Rowsey v. Breitman , 2024 IL App (4th) 230742 ( 2024 )

2024 IL App (4th) 230742 FILED
May 16, 2024
NO. 4-23-0742 Carla Bender
4 th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
GLEN ROWSEY, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Winnebago County
IGAL BREITMAN, M.D., Individually and as Agent of ) No. 17L319
Rockford Health Physicians, an Illinois Not-for-Profit )
Corporation, and ROCKFORD HEALTH PHYSICIANS,) Honorable
an Illinois Not-for-Profit Corporation, ) Lisa Renae Fabiano,
Defendants-Appellees. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Steigmann and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Glen Rowsey, brought a medical malpractice action against defendants—
Dr. Igal Breitman, individually and as agent of Rockford Health Physicians (Rockford Health), an
Illinois not-for-profit corporation, and Rockford Health—alleging he was injured as a result of
surgical procedures that were negligently performed by Dr. Breitman. In December 2022, a jury
returned a verdict in favor of defendants. Plaintiff filed a posttrial motion, challenging trial court
rulings that he alleged improperly (1) barred him from introducing certain medical bills into
evidence, (2) barred testimony from his medical expert, (3) allowed defendants’ medical expert to
provide speculative and uncorroborated testimony, (4) allowed defendants to inquire into how and
from where he retained his medical expert, (5) rejected jury instructions and verdict forms that set
forth emotional distress as a separate and distinct element of damage from pain and suffering, and
(6) limited his use of the res ipsa loquitur doctrine. Plaintiff also requested that the court enter an
additur in the amount of the medical bills he alleged were improperly barred at trial. The court
denied plaintiff’s posttrial motion, and he appeals, raising the same issues as set forth in his motion.
We affirm.
¶2 I. BACKGROUND
¶3 On March 29, 2016, plaintiff underwent surgery for gastric band removal and
diaphragmatic hernia repair. The surgery was performed by Dr. Breitman, an employee of
Rockford Health, at Rockford Memorial Hospital. Following surgery, plaintiff experienced
internal bleeding that necessitated further medical treatment, including two additional surgeries
performed by Dr. Breitman the same day, one of which involved the removal of plaintiff’s spleen.
In April 2016, plaintiff was rehospitalized and received medical treatment for pulmonary
embolisms and deep vein thrombosis.
¶4 In October 2017, plaintiff filed a medical negligence complaint against defendants,
alleging his initial March 2016 surgical procedure was performed in a manner inconsistent with
accepted standards and practices and caused him “extreme and severe injury.” Plaintiff asserted
defendants’ actions caused “bleeding of the spleen,” which they failed to control. He also alleged
the bleeding required additional surgeries, including an emergency splenectomy, multiple blood
transfusions, and an extensive hospital stay. According to plaintiff, defendants’ negligence further
resulted in his development of pulmonary embolisms, deep vein thrombosis, and resultant medical
treatment associated with those conditions.
¶5 Both plaintiff and defendants filed various pretrial motions for the trial court’s
consideration. Relevant to this appeal, the record shows the court denied motions in limine filed
by plaintiff to (1) bar certain opinion testimony from defendants’ medical expert on the basis that
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it was speculative and lacked factual support and (2) prevent defendants from inquiring at trial
“about how and from where” plaintiff retained his medical expert. Pursuant to pretrial motions
filed by defendants, the court (1) barred plaintiff from introducing certain medical bills into
evidence, (2) barred certain opinions of plaintiff’s medical expert regarding plaintiff’s “increased
risk of future harm,” (3) barred emotional distress as a separate line item of damages in jury
instructions and on verdict forms, and (4) limited plaintiff’s use of the res ipsa loquitur doctrine.
¶6 From November 30 to December 6, 2022, a jury trial was conducted in the matter.
Evidence showed that in March 2016, plaintiff sought medical treatment from Dr. Breitman
regarding a “lap-band removal” and hiatal hernia repair. On March 29, 2016, Dr. Breitman
performed both procedures on plaintiff laparoscopically. Dr. Breitman testified that to complete
the hiatal hernia repair, he had to “separate the spleen from the stomach” to reach certain blood
vessels. He stated that “fat *** called omentum” was adhered to the surface of plaintiff’s spleen
and “peeled off from the spleen” as he was exposing the area where he needed to work. When
separating the stomach and the spleen, Dr. Breitman noticed two areas of “decapsulation,” or
“abrasions,” on the spleen that were bleeding. He applied “Surgicel,” a substance used to create
blood clots, to stop the bleeding. After completing the hernia repair, Dr. Breitman reexamined the
decapsulations and observed that there was “still some oozing of blood from those areas.” He
“applied other coagulative until the bleeding stopped.” Once he observed no sign of ongoing
bleeding, he “closed” plaintiff’s laparoscopy incisions, and plaintiff was taken to the hospital’s
recovery area.
¶7 In recovery, medical staff observed that plaintiff was hypotensive, meaning his
blood pressure was below normal. Dr. Breitman determined plaintiff’s condition was caused by
bleeding. Plaintiff was “resuscitate[d]” by being given a blood transfusion and returned to the
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operating room, where Dr. Breitman performed a second surgery, using an “open incision,” and
observed “massive bleeding coming from [plaintiff’s] spleen.” He elected to remove plaintiff’s
spleen, stating a “patient cannot stay with very low blood pressure for a long time” and that he did
not “have the luxury of time to” determine what area of the spleen the blood was coming from.
Dr. Breitman performed a splenectomy and tied off the vessels that supplied blood to the spleen,
including the splenic artery.
