Opinion
4-21-0545
06-09-2022
SHARON HEITZ, Plaintiff-Appellant, v. SMITA VYAS and NORMAL-BLOOMINGTON ANESTHESIOLOGISTS, LTD., Defendants-Appellees.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County No. 18L173 Honorable Rebecca S. Foley, Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.
ORDER
KNECHT PRESIDING JUSTICE
¶ 1 Held: The appellate court affirmed, concluding plaintiff had not shown any error, let alone reversible error, with respect to the trial court's rulings.
¶ 2 Plaintiff, Sharon Heitz, brought a medical malpractice action against defendants, Smita Vyas, a physician practicing in the field of anesthesiology, and Normal-Bloomington Anesthesiologists, Ltd., Dr. Vyas's employer. Following a five-day trial, a jury returned a verdict in favor of defendants. Plaintiff now appeals, arguing the trial court committed reversible error when it (1) allowed the causation testimony of defendants' controlled expert witness to go to the jury, (2) prevented her from cross-examining defendants' controlled expert witness with a witness disclosure, and (3) denied her motion for a new trial based upon her discovery of new evidence. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 A. Amended Complaint
¶ 5 In December 2018, plaintiff brought her medical malpractice action against defendants. In her amended four-count complaint, plaintiff alleged Dr. Vyas's negligent intubation resulted in damage to plaintiff's pharynx and a retropharyngeal abscess. Plaintiff sought to hold Dr. Vyas directly liable for her negligence and Normal-Bloomington Anesthesiologists, Ltd., indirectly liable for Dr. Vyas's negligence under the doctrine of respondeat superior. Plaintiff advanced two legal theories of recovery: ordinary negligence and res ipsa loquitur. As to her claim of ordinary negligence, plaintiff alleged, in part, Dr. Vyas deviated from the standard of care by (1) misplacing the intubation instruments, (2) using too much pressure when placing the intubation instruments, and (3) damaging the posterior pharynx. As to her claim of res ipsa loquitur, plaintiff alleged her injuries (1) occurred while the intubation instruments were under Dr. Vyas's control and (2) would not have ordinarily occurred if the standard of care was met.
¶ 6 B. Plaintiff's Pretrial Motion to Bar the Causation Opinions of Defendants' Controlled Expert Witness
¶ 7 Prior to trial, plaintiff filed a motion to bar the causation opinions of defendants' controlled expert witness, arguing, in part, they did "not come close to meeting [the] standard" set forth in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) and codified in Illinois Rule of Evidence 702 (eff. Jan. 1, 2011). Specifically, plaintiff asserted (1) defendants' controlled expert witness had offered opinions based on the "novel scientific principle *** that steroid inhalers, coupled with the use of a CPAP [(continuous positive airway pressure)] machine, can cause a retropharyngeal abscess" and (2) defendants had not shown the underlying principle of the opinions of defendants' controlled expert witness was sufficiently established to have gained general acceptance. Following a hearing, the trial court denied plaintiff's motion, finding plaintiff had not shown the opinions of defendants' controlled expert witness were subject to challenge under Frye.
¶ 8 C. Jury Trial
¶ 9 Over a five-day period in April 2021, the trial court conducted a jury trial.
¶ 10 1. Opening Statements
¶ 11 In opening statements, plaintiff asserted the evidence would show Dr. Vyas's negligent intubation caused "a tear or a perforation" to plaintiff's pharynx that then allowed bacteria to enter into the retropharyngeal space and cause a retropharyngeal abscess. Conversely, defendants asserted the evidence would show Dr. Vyas's complied with the standard of care and did not tear or perforate plaintiff's pharynx during intubation. As to plaintiff's retropharyngeal abscess, defendants asserted the evidence would show the abscess was likely the result of an infection which spread through a superficial abrasion to the pharynx, trauma which ordinarily occurs during intubation, and into the retropharyngeal space. Defendants further asserted the evidence would show plaintiff was particularly susceptible to developing a retropharyngeal abscess in such a fashion where her preoperative use of steroid inhalers weakened the tissues of the pharynx and her postoperative use of a CPAP machine delayed healing and allowed bacteria from the mouth to reach the abrasion.
