia.” 1 Thus, on “August 24, 2012, after the diagnosis of shoulder dystocia, downward
traction was applied in an attempt to relieve the shoulder dystocia,” and Landon’s delivery
took about four minutes. Landon suffered an avulsion of his C8 nerve root, brachial plexus
palsy, injury to his phrenic nerve, and diaphragmatic palsy at the time of his delivery. Goodwin
was allegedly an agent or employee of Associates and System, acting within the scope thereof,
on August 24, 2012. Defendants were allegedly negligent for “a. Failing to utilize appropriate
maneuvers to relieve shoulder dystocia; or b. Using downward traction in an attempt to relieve
shoulder dystocia.” These negligent acts or omissions were allegedly the proximate cause of
Landon’s injuries, pain and suffering, disfigurement, disability, and loss of a normal life,
causing him to incur ongoing medical expenses and limiting his capacity to earn a living. In
both counts, plaintiffs, as parents and next friends of Landon, sought more than $50,000 from
defendants. Count I raised the aforesaid allegations, and count II additionally alleged that
plaintiffs had incurred and would incur medical expenses for Landon proximately caused by
defendants’ negligence.
¶8 Attached to the complaint was the affidavit of plaintiffs’ counsel that he consulted a board-
certified obstetrician-gynecologist, who reviewed the relevant medical records and reached the
opinion that Goodwin “deviated from the accepted standards of care of a reasonably careful
physician in her treatment of” Landon. Attached to the affidavit was a report by a physician
board-certified in obstetrics and gynecology that he reviewed medical records of Christine and
Landon and formed the opinion to a reasonable degree of medical certainty that Goodwin “was
professionally negligent and deviated from the standard of care expected of a reasonably
careful obstetrician during the delivery of Landon.” The report stated that “[a] shoulder
dystocia occurred at the time of Landon’s delivery,” which Goodwin recognized, and “certain
maneuvers were initiated in attempts to dislodge the impacted shoulder,” as well as “use of
downward traction as an attempt to complete the delivery.” However, “application of traction
by a physician in the presence of a shoulder dystocia is a deviation from the standard of care.”
Landon was later “diagnosed with brachial plexus palsy as a result of an avulsion of his C8
nerve root” and underwent nerve transfer surgery. The physician opined that the “condition of
Landon’s arm at delivery was consistent with injuries caused by physician-applied traction,”
with “no medically reasonable explanation for the extent of injuries other than the use of
excessive downward traction by the physician during delivery,” so that Goodwin’s
professional negligence caused Landon’s brachial plexus palsy.
¶9 In November 2015, Goodwin and Associates appeared, as did System separately. In May
2016, each defendant filed an answer. They acknowledged that Christine was in labor and was
admitted on August 23, 2012, to System’s hospital, where Goodwin and Associates provided
her prenatal care. They admitted that Goodwin monitored her labor that day into the next,
1
A “turtle sign” is when a fetus’s head appears, then retracts back inside.
-3-
“identified a turtle sign at the time of delivery of the fetal head,” and “diagnosed a shoulder
dystocia.” They admitted that, on “August 24, 2012, after the diagnosis of shoulder dystocia,
downward traction was applied in an attempt to relieve the shoulder dystocia,” but Goodwin
and Associates denied that Goodwin applied downward traction. Goodwin and Associates
admitted that Goodwin was an employee of Associates, while Goodwin and System denied
that Goodwin was an agent or employee of System. Each defendant demanded strict proof of
Landon’s physical injuries and denied negligence, proximate causation, and damages.
¶ 10 Following some discovery, plaintiffs filed an amended complaint in March 2017, adding
respondent Hutter as a defendant. Counts I and II were substantially identical to the initial
complaint except for alleging that Goodwin “applied downward traction on [Landon’s] head
and neck” instead of the initial complaint’s “downward traction was applied in an attempt to
relieve the shoulder dystocia.” Counts III and IV alleged that Hutter was a physician
specializing in obstetrics and gynecology acting as an “on call” physician at System’s hospital,
who attended Landon’s delivery on August 24, 2012, in that capacity. The counts alleged that
“after the diagnosis of shoulder dystocia, [Hutter] applied downward traction to [Landon’s]
head and neck” and delivered Landon. Hutter was allegedly an agent or employee of System,
acting in the scope thereof, on August 24, 2012. Hutter and System were allegedly negligent
in “a. Failing to utilize appropriate maneuvers to relieve shoulder dystocia; or b. Using
downward traction in an attempt to relieve shoulder dystocia,” with substantially the same
allegations of Landon’s physical injuries, proximate causation, and damages as counts I and
II.
¶ 11 Attached to the amended complaint was the affidavit of plaintiffs’ counsel that he consulted
a board-certified obstetrician-gynecologist who reviewed the relevant medical records and
reached an opinion that Goodwin and Hutter “deviated from the accepted standards of care of
reasonably careful physicians in their treatment of” Christine and Landon. Attached to the
affidavit were two reports by a physician, board-certified in obstetrics and gynecology, that he
or she reviewed various medical records of Christine and Landon and read Goodwin’s
deposition. He or she formed opinions to a reasonable degree of medical certainty that
Goodwin and Hutter each “was professionally negligent and deviated from the standard of care
expected of a reasonably careful obstetrician” during Landon’s delivery. A shoulder dystocia
occurred during delivery, which Goodwin recognized and of which Hutter was aware. The
report for Goodwin stated that “certain maneuvers were initiated in attempts to dislodge the
impacted shoulder,” as well as “use of downward traction as an attempt to complete the
delivery.” The report for Hutter stated that he “used traction in an attempt to deliver Landon.”
The reports stated that application of traction by a physician during a shoulder dystocia is a
deviation from the standard of care. Landon was later diagnosed with a brachial plexus injury
and an avulsion of his C8 nerve root, and he underwent surgery. The reports opined that the
condition of Landon’s arm at delivery was consistent with injuries caused by physician-applied
traction, with no reasonable explanation for the extent of his injuries other than the use of
excessive downward traction by a physician during delivery. Thus, Goodwin’s and Hutter’s
professional negligence caused Landon’s brachial plexus injuries.
¶ 12 Hutter and System answered the amended complaint. System answered counts I and II
substantially as for the initial complaint. As to counts III and IV, Hutter and System admitted
that Hutter—as an “on call” physician at System’s hospital—was System’s agent or employee,
acting within the scope thereof on August 24, 2012, and he attended Landon’s delivery and
-4-
delivered Landon, but denied that he applied downward traction to Landon’s head and neck.
Hutter and System demanded strict proof of Landon’s physical injuries and denied negligence,
proximate causation, and damages. Goodwin and Associates also answered the amended
complaint, answering counts I and II substantially as for the initial complaint and refraining
from answering counts III and IV as not directed against them.
¶ 13 The case proceeded through discovery and was set for trial on April 30, 2019. On that day,
the court ordered Hutter and System dismissed with prejudice, in an order stating that the case
was “coming to be heard for trial” and would continue against Goodwin and Associates. Trial
commenced on May 3. Hutter and System then filed a motion for a good faith finding regarding
their $1.4 million settlement with plaintiffs. On May 9, the last day of trial, the court issued an
amended order dismissing Hutter and System with prejudice based on the settlement. The court
later entered a good faith finding.
¶ 14 B. Motions In Limine
¶ 15 During motions in limine, plaintiffs moved to “bar any standard of care opinions” regarding
Hutter in light of his settlement and because “no expert has criticized Dr. Hutter’s conduct.”
