Opinion
No. 1-00-4028
August 29, 2002
Appeal from the Circuit Court of Cook County, Honorable Leonard L. Levin, Judge, presiding.
The plaintiff, Heather Linstrom, brought the instant medical malpractice action on behalf of her minor daughter, Victoria Linstrom, against the defendants, Dr. Jae Han and the medical services corporation for which he practiced, W.S.K., S.C., to recover damages for injuries to Victoria. The plaintiff alleged that Dr. Han's treatment of spotting during the first trimester of her pregnancy caused Victoria's limb-reduction birth defect. The matter was tried before a jury, resulting in a judgment against both defendants in the sum of $4,502,312. On appeal, the defendants contend that the trial court erred by: (1) allowing Dr. Allen Goldman to testify to a theory of causation that is not generally accepted in the scientific community; (2) permitting Dr. David Abramson to testify that Dr. Han breached the standard of care; (3) permitting Dr. Goldman to testify that Dr. Han breached the standard of care; (4) denying the defendants' motion for a judgment notwithstanding the verdict; and (5) failing to order a new trial either because the judgment was against the manifest weight of the evidence or because the trial court erred by excluding certain causation evidence. The plaintiff filed a conditional cross-appeal, challenging certain evidentiary rulings made by the trial judge. For the following reasons, we reverse and remand this cause to the circuit court for a new trial and dismiss the plaintiffs cross-appeal.
On July 17, 1993, the plaintiff was seen by her obstetrician, Dr. Shiv Puri, who confirmed that the plaintiff was pregnant. Because she began experiencing spotting and cramps, which caused her to worry that she might have a miscarriage, the plaintiff went to see Dr. Pun again on July 22, 1993, and reported her symptoms.
On July 23, 1993, the plaintiff saw Dr. Han, also an obstetrician, and told him about her spotting and cramping. Dr. Han took the plaintiffs history and performed an examination. He prescribed 200-milligram vaginal progesterone suppositories and instructed her to use one suppository each night. The plaintiff filled the prescription and, for the next 56 days, used the medication as directed.
Victoria was born on March 18, 1994, with a limb-reduction condition known as "radical club hand." In Victoria's case, the condition manifested itself by the absence of the radial bone in her right forearm, the absence of a right thumb, and the fusing of the index and third fingers on her right hand. On November 1, 1994, the instant action was instituted charging, inter alia, that Dr. Han's prescription of progesterone suppositories to treat the plaintiff constituted a failure to exercise reasonable care which proximately caused Victoria's limb-reduction defect. During discovery, the plaintiff identified Dr. Allen Goldman as her expert witness on the issue of causation and Dr. David Abramson as her expert witness on the issue of standard of care. Both witnesses were deposed.
At Dr. Goldman's deposition, he testified that he was a board-certified pediatrician. Dr. Goldman answered questions concerning his opinions as set forth in the plaintiffs answers to interrogatories. In particular, he testified about his opinion that the prescription of progesterone suppositories was one of the proximate causes of Victoria's birth defect. Dr. Goldman explained that he based his causation opinion on various articles, the substance of which he testified to in detail. The doctor acknowledged that none of the articles upon which he relied studied the causal relationship between the ingestion of only progesterone during the first trimester of pregnancy and limb-reduction defects; rather, he relied upon studies that found a positive association between malformations and progestins. Dr. Goldman testified that progestins are biochemically similar to progesterone and that their effect on the development of a fetus would be very similar to that of progesterone.
Dr. Abramson, at his deposition, testified that he was board-certified in pediatric medicine, newborn and perinatal medicine, and emergency medicine. Dr. Abramson acknowledged that he was not an obstetrician/gynecologist. He testified, though, that he had taught in residency programs in obstetrics and gynecology and explained that the field of perinatology includes the fields of obstetrics and gynecology. Dr. Abramson stated that he was familiar with the standard of care of an obstetrician/gynecologist in the treatment of a patient with first trimester bleeding and opined that Dr. Han had deviated from that standard of care by, among other things, prescribing a progestational agent to treat the plaintiff based solely on the fact that she was pregnant and bleeding or spotting.