¶ 12 2. Plaintiff's Evidence
¶ 13 The following is gleaned from the evidence presented by plaintiff. On December 27, 2017, plaintiff, along with her husband, arrived at Advocate BroMenn Hospital in Bloomington, Illinois, for a scheduled shoulder surgery. As part of the surgery, plaintiff was to be administered a general anesthetic. Plaintiff had undergone four prior surgeries under general anesthesia without complication. Like her previous surgeries, plaintiff used inhaled steroids before her surgery and a CPAP machine after her surgery.
¶ 14 Upon entering the operating room at the hospital, plaintiff observed her surgeon, Dr. Joseph Norris, and the physician assistant, Alex Frantz. She also observed Dr. Vyas, the assigned anesthesiologist, "getting her area ready." Plaintiff testified Dr. Vyas "seemed" as if she was "under a lot of tension," "hurried," and "frantic." Dr. Vyas, according to plaintiff, had not conducted any prior examinations of her.
¶ 15 Plaintiff's husband, who was in the waiting room at the hospital, noticed the surgery was taking longer than expected. Following the surgery, Dr. Norris reportedly stated to plaintiff's husband that the surgery was successful, but the intubation was very difficult. Dr. Norris also reportedly advised plaintiff's husband to monitor the condition of plaintiff's throat.
¶ 16 Plaintiff, who was to be discharged from the hospital on December 28, 2017, remained at the hospital until December 29, 2017. Plaintiff testified she had difficulty swallowing and a "[v]ery sore throat," "far more intense" than anything she had previously experienced. Plaintiff disagreed with Frantz's records indicating she no longer had a sore throat on December 29, 2017.
¶ 17 After being discharged from the hospital, plaintiff continued to have difficulty with swallowing. Plaintiff's husband viewed the back of plaintiff's throat with a flashlight and observed it to be "badly bruised," "black and blue."
¶ 18 On December 30, 2017, plaintiff went to the hospital's emergency room. The physician who examined plaintiff did not note a perforation to plaintiff's pharynx. Plaintiff was prescribed medication and then returned home.
¶ 19 On January 1, 2018, plaintiff returned to the hospital's emergency room with a chief complaint of difficulty swallowing. She did not report pain or bleeding from the mouth. While there, plaintiff had blood work done, which showed an elevated white blood cell count. Plaintiff was admitted to the hospital and seen by an otolaryngologist, Dr. Thomas Kelly, who viewed plaintiff's throat with a fiber optic laryngoscopy. Dr. Kelly observed "mild" swelling and some bruising but did not observe any lacerations, cuts, or bleeding. Dr. Kelly believed plaintiff "likely ha[d] post[-]intubation trauma." Dr. Kelly explained his belief did not mean plaintiff had a significant injury from intubation. Dr. Kelly treated plaintiff with antibiotics and steroids. Plaintiff was discharged from the hospital.
¶ 20 On January 3, 2018, plaintiff was seen for a follow-up with Dr. Kelly. Plaintiff reported having a mild sore throat. Dr. Kelly performed a repeat laryngoscopy. Dr. Kelly observed plaintiff's swelling had decreased.
¶ 21 On January 4, 2018, plaintiff appeared for a follow-up appointment from the surgery. Plaintiff reported she could not swallow. According to plaintiff, it was suggested she have "another endoscopy or another scoping to see if they could determine what the problem was and what was causing this."
¶ 22 On January 5, 2018, plaintiff returned to the emergency room with chief complaints of trouble swallowing and worsening throat pain. While there, plaintiff had blood work done, which showed an elevated white blood cell count. Plaintiff was admitted to the hospital. Dr. Gurpreet Singh, an internal medicine physician, viewed the back of plaintiff's throat with a flashlight and tongue depressor. Dr. Singh observed a "small bruise" on the pharynx. Dr. Singh did not observe a perforation or laceration. Plaintiff was again seen by Dr. Kelly, who ordered imaging. Imaging revealed a large fluid collection compatible with a retropharyngeal abscess. Imaging did not reveal a tear or perforation to the pharynx. Dr. Kelly opined the retropharyngeal abscess was more likely than not "related" to the intubation from the shoulder surgery, an opinion to which Dr. Singh agreed based upon the history provided by plaintiff.