¶8 After Dr. Breitman “closed” plaintiff’s incision, he noticed blood in a “drain” that
had been left at the surgical site to monitor for further bleeding. He immediately “reopened the
same incision *** to control whatever was going on.” Dr. Breitman observed bleeding that was
coming from the splenic artery and a small blood vessel on the omentum. Dr. Breitman stated he
retied the splenic artery and closed the “tiny bleeder on the omentum.” Following that third
surgery, plaintiff received another blood transfusion and remained hospitalized for a few days.
¶9 A couple weeks later, on April 16, 2016, plaintiff had trouble breathing and sought
emergency medical treatment at Swedish American Hospital in Rockford. Ultimately, he was
hospitalized and received treatment for pulmonary embolisms, i.e., blood clots in the lungs, and
deep vein thrombosis. Plaintiff was later transferred to Rockford Memorial Hospital for treatment
and was prescribed blood thinners.
¶ 10 At trial, plaintiff’s medical expert, Dr. Aaron Chevinsky—who was board certified
in both general surgery and surgical critical care—testified Dr. Breitman’s treatment of plaintiff
did not comply with the relevant standard of care. He opined that, although Dr. Breitman observed
no additional signs of bleeding after addressing the two areas of decapsulation on plaintiff’s spleen
during the first surgery, plaintiff had continued to bleed. According to Dr. Chevinsky, based on
the presence of the two areas of decapsulation, the requisite standard of care required Dr. Breitman
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to perform an open procedure on plaintiff to examine his abdominal cavity, look at his spleen, and
exclude additional bleeding.
¶ 11 Dr. Chevinsky asserted that, because the first surgery was performed
laparoscopically with the use of cameras and remote instruments, Dr. Breitman would have had
only a “limited view of the area of the spleen.” In his opinion, the situation necessitated a more
thorough examination of the spleen by way of an “open laparotomy incision.” He further testified
as follows:
“[I]n the operating room, [Dr. Breitman’s] options were to fully evaluate the spleen
which would in my opinion require an open procedure. Had you discovered
bleeding from the spleen, you would then make a decision if it could be controlled
or whether a splenectomy would be necessary at that time, which in my opinion
probably would have been required. And at that point the patient would have gone
on and recovered uneventfully.”
¶ 12 Dr. Chevinsky also opined that plaintiff’s need for a third surgery indicated his
splenic artery “wasn’t handled properly” at the time of the second surgery “and led to bleeding.”
Additionally, he testified that risks associated with plaintiff’s major abdominal explorations
included the development of pulmonary embolisms and deep vein thrombosis. He acknowledged
that plaintiff had other risk factors associated with those conditions, including “undergoing
surgery, being over age 60, [and] being obese.” However, having major abdominal surgery with
hemorrhage puts a person “at much higher risk.” On cross-examination, Dr. Chevinsky agreed
that, given plaintiff’s age and blood loss, a reasonably careful surgeon would have removed the
spleen during plaintiff’s second surgery.
¶ 13 Dr. Keith Gersin, a board-certified general surgeon specializing in bariatric surgery,
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testified as a medical expert for the defense. He stated he reviewed various materials in the case,
including medical records, depositions, and other materials, and he opined Dr. Breitman complied
with the standard of care in his treatment of plaintiff. Dr. Gersin testified that decapsulation of the
spleen was a “recognized complication” of the initial surgical procedures performed by Dr.
Breitman. He disagreed with Dr. Chevinsky’s opinion that Dr. Breitman should have converted
from a laparoscopic procedure to an open procedure once he observed the areas of decapsulation.
Dr. Gersin found no evidence in any of the materials he reviewed of any bleeding after Dr.
Breitman treated the areas of decapsulation and testified “there would be no indication to convert
to an open procedure when there was no longer any bleeding noted from the spleen.” He stated the
spleen is an organ that is full of blood and agreed that bleeding from the spleen is “easily
observable.”
¶ 14 Dr. Gersin further testified that open procedures were not without risk. He stated
such a procedure “carries risks of infection, hernias, prolonged recovery, prolonged
hospitalization, [and] increased pain.” He found “no indication to convert to an open procedure”
in the instant case. Additionally, Dr. Gersin testified that “visualization when done in an open
manner is worse than when it’s done in a laparoscopic manner.” He stated that, laparoscopically,
a surgeon has an angled camera and could “see the spleen very well.” Dr. Gersin described
observing the spleen during an open procedure as follows:
“So when you make a large midline incision, [the spleen is] not just sitting there.
You actually have to reach your hand sometimes up to your elbow, you have to
reach your hand up here, up around the diaphragm, come around the spleen, and
start taking down attachments to the spleen, and then deliver it, deliver that spleen,
lift it up and deliver it so that you can see it.”
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¶ 15 Dr. Gersin noted the second surgery Dr. Breitman performed was “a laparotomy,”
or an “open procedure.” He opined Dr. Breitman’s decision to perform an “emergent” splenectomy
during that surgery met the standard of care.
¶ 16 According to Dr. Gersin, Dr. Breitman observed no further bleeding “during the
closure” at the end of the second surgical procedure. Based on his review of the operative note and
Dr. Breitman’s deposition testimony, Dr. Gersin opined “there was no bleeding at the time that
[Dr. Breitman] was beginning to close [plaintiff’s incision] for the second time.” Ultimately,
however, Dr. Breitman noticed blood in the drain, indicating bleeding. He reopened plaintiff’s
incision to identify the source of the bleeding, which was from the splenic artery. Dr. Gersin
explained how additional bleeding could occur despite Dr. Breitman tying off the splenic artery
and vessels during the second surgery, stating as follows:
“[T]he splenic artery is like a tree, And as it approaches the spleen, it branches to
multiple splenic arteries, if you will. And it’s possible that when you put a clamp
***, that some of those branches could have retracted or spasmed down.
That’s—these are muscular vessels, and the body’s response to having them
cut is to retract or shorten and go into spasm so that they don’t bleed anymore.