Defense counsel responded that plaintiffs’ expert, Dr. Martin Gubernick, opined regarding
Hutter so the defense should be able to cross-examine on that opinion. The court stated that
“they can go into it on cross-examination. They don’t need it to get the sole proximate
cause defense, which is always the argument, you need standard of care testimony. But
if your expert testified to that, because [Hutter] has settled out doesn’t mean that any
evidence regarding [Hutter] settled out of trial.”
Plaintiff’s counsel responded that he was not seeking to bar testimony “that there was another
application of traction and that caused or contributed to the injuries” but only to bar opinion
testimony that Hutter breached the standard of care. Defense counsel replied that it was proper
to elicit from Gubernick that Hutter’s traction was excessive to the point of deviating from the
standard of care, which would be “essential to pointing out the contrast between [Goodwin and
Hutter] and setting up the sole proximate cause argument for that instruction.” The court noted
that Gubernick could be cross-examined about Hutter’s actions and defense counsel agreed to
not argue in opening statements that Hutter breached the standard of care so plaintiffs’ counsel
would not have to anticipate or “front” a counter-argument in his opening statement.
¶ 16 Plaintiffs also moved to bar testimony about potential causes of Landon’s brachial plexus
injuries other than physician-applied traction. They noted that medical records confirmed the
use of traction, Goodwin admitted that she and Hutter used traction, and defense “retained
experts agree that downward traction during shoulder dystocia is a well-established cause of
brachial plexus.” Plaintiffs argued that defense expert opinions that Landon’s “brachial plexus
injuries were caused by a combination of the traction used by the delivering physicians and
other potential in-utero causes” were not based on anything in evidence, but upon medical
literature citing anecdotal reports of brachial plexus injuries from the natural forces of labor.
“Moreover, it is axiomatic that there may be more than one cause of an injury. Once the
witnesses admit that physician-applied traction was ‘a’ cause of [Landon’s] injuries, other
potential causes are irrelevant.” Defense counsel argued that both sets of experts would likely
testify that, with shoulder dystocia, the expulsive force of labor would inherently be pushing
the baby’s shoulder, and thus the brachial plexus, into the mother’s pubic bone. Plaintiffs
argued that it was their theory that only excessive traction causes permanent injuries. Defense
-5-
counsel argued that causation was a contested issue of fact. The court stated that it would
review the depositions but was inclined to admit the evidence.
¶ 17 C. Trial
¶ 18 Plaintiffs called defendant Goodwin as one of their witnesses.
¶ 19 1. Goodwin
¶ 20 Obstetrician and gynecologist Goodwin testified to being a partner in defendant Associates.
Plaintiff Christine was one of Goodwin’s patients for many years, including her pregnancy
with Landon.
¶ 21 A fetus generally rotates or “restitutes” before a physician acts to deliver the fetus, and the
shoulder is often visible at that point, indicating that it is not impacted or stuck. Landon showed
the turtle sign before restitution, so Goodwin had made no delivery efforts before then. Once
a physician diagnoses a shoulder dystocia, he or she may insert a hand to determine where the
fetus’s shoulders are but might not do so immediately depending on the mother’s contractions.
A physician may also apply gentle traction to determine if there is a shoulder dystocia, as
placing a hand inside “doesn’t tell you the degree of impaction.” While traction on the fetus’s
head or neck may cause stretching of the brachial plexus, which should be avoided, the
physician does not know if there is a shoulder dystocia without applying gentle traction.
Certain maneuvers are then tried to release the impaction or dystocia, after which Goodwin
would apply “greater than typical” traction if they were unsuccessful. Goodwin explained
gentle traction as a guiding traction and greater than typical traction as being greater than the
gentle or guiding traction for an easy delivery. In Landon’s birth, Goodwin applied traction
after performing the aforesaid maneuvers twice and when she believed the impaction had been
relieved. She acknowledged that she could have first reached inside to confirm the shoulder’s
release but did not in Landon’s birth.
¶ 22 Hutter joined in Landon’s delivery when Goodwin diagnosed the shoulder dystocia, but
Goodwin was still directing the delivery participants. Hutter was trained on various procedures
to perform when called upon, including being told of a shoulder dystocia, but was not aware
of any particular complications with Landon before being called. Goodwin prepared the notes
or report for Landon’s delivery, and Hutter had told Goodwin that he had no independent
recollection of the delivery. The “note doesn’t mention Dr. Hutter’s involvement until after the
anterior shoulder was dislodged ‘and then with gentle traction and maternal pushing effort
assisted by Dr. Hutter the shoulder did deliver’ ” per the initial notes. A few days after the
delivery, Goodwin amended the notes to add “Dr. Hutter did assist with some downward
traction with no movement in the anterior shoulder” before delivery. Hutter very briefly
applied traction upon joining the delivery and stopped when Goodwin told him to. Both the
initial and amended notes stated that Hutter applied traction a second time, which was
successful in dislodging the shoulder.
¶ 23 On cross-examination, Goodwin testified that traction involves pulling a fetus’s head
gently, with one hand below it and the other above, consistently in the direction of birth (rather
than downward or sideways) and combined with the mother’s efforts. Traction is appropriate
in delivering a baby if it is needed under the circumstances. There are degrees of traction to
apply, as “you can tell if the shoulder is starting to come. You can feel it move.” In other words,
traction is applied subjectively by feel based on experience and whether the previous traction
-6-
improved the situation. Goodwin denied ever applying excessive traction in delivering a baby
and specifically denied simply pulling harder and harder on Landon until his shoulder was free.
She “knew when to stop” applying traction. Applying gentle traction to diagnose shoulder
dystocia is a generally accepted obstetric practice. The turtle sign does not definitively
diagnose shoulder dystocia; sometimes the turtle sign appears but the fetus shifts from the
mother’s next contraction and comes out. Sometimes “the only way to tell” is to apply gentle
traction along with a maternal contraction, and that is what Goodwin did in Landon’s birth.
She then felt with her fingers to determine the shoulder’s position, performed the aforesaid
maneuvers, and applied gentle traction again when she believed the last maneuver had been
successful. She did not apply greater traction because she could feel that the shoulder was still
impacted; she would have applied greater traction if she had felt it working. Using gentle
traction after trying various maneuvers to release the shoulder is accepted obstetric practice
that Goodwin both followed and taught to medical students and interns.
¶ 24 The notes on Landon’s birth were a brief summary dictated less than an hour later, and
such notes are routinely edited within a week. Goodwin did not initially mention Hutter’s first
use of traction in her notes because she was somewhat “traumatized” at the time she dictated
them. Complications as severe as Landon’s were exceedingly rare for her: two occurrences of
permanent injuries, including Landon, in about 3000 deliveries. Hutter joined Landon’s
delivery shortly after Goodwin diagnosed a shoulder dystocia, which commenced a well-
practiced protocol of quickly bringing in other medical personnel. The protocol exists because
shoulder dystocia is an emergency that can have severe consequences: the umbilical cord may
be compressed, causing seizures and brain injury if the compression is complete and lasts too
long. As soon as Hutter joined the delivery, he applied traction. Goodwin stopped him because
she was still trying the other maneuvers. After she had tried other maneuvers and a second
instance of gentle traction, Goodwin asked Hutter to try. Without first trying any maneuvers
himself, he again applied traction, and this time the shoulder was released. It seemed like Hutter
used “a lot more traction than I would apply,” though Goodwin could not be certain. She
acknowledged that her notes stated that Hutter applied gentle traction but explained that she
had dictated what she would have done. She could not determine whether Hutter’s actions
released the shoulder. Landon’s shoulder dystocia lasted about four minutes, which was long;
Goodwin’s previous longest dystocia was two and a half minutes.