¶ 23 On cross-examination, Dr. Kelly was examined about the cause of plaintiff's retropharyngeal abscess. Dr. Kelly acknowledged he did not observe a "laceration or anything *** that would have allowed bacteria from the mouth or the throat to enter" the retropharyngeal space. Dr. Kelly testified "some bumps and scratches and a little bleeding" during intubation was "pretty common." Dr. Kelly agreed inhaled steroids can make the tissue of the pharynx more friable. Dr. Kelly indicated it was "[v]ery possible" that a minor scratch to the pharynx may have led to plaintiff's retropharyngeal abscess, explaining "all it takes is a little bacteria to get into the tissue and to start spreading a little more deeply if the body doesn't fight it off immediately." Dr. Kelly also indicated a retropharyngeal abscess can occur without trauma and by spreading through the blood or lymphatic system.
¶ 24 On January 6, 2018, plaintiff, who had been transferred by ambulance to OSF St. Francis Hospital in Peoria, Illinois, underwent a surgery to drain the retropharyngeal abscess. Dr. James Munns, a cardiothoracic surgeon, performed the surgery, and Dr. Timothy Rice, an anesthesiologist, administered a general anesthetic. Dr. Rice used a GlideScope 3 when intubating plaintiff, an instrument which he believed worked best for intubating adult females. Dr. Rice explained a GlideScope 4 is typically used on a large male and OSF St. Francis did not carry a GlideScope 5. Dr. Rice acknowledged the choice of intubation instrument was reserved to a particular anesthesiologist's discretion, and trauma to an airway during intubation is a known complication which can occur in the absence of negligence. Dr. Rice also acknowledged the regular use of a steroid inhaler may make a patient more susceptible to injury during intubation. Dr. Rice was not aware of personally ever causing a retropharyngeal abscess. Neither Dr. Munns nor Dr. Rice observed a tear or perforation to plaintiff's pharynx. Dr. Munns diagnosed plaintiff with having an iatrogenic, which Dr. Munns described as meaning not the result of a natural disease process, retropharyngeal abscess. Dr. Munns opined the abscess was more likely than not the result of a difficult intubation.
¶ 25 Following the surgery to drain the retropharyngeal abscess, plaintiff received intravenous antibiotics for a 42-day period. At the time of trial, she continued to be unable eat certain foods and had difficulty swallowing and projecting her voice. She also had a scar on her neck from the surgery.
¶ 26 Plaintiff presented controlled expert witness testimony from Dr. Michael Racenstein, a diagnostic radiologist. Dr. Racenstein testified bacteria can enter the retropharyngeal space in "one of two ways," either through the blood stream and lymphatics or through a traumatic injury. He explained the most common way is from a person swallowing a foreign object, like a fish or chicken bone, which causes a puncture into the retropharyngeal space. Dr. Racenstein opined plaintiff "had a traumatic intubation[, ] which was described as challenging and difficult, that led to this injury to the retropharyngeal soft tissues, ultimately leading to colonization by oral flora and then the formation of the abscess." On cross-examination, Dr. Racenstein acknowledged he did not intubate patients as part of his practice, and he would have expected to see a major trauma on imaging or during an examination.
¶ 27 Plaintiff also presented controlled expert witness testimony from Dr. Steven Roth, an anesthesiologist. Dr. Roth opined Dr. Vyas deviated from the standard of care by improperly using the intubation instruments and causing a tear or perforation to plaintiff's pharynx that allowed bacteria to spread into the retropharyngeal space and cause an abscess. Dr. Roth indicated his opinion was based on the multiple, difficult intubation attempts, plaintiff's difficulty swallowing after the procedure, and the retropharyngeal abscess containing bacteria from the mouth. Dr. Roth noted he had never had the occasion to believe the largest available GlideScope, the one initially used by Dr. Vyas, was warranted for intubation. Dr. Roth believed it was unlikely the multiple, difficult intubation attempts would not have resulted in bleeding from the irritation of tissues. Dr. Roth discussed case studies showing a perforation from intubation instruments leading to a retropharyngeal abscess. With respect to the opinions of defendants' controlled expert witness, Dr. Roth opined it was "unlikely" that (1) "a superficial abrasion standing alone" could "cause a retropharyngeal abscess" and (2) a superficial abrasion could subsequently be rendered a tear or a perforation by use of inhaled steroids or a CPAP machine. Dr. Roth opined a retropharyngeal abscess does not occur in absence of negligence of the person, like Dr. Vyas, who had exclusive control of the intubation instruments. He noted neither he nor anyone he had supervised had caused a retropharyngeal abscess.