That’s the body’s defense to help prevent bleeding.
So it’s certainly possible that a retraction or a spasm of the vessel occurred.
And when Dr. Breitman finished the second operation and looked, there wasn’t any
bleeding because those vessels weren’t bleeding because they were retracted or in
spasm.”
¶ 17 Dr. Gersin also described having low blood pressure as “another mechanism by
which vessels don’t bleed.” He stated that, as a patient is resuscitated with volume and blood
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products, vessels that were retracted or in spasm can begin to bleed. He opined that such
circumstances could have been what happened to plaintiff in the present case.
¶ 18 Dr. Gersin disagreed with the suggestion that the bleeding complications plaintiff
experienced as a result of his surgeries with Dr. Breitman were the reason he later suffered
pulmonary embolisms and deep vein thrombosis. He maintained there were several risk factors for
the development of such conditions and that both conditions could occur after any surgical
procedure. Factors that increased plaintiff’s likelihood of developing such conditions included his
age, the fact that he was obese, his sedentary lifestyle, and that his initial operation took over 45
minutes or an hour. Dr. Gersin testified that neither bleeding nor a splenectomy was a factor that
increased a person’s risk of developing a pulmonary embolism or deep vein thrombosis.
¶ 19 Finally, Dr. Gersin testified that all of the bleeding complications plaintiff
experienced on March 29, 2016, could happen in the absence of negligence. He testified
postoperative bleeding was one of the risks associated with surgery and could happen “to all
surgeons.”
¶ 20 Following the presentation of evidence in the case, defendants moved for a directed
verdict. The record shows the trial court partially granted the motion with respect to the issue of
proximate cause and plaintiff’s splenectomy, stating as follows: “I believe it’s clear that Dr.
Chevinsky says that [plaintiff] would have required a splenectomy in any event and, therefore, you
don’t have proximate cause with regards to the splenectomy.” Relative to that finding, the jury was
instructed as follows: “The court has determined that Plaintiff may not recover damages as a result
of having his spleen removed. This is not an issue you will need to decide.”
¶ 21 During closing arguments, plaintiff’s counsel argued Dr. Breitman was negligent
in failing to (1) convert from a laparoscopic procedure to an open surgical procedure at the time
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of the first surgery and (2) properly control the bleeding from the splenic artery during the second
surgery when plaintiff’s spleen was removed. Counsel asked the jury to award plaintiff damages
for loss of a normal life, pain and suffering including emotional distress, and medical bills totaling
$13,803. Ultimately, the jury returned a verdict in favor of defendants. On December 6, 2022, the
trial court entered judgment on the verdict.
¶ 22 On December 28, 2022, plaintiff filed a motion for a judgment notwithstanding the
verdict (judgment n.o.v.) or, alternatively, a new trial and other relief. He argued the trial court
erred by (1) barring him from introducing certain medical bills into evidence based on a lack of
expert testimony regarding what bills were related to Dr. Breitman’s alleged negligence;
(2) barring him for introducing certain medical bills into evidence based on a lack of evidence
showing that the bills were reasonable and customary for the medical services provided;
(3) barring testimony from Dr. Chevinsky regarding his risk of future harm as a result of
defendants’ alleged negligence; (4) allowing Dr. Gersin to provide speculative and uncorroborated
evidence and testimony regarding why Dr. Breitman did not detect, control, and stop his bleeding
during surgery; (5) allowing Dr. Gersin to provide speculative and uncorroborated evidence and
testimony regarding his development of blood clots; (6) allowing defendants to inquire into how
he retained Dr. Chevinsky; (7) barring him from asserting emotional distress as a separate and
distinct element of damages in the jury instructions and on verdict forms; and (8) limiting his use
of the res ipsa loquitur doctrine. Plaintiff also argued that the court should enter an additur to
properly reflect the full measure of his medical bills in the amount of $225,213.68, which resulted
from Dr. Breitman’s medical negligence. The record reflects defendants filed a response to
plaintiff’s motion and that plaintiff filed a reply to defendants’ response. On August 25, 2023, the
trial court entered an 11-page memorandum opinion and order, denying plaintiff’s posttrial motion.
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¶ 23 This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 On appeal, plaintiff argues the trial court made several erroneous rulings that
“overwhelmingly favored” defendants and prejudiced him in the eyes of the jury. In particular, he
raises the same contentions of error as set forth in his posttrial motion for a judgment n.o.v. or,
alternatively, a new trial and other relief, challenging the court’s rulings regarding the admission
of medical bills, the admissibility of expert testimony, defendants’ ability to inquire into the
retention of his medical expert, the content of jury instructions pertaining to emotional distress
damages, and his use of the res ipsa loquitur doctrine. Like in his posttrial motion, plaintiff also
argues he was entitled to an additur in the amount of his erroneously excluded medical bills. He
seeks reversal of the court’s denial of his posttrial motion, a remand for further proceedings, and
“any other and further relief that this Court deems equitable and just.”
¶ 26 A. Preliminary Considerations: Forfeiture and Standard of Review
¶ 27 In response to plaintiff’s appeal, defendants initially contend the trial court’s
judgment may be affirmed on the basis that plaintiff forfeited his claims of error by filing a
procedurally deficient posttrial motion. Specifically, they argue plaintiff’s claims were not
preserved for review because he “failed to indicate [in his posttrial motion] which form of relief
he sought regarding each contention.”