¶ 25 On redirect examination, Goodwin testified that, in applying traction by feel, she cannot
measure or know how much the brachial plexus is stretching from the traction. However,
applying traction in the correct direction avoids undue stretching. She acknowledged that there
are methods for a physician to place his or her hands inside to determine how much the
shoulder is impacted. As to her notes stating that Hutter applied gentle traction, Goodwin
reiterated that she dictated what she would usually do. “[I]n all fairness to Dr. Hutter, I had a
hard time saying he didn’t do any maneuver and he gave traction and delivered the baby.” She
acknowledged not changing that part of her notes when she edited them a few days later.
¶ 26 On recross examination, Goodwin admitted that she should consider her notes as a legal
document for possible litigation “but I don’t.” She was still hopeful when she dictated her notes
that Landon’s injury was not permanent and Hutter may not have applied excessive traction.
As she edited her notes, she elided past the portion at issue “because I didn’t want to think
about it.”
-7-
¶ 27 2. Plaintiffs’ Experts
¶ 28 Obstetrician and gynecologist Gubernick testified that shoulder dystocia is an obstetrical
emergency addressed with detailed protocols. A fetus’s shoulder sometimes becomes stuck or
impacted before the head appears but more typically after that. Gentle traction is a guiding
traction applied to ensure that the fetus continues traveling in the appropriate direction and
does not become impacted, rather than directly to deliver the baby. It is not inappropriate, but
also not always needed. While “there is a presumption that you would never want to use
traction if it’s stuck *** there are times that you need to apply gentle traction to know” the
shoulder is impacted. If gentle traction reveals an impaction, “you stop all traction” because it
would increase the impaction rather than releasing the shoulder. Continued traction would also
put pressure on the nerves in the fetus’s neck and could cause a brachial plexus injury. Instead,
various maneuvers are applied to change the fetus’s direction and the angle of the shoulder,
none of which apply traction to the head or neck. Traction should be applied to relieve shoulder
dystocia only if the umbilical cord is impinged, restricting oxygen to the fetus, for more than
about seven minutes. Under such circumstances, nerve damage from applying excessive
traction is the lesser evil to brain damage. The notes for such a delivery should reflect what
was done and why it was necessary.
¶ 29 There was no reason for traction to be applied in Landon’s delivery. According to the
medical records and Goodwin’s deposition, Landon showed the turtle sign, “an indication—
not an absolute indication but a high concern that there is a shoulder dystocia.” Goodwin
applied gentle traction to confirm shoulder dystocia, then applied some of the aforesaid
maneuvers. The medical records indicated that the shoulder was then released, but Goodwin’s
deposition testimony was that the shoulder was not released until Goodwin and then Hutter
applied traction after the maneuvers. Only Goodwin’s deposition described Hutter’s actions,
including first very briefly applying traction until Goodwin told him to stop. Hutter had no
recollection of Landon’s delivery and wrote no notes on the delivery.
¶ 30 Gubernick opined that Goodwin deviated from the standard of care for a reasonably careful
physician in her second use of traction, which was more than appropriate gentle traction.
Goodwin testified in her deposition that she would apply greater than gentle traction, which
Gubernick explained was directly contrary to the standard of care because applying more
traction to an impaction would worsen it. He also opined that Goodwin’s deviation from the
standard of care caused Landon’s brachial plexus injury. “If you strictly go by her delivery
note—and by the time Dr. Hutter delivers the baby, the shoulders have been disimpacted—her
traction caused the entirety of this injury.” Even accepting Goodwin’s deposition testimony
regarding Hutter, she contributed to the injury by adding to the traction pressure on Landon’s
brachial plexus. Neither gentle traction, nor maternal labor, nor Hutter applying traction after
releasing the shoulder, as in the notes, would have caused Landon’s permanent brachial plexus
injury; the nerves would be stretched but not broken. Other possible causes of permanent injury
other than traction were not reflected in Landon’s medical records.
¶ 31 On cross-examination, Gubernick acknowledged that brachial plexus injury can sometimes
occur regardless of the procedures used to release a shoulder dystocia and many brachial plexus
injuries are not associated with a shoulder dystocia. He reiterated that gentle traction is used to
diagnose shoulder dystocia and the turtle sign is not definitive. Thus, he opined, Goodwin’s
use of gentle traction initially to diagnose the dystocia would not breach the standard of care
and would not contribute to a permanent brachial plexus injury. Similarly, when a physician
-8-
or midwife believes that maneuvers have released a shoulder dystocia, it is appropriate to use
gentle traction to confirm the shoulder has been released. While Goodwin testified in her
deposition to doing just that, she also testified to using more traction than usual. Traction
cannot be measured as it is applied to a fetus but is determined by feel from experience.
¶ 32 When asked if both Goodwin and Hutter applied excessive traction, Gubernick replied that
Goodwin’s deposition testimony supported that theory but her delivery notes did not reflect
excessive traction by Hutter. When Gubernick was asked about his disclosed pretrial opinion
that Hutter deviated from the standard of care in applying traction and the deviation caused
Landon’s injury, plaintiffs’ counsel objected. The court overruled, and Gubernick
acknowledged his earlier opinion. Hutter and others joined the delivery when Goodwin
diagnosed a shoulder dystocia, as the purpose of the dystocia protocol is to have the assistance
of personnel who may be able to perform the maneuvers differently. When asked if Goodwin
would have asked Hutter to try if she believed the shoulder was released, Gubernick answered
that Goodwin’s notes reflected her belief that she released the shoulder before asking Hutter
to try, and the reason for her request was unknown, as she may have been tired or afraid at that
point.
¶ 33 Gubernick opined that Hutter was negligent if one believes Goodwin’s deposition
testimony and that Goodwin did nothing negligent other than apply excessive traction. He
agreed that there were four uses of traction: Goodwin’s first to diagnose dystocia, Hutter’s
brief traction when he joined the delivery, Goodwin’s second after the maneuvers, and Hutter’s
second, followed by Landon’s delivery. However, Gubernick disagreed that only the last
instance delivered Landon, as Hutter may have applied only gentle traction the second time
with Landon’s shoulder releasing spontaneously. He acknowledged that this theory was not
supported by any account from Hutter.
¶ 34 On redirect examination, Gubernick observed that Goodwin’s notes, both originally and
revised, stated that Hutter applied gentle traction after the shoulder was released, and she
testified in her deposition that she was unsure whether maneuvers had released the shoulder
when she applied traction again. Gubernick based his opinion of Goodwin’s negligence on that
admission and her testimony that she applied “[m]ore than the average amount of traction” to
impacted shoulders. It was not “reasonable for her to describe using more than normal traction
to deliver a shoulder dystocia.” As to Gubernick’s cross-examination testimony that many
brachial plexus injuries are not associated with a shoulder dystocia, he explained that a fetus’s
shoulder can be impacted, with a brachial plexus injury resulting from traction, absent a
delivering physician diagnosing a dystocia. While “a healthy baby with no predisposing factors
and no maternal factors” cannot suffer a permanent brachial plexus injury from “the
endogenous forces of labor,” a transient brachial plexus injury could result.
¶ 35 On recross examination, Gubernick acknowledged that Goodwin said she used only gentle
traction in Landon’s delivery, mentioning more than usual traction as a general matter. He did
not agree that physicians may differ about what constitutes gentle traction, maintaining that
they would agree “within a tight range.” Specifically, gentle traction of zero to five pounds
would not cause permanent brachial plexus injury.