¶ 28 On cross-examination, Dr. Roth acknowledged plaintiff's medical records indicated (1) Dr. Vyas examined the pharynx and did not see a tear or perforation after the procedure, (2) plaintiff's sore throat resolved itself on December 29, 2017, (3) Dr. Kelly did not observe a tear or perforation on January 1, 2018, and (4) plaintiff did not experience significant pain beyond the pain expected from an intubation in the first three days following the procedure. Dr. Roth also acknowledged superficial trauma to the pharynx and bleeding occur on a regular basis and are not a breach in the standard of care. Dr. Roth agreed it could be difficult intubating a patient, like plaintiff, who has obstructive sleep apnea, because such a patient oftentimes has extraneous tissue in the back of their throat, narrow airways, and/or a larger tongue, all of which make visualization more difficult. Dr. Roth conceded it was possible for a retropharyngeal abscess to develop without a perforation. As to the opinions of defendants' controlled expert witness, Dr. Roth acknowledged "a localized infection" can occur in the area of a superficial injury to the pharynx and then spread from the pharynx to the other spaces of the neck. Dr. Roth also acknowledged the bacteria found in plaintiff's retropharyngeal abscess had the ability "digest or eat through" loose connective tissues and create a communication between different spaces of the neck.
¶ 29 3. Plaintiff s Motion to Cross-Examine Defendant's Controlled Expert Witness With a Disclosure From a Non-Testifying Witness
¶ 30 Prior to the presentation of defendants' evidence, plaintiff made an oral motion to cross-examine defendants' controlled expert witness with a disclosure from a non-testifying expert witness of plaintiff, Dr. Kurosh Takhtehchian, which had been part of the record since April 2020. Defendants objected, asserting (1) Dr. Takhtehchian had been withdrawn as an expert witness by plaintiff, (2) some of the opinions contained in the disclosure were different from the ones offered by Dr. Roth, (3) the opinions were hearsay, and (4) there was no indication Dr. Takhtehchian had reviewed and approved the disclosure. In response, plaintiff asserted she never formally withdrew Dr. Takhtehchian, who was a physician in the same practice as defendant's controlled expert witness, as an expert witness. She acknowledged she had told defendants she would not be calling Dr. Takhtehchian as a witness. Plaintiff maintained she could cross-examine defendants' controlled expert witness with Dr. Takhtehchian's opinions "that are relevant to this trial." Following arguments, the trial court denied plaintiff's motion, expressing concerns with (1) the reliability of the opinions where it was unknown whether Dr. Takhtehchian had read the disclosure and (2) the resulting prejudice to defendants where (a) defendants relied on the representation from plaintiff that Dr. Takhtehchian would not be called as a witness and (b) allowing the cross-examination would inject new opinions into the case. The court also found plaintiff would not be prejudiced because she was had presented testimony from an alternative expert witness.
¶ 31 4. Defendants' Evidence
¶ 32 The following is gleaned from the evidence presented by defendants. Prior to intubating plaintiff, Dr. Vyas reviewed a pre-anesthetic evaluation and a pre-anesthetic update. In addition, Dr. Vyas performed a preoperative airway exam of plaintiff outside the operating room. Dr. Vyas anticipated the possibility of a difficult intubation.