¶ 28 Section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202 (West 2022))
governs the filing of posttrial motions in jury cases, setting forth “strict rules” for such motions
following trial. Crim v. Dietrich, 2020 IL 124318, ¶ 25, 164 N.E.3d 1205. It states as follows:
“Relief desired after trial in jury cases *** must be sought in a single post-trial
motion. *** The post-trial motion must contain the points relied upon, particularly
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specifying the grounds in support thereof, and must state the relief desired, as for
example, the entry of a judgment, the granting of a new trial or other appropriate
relief. Relief sought in post-trial motions may be in the alternative or may be
conditioned upon the denial of other relief asked in preference thereto, as for
example, a new trial may be requested in the event a request for judgment is
denied.” 735 ILCS 5/2-1202(b) (West 2022).
The failure to file a posttrial motion after a jury trial “fail[s] to preserve any challenge to the jury’s
verdict for appellate review.” Crim, 2020 IL 124318, ¶ 35. Additionally, “[a] party may not urge
as error on review of the ruling on the party’s post-trial motion any point, ground, or relief not
specified in the motion.” Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994).
¶ 29 Our supreme court has held that the “specificity rule” for posttrial motions in jury
cases serves three purposes. Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 349, 415 N.E.2d
337, 339 (1980).
“First, it allows the decision maker who is most familiar with the events of the trial,
the trial judge, to review his decisions without the pressure of an ongoing trial and
to grant a new trial if, on reconsideration, he concludes that his earlier decision was
incorrect. [Citations.] Second, by requiring the statement of the specific grounds
urged as support for the claim of error, the rule allows a reviewing court to ascertain
from the record whether the trial court has been afforded an adequate opportunity
to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state
the specific grounds in support of their contentions, it prevents them from stating
mere general objections and subsequently raising on appeal arguments which the
trial judge was never given an opportunity to consider.” Id. at 349-50.
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The rule “has the salutary effect of promoting both the accuracy of decision making and the
elimination of unnecessary appeals.” Id. at 350.
¶ 30 Here, plaintiff filed a timely posttrial motion, raising the exact same claims he now
raises on appeal. Although in his motion he did not identify the precise relief sought when
addressing each of his specific contentions of error, his motion was titled as a motion for a
judgment n.o.v. or, alternatively, a new trial, and he explicitly requested those alternative forms of
relief in both the opening and concluding paragraphs of his motion. Moreover, the record reflects
plaintiff’s motion was sufficiently detailed, allowing the trial court an adequate opportunity to
review and reassess its prior rulings. The purposes behind the posttrial motion specificity rule have
been fully served, and we find no procedural deficiencies in plaintiff’s posttrial motion that warrant
a finding of forfeiture as to all issues raised.
¶ 31 Additionally, we note that, on appeal, plaintiff asserts the applicable standard of
review for his claims is the standard for granting a judgment n.o.v. Although we decline to find
forfeiture based upon defendants’ claim of an allegedly deficient posttrial motion, we do find
forfeiture to the extent plaintiff requests that particular form of relief.
¶ 32 “A motion for judgment n.o.v. should be granted only when all of the evidence,
when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [a] movant
that no contrary verdict based on that evidence could ever stand.” (Internal quotation marks
omitted.) Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37, 983 N.E.2d 414. As
the trial court noted below, although plaintiff requested the entry of a judgment n.o.v. as an
alternative form of relief, he failed to make any “argument or showing that the evidence so
overwhelmingly favored him that no contrary verdict based on the evidence could ever stand.”
Plaintiff similarly makes no such argument or showing on appeal. Accordingly, to the extent that
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plaintiff seeks relief in the form of a judgment n.o.v. on appeal, his request has been forfeited based
on his failure to provide grounds for the granting of such relief.
¶ 33 In this instance, plaintiff’s claims, both below and on appeal, contemplate relief in
the form of a new trial. We note “[a] court’s ruling on a motion for a new trial will not be reversed
except in those instances where it is affirmatively shown that it clearly abused its discretion.”
Maple v. Gustafson, 151 Ill. 2d 445, 455, 603 N.E.2d 508, 513 (1992). “In determining whether
the trial court abused its discretion, the reviewing court should consider whether the jury’s verdict
was supported by the evidence and whether the losing party was denied a fair trial.” (Emphasis
added.) Id. Plaintiff in this case effectively seeks a new trial based on the ground that the trial
court’s erroneous rulings denied him a fair trial. The court determined plaintiff “failed to show that
there was any error in [its] rulings that was substantially prejudicial and affected the outcome of
the trial such that he [was] entitled to a new trial.” On review, we consider whether the court abused
its discretion in that determination.
¶ 34 B. Issues Pertaining to the Question of Damages
¶ 35 On appeal, plaintiff raises several claims of error that concern only the question of
damages he suffered as a result of defendants’ allegedly negligent conduct. Specifically, he
contends the trial court erred by (1) barring him from introducing certain medical bills into
evidence, (2) barring Dr. Chevinsky from testifying as to his risk of future harm from defendants’
alleged negligence, and (3) refusing to allow jury instructions and verdict forms that contained
emotional distress as a separate and distinct element of damages from pain and suffering. Plaintiff
also claims that he is entitled to an additur in the amount of $225,213.68, a figure that represents
the full amount of the medical bills he contends were improperly barred by the court.