¶ 36 Neurologist Dr. Stephen Deputy testified that he had treated several children for birth-
related injuries to their brachial plexus, a bundle of nerves in the shoulder. Based on other
physicians’ examinations and testing, Landon had a severe brachial plexus injury causing
various symptoms that had since improved somewhat, including a droopy left eyelid, a left
-9-
pupil that would not dilate properly, and injuries to his diaphragm. The brachial plexus injury
also affected the muscles of Landon’s left arm, which at first could not move at all. His left
arm could flex somewhat after several months of his nerves regenerating and recovered more
after surgery to transplant nerve tissue. However, at some point nerve regeneration ceases, and
Deputy opined that Landon had reached that point and his injury was permanent. Because
muscles need nerve connections to work properly, a muscle with severe nerve damage
atrophies. While Landon’s shoulder movement had improved, atrophy had reduced the strength
and range of motion of his left elbow, wrist, and hand. Occupational therapy could reduce some
of these effects, but his left arm would never be normal.
¶ 37 When asked the cause of Landon’s brachial plexus injury, Deputy explained that the “cause
of babies that are born with brachial plexus injury at the time of delivery is that of a traction
injury or a stretch injury to the nerve as opposed to a crush injury to the nerve.” He opined that
Landon suffered
“an increased amount of traction with the head and neck with the shoulder being stuck
behind, was part of the shoulder dystocia that then increased the angle of the neck to
the shoulder, *** and when you do that, those brachial plexus nerves get stretched, and
if you do it to a point where it’s excessive force, you can have a permanent injury to
the brachial plexus nerves.”
A mild injury with full recovery would have resulted from traction, but Landon’s permanent
injury resulted from excessive traction. “[T]he more times you do that excessive traction, the
more injury you have, and the more injury you have, the more likely you are going to have a
permanent deficit.”
¶ 38 On cross-examination, Deputy acknowledged that neurosurgeon Dr. Arthur DiPatri had
decided in performing surgery on Landon that he had improved sufficiently that DiPatri did
not have to explore his brachial plexus as planned. Deputy also acknowledged that
occupational therapist Kathleen Needham had testified in deposition that Landon had made
significant progress in being able to put on his own pants and shoes, though Deputy noted those
to be two-handed activities. While Landon underwent occupational therapy, he had not been
referred for physical therapy. Landon’s functions could improve, dependent on both his
cooperation and the physiology of his injury. From the medical records and depositions,
Deputy was aware that Goodwin and Hutter had assisted Landon’s birth but did not know
which applied excessive traction. “I’m working my way back from the fact that Landon is born
with a flaccid left arm and had a severe brachial plexus injury at the time of delivery, so the
cause of brachial plexus injuries at delivery is always due to excessive traction.” On redirect
examination, Deputy testified that his focus was causation generally rather than who
particularly caused the injury.
¶ 39 DiPatri’s deposition was read at trial, and Needham’s deposition video was shown at trial,
but neither is included in the record on appeal. The parties stipulated that Needham had testified
that Landon’s dominant right side was unaffected and she was providing therapy for his left
hand.
¶ 40 Accountant David Gibson testified to evaluating the impact of Landon’s brachial plexus
injury on his employability and future income, after reviewing medical records and depositions
and interviewing plaintiff Christine. “Landon is limited in use of his left arm to essentially a
helper arm” without much “independent function,” so he “is at a disadvantage” in “any tasks
that requires bilateral dexterity,” such as carrying anything with both hands, reaching above
- 10 -
his head with both arms, or typing with both hands. He would be employable, but his options
would be limited. Gibson calculated his probable reduced income from census data on earnings
by persons with various education levels with and without various injuries. Assuming Landon
earned a bachelor’s degree, he would earn an average of nearly $70,000 annually if not injured
but about $58,000 annually with his injuries. His working lifetime would also be shortened.
The present cash value of his lifetime earnings would be reduced by $917,306 with a high
school diploma, $1,043,374 with an associate degree, or $1,582,504 with a baccalaureate
degree. On cross-examination, Gibson acknowledged that limited use of one’s nondominant
arm was not one of the injuries addressed in the census data. Based on medical opinions,
Gibson assumed in estimating Landon’s reduced income that his physical limitations were
permanent.
¶ 41 3. Plaintiffs
¶ 42 Plaintiff Tadeh testified that Landon’s left arm was affected when Tadeh first saw him
shortly after his birth and his left arm was paralyzed when he went home from the hospital
over a month after his birth. He received therapy both at home and in a clinic four times a week
from his infancy, and he had to wear a splint continuously for years. Landon attempted to swim
but could not, nor could he catch a ball. He could dress himself but used only one arm to do
so. His left arm weakness left him prone to balance issues such as frequent falling. Tadeh
acknowledged that Landon’s ability to use his left arm had improved. He was a smart and
mostly happy child, but quick to anger due to frustration from the limited use of his left arm.
¶ 43 Plaintiff Christine testified that she was told shortly after Landon’s birth that his left arm
was injured, and his arm was limp when she first held him. He received therapy during his five
weeks of hospitalization and at least weekly thereafter and would continue receiving therapy
well after trial. DiPatri performed surgery in June 2013 and Landon had to wear a brace
afterwards. He made progress and was determined to continue his progress, but he also became
frustrated due to his limited use of his left arm, resulting inability to perform two-handed tasks,
and questions about his condition from others. Because of such questions, Landon asked what
happened to his arm, and Christine and Tadeh told him that it was injured at birth. His left arm
and hand are noticeably smaller than his right, and he can grasp items with his left hand but
not heavy items.
¶ 44 The parties stipulated that Landon’s medical expenses were $294,749.97 up to the trial.
¶ 45 4. Directed Verdict Motion
¶ 46 Goodwin and Associates moved for a directed verdict, arguing that “Gubernick failed to
testify as to what the standard of care actually required of Dr. Goodwin to prevent injury to
Landon, and thus “failed to causally connect her actions to any injury.” Gubernick was “not
critical” of Landon’s prenatal care or the fact that shoulder dystocia occurred. “He conceded
Dr. Goodwin’s actions to diagnose the shoulder dystocia—including the use of initial
traction—were appropriate, and also conceded the maneuvers she utilized to try and dislodge
Landon’s shoulder were also appropriate” though unsuccessful but did not establish what
Goodwin should then have done. Goodwin and Associates also argued that Gubernick’s
opinions were speculative because “medical records do not mention at all that Dr. Goodwin
ever used traction,” so his opinion relied upon Goodwin’s deposition and “assumes Dr.
Goodwin was telling the truth about the use of traction, but *** lying when she testified the
- 11 -
traction was ‘gentle,’ ” and that “Goodwin’s use of traction is what actually dislodged the
shoulder when in fact, neither the deposition testimony nor the medical records indicate that
Dr. Goodwin’s use of traction accomplished this.”
¶ 47 The court denied the directed verdict motion, except for ruling that the sole claim of
negligence to be presented to the jury would be whether Goodwin applied excessive traction.
¶ 48 5. Defense Experts
¶ 49 Dr. Charles Adamczyk, an obstetrician and gynecologist, testified to reviewing materials
in this case and forming opinions to a reasonable degree of medical certainty regarding
Goodwin’s conduct. He opined that Goodwin acted within the standard of care for an
obstetrician and her actions were not a proximate cause of injury to Landon. He believed she
performed the appropriate maneuvers after diagnosing a shoulder dystocia, applied “traction
within the degree necessary to test each maneuver to see if the shoulder had freed,” and did
not apply excessive traction. Indeed, “there was no evidence that she *** applied traction in
an excessive fashion.” It was reasonable to apply traction to diagnose a dystocia, and
Goodwin’s second use of traction after performing maneuvers complied with the standard of
care.