Prior to trial, the defendants filed separate motions in limine to bar Drs. Goldman and Abramson from testifying to their respective expert opinions. The defendants asserted that Dr. Goldman's causation opinion had no scientific or factual basis. As to Dr. Abramson, they argued that he lacked the qualifications to testify as to the standard of care of an obstetrician/gynecologist. The trial court denied both motions, and the case proceeded to a jury trial.
At trial, Dr. Han testified as an adverse witness during the plaintiffs case-in-chief. He acknowledged that he saw the plaintiff on July 23, 1993, which was 25 days after she became pregnant, and that he was aware that this was her first pregnancy. Dr. Han testified that he prescribed 200-milligram progesterone suppositories to treat the plaintiffs spotting and directed her to take one suppository every night. According to Dr. Han's records, the plaintiff took the suppositories, as directed, for 56 days.
Dr. Goldman testified next and stated that he graduated from Brown University with a bachelor's degree in chemistry and a master's degree in biology and from State University of New York at Syracuse with a medical doctor's degree. After obtaining his medical degree, he completed a pediatric internship at Yale Medical School and, thereafter, completed his residency in pediatrics at the University of Pennsylvania's Children's Hospital in Philadelphia. While at the University of Pennsylvania, Dr. Goldman became: a professor of pediatrics and pharmacology; a teratologist, a person who studies the causes of birth defects; and a member of the graduate group in epidemiology.
Dr. Goldman opined that Dr. Han violated the standard of care by treating the plaintiff with daily 200-milligram doses of progesterone for 56 days. He based that opinion on his complementary view that there were no benefits to prescribing progesterone to the plaintiff. Dr. Goldman also opined that the plaintiffs ingestion of progesterone, pursuant to Dr. Han's instructions, was the proximate cause of Victoria's birth defect. In reaching his opinion, Dr. Goldman considered negative studies, which either found that no connection exists between the ingestion of progestational agents during pregnancy and birth defects or in which the investigator could not find a connection, and positive studies, which compared subjects who were exposed to a progestational agent with those who were not exposed and found an increased risk of teratogenicity. Dr. Goldman concluded that the negative studies were less reliable. He explained that the fact a study does not find the existence of an effect does not prove that there is no effect. He also testified that the power values, the product of a statistical formula that indicates whether a test is likely to find a causal relationship, of the negative studies were insufficient to conclude that there was no connection between exposure to progesterone and the risk of malformations. Dr. Goldman stated that he relied upon the positive studies and, based upon his interpretation of those studies, concluded that progesterone had an increased risk of causing limb-reduction defects in humans. Moreover, he testified that, from 1977 to 1989, the Food and Drug Administration (FDA) warned that there was an increased risk of limb-reduction defects associated with the ingestion of progestational agents, which included progesterone. The fact that the FDA discontinued the warnings in 1989 did not alter Dr. Goldman's opinion. In his view, progesterone should never be prescribed during pregnancy as it provides no benefit. He explained that there was no practical reason to warn physicians against the possible dangers of prescribing during pregnancy a drug which is not suitable for prescription to pregnant women under any circumstances.
On cross-examination, Dr. Goldman agreed that none of the articles that he relied upon studied whether there was an association between the use of only progesterone in a pre-threatened abortion situation and limb-reduction defects. Dr. Goldman was also questioned about other studies that found no increase in limb-reduction defects in children whose mothers took progesterone or medroxyprogesterone acetate during pregnancy. On redirect examination, however, Dr. Goldman testified that, in his view, none of the results from these tests were reliable because each one of them either examined too few patients, failed to have a control group, or the power value was too low.
Thereafter, Dr. Abramson testified that he graduated from Georgetown University School of Medicine, completed a fellowship in newborn and perinatal medicine, and was board certified in pediatric medicine, newborn and perinatal medicine, and emergency medicine. Dr. Abramson stated that he was familiar with the standard of care, as it existed throughout the United States in 1993, of a reasonably well-qualified obstetrician in counseling and prescribing medicine or progesterone to a patient who was spotting during her first pregnancy. He opined that, contrary to Dr. Han's treatment of the plaintiff, it was not within that standard of care to prescribe progesterone to a patient during her first pregnancy. On cross-examination, Dr. Abramson acknowledged that he was not board-certified in obstetrics and gynecology, but he explained that perinatal medicine focuses on the interface between the mother and the fetus and that he had taught in many residency programs in obstetrics and gynecology. After the plaintiff rested her case, the defendants made motions to strike the testimony of Drs. Goldman and Abramson and for a directed verdict. The trial court denied all of the defendants' motions.