¶ 33 Because plaintiff had "a lot of redundant tissue," Dr. Vyas decided to use a Mac 5 GlideScope to intubate. Dr. Vyas did not, however, insert the instrument "all the way." Instead, she used it as if it was a smaller Mac 3 GlideScope. Because of the limited view with the Mac 5 GlideScope, Dr. Vyas switched to a fiberoptic scope. The light on the fiberoptic scope stopped working before Dr. Vyas crossed plaintiff's teeth with the scope. As a result of this technical difficulty, Dr. Vyas switched to a Mac 3 GlideScope. Dr. Vyas had a better view with the Mac 3 GlideScope than she did with the Mac 5 GlideScope, and she was able to successfully intubate plaintiff using that instrument. Dr. Vyas testified, because of the multiple attempts to intubate, she "specifically looked" for any complications following intubation. Dr. Vyas did not observe any complications and documented plaintiff's teeth and pharynx were unchanged from preinduction.
¶ 34 Dr. Vyas, who had intubated approximately 8, 000 patients in her career as an anesthesiologist, testified she was "[absolutely" not rushed during plaintiff's intubation. She explained she had worked with her team for 10 years and had worked with Dr. Norris several times. Dr. Vyas directed a nurse to bring plaintiff back to the operating room only when she was ready to proceed.
¶ 35 Dr. Vyas testified she complied with the standard of care and did not cause a tear or perforation to plaintiff's pharynx. Dr. Vyas disagreed with Dr. Roth's opinion that a retropharyngeal abscess cannot occur in the absence of negligence. Dr. Vyas explained bacteria can enter the retropharyngeal space without someone being negligent or perforating the pharynx. Dr. Vyas, although maintaining she did not see any blood during plaintiff's intubation, explained it would not have been usual to see some blood because of the delicate tissue of the pharynx.
¶ 36 Defendants presented controlled expert witness testimony from William Soden, a physician practicing in the fields of anesthesiology, internal medicine, and critical care. Both prior to and after Dr. Soden's testimony, plaintiff objected "to any of the testimony of Dr. Soden on the issue of causation" because "[h]is opinions are a clear violation of the Frye standard." The trial court overruled plaintiff's objections.
¶ 37 Dr. Soden, after testifying about his extensive education and experience, opined, based upon his review of the medical records and depositions in this case, Dr. Vyas complied with the standard of care and did not tear or perforate plaintiff's pharynx during intubation. Dr. Soden indicated his opinion that Dr. Vyas did not cause a perforation was based on (1) Dr. Vyas observing plaintiff's teeth and pharynx to be unchanged post-procedure, (2) plaintiff's symptoms initially improving post-procedure, and (3) Dr. Kelly observing no perforation during his examinations. Dr. Soden testified a retropharyngeal abscess can occur in the absence of negligence or a perforation to the pharynx. Dr. Soden provided the following explanation for plaintiff's retropharyngeal abscess:
"So there was some minor trauma to the pharynx. That happens. And as-and I agree with Dr. Roth that superficial trauma to the oropharynx or hypopharynx is within the standard of care. It is not negligence. And so in this setting of minor trauma, in the setting of tissues that are abnormal, because of her use of a steroid inhaler and the use of a CPAP mask which is blowing positive air into that pharynx so that that superficial trauma cannot fully repair
itself, bacteria which are in our mouth normally were colonized by multiple types of bacteria can get in-got into the tissues where that superficial irritation occurred, and then with the CPAP mask in place blowing that air into that area caused that bacteria to seed in that area and subsequently develop an infection that led to a fistula or a tract into that retropharyngeal area to cause her abscess a number of days later, not initially, because it took, clearly, a number of days for this to occur."
¶ 38 On cross-examination, Dr. Soden acknowledged he had not used a Mac 5 GlideScope in 10 to 12 years, and the hospital where he worked did not have that instrument available for doctors. Dr. Soden agreed there had to be some type of communication between plaintiff's pharynx and the retropharyngeal space to allow the bacteria from the pharynx to get into the retropharyngeal space and cause an abscess. Dr. Soden also agreed the communication under his theory would have occurred at the area of the superficial trauma. Dr. Soden disagreed with the other physicians to the extent they suggested Dr. Vyas caused plaintiff's retropharyngeal abscess but agreed with them to the extent they suggested the retropharyngeal abscess was related to Dr. Vyas's intubation. Dr. Soden was not aware of any of the intubations he administered or supervised having resulted in a retropharyngeal abscess. Dr. Soden acknowledged he did not attempt to find any medical literature supporting his theory but rather based it upon his years of experience and review of the records. When asked if he was aware of the requisite pressure setting on a CPAP machine to drive bacteria through the pharynx, Dr. Soden testified any positive pressure would push secretions containing bacteria through the pharynx. Dr. Soden acknowledged the occurrence of retropharyngeal abscess following an intubation is a rare complication.