¶ 50 When Adamczyk learned obstetrics, he was taught methods for addressing shoulder
dystocia, including when and how to apply traction, how to perform the various maneuvers to
release an impacted shoulder, and how to use traction to confirm or disprove that maneuvers
were successful. In his experience of delivering about 100-180 babies annually for over 20
years, about 30 annually had a shoulder dystocia requiring some maneuvers as well as gentle
traction, and about 10 or 15 required more advanced maneuvers. Adamczyk’s longest shoulder
dystocia was about two and a half minutes. Landon’s dystocia of about four minutes lasted “a
long time,” which would be “a true obstetrical emergency” because one lasting about five or
six minutes would affect the oxygen supply to the fetus’s brain and could cause brain damage.
There would be considerable pressure on the obstetrician because a nurse would be reminding
him or her of the duration of the dystocia and he or she would be balancing the risk of brain
damage from trying more possibly unsuccessful maneuvers against the risk of nerve damage
from applying traction. A new obstetrician would be more panicked, while an experienced one
would develop “a reasonable understanding about how much forces and pressures [they] need
to apply.” Because “[t]here haven’t been any models that have been done to actually show
what the break point is on the brachial plexus,” a reasonably careful physician tries to avoid
applying traction to a fetus’s head or neck during dystocia, but some traction in the correct
direction must be applied.
¶ 51 When Goodwin testified in her deposition that she applied a bit more traction in a dystocia
than a routine delivery, Adamczyk believed she applied “a little bit more” than gentle
downward traction to confirm that the shoulder was impacted. When asked if the same was
true of her second use of traction, Adamczyk replied “I believe that with her experience she
knew that there was a point where she should not exceed that.” There is a spectrum or range
of gentle traction, which an obstetrician develops from experience as there is no device or
measurement to do so precisely. He or she knows to stop applying traction and apply
maneuvers when traction is unsuccessful in moving the fetus. Goodwin expressly denied using
excessive traction, which “speaks to her experience.” Adamczyk believed she did not use
excessive traction because “none of the maneuvers she did or the traction that she did apply
- 12 -
actually resulted in delivery of the shoulder *** until Dr. Hutter got in there, and he applied
the final amount of traction that effected delivery of the fetus.” While the standard of care
required Goodwin to check if the fetus had moved before using gentle traction again, by using
her hands on the fetus, movement does not necessarily confirm that the shoulder has been
released. Goodwin did not say that she was certain Landon’s shoulder was released before she
applied traction the second time, but she believed that the maneuvers had worked. Applying
traction in such circumstances was appropriate and necessary.
¶ 52 Adamczyk was aware from reviewing the documents in this case that there were two
versions—original and revised—of Goodwin’s notes. When she stated in her revised notes that
the shoulder was rotated until it was dislodged and then gentle traction with maternal pushing,
assisted by Hutter, delivered the shoulder, Adamczyk read it to mean that she moved Landon’s
shoulders and Hutter then “applied the traction necessary to effect the delivery of the shoulder.”
That would be inconsistent with Goodwin believing she moved the shoulder sufficiently for
delivery but failing to do so with her second use of traction. In other words, her note suggested
that someone was able to release the shoulder. Her deposition was unclear as to whether she
believed she had sufficiently released the shoulder. She applied traction the second time
“[b]ecause you have to test it *** to see if your rotational maneuver worked.” Her revised
notes were not identical to her deposition, as her note did not mention her second use of traction
but her deposition did. However, both her note and deposition stated that she applied various
maneuvers, and believed the shoulder to be released, and that Hutter joined the delivery and
applied traction to deliver Landon. There was no evidence that Hutter tried any maneuvers
before applying traction. Adamczyk believed Hutter used more than gentle traction because
the dystocia had lasted four minutes by then, and more specifically anxiety and time pressure
probably caused him to apply excessive traction.
¶ 53 Adamczyk did not know the exact cause of Landon’s brachial plexus injury, as maternal
labor efforts were also being applied and also strain the brachial plexus. When asked if brachial
plexus injuries can occur, despite following medical procedures for addressing a shoulder
dystocia, Adamczyk replied that the mother’s labor efforts and traction both stretch the brachial
plexus so that they are additive. An obstetrician cannot know how much force the mother is
applying so he or she must use their experience; “it’s a feel that you develop, and what that
break point is is still unclear.” There is no “way with the maneuvers that have been developed
by the obstetrical community to ensure that every baby can be delivered without an injury.”
¶ 54 On cross-examination, Adamczyk testified that obstetricians have developed procedures to
“lessen the likelihood” of brachial plexus injury. There was no direct evidence that Hutter
either did or did not apply excessive traction. While adults are susceptible to hypoxia in about
six minutes, babies can take longer. There was no direct evidence that Goodwin was concerned
during Landon’s four-minute dystocia about hypoxia or brain injury, though “in practice ***
you’d be thinking about that at the time of delivery.” Adamczyk acknowledged that it would
be reasonable for a physician with such concerns to include them in his or her notes as an
explanation for his or her actions, and he himself would have done that. Goodwin’s notes
reflected no uncertainty that the shoulder was released before she applied traction again, while
she testified in her deposition that she could not determine if the shoulder had been released.
In Adamczyk’s various deliveries with shoulder dystocia, only one had permanent brachial
plexus injuries, and it was caused by a trainee physician. An experienced physician would be
- 13 -
less anxious and panicky but would still become somewhat more anxious after a dystocia lasted
over two minutes.
¶ 55 A shoulder can be so impacted that only excessive traction would release it, but “[y]ou
have to try” rotating it “if you can.” In other words, the shoulder will generally deliver when
maneuvers were successful but testing it with gentle traction is necessary. When asked again
if there was any situation where no amount of traction would release the shoulder, Adamczyk
replied that he did not know because he had never seen it happen; that is, “[u]sually it gives
after a certain point.” Adamczyk reiterated his opinion that Goodwin did not use excessive
traction because her traction was unsuccessful in releasing the shoulder. While any amount of
traction on the fetal head will stretch the brachial plexus to some degree, Landon suffered the
most severe degree of brachial plexus injury. Maternal labor efforts stretch the brachial plexus,
but physician-applied traction also contributes to brachial plexus injury including Landon’s.
Thus, applying gentle traction based on a physician’s experience increases the risk of brachial
plexus injury but is necessary for delivery.
¶ 56 On redirect examination, Adamczyk testified that there is no way to prevent brachial plexus
stretching once a shoulder dystocia has occurred because the dystocia itself causes stretching.
Adamczyk opined from the medical records that Hutter “must have” used traction to deliver
Landon’s shoulder and Goodwin’s gentle traction was insufficient to cause the degree of
Landon’s injury. When rotational maneuvers are insufficient to release the shoulder, and the
prospect of brain damage is presumably increasing but the physician has no measure of the
fetus’s oxygen level, the concern for such injury and the pressure to act increases. That concern
is inherent or implicit in hospital dystocia procedures, which were implemented in Landon’s
delivery.
¶ 57 On recross examination, Adamczyk testified that maternal labor forces are insufficient by
themselves to cause a ruptured brachial plexus and “in most cases” excessive traction is
necessary for rupture. He believed Goodwin did not apply excessive traction, not merely
because she denied doing so but because her efforts did not deliver Landon’s shoulder.
