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Medical Malpractice Motion 5 - Plaintiff's Motion to Bar Evidence of Expert Witness' Malpractice Lawsuits

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Now comes the Plaintiff, TONI THORNTON, individually and as Special Administrator Of The Estate Of JASON ANTHONY EBNER, Deceased, by her attorneys, SPESIA, AYERS & ARDAUGH, and moves this Court, in Limine, to enter an Order barring any evidence or reference to prior lawsuits against Plaintiff's Expert, Dr. Charles Bird, for the following reasons:

I. Malpractice Cases Involving Plaintiffs' Experts Are Not Relevant To Any Issues In This Case.

The Illinois First District Appellate Court has held:

Relevancy considerations preclude the cross-examination of expert witnesses regarding their personal involvement as defendants in malpractice cases. Mazzone v. Holmes, 557 N.E.2d 186, 193 (1st Dist. 1990) (emphasis added).

In Mazzone, the plaintiff attempted to cross-examine the defendant's expert witness on pending medical malpractice cases. Id. The plaintiff argued that the evidence was relevant to the expert's interest or bias in the case and therefore cross-examination on the prior malpractice cases was proper. Id. The court disagreed, holding, “It is clear, however, that ‘such cross-examination should be strictly limited to the number of referrals, their frequency, and the financial benefit derived from them.’ ” Id., quoting, Sears v. Rutishauser, 466 N.E.2d 210 (III. 1984). Other cases in the First Appellate District holding similarly are Miceikis v. Field, 347 N.E.2d 320, 326 (1st Dist. 1976) (“Having been the subject of prior malpractice litigation is of questionable relevance when weighing the doctor's testimony regarding the medical standard in the present case.”), and Pappas v. Fronczak, 618 N.E.2d 878, 883 (1st Dist. 1993) (holding it was not an abuse of discretion for the trial court to limit cross-examination regarding an unrelated, pending medicalmalpractice case.).

The Second District Appellate Court held likewise in Webb v. Angell, 508 N.E.2d 508, 518. In Webb, the plaintiff attempted to cross-examine Defendant's expert regarding a past malpractice case filed against the expert. Id. The court wrote:

Plaintiff claims the issues in that suit were the same as the issues in the present case and the cross-examination should have been allowed in order to show Dr. Wetzel's motivation and bias in favor of Dr. Nelson. There is no merit in this argument. Id.

The trial court in Webb refused to permit cross-examination on the previous malpractice case on the basis that “the relevancy of any evidence of prior suits against the parties' experts would be outweighed by its prejudicial effect.” Id.The Second District Appellate Court found the trial court was within its “broad discretion” when it refused to allow cross-examination on malpractice claims filed against the expert. Id.

As was the case in Mazzone and Webb, prior malpractice suits filed against Dr. Bird has no relevance to his testimony regarding the standard of care followed during the treatment of Plaintiff.

II. A Physician May Be Sued In Malpractice Regardless Of Their Competency Level So Such Evidence Is Of No Value To The Jury.

A persuasive argument for disallowing evidence of prior malpractice claims for impeachment of an expert witness was presented by the Michigan Court of Appeals in Heshelman v Lombardi, 454 N.W.2d 603 (Mi. Ct. App. 1990). In describing the impropriety of such evidence, the court wrote:

The fact that Dr. Crane was named a defendant in a malpractice suit is in no way probative of his truthfulness. Nor was this fact probative of Dr. Crane's competency or knowledge. Highly competent and knowledgeable physicians have been sued for malpractice. Mere unproven accusations of malpractice stated in a complaint cannot be used as a basis for attacking a physician's knowledge and credibility. Such allegations of malpractice are analogous to unproven charges of criminal activity.

Id. at 608 (emphasis added).

Although not controlling, the reasoning in Heshelman can certainly be applied to the facts of this case. Unrelated prior medical malpractice cases have no bearing on the skill of Dr. Bird as a physicians or his credibility as a witnesses. As a result, evidence of any medical malpractice claims would be prejudicial to Plaintiffs and must be barred.

WHEREFORE, TONI THORNTON, individually and as Special Administrator Of The Estate Of JASON ANTHONY EBNER, respectfully requests this Honorable Court to issue an order barring any evidence or reference to prior lawsuits against Plaintiff's Expert, Dr. Charles Bird, and any further relief this Court deems necessary.

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