¶ 39 5. Verdict
¶ 40 Following its deliberations, the jury returned a verdict in favor of defendants.
¶ 41 D. Posttrial Proceedings
¶ 42 After the jury returned its verdict, plaintiff filed a motion for a new trial, which she later amended. In her amended motion, plaintiff argued she was entitled to a new trial because the trial court erroneously (1) allowed Dr. Soden's causation testimony to go to the jury where it presented opinions in violation of the standard set forth in Frye and codified in Illinois Rule of Evidence 702 and (2) prevented her from cross-examining Dr. Soden with Dr. Takhtehchian's disclosure where the disclosure was a matter of public record. In addition, plaintiff argued she was entitled to a new trial based upon her discovery of new evidence, that evidence being Dr. Norris's observation that a GlideScope was bloody after plaintiff's intubation. Plaintiff attached to her motion affidavits in which (1) Dr. Norris avers, "I re-entered the operating room when the intubation was completed and noticed that the GlideScope was bloody" and (2) plaintiff's counsel avers he had no reason to believe during the January 2019 deposition of Dr. Norris that Dr. Norris had noticed a bloody GlideScope when he returned to the operating room, especially after Dr. Norris had testified to having left the operating room when Dr. Vyas asked for a different GlideScope and to having no recollection of a conversation with plaintiff's husband. Following a hearing, the court denied plaintiff's motion. With respect to her claim of newly discovered evidence, the court found plaintiff had not shown the evidence was (1) so conclusive that it would probably change the result on retrial and (2) undiscoverable before trial with the exercise of due diligence.
¶ 43 This appeal followed.
¶ 44 II. ANALYSIS
¶ 45 On appeal, plaintiff argues the trial court committed reversible error when it (1) allowed Dr. Soden's causation testimony to go to the jury, (2) prevented her from cross-examining Dr. Soden with Dr. Takhtehchian's disclosure, and (3) denied her motion for a new trial based upon her discovery of new evidence. Defendants disagree with each of plaintiff's arguments.
¶ 46 First, plaintiff argues the trial court committed reversible error when it allowed Dr. Soden's causation testimony to go to the jury. Specifically, plaintiff contends Dr. Soden's "opinion that [her] abscess was caused by an abrasion coupled with a steroid inhaler and use of a CPAP [machine]" was in violation of the standard set forth in Frye and codified in Illinois Rule of Evidence 702 and should have been excluded because (1) it was based on the "novel scientific principle *** that steroid inhalers, coupled with the use of a CPAP machine, can cause a retropharyngeal abscess" and (2) defendants had not shown the underlying principle of the opinion was sufficiently established to have gained general acceptance.
¶ 47 We must initially clarify the issue properly before this court. As part of her argument, plaintiff challenges Dr. Soden's knowledge and experience. For instance, plaintiff points out Dr. Soden admitted none of the intubations which he administered or supervised had caused a retropharyngeal abscess. Plaintiff also challenges the sources from which Dr. Soden gathered information to reach his opinions. In particular, plaintiff asserts defendants, in violation of Illinois Rule of Evidence 703 (eff. Jan. 1, 2011), failed to demonstrate the facts or data upon which Dr. Soden relied were of a type reasonably relied upon experts in the particular field. These challenges, at best, present foundational issues, which were not preserved for appeal. See, e.g., People v. Simmons, 2016 IL App (1st) 131300, ¶ 115, 66 N.E.3d 360. Accordingly, the sole issue properly before this court for review is whether Dr. Soden offered an opinion in violation of the standard set forth in Frye and codified in Illinois Rule of Evidence 702.
¶ 48 The standard set forth in Frye and codified in Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides as follows: "Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs." See also In re Commitment of Simons, 213 Ill.2d 523, 529, 821 N.E.2d 1184, 1188 (2004) ("In Illinois, the admission of expert testimony is governed by the standard first expressed in [Frye]."). Whether Dr. Soden offered an opinion in violation of this standard is an issue subject to de novo review. See id. at 531 ("The trial court's Frye analysis *** is *** subject to de novo review.").