The defense called Drs. Mary Molo and Han, who opined that the medical care received by the plaintiff was consistent with the standard of care for an obstetrician. Drs. Carol Booth, Robert Brent, and Barbara Burton testified that, in their opinion, Victoria's limb-reduction defect was not caused by Dr. Han's treatment of the plaintiff with progesterone. Specifically, Dr. Brent testified about certain studies that did not find a causal relationship between progesterone and limb-reduction birth defects. In addition, he testified that, when the FDA retracted its warning about progestational agents causing limb-reduction defects in 1989, the unanimous opinion presented to the FDA was that such agents were not associated with an increased risk of limb-reduction defects.
After the defendants rested, they renewed their motions to strike the testimony of Drs. Goldman and Abramson and for a directed verdict. The trial court denied each motion. Following closing arguments, the jury deliberated and returned a $4,502,312 verdict against the defendants. Thereafter, the trial court denied the defendants' post-trial motion for a judgment notwithstanding the verdict, a new trial, or a remittitur. The defendants now appeal seeking either a judgment notwithstanding the verdict or, alternatively, a new trial.
We first address the defendants' claim that they are entitled to a reversal and the entry of a judgment notwithstanding the verdict because the plaintiff failed to prove causation and a breach of the relevant standard of care. A trial court should enter a judgment notwithstanding the verdict "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967). We review de novo a trial court's decision to deny a judgment notwithstanding the verdict ( McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 132, 720 N.E.2d 242 (1999)) and, in doing so, apply the Pedrick standard ( Knight v. City of Chicago, 298 Ill. App.3d 797, 800, 700 N.E.2d 110 (1998)). In a medical malpractice action, such as the instant case, the plaintiff must, by expert medical testimony ( Walski v. Tiesenga, 72 Ill.2d 249, 256, 381 N.E.2d 279 (1978)), prove: (1) the proper standard of care by which to measure the defendant's conduct, (2) a negligent breach of that standard of care, and (3) resulting injury proximately caused by the defendants's lack of skill or care ( Suttle v. Lake Forest Hospital, 315 Ill. App.3d 96, 102, 733 N.E.2d 726 (2000)). For the reasons that follow, we conclude that the plaintiff met this burden as to each of the elements of her claim, and thus, the defendants are not entitled to a judgment notwithstanding the verdict.
The only evidence that the plaintiff presented on the issue of causation was Dr. Goldman's testimony. He testified that Dr. Han's treatment of the plaintiff with progesterone was the proximate cause of Victoria's limb-reduction birth defect. However, the defendants argue that the trial court erred by allowing Dr. Goldman to testify to a theory of causation that is not generally accepted in the scientific community. We disagree.
In Illinois, the exclusive test for the admission of expert testimony is governed by the standard expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 76, 767 N.E.2d 314 (2002). The Frye "general acceptance" test provides that an expert's testimony is admissible if"the thing from which the deduction is made [has been] sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. Accordingly, the methodology or technique an expert uses to reach an opinion, not the opinion itself, must satisfy the general acceptance test. Donaldson, 199 Ill.2d at 77. "[G]eneral acceptance of methodologies does not mean universal' acceptance of methodologies." Donaldson, 199 Ill.2d at 77. "The medical community may entertain diverse opinions regarding causal relationships, but this diversity of opinion does not preclude the admission of testimony that a causal relationship exists if the expert used generally accepted methodology to develop the conclusion." Donaldson, 199 Ill.2d at 77-78. A trial judge's decision that an expert's opinion was based on a methodology that has gained general acceptance will not be disturbed absent an abuse of discretion. People v. Miller, 173 Ill.2d 167, 187-88, 670 N.E.2d 721 (1996).