¶ 36 “Generally, errors at trial relating solely to damages will not be considered on
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appeal where it is evident that the jury, having found in favor of the defendant as to liability, never
reached the question of damages.” McDonnell v. McPartlin, 192 Ill. 2d 505, 531, 736 N.E.2d 1074,
1089 (2000); see Mackey v. Daddio, 139 Ill. App. 3d 604, 610, 487 N.E.2d 1167, 1171 (1985)
(“[W]here a defendant is found not liable, alleged errors which pertain solely to the question of
damages do not afford grounds for reversal.”). An exception to the general rule exists only “where
errors which go to the question of damages are so pervasive and prejudicial as to create the
likelihood that they may have affected a jury’s decision on the issue of liability.” (Internal
quotation marks omitted.) McDonnell, 192 Ill. 2d at 531.
¶ 37 In this case, the jury returned a verdict in defendants’ favor on the question of
liability and, thus, was not required to consider the question of damages. The above claims of
error—regarding the admissibility of plaintiff’s medical bills, testimony as to plaintiff’s risk of
future harm, and whether emotional distress is separate and distinct from pain and suffering—
pertained solely to a potential award of damages and were irrelevant to the jury’s determination of
liability. Nevertheless, both before the trial court and on appeal, plaintiff has suggested that the
court’s rulings impacted the jury’s decision on liability because they created a false impression
that he sustained “no damages” as a result of Dr. Breitman’s alleged malpractice. However, even
assuming that error occurred, we find plaintiff has failed to show any error was so pervasive and
prejudicial that it likely affected the jury’s decision that defendants were not liable.
¶ 38 The record shows the jury was informed that the question of liability was separate
from the question of damages. Specifically, jurors were instructed that, if they decided “for the
defendants on the question of liability, [they would] have no occasion to consider the question of
damages.” Further, as noted by the trial court in rejecting plaintiff’s arguments below, plaintiff did
present evidence of damages at trial. He introduced approximately $13,000 of his medical bills
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into evidence and was permitted to present testimony from Dr. Chevinsky that he faced a future
risk of “overwhelming postsplenectomy infection.” As plaintiff acknowledges on appeal, he also
“extensively testified as to the emotional distress and mental anguish he suffered.” The record
shows that plaintiff was allowed to present both (1) evidence that he suffered emotional distress
due to defendants’ alleged negligence and (2) argument that the jury should award him damages
related to that emotional distress.
¶ 39 Clearly, the jury had evidence before it of plaintiff’s alleged damages. Under the
circumstances presented, we flatly reject plaintiff’s claim that the trial court’s allegedly erroneous
rulings on issues pertaining solely to damages impacted the jury’s defense verdict, and we decline
to further consider his challenge to the court’s rulings.
¶ 40 Additionally, we note our agreement with the trial court’s characterization of
defendant’s additur claim as “nonsensical.” Motions for additur are used to contest the amount of
damages awarded in a case, not to address issues pertaining to liability. Allstate Insurance Co. v.
Mahr, 328 Ill. App. 3d 915, 916, 767 N.E.2d 494, 496 (2002). In certain circumstances, additur
may be used as an alternative to granting a plaintiff a new trial when there has been an “omission
of a liquidated or easily calculated item of damages.” (Internal quotation marks omitted.) Dobyns
v. Chung, 399 Ill. App. 3d 272, 286, 926 N.E.2d 847, 859 (2010).
¶ 41 Here, in rejecting plaintiff’s request for an additur, the trial court stated as follows:
“This was a defense verdict and thus there is no damage award to be added to. The jury did not
award inadequate damages or omit an easily calculated item of damage, but rather found in favor
of the defendants on liability. Quite obviously, additur has no application here.” The court was
correct in its ruling, and additur simply may not be applied under the facts presented.
¶ 42 C. Admission of Testimony From Dr. Gersin
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¶ 43 Plaintiff next argues the trial court erred by allowing defendants’ medical expert,
Dr. Gersin, to provide speculative and uncorroborated testimony at trial. In particular, he
challenges testimony from Dr. Gersin as to (1) the possible reasons Dr. Breitman failed to detect,
control, or stop plaintiff’s bleeding during the surgeries he performed and (2) plaintiff’s risk factors
for developing blood clots following his surgeries. Plaintiff maintains he was prejudiced by Dr.
Gersin’s challenged testimony.
¶ 44 Here, prior to trial, plaintiff filed a motion in limine, seeking to exclude
“speculative opinion testimony” from Dr. Gersin, which he argued was not based on medical
evidence and facts present in the case. Specifically, he sought to bar testimony from Dr. Gersin
regarding (1) “the ‘number of possibilities’ ” regarding why Dr. Breitman failed to detect or stop
plaintiff’s bleeding during surgery and (2) “various ‘other’ causes of” plaintiff’s pulmonary
embolisms and deep vein thrombosis. During a pretrial hearing in the matter, the trial court heard
arguments from the parties and denied plaintiff’s motion.
¶ 45 At trial, Dr. Gersin offered explanations as to why Dr. Breitman did not observe
bleeding at the end of plaintiff’s second surgery. He stated it was possible that no bleeding occurred
due to the splenic arteries retracting or spasming down, which he described as “the body’s defense
to help prevent bleeding.” He also stated plaintiff may not have been bleeding for a period of time
due to being hypotensive, i.e., having low blood pressure. At trial, Dr. Gersin further disagreed
that plaintiff’s pulmonary embolisms and deep vein thrombosis were caused by the bleeding
complications he experienced during his surgeries. He testified plaintiff had other risk factors for
the development of such conditions, including “his age, the fact that he was obese, that the initial
operation took over 45 minutes to an hour, and the sedentary lifestyle.”