¶ 49 Both plaintiff's controlled expert witness and Dr. Soden agreed plaintiff's retropharyngeal abscess was likely caused by bacteria from the mouth reaching the retropharyngeal space through some type of communication. Plaintiff's controlled expert witness opined the communication resulted from a tear or perforation to the pharynx. Conversely, Dr. Soden opined the communication resulted from an infection of a superficial abrasion of the pharynx which then spread through the tissues of the neck. Dr. Soden based his opinion on (1) the likelihood of a patient sustaining a superficial abrasion to the pharynx during intubation and (2) the ability of bacteria to seed in an abrasion and pass through the spaces of the neck. Dr. Soden believed plaintiff was particularly susceptible to developing a retropharyngeal abscess in such a fashion because her preoperative use of steroid inhalers weakened the tissues of the pharynx and her postoperative use of a CPAP machine delayed healing and allowed bacteria from the mouth to reach the abrasion.
¶ 50 In context, Dr. Soden did not, as plaintiff asserts, offer an opinion based on the "novel scientific principle *** that steroid inhalers, coupled with the use of a CPAP machine, can cause a retropharyngeal abscess." Instead, Dr. Soden's opinion as to the cause of plaintiff's retropharyngeal abscess was based upon the principle that an infection can spread through a superficial abrasion of the pharynx and into the retropharyngeal space and cause a retropharyngeal abscess. Plaintiff, on appeal, does not suggest this principle is novel. In fact, plaintiff concedes the "proposition that an abrasion or small cut may become infected" is a "natural disease process" with which" [a]ll of us are familiar." Indeed, plaintiff's controlled expert witness acknowledged (1) "a localized infection" can occur in the area of a superficial injury to the pharynx and then spread to the other spaces of the neck and (2) the bacteria found in plaintiff's retropharyngeal abscess had the ability "digest or eat through" loose connective tissues and create a communication between different spaces of the neck. Absent a showing that Dr. Soden offered an opinion based on a novel scientific principle, there can be no violation of the standard set forth in Frye and codified in Illinois Rule of Evidence 702.
¶ 51 To be sure, Dr. Soden did believe plaintiff's use of steroid inhalers and a CPAP machine were factors supporting his opinion as to the cause of plaintiff's retropharyngeal abscess. Dr. Soden's belief was based on the principles (1) inhaled steroids may cause a person's lining of the pharynx to be more friable and, therefore, susceptible to trauma and (2) the use of a CPAP machine may delay the healing of a superficial injury of the pharynx and expose bacteria from the mouth to the injury. Plaintiff, on appeal, does not dispute these principles. In fact, plaintiff's witnesses acknowledged inhaled steroids may cause a person's lining of the pharynx to be more friable and susceptible to injury. Moreover, even if the testimony about these contributing factors should have been excluded, plaintiff has not explained how the court's error was prejudicial and affected the outcome of her trial. See Fellows v. Barajas, 2020 IL App (3d) 190388, ¶ 16, 163 N.E.3d 259 ("[E]rroneous evidentiary rulings will not support a reversal unless the error was prejudicial and affected the outcome of the trial.").
¶ 52 In summary, plaintiff has not shown the trial court committed error, let alone reversible error, when it allowed Dr. Soden's causation testimony to go to the jury. In so finding, we note defendants characterize Dr. Soden's causation testimony as "pure opinion testimony" as it has been described in Noakes v. National R.R. Passenger Corp., 363 Ill.App.3d 851, 855-59, 845 N.E.2d 14, 18-20 (2006). Although defendants' characterization may be correct based upon the argument presented by plaintiff on appeal, it is not essential to our disposition, and therefore, we provide no further comment on the matter.
¶ 53 Next, plaintiff argues the trial court committed reversible error when it prevented her from cross-examining Dr. Soden with Dr. Takhtehchian's disclosure. Specifically, plaintiff contends "the fact that Dr. Soden's own partner disagreed with Dr. Soden's expressed opinions is absolutely critical information that the jury needed to hear."