In this case, Dr. Goldman reached his opinion that progesterone caused Victoria's birth defect by reviewing studies addressing the causal relationship between birth defects and progestins. However, Dr. Goldman explained that, despite the fact that progestins are different from progesterone, the two are biochemically similar and would have a very similar effect on the development of a fetus. Dr. Goldman, therefore, reached his opinions using the method of extrapolation, which "involves establishing a cause and effect relationship based upon similar, yet not identical, scientific studies and theories." Donaldson, 199 Ill.2d at 82 n. 2. The issue presented is whether the plaintiff sufficiently proved that the extrapolation method used by Dr. Goldman to reach his causation opinion was generally accepted in the scientific community.
In Donaldson, the plaintiffs' causation experts used the extrapolation technique to reach their opinions concerning an epidemiological question to which medical science lacked a clear answer. Donaldson, 199 Ill.2d at 87 (medical science neither specifically established nor rejected a causal relationship between coal tar and neuroblastoma). Our supreme court held that the extrapolation technique was "sufficiently established to have gained general acceptance in these limited circumstances." Donaldson, 199 Ill.2d at 88. Although the disease in that case was rare and not the subject of extensive study, we do not read Donaldson to hold that the extrapolation technique is generally accepted only if the number of epidemiological studies on a particular subject has not exceeded a certain quantity. Rather, we view Donaldson as holding that extrapolation is a generally accepted technique to generate a tenable causation opinion in cases that involve an epidemiological question to which medical science lacks a clear answer. See Donaldson, 199 Ill.2d at 86, citing Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984); Mendes-Silva v. United States, 980 F.2d 1482, 1487 (D.C. Cir. 1993)). The lack of a clear answer exists when qualified expert witnesses offer causation opinions that are mutually exclusive yet adequately based in science. However, a causation opinion cannot be adequately based in science if it is irreconcilable with a series of longstanding epidemiological studies. See Mendes-Silva, 980 F.2d at 1486-87; Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-31 (D.C. Cir. 1988).
In this case, Drs. Brent and Goldman, both of whom had extensive backgrounds in the field of teratology, testified about the different studies upon which they based their respective causation opinions. Dr. Brent testified that he had reviewed all of the human epidemiology studies that dealt with progesterone and stated that there were six reports, all of which were published in the 1970's and 1980's, involving the exposure of pregnant women to progesterone. None of these studies, according to Dr. Brent, found an association between progesterone and limb-reduction defects. Consequently, Dr. Brent opined that Dr. Han's treatment of the plaintiff with progesterone did not cause Victoria's birth defect. However, Dr. Goldman testified that, in his opinion, the studies which found no causal relationship were unreliable because they sampled too few subjects, lacked a control group, or had low power values. He also explained that the lack of a finding of an association did not definitively establish that there was no association. Dr. Goldman relied upon studies that, based on his interpretations, found a causal relationship between progestin, which he explained is biochemically similar to progesterone, and limb-reduction malformations and opined that Dr. Han's treatment of the plaintiff with progesterone caused Victoria's limb-reduction defect.
The question of whether progesterone caused Victoria's limb-reduction defect is scientific in nature, and it is to the scientific community that we must look for the answer. See Richardson, 857 F.2d at 829. For this reason, we must rely upon the testimony of expert witnesses. The expert witnesses in the instant case, Drs. Brent and Goldman, were eminently qualified to testify about the possible teratogenic effect of progesterone; however, after analyzing various studies and reports, they reached different opinions. "`[T]he mere existence of a dispute does not preclude a finding that the procedure is generally accepted.'" Donaldson, 199 Ill.2d at 78, quoting People v. Dalcollo, 282 Ill. App.3d 944, 957, 669 N.E.2d 378 (1996). Indeed, this dispute demonstrates that medical science lacked a clear answer to the epidemiological question of whether progesterone causes limb-reduction birth defects. Consequently, in this case, the extrapolation technique was a generally accepted method of generating a causation opinion. See Mendes-Silva, 980 F.2d at 1486-87 (because medical science did not have a clear answer to epidemiological question raised in case, expert could testify about causation opinion even though it was based on studies that did not exactly duplicate the conditions at issue).
Having concluded that the extrapolation technique was a generally accepted methodology in the instant case, we find no error in the trial court's decision to permit Dr. Goldman to testify about his causation opinion. We also find that the plaintiff presented sufficient evidence from which the jury could conclude that Dr. Han's treatment of her first trimester spotting with progesterone proximately caused Victoria's limb-reduction defect.