¶ 46 On appeal, defendants argue that plaintiff has forfeited his contention of error with
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respect to Dr. Gersin’s testimony because he failed to raise contemporaneous objections to the
challenged testimony. We agree.
¶ 47 “When the [trial] court makes its rulings before trial in response to the parties’
motions in limine, the rulings are interlocutory and remain subject to reconsideration throughout
trial.” (Internal quotation marks omitted.) Arkebauer v. Springfield Clinic, 2021 IL App (4th)
190697, ¶ 60, 189 N.E.3d 510. As a result, “[t]he denial of a motion in limine does not in itself
preserve an objection to disputed evidence that is introduced later at trial.” Simmons v. Garces,
198 Ill. 2d 541, 569, 763 N.E.2d 720, 738 (2002). “When a motion in limine is denied, a
contemporaneous objection to the evidence at the time it is offered is required to preserve the issue
for review.” (Internal quotation marks omitted.) Id.; see Ill. R. Evid. 103(b)(3) (eff. Oct. 15, 2015)
(“In civil trials, even if the court rules before or at trial on the record concerning the admission of
evidence, a contemporaneous trial objection or offer of proof must be made to preserve a claim of
error for appeal.”). “While there is not always a need to repeat the objection each time similar
evidence is presented ***, one must nonetheless object the first time the evidence is introduced.”
Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502,
645 N.E.2d 896, 898 (1994).
¶ 48 In this instance, plaintiff did not object to Dr. Gersin’s challenged testimony at the
time it was offered at trial. In fact, the record shows no objections were raised at all by plaintiff
during the entirety of Dr. Gersin’s direct examination. On appeal, plaintiff contends he raised “a
standing and continuing objection” to the evidence during pretrial proceedings. However, the
record does not support his assertion, showing only that, after the trial court denied his motion
in limine, plaintiff’s counsel stated as follows: “Thank you, [Y]our Honor. And just for the record,
I guess we’ll put my objection on there just for purposes of the record. Thank you.” At most, the
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record shows counsel raised an objection to the court’s ruling on plaintiff’s motion in limine. It
does not reflect the making of a standing or continuing objection to the challenged evidence, much
less that the trial court recognized the objection as such. See Fleming v. Moswin, 2012 IL App
(1st) 103475-B, ¶ 96, 976 N.E.2d 447 (stating that “[o]rdinarily, continuing objections are not
recognized unless the trial court indicates its recognition of the continuing objection” (internal
quotation marks omitted)).
¶ 49 Both in his reply brief and at oral argument, plaintiff maintained he also raised an
objection to Dr. Gersin’s allegedly speculative testimony at trial. He references a portion of the
record where the trial court and the parties discussed the evidence deposition of another doctor.
Specifically, plaintiff cites the following colloquy:
“MR. PAPOUTSIS [(PLAINTIFF’S ATTORNEY)]: Line 25 through 1.
And do you take out No. 2 that he answered or do you leave that in?
MR. ORSI [(DEFENSE ATTORNEY)]: Well, the question is related to the
spinal tenderness.
MR. PAPOUTSIS: Yes. Okay. Got it.
THE COURT: For the same reasons, I agree that it can be relevant to
damages, to loss of a normal life.
MR. PAPOUTSIS: All right. That’s my same objection.
MR. ORSI: Dr. Gersin is also disclosed to opine or [sic] prior conditions
not related to the surgery.
THE COURT: So I think 25 and—25 on 8, 1 on 9, 7 and 8 on 9 and 9 then.
MR. PAPOUTSIS: And then, again, that’s my same objection as to
relevancy and causation.
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THE COURT: Yeah. And I’ll take out—I’m going to overrule that—19 and
20 and 21.”
Although the cited exchange contains a reference to Dr. Gersin and objections by plaintiff’s
counsel, the record suggests plaintiff was actually objecting to testimony contained in the evidence
deposition being discussed, not any specific testimony or opinions of Dr. Gersin. Notably, the
grounds asserted for plaintiff’s objection were “relevancy and causation,” not speculation, i.e., the
basis of his challenge to Dr. Gersin’s testimony on appeal. See Ficken v. Alton & Southern Ry.
Co., 291 Ill. App. 3d 635, 645, 685 N.E.2d 1, 8 (1996) (stating a “party must state specific grounds
for any objections, and other grounds not stated are waived on review”).
¶ 50 We find it well settled that, following the denial of a motion in limine, “a
contemporaneous objection to the evidence at the time it is offered is required to preserve the issue
for review.” (Emphasis added and internal quotation marks omitted.) Simmons, 198 Ill. 2d at 569;
see Ill. R. Evid. 103(b)(3) (eff. Oct. 15, 2015). Here, plaintiff raised no contemporaneous objection
at trial to Dr. Gersin’s testimony, and as a result, the challenges raised in his motion in limine have
been forfeited.
¶ 51 Further, even if we were to set aside plaintiff’s forfeiture, we would find no merit
to his claims of error. “The admissibility of expert testimony is reviewed using an abuse of
discretion standard.” Young v. Wilkinson, 2022 IL App (4th) 220302, ¶ 58, 213 N.E.3d 486. “An
abuse of discretion occurs only where no reasonable person would take the view adopted by the
trial court.” (Internal quotation marks omitted.) Id.¶ 52 Plaintiff challenges Dr. Gersin’s opinion testimony on the basis that it was
speculative and lacking in factual support because Dr. Gersin testified to only “possibilities” and
what “might” or “could” have happened in plaintiff’s case. However, “[t]o be probative on the
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issue of causation, a medical expert is not required to give an opinion regarding a specific cause.”