Goodwin’s accounts differed on whether Hutter applied gentle traction or may have applied
something more. On further redirect, Adamczyk testified that both of Goodwin’s accounts
showed that Hutter applied traction and Landon’s shoulder delivered. On further recross, he
denied that Hutter applied traction after the shoulder was dislodged. However, Goodwin’s
notes stated that the shoulder was dislodged, and applying traction to a dislodged shoulder
would not cause permanent brachial plexus injury. On further redirect, Adamczyk testified that
a completely dislodged shoulder would have delivered by itself and Goodwin’s second traction
would have resulted in delivery. On further recross, he testified that Goodwin’s notes reflected
gentle traction by Hutter but Goodwin would have tested the shoulder after maneuvers with
traction. When asked if he believed the note, Adamczyk replied that Goodwin’s note was “not
all-inclusive of every second of everything that happened.”
¶ 58 Economist Dr. Christopher Bartlett testified that he reviewed Landon’s medical records
and all the depositions and discovery responses, including those relating to Gibson, and formed
opinions as an economist regarding Gibson’s analysis. While Bartlett did not dispute the use
of census data, he opined that Gibson used irrelevant data by using the earnings for persons
reporting difficulty walking or climbing stairs, not upper-body issues like Landon. Also, much
of the data concerned injuries to adults who had already completed their education and training,
while Landon as a child would be able to choose education and training appropriate for his
- 14 -
physical condition. Landon’s occupational choices would be limited, and that might be an
emotional loss for him. However, there was no indication that he would suffer an economic
loss; that is, no indication that the jobs he was precluded from would earn more than the jobs
he could still do.
¶ 59 6. Further Trial Proceedings
¶ 60 Plaintiffs moved for a directed verdict, which the court denied.
¶ 61 At the jury instruction conference, plaintiffs objected to giving two paragraphs regarding a
sole proximate cause as a defense to negligence: the second paragraph of Illinois Pattern Jury
Instructions, Civil, No. 12.04 (approved Dec. 8, 2011) (hereinafter IPI Civil No. 12.04)
concerning negligence by “some person” other than a defendant, and the second paragraph of
Illinois Pattern Jury Instructions, Civil, No. 12.05 (approved Dec. 8, 2011) (hereinafter IPI
Civil No. 12.05) regarding causation by “something” other than a defendant. Plaintiffs argued
that there was no evidence of anything being a sole proximate cause because the evidence was
that maternal labor forces and traction together or additively stretch the brachial plexus.
Defense counsel argued that shoulder dystocia is a naturally occurring condition and the
measures taken to relieve it are the logical consequences of that condition, noting that
Gubernick testified that some degree of traction is appropriate and necessary. Plaintiffs
responded that the evidence was that maternal forces by themselves are insufficient to rupture
the brachial plexus. The court agreed and denied the second paragraph in IPI Civil No. 12.05,
over defense counsel’s objection that giving only the first paragraph of IPI Civil No. 12.05
would be improper, without expressly addressing IPI Civil No. 12.04 beyond that it would be
given.
¶ 62 Goodwin and Associates offered two special interrogatories regarding whether something
or some person, other than Goodwin, was the sole proximate cause of Landon’s injuries.
Plaintiffs objected, reiterating the argument that there was no evidence of a sole proximate
cause. Defense counsel argued that the some-person interrogatory was consistent with giving
IPI Civil No. 12.04 with its second paragraph. The court noted that Gubernick testified to
Hutter deviating from the standard of care, and plaintiffs responded that said testimony would
not be evidence of sole proximate cause. When defense counsel noted that Deputy testified to
repeated stretching of the brachial plexus as a cause, the court stated that it would not give the
something interrogatory. The court ruled that the some-person interrogatory would be given to
test the verdict regarding IPI Civil No. 12.04, which would be given with both paragraphs, and
the something interrogatory would not be given because the second paragraph of IPI Civil No.
12.05 would not be given.
¶ 63 Following closing arguments, the court instructed the jury in relevant part:
“If you decide that the defendant was negligent and that her negligence was a
proximate cause of injury to Landon Ghostanyans, it is not a defense that something
else may also have been a cause of the injury.
More than one person may be to blame for causing an injury. If you decide that the
defendant was negligent and that her negligence was a proximate cause of injury to
Landon Ghostanyans, it is not a defense that some third person who is not a party to
the suit may also have been to blame.
- 15 -
However, if you decide that the sole proximate cause of injury to Landon
Ghostanyans was the conduct of some person other than the defendant, then your
verdict should be for the defendant.” See IPI Civil Nos. 12.04, 12.05.
The verdict forms presented to the jury included an interrogatory on whether the sole proximate
cause of Landon’s injury was the conduct of some person other than Goodwin.
¶ 64 Following deliberations, the jury issued a verdict for Goodwin and Associates and
answered the special interrogatory in the affirmative, finding that the sole proximate cause of
Landon’s injuries was the conduct of some person other than Goodwin. The court entered
judgment in favor of Goodwin and Associates upon the verdict. As the jury deliberated,
plaintiffs filed their second amended complaint, removing all allegations against Hutter and
System.
¶ 65 D. Posttrial
¶ 66 In their posttrial motion, plaintiffs argued that the court committed prejudicial error when
it (1) instructed the jury on both paragraphs of IPI Civil No. 12.04 and allowed the special
interrogatory on some person other than Goodwin being a sole proximate cause and
(2) allowed defense counsel to cross-examine Gubernick on Hutter’s negligence. Plaintiffs also
argued that the jury’s verdict and answer to the special interrogatory were against the manifest
weight of the evidence. Plaintiffs argued that the trial evidence was that Goodwin’s conduct
was a proximate cause of Landon’s injuries, with no evidence allowing the jury to infer that
Hutter’s conduct was the sole proximate cause. Thus, there was no evidence to support giving
the second paragraph of IPI Civil No. 12.04 or the related special interrogatory. Gubernick
testified to negligence by Hutter but did not testify that his negligence was the sole proximate
cause of Landon’s injuries. As Gubernick testified that Landon’s and Hutter’s traction
contributed to the injury, there was “no basis in the evidence for jurors to isolate Dr. Hutter’s
use of traction as the sole proximate cause.” As to the proposition that Hutter applied excessive
traction because only his second use of traction delivered Landon’s shoulder, “the evidence
established that his second use of traction likely occurred after the shoulder had been rotated,
so it would not be injurious.” As to allowing cross-examination of Gubernick regarding Hutter,
plaintiffs argued that it did not impeach his direct testimony nor show his bias, so it was beyond
the scope of cross-examination and its only purpose was to create prejudice.
¶ 67 Goodwin and Associates responded to the posttrial motion. An instruction on sole
proximate cause can be given if some slight evidence supports it, even if no expert expressly
opined as to sole proximate causation. Gubernick testified that excessive traction would cause
Landon’s brachial plexus injury, Goodwin testified that she did not use excessive traction but
Hutter did, and Goodwin’s testimony was borne out by the fact that Landon’s shoulder was
not delivered until after Hutter’s second traction. The instruction could not be prejudicial
because the evidence was overwhelming that Goodwin did not breach the standard of care.
Gubernick’s testimony that Goodwin applied excessive traction, then Hutter applied gentle
traction, then Landon’s shoulder delivered was “implausible,” and the jury would realize so
from Goodwin’s testimony. Also, Gubernick never opined as to what should have been done
to avoid injuring Landon. The two-issue rule would also bar reversible error, as the jury
instruction and interrogatory at issue concerned proximate causation but whether Goodwin
breached the duty of care was also at issue and a proper independent basis for the jury’s verdict.
As to cross-examining Gubernick regarding Hutter, cross-examination of expert witnesses is
- 16 -
liberal, including allowing examination akin to direct examination at the court’s discretion,
and Gubernick’s testimony was relevant to the credibility of his direct testimony. Lastly, the
verdict was not contrary to the evidence from Goodwin and Adamczyk.