¶ 54 "The scope of cross-examination rests within the discretion of the trial court and will not be disturbed on review absent a clear abuse of that discretion resulting in manifest prejudice to the party claiming error." McDonnell v. McPartlin, 192 Ill.2d 505, 533, 736 N.E.2d 1074, 1090 (2000). "The threshold for finding an abuse of discretion is a high one and will not be overcome unless it can be said that the trial court's ruling was arbitrary, fanciful, or unreasonable, or that no reasonable person would have taken the view adopted by the trial court." (Internal quotation marks omitted.) Yanello v. Park Family Dental, 2017 IL App (3d) 140926, ¶ 33, 79 N.E.3d 294.
¶ 55 Here, the trial court provided a thoughtful explanation for why it was denying plaintiff's oral, midtrial motion to cross-examine Dr. Soden with Dr. Takhtehchian's disclosure. Plaintiff, on appeal, does not address the court's explanation. Plaintiff further has not provided any authority or reasoned argument for her proposition that a jury, as matter of law, must be informed that a witness who works in the same practice as a testifying controlled expert witness has formed an opinion contrary to the testifying witness. In addition, plaintiff has not explained how the court's limitation of her cross-examination resulted in manifest prejudice to her.
¶ 56 In summary, plaintiff has not shown the trial court committed error, let alone reversible error, when it prevented her from cross-examining Dr. Soden with Dr. Takhtehchian's disclosure.
¶ 57 Last, plaintiff argues the trial court committed reversible error when it denied her motion for a new trial based upon her discovery of new evidence. Specifically, plaintiff contends she was entitled to a new trial based on the evidence of a bloody GlideScope because it concerned the merits of the case, was discovered after the trial, and could not have been discovered before the verdict by reasonable inquiry and due diligence.
¶ 58 "Illinois courts do not favor posttrial motions based on newly discovered evidence and subjects them to close scrutiny." City of Chicago v. Eychaner, 2020 IL App (1st) 191053, ¶ 37, 171 N.E.3d 31. "A motion for a new trial based on newly discovered evidence requires establishing the new evidence be (i) so conclusive it probably changes the judgment should a new trial be granted, (ii) discovered after the trial, (iii) undiscoverable before trial with the exercise of due diligence, (iv) material to the issue, and (v) not merely cumulative to the evidence at trial." (Internal quotation marks omitted.) Id. ¶ 38.
¶ 59 Here, the trial court found plaintiff had not shown the evidence of a bloody GlideScope was (1) so conclusive that it would probably change the result on retrial and (2) undiscoverable before trial with the exercise of due diligence. We agree with the court's assessment. As the trial court noted, several physicians testified bleeding during intubation was within the standard of care. Dr. Norris's observation that a "GlideScope was bloody" was not, therefore, so conclusive that it would probably change the result on retrial. As the trial court also noted, plaintiff could have discovered the evidence by simply asking Dr. Norris during his deposition about his observations after he reentered the operating room. Dr. Norris's observation about the GlideScope was not, therefore, undiscoverable before trial with the exercise of due diligence.
¶ 60 In summary, plaintiff has not shown the trial court committed error, let alone reversible error, when it denied her motion for a new trial based upon her discovery of new evidence. In so finding, we note plaintiff cites a posttrial affidavit from one of the jurors in support of her argument. That affidavit, however, was stricken on motion of defendants below and, therefore, is not properly before this court for consideration. We also note the cases cited by plaintiff-three criminal cases and one civil case which was later reversed-are factually distinguishable from the instant case and, therefore, do not support her position. See People v. Molstad, 101 Ill.2d 128, 461 N.E.2d 398 (1984); People v. Coleman, 2013 IL 113307, 996 N.E.2d 617; People v. Woods, 2020 IL App (1st) 163031, 158 N.E.3d 304; and Pritchett v. Steinker Trucking Co., 85 Ill.App.2d 340, 230 N.E.2d 68 (1967), rev'd, 40 Ill.2d 510, 240 N.E.2d 684 (1968).
¶ 61 III. CONCLUSION
¶ 62 We affirm the trial court's judgment.
¶ 63 Affirmed.