(Emphasis in original.) Hahn v. Union Pacific R.R. Co., 352 Ill. App. 3d 922, 930, 816 N.E.2d
834, 841 (2004). “Rather, a medical expert is permitted to testify to what might or could have
caused an injury ***.” Id.; see Iaccino v. Anderson, 406 Ill. App. 3d 397, 407, 940 N.E.2d 742,
751 (2010) (stating a medical expert may properly “testify to what might or could have caused an
injury”). Further, the record shows Dr. Gersin based his testimony on his review of plaintiff’s
medical records and various depositions taken in the case. He relied on facts that included Dr.
Breitman’s observation of no bleeding during the surgery to remove plaintiff’s spleen, as well as
plaintiff’s individual characteristics. He also relied on his medical training and experience, which
included his own performance of the procedures undergone by plaintiff.
¶ 53 Additionally, as noted by the trial court, one basis for plaintiff’s challenge to Dr.
Gersin’s testimony was that, according to medical records, a doctor who treated plaintiff for his
pulmonary embolisms and deep vein thrombosis, Dr. Hugh McHugh, related those conditions to
plaintiff’s “recent surgery.” The court rejected plaintiff’s claim, finding both that (1) Dr.
McHugh’s statement did not necessarily establish causation and (2) the “argument border[ed] on
frivolous” because presentation of one expert opinion as to causation does not mean that no other
doctor can provide causation testimony. We agree with the court and find plaintiff’s argument
lacks merit.
¶ 54 Here, the record reflects no abuse of discretion by the trial court in denying
plaintiff’s motion to exclude Dr. Gersin’s testimony. Under the circumstances presented, not only
did plaintiff forfeit his challenges to Dr. Gersin’s testimony by failing to properly object, but his
claims also have no merit.
¶ 55 D. Inquiry Into Plaintiff’s Retention of Dr. Chevinsky
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¶ 56 On appeal, plaintiff further argues the trial court improperly allowed defendants “to
inquire [into] how and from where [he] secured and retained” Dr. Chevinsky. He suggests such an
inquiry elicited highly prejudicial testimony that Dr. Chevinsky was retained through an agency
called the Technical Advisory Service for Attorneys (TASA). According to plaintiff, the testimony
created the impression that Dr. Chevinsky “was a ‘hired gun’ that always sides with plaintiff[s]
regardless of the facts.”
¶ 57 The record shows that, prior to trial, plaintiff filed a motion in limine seeking to bar
testimony that Dr. Chevinsky was retained through TASA. Similar to his contentions on appeal,
he argued such evidence was “especially prejudicial” and “would create the impression in the
minds of the jury that TASA only provides expert medical doctors that go against Defendant
medical doctors sued in medical malpractice cases.” The trial court denied the motion.
¶ 58 Again, “[t]he denial of a motion in limine does not in itself preserve an objection to
disputed evidence that is introduced later at trial.” Simmons, 198 Ill. 2d at 569. Rather, to avoid
forfeiture, the moving party must make a contemporaneous objection at the time the evidence is
offered. Id. “[O]ne must *** object the first time the evidence is introduced.” Illinois State Toll
Highway Authority, 163 Ill. 2d at 502. Moreover, where a party elects to introduce the challenged
evidence himself, he cannot complain on appeal “that the trial court erred in admitting the
evidence.” Simmons, 198 Ill. 2d at 569.
¶ 59 Here, it was plaintiff who introduced evidence at trial that Dr. Chevinsky was
retained through TASA. Specifically, on direct examination of Dr. Chevinsky by plaintiff’s
counsel, the following colloquy occurred:
“Q. Okay. And you were contacted by our office through an agency called
TASA; is that correct?
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A. That’s correct.
Q. And TASA is a technical advisory service for attorneys, correct?
A. That’s correct.
Q. And when you testify in cases such of this nature, are you testifying and
your services are provided by yourself, correct?
A. That’s correct.
Q. All right. Do you pay any money to TASA for them referring you to
other attorneys who might need services in this type of case?
A. No.”
Accordingly, because plaintiff elected to introduce evidence that Dr. Chevinsky was retained
through TASA during his own case-in-chief, he cannot complain on appeal that the trial court erred
in denying his motion to bar such evidence. Under the circumstances, the issue has been waived,
and we decline to consider it further.
¶ 60 E. Res Ipsa Loquitur
¶ 61 On appeal, plaintiff also argues the trial court erred in limiting his use of the
res ipsa loquitur doctrine to only Dr. Breitman’s alleged failure to control and stop the bleeding
from his splenic artery at the time of the second surgery. He contends the doctrine should have
further been applied to Dr. Breitman’s alleged negligence during the first surgery based on Dr.
Chevinsky’s testimony that Dr. Breitman was negligent in failing to convert to an open procedure
to find and control plaintiff’s bleeding and avoid “all subsequent surgeries and complications.”
Plaintiff asserts it was Dr. Chevinsky’s opinion that “bleeding would not have occurred if Dr.
Breitman had converted from a laparoscopic surgery to an open surgical procedure.” He also
asserts that the “injury to his spleen and area around and behind the spleen can only arise through
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negligence” and, but for Dr. Breitman’s negligence, he “would not have suffered injury to his
spleen/spleen area.”
¶ 62 The doctrine of res ipsa loquitur permits a factfinder “to infer negligence from a
set of facts that ‘speaks for itself.’ ” Johnson v. Armstrong, 2022 IL 127942, ¶ 34, 211 N.E.3d 355.