¶ 68 At the hearing on the posttrial motion, plaintiffs argued that no defense witness testified
that Hutter caused Landon’s injuries, much less was the sole proximate cause, and that there
was evidence from Goodwin and Adamczyk that both Goodwin and Hutter used more than
gentle traction. The second paragraph of IPI Civil No. 12.05 was not given because Adamczyk
testified to multiple combined causes for Landon’s injuries. Defense counsel argued that IPI
Civil No. 12.05 was denied because maternal labor forces were the proposed other cause there,
which is distinguishable from Hutter’s use of traction for IPI Civil No. 12.04 purposes, and
that jurors are free to believe or disbelieve expert testimony. While there were discrepancies
in Goodwin’s accounts, the decisive fact is that the shoulder was not delivered when she asked
Hutter to try and then delivered after he applied traction. It is not required that a witness
expressly testify to sole proximate cause for a sole proximate cause instruction to be
appropriate.
¶ 69 The court denied the posttrial motion, finding sufficient evidence for giving IPI Civil No.
12.04 and the related special interrogatory, which “doesn’t have to be an expert saying that its
sole proximate cause.” As to the cross-examination of Gubernick regarding Hutter, it was
related to Gubernick’s credibility. Lastly, the jury was faced with a “battle of the experts,” and
its verdicts, including the special interrogatory on sole proximate cause, were not against the
manifest weight of the evidence. This appeal followed.
¶ 70 III. ANALYSIS
¶ 71 On appeal, plaintiffs contend that (1) the court erred in giving the jury the long version of
IPI Civil No. 12.04 and compounded the error by presenting the jury with a special
interrogatory on sole proximate cause, (2) the court erred by allowing cross-examination of
Gubernick to elicit his opinions regarding the negligence of Hutter after he had been dismissed
pursuant to settlement, and (3) the jury’s verdict and finding were against the manifest weight
of the evidence.
¶ 72 A. Sole Proximate Cause
¶ 73 Plaintiffs first contend that the trial court erred in giving the jury the long version of IPI
Civil No. 12.04 on sole proximate cause and compounded the error by presenting the jury with
a special interrogatory on sole proximate cause.
¶ 74 A defendant may not only rebut evidence tending to show that his or her acts were negligent
and the proximate cause of the plaintiff’s alleged injuries, but also may try to establish by
competent evidence that the conduct of a third person, or some other causative factor, was the
sole proximate cause of those injuries. Leonardi v. Loyola University of Chicago, 168 Ill. 2d
83, 101 (1995). Sole proximate cause need not be pled as an affirmative defense but is
sufficiently pled by denying that an injury was caused by the defendant’s conduct. Id. at 93-
94, 101. A party has the right to have the jury fully instructed on any theory of the case
supported by evidence, however slight. Id. at 100. Giving a sole proximate cause jury
instruction requires only that the defendant present some evidence that the third or other person
was the sole proximate cause of the plaintiff’s injuries. McDonnell v. McPartlin, 192 Ill. 2d
505, 516 (2000). A defendant need not show that the other person’s actions were negligent,
- 17 -
only that those actions were the sole proximate cause of the plaintiff’s injuries. Id. at 519.
Allowing a sole proximate cause defense does not confuse a jury or distract it from determining
whether a particular defendant caused, in whole or in part, a plaintiff’s injury but focuses the
attention of a properly instructed jury on the plaintiff’s duty to prove that the defendant’s
conduct was a proximate cause of his or her injuries. Leonardi, 168 Ill. 2d at 94.
¶ 75 Illinois Supreme Court Rule 239(a) (eff. Apr. 8, 2013) governing jury instructions
provides:
“Whenever Illinois Pattern Jury Instructions (IPI), Civil, contains an instruction
applicable in a civil case, giving due consideration to the facts and the prevailing law,
and the court determines that the jury should be instructed on the subject, the IPI
instruction shall be used, unless the court determines that it does not accurately state
the law.”
¶ 76 IPI Civil No. 12.04 is titled “Concurrent Negligence Other Than Defendant’s” and is
intended to be given when “negligence of a person who is not a party to the suit may have
concurred or contributed to cause the occurrence.” IPI Civil No. 12.04, Notes on Use. The
instruction states:
“More than one person may be to blame for causing an injury. If you decide that a
[the] defendant[s] was [were] negligent and that his [their] negligence was a proximate
cause of injury to the plaintiff, it is not a defense that some third person who is not a
party to the suit may also have been to blame.
[However, if you decide that the sole proximate cause of injury to the plaintiff was
the conduct of some person other than the defendant, then your verdict should be for
the defendant.]” IPI Civil No. 12.04.
The bracketed “second paragraph should be used only where there is evidence tending to show
that the sole proximate cause of the occurrence was the conduct of a third person.” IPI Civil
No. 12.04, Notes on Use.
¶ 77 IPI Civil No. 12.05 is titled “Negligence—Intervention of Outside Agency” and states:
“If you decide that a [the] defendant[s] was [were] negligent and that his [their]
negligence was a proximate cause of injury to the plaintiff, it is not a defense that
something else may also have been a cause of the injury.
[However, if you decide that the sole proximate cause of injury to the plaintiff was
something other than the conduct of the defendant, then your verdict should be for the
defendant.]” IPI Civil No. 12.05.
Similar to IPI Civil No. 12.04, IPI Civil No. 12.05 provides that the bracketed “second
paragraph should be used only where there is evidence tending to show that the sole proximate
cause of the occurrence was something other than the conduct of the defendant.” IPI Civil No.
12.05, Notes on Use.
¶ 78 A jury instruction is justified if it is supported by some evidence in the record, and the trial
court has discretion in deciding which issues are raised by the evidence. Tirado v. Slavin, 2019
IL App (1st) 181705, ¶ 53. In reviewing a jury instruction issue, we consider whether the
instructions, as a whole, fairly and comprehensively informed the jury of the relevant legal
principles. Id. Even where an instruction is faulty, we will not reverse unless the instructions
clearly misled the jury and prejudiced the appellant. Blockmon v. McClellan, 2019 IL App (1st)
180420, ¶ 41.
- 18 -
¶ 79 Here, plaintiffs note that this court has held that “in complex cases expert testimony is often
necessary to constitute ‘competent evidence’ that the sole proximate cause of a plaintiff’s
injury is the conduct of a nonparty or some other cause,” and in medical negligence cases,
“expert testimony on the matter is still necessary before a defendant can argue” sole proximate
cause. Grauer v. Clare Oaks, 2019 IL App (1st) 180835, ¶ 111. However, it does not follow
that an expert witness must expressly opine that another person was the sole proximate cause
of the plaintiff’s injuries. As stated above, the evidence supporting an instruction must tend to
show sole proximate causation.
¶ 80 We find sufficient evidentiary basis for giving IPI Civil No. 12.04 with the sole proximate
cause paragraph in the testimony of medical experts, including defendant Goodwin, an
experienced obstetrician and gynecologist. Goodwin testified to applying traction twice, the
first time to confirm the shoulder dystocia and the second after performing various maneuvers
trying to release the shoulder. While Goodwin testified that her second use of traction was
more than gentle traction, a point seized upon by Gubernick to opine that she was negligent,
she clarified that she meant more than the gentle traction used in a routine delivery, squarely
denied applying excessive traction, and expressed her awareness from her obstetric experience
of the different degrees or amounts of traction. Goodwin testified that Hutter applied traction
twice, his second time being after her second time and, crucially, followed by Landon’s
delivery. While Goodwin’s accounts over time were inconsistent as to whether Hutter’s second
application of traction may have been excessive, she offered the jury an explanation for having
stated that Hutter applied gentle traction.
¶ 81 Moreover, Adamczyk opined that Goodwin did not use excessive traction, based not just
on her denial but on the fact that her second use of traction did not release Landon’s shoulder
while Hutter’s second use did. Adamczyk rejected the theory that Hutter’s second use of
traction was after the shoulder was dislodged, opining that a dislodged shoulder would have
delivered by itself and Goodwin’s second use of traction would have resulted in delivery.
Gubernick testified that gentle traction to diagnose or test shoulder dystocia would not
contribute to a permanent brachial plexus injury, and Deputy testified that traction would cause
transient or temporary brachial plexus injury while excessive traction would cause permanent
injury. Lastly, while there was evidence that maternal labor forces and traction are additive,
Gubernick and Adamczyk testified that maternal labor is insufficient to sever the brachial
plexus. The court acted consistently with that evidence when it gave the second paragraph of
IPI Civil No. 12.04 but not the second paragraph of IPI Civil No. 12.05. In sum, we find
evidence that, taken together, would reasonably support a conclusion that Goodwin did not
apply excessive traction and Hutter did. Under the circumstances, that conclusion supports a
sole proximate cause theory and jury instruction.
¶ 82 Related to the issue of giving of the sole proximate cause paragraph of IPI Civil No. 12.04
is the issue of giving the sole proximate cause special interrogatory.
¶ 83 The purpose of a special interrogatory is to be a check on the general verdict, testing it
against the jury’s determination of one or more specific issues of ultimate fact. Douglas v.
Arlington Park Racecourse, LLC, 2018 IL App (1st) 162962, ¶ 70. A special interrogatory is
proper if (1) it relates to an ultimate issue of fact and (2) at least one of the answers would be
inconsistent with one of the general verdict options. Blockmon, 2019 IL App (1st) 180420,
¶ 35. We review de novo the propriety of a special interrogatory. Id. (citing 735 ILCS 5/2-1108
(West 2016)). However, a defective special interrogatory warrants overturning a verdict only
- 19 -
upon a showing of jury confusion or prejudice to the appellant. Douglas, 2018 IL App (1st)
162962, ¶ 66.
¶ 84 Here, whether someone other than Goodwin was the sole proximate cause of Landon’s
injuries relates to causation, an issue of ultimate fact, and a “no” to the interrogatory would
have been inconsistent with a verdict for Goodwin and Associates. As in Douglas, “[t]he
special interrogatory tracked *** the second paragraph of IPI Civil No. 12.04 submitted to the
jury,” and “[w]e determined above that the jury was properly instructed on sole proximate
cause via the long form of IPI Civil No. 12.04.” Id. ¶¶ 67, 72. As in Douglas, there was no
inconsistency between the general verdict for Goodwin and Associates and the interrogatory
answer that someone other than Goodwin was the sole proximate cause of Landon’s injuries.
See id. ¶ 71. Thus, as in Douglas, “[w]e do not see how plaintiffs could possibly establish
prejudice from the special interrogatory,” “[n]or could we possibly find jury confusion when
(1) the jury was properly instructed via IPI Civil No. 12.04 on sole proximate cause, (2) the
special interrogatory tracked that jury instruction ***, and (3) the jury’s general verdict and its
special finding were entirely consistent.” Id. ¶¶ 72-73.
¶ 85 B. Cross-examination of Gubernick
¶ 86 Plaintiffs also contend that the trial court erred by allowing cross-examination of
Gubernick to elicit his opinions regarding the negligence of Hutter after he had been dismissed
pursuant to settlement. They argue that whether Hutter’s actions contributed to Landon’s injury
was relevant but whether those actions were negligent was not relevant.
¶ 87 The scope of cross-examination is within the trial court’s discretion, and we will not disturb
it on review absent a clear abuse of discretion resulting in manifest prejudice to the appellant.
McDonnell, 192 Ill. 2d at 533. One purpose of cross-examination is to test the credibility of
the witness. Id. Another is to develop the facts, data, and opinions that form the basis of an
expert witness’s opinion, whether or not they were elicited on direct examination. Karn v.
Aspen Commercial Painting, Inc., 2019 IL App (1st) 173194, ¶ 16.
¶ 88 Here, the questions of whether Hutter’s actions caused Landon’s injuries and whether
Hutter was negligent were intimately related, so that we must reject the contention that the
former was relevant but the latter was not. Who may have applied excessive traction and when,
and the difference between gentle and excessive traction, were central issues in this case.
Evidence on those issues can reasonably be characterized as relating to both causation and
breach of duty.
¶ 89 Bauer v. Memorial Hospital, 377 Ill. App. 3d 895, 915 (2007), relied upon by plaintiffs, is
distinguishable on three grounds. Firstly, the issue in Bauer was whether the trial court abused
its discretion in barring cross-examination of a plaintiff’s expert witness regarding a third
party’s negligence. Id. It does not follow from the conclusion that the Bauer trial court did not
abuse its discretion that the trial court here abused its discretion when it allowed such cross-
examination. Secondly, the Bauer court found the desired cross-examination to be beyond the
scope of direct examination, while we cannot reach that conclusion here as explained above
(supra ¶ 88). Lastly, the Bauer court found no error because the defendant “offered no evidence
that the conduct of the settling defendants was the sole proximate cause of [the plaintiff’s]
injuries.” (Emphasis in original.) Bauer, 377 Ill. App. 3d at 915. By contrast, sole proximate
cause evidence was presented here as explained in detail above (supra ¶¶ 80-81).
- 20 -
¶ 90 We find that the trial court did not abuse its discretion in allowing defense counsel to cross-
examine Gubernick regarding Hutter’s negligence.
¶ 91 C. Manifest Weight of the Evidence
¶ 92 Lastly, plaintiffs contend that the jury’s verdict and finding were against the manifest
weight of the evidence.
¶ 93 To succeed on a negligence claim, a plaintiff must prove that a defendant owed a duty to
plaintiff, breached that duty, and plaintiff suffered injuries proximately caused by the breach.
Douglas, 2018 IL App (1st) 162962, ¶ 34 (citing Leonardi, 168 Ill. 2d at 93). There can be
more than one proximate cause of a plaintiff’s injury, and a defendant is liable if the plaintiff
proves that the defendant’s breach of duty was one of the causes of his or her injuries. Id. A
verdict is against the manifest weight of the evidence only when the opposite conclusion is
clearly evident or the verdict was unreasonable, arbitrary, and not based on the evidence.
Biundo v. Bolton, 2020 IL App (1st) 191970, ¶ 42. It is the jury’s responsibility to resolve
conflicts in the evidence, determine the credibility of witnesses, and decide the weight to be
given to the witnesses’ testimony. Id. ¶ 52. Therefore, we cannot reweigh the evidence or
substitute our judgment for that of the jury. Id. ¶ 42.
¶ 94 Here, we cannot conclude that the jury’s general verdict for Goodwin and Associates, nor
its finding that someone other than Goodwin caused Landon’s injuries, were against the
manifest weight of the evidence. For the reasons stated above in discussing the sole proximate
cause instruction (supra ¶¶ 80-81), we find that there was evidence that, if believed by the jury,
would reasonably cause it to conclude that Hutter applied excessive traction and Goodwin did
not, so that Goodwin did not cause Landon’s permanent brachial plexus injury. In other words,
while there were material discrepancies between Goodwin’s accounts of events before and at
trial, a reasonable trier of fact could find her trial testimony credible, especially in light of the
other medical expert testimony, and find in her favor.
¶ 95 IV. CONCLUSION
¶ 96 Accordingly, the judgment in favor of Goodwin and Associates is affirmed.
¶ 97 Affirmed.
- 21 -