“ ‘When a thing which caused the injury is shown to be under the control or
management of the party charged with negligence and the occurrence is such as in
the ordinary course of things would not have happened if the person so charged had
used proper care, the accident itself affords reasonable evidence, in the absence of
an explanation by the party charged, that it arose from want of proper care.
[Citations.] This in essence is the doctrine of res ipsa loquitur, and its purpose is to
allow proof of negligence by circumstantial evidence when the direct evidence
concerning cause of injury is primarily within the knowledge and control of the
defendant.’ ” Id. ¶ 33 (quoting Metz v. Central Illinois Electric & Gas Co., 32 Ill.
2d 446, 448-49, 207 N.E.2d 305, 307 (1965)).
¶ 63 “For res ipsa loquitur to apply, the plaintiff must plead and prove that he was
injured (1) in an occurrence that ordinarily does not happen in the absence of negligence (the
probability element) (2) by an agency or instrumentality within the defendant’s exclusive control
(the control element).” Id. ¶ 35. “Whether res ipsa loquitur applies is a question of law to be
decided in the first instance by the trial court.” Id. “ ‘In making that determination, the court shall
rely upon either the common knowledge of laymen, *** or upon expert medical testimony, that
the medical result complained of would not have ordinarily occurred in the absence of negligence
on the part of the defendant.’ ” Id. (quoting 735 ILCS 5/2-1113 (West 2020)). Expert testimony is
required when the matters at issue are “outside the common knowledge of laymen.” Id. ¶ 38.
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¶ 64 Here, the record shows that, prior to trial, defendants filed a motion in limine to bar
plaintiff from relying on or instructing the jury at trial regarding the doctrine of res ipsa loquitur.
They (1) noted plaintiff did not plead res ipsa loquitur in his complaint and (2) asserted that there
was no expert testimony to establish that the doctrine was applicable. As to their latter claim,
defendants argued plaintiff’s sole expert witness, Dr. Chevinsky, did not provide an opinion
establishing “that any alleged injury does not occur unless there is negligence.” They asserted that,
instead, Dr. Chevinsky “confirmed at his deposition that you can indeed experience a bleeding
complication in procedures like those at issue here, even when complying with the standard of
care.” At a pretrial hearing, the trial court granted defendants’ motion.
¶ 65 Later, following the presentation of evidence at trial, plaintiff asked the trial court
to reconsider its ruling. Ultimately, the court granted plaintiff’s motion, in part, determining
res ipsa loquitur was applicable to the “handling of the splenic artery in the second surgery.” It
based its determination on Dr. Chevinsky’s trial testimony that plaintiff’s need for a third surgery
indicated to him that plaintiff’s splenic artery “wasn’t handled properly” at the time of the second
surgery “and led to bleeding.” However, the court rejected plaintiff’s contention that
res ipsa loquitur applied to the negligence he alleged in connection with his first surgery. In
particular, it found that no testimony had been presented “that a bleed doesn’t happen absent
negligence” or that the injury to plaintiff’s spleen was caused by negligence.
¶ 66 We find no error in the trial court’s ruling. Plaintiff argues res ipsa loquitur was
applicable to the negligence he alleged in connection with his first surgical procedure based on
testimony from Dr. Chevinsky that Dr. Breitman breached the applicable standard of care in failing
to convert to an open procedure to find and control his bleeding. Although such testimony is
sufficient to support a negligence claim in a medical malpractice case, it does not support
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application of res ipsa loquitur. In particular, plaintiff fails to point to any testimony from his
medical expert “ ‘that the medical result complained of would not have ordinarily occurred in the
absence of negligence on the part of the defendant.’ ” Id. ¶ 35 (quoting 735 ILCS 5/2-1113 (West
2020)).
¶ 67 Plaintiff appears to suggest that Dr. Chevinsky’s testimony showed that his
bleeding complications during and after the first surgery, the injury to his spleen, and his need for
subsequent surgeries would ordinarily not have occurred in the absence of Dr. Breitman’s
negligence. However, Dr. Chevinsky offered no such testimony. He did not even offer opinions
that Dr. Breitman was negligent in causing an injury to plaintiff’s spleen or the bleeding
complications plaintiff suffered during and after the first surgery. Dr. Chevinsky also testified that,
had Dr. Breitman followed the standard of care, he would have converted to an open procedure,
essentially performing plaintiff’s second surgery, a splenectomy, during the first surgery.
¶ 68 Contrary to plaintiff’s assertions on appeal, no testimony or evidence in the case
established that the injury to his spleen and the bleeding he experienced during and immediately
following the first surgery ordinarily does not happen in the absence of negligence. As a result, he
did not establish both necessary elements for application of the res ipsa loquitur doctrine with
respect to his claim of negligence during his first surgery. Under the circumstances presented, we
find no error by the trial court in limiting plaintiff’s use of res ipsa loquitur to his allegation of
negligence stemming from only his second surgery.
¶ 69 III. CONCLUSION
¶ 70 For the reasons stated, we affirm the trial court’s judgment.
¶ 71 Affirmed.
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Rowsey v. Breitman, 2024 IL App (4th) 230742Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 17-L-
319; the Hon. Lisa Renae Fabiano, Judge, presiding.
Attorneys Gus P. Apostolopoulos, of Lucas, Apostolopoulos & Valenti,
for Ltd., and Peter A. Papoutsis, both of Addison, for appellant.
Appellant:
Attorneys Christopher J. Drinkwine, of Heyl, Royster, Voelker & Allen,
for P.C., of Rockford, for appellees.
Appellee:
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