The defendants next challenge the trial court's decision to allow Dr. Abramson to testify that it was not within the standard of care to prescribe progesterone to a patient during her first pregnancy and that Dr. Han had deviated from that standard by treating the plaintiff with progesterone. They assert that Dr. Abramson was incompetent to so opine because he was not an obstetrician/gynecologist. We disagree.
Our supreme court has set forth the three-step analysis to be used to determine whether a physician is qualified and competent to testify to the standard of care owed by another physician:
"(1) the expert must be a licensed member of the school of medicine about which he proposes to testify; (2) the expert must prove his familiarity with other physicians' methods, procedures, and treatment; and (3) once the above foundation is laid, the trial court has the discretion to determine whether the physician is qualified and competent to state his opinion regarding the standard of care."
Gill v. Foster, 157 Ill.2d 304, 316-17, 626 N.E.2d 190 (1993), citing Purtill v. Hess, 111 Ill.2d 229, 243, 489 N.E.2d 867 (1986)).
Dr. Abramson was a licensed medical doctor and practiced in the field of perinatology, a subspecialty of obstetrics. See Stedman's Medical Dictionary 1349 (27th ed. 2000). Furthermore, he previously taught in a residency program for obstetricians. We find no abuse of discretion in the trial court's determination that Dr. Abramson was competent to testify as to the standard of care of an obstetrician. See Benison v. Silverman, 233 Ill. App.3d 689, 698-700, 599 N.E.2d 1101 (1992) (holding that an internist, which was more specialized field of medical practice than that of a general family practitioner, could testify about the standard of care of a general family practitioner). Furthermore, we conclude that Dr. Abramson's testimony presented the jury with sufficient evidence from which it could conclude that Dr. Han breached the standard of care in his treatment of the plaintiff.
The defendants do not dispute that Dr. Han owed the plaintiff the duty to exercise reasonable care as her known condition required. The plaintiff offered sufficient evidence to create issues of fact on whether Dr. Han deviated from the standard of care and caused Victoria's limb-reduction defect. We conclude, therefore, that the evidence, when viewed in its aspects most favorable to the plaintiff, did not so overwhelmingly favor the defendants that no contrary verdict based on that evidence could ever stand. Consequently, we find no error in the trial court's denial of the defendants' motion for a judgment notwithstanding the verdict.
Alternatively, the defendants argue that they are entitled to a new trial because: (1) the trial court erred in admitting Dr. Goldman's testimony that Dr. Han breached the standard of care by treating the plaintiff with progesterone, (2) the trial court erred by excluding certain evidence favorable to the defendants, and (3) the jury's verdict was against the manifest weight of the evidence.
A motion for a new trial is a matter addressed to the sound discretion of the trial court, and a court s ruling on such a motion will not be reversed absent a clear abuse of that discretion. Maple v. Gustafson, 151 Ill.2d 445, 455, 603 N.E.2d 508 (1992). In determining whether the trial court abused its discretion, we must consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial. Maple, 151 Ill.2d at 455.
The defendants raise two arguments in support of their assertion that they are entitled to a new trial as a result of the admission of Dr. Goldman's testimony that, in his opinion, Dr. Han breached the standard of care by treating the plaintiff with progesterone. They contend that, because Dr. Goldman was not listed as a standard-of-care expert in the plaintiffs answers to interrogatories, as required by Supreme Court Rule 213 (177 Ill.2d R. 213), the trial court erred by admitting his testimony. They also maintain that, unlike Dr. Han, Dr. Goldman was not a board-certified obstetrician/gynecologist and, therefore, was incompetent to testify regarding the standard of care that Dr. Han owed the plaintiff. We will address each contention separately.
The plaintiff, in her answers to interrogatories, neither identified Dr. Goldman as a standard-of-care expert witness nor disclosed any standard-of-care opinion that he might offer at trial. However, at all times relevant hereto, Rule 213(i) provided that an opinion witness' testimony at trial will be limited to those opinions identified in the answers to interrogatories and, if the witness was deposed, those opinions the witness expressed in the deposition. 177 Ill.2d R. 213(i). The rule provided that the opinions expressed in a deposition need not be later identified in answers to interrogatories. 177 Ill.2d R. 213(i).
At his deposition, Dr. Goldman was asked whether he considered himself "to be familiar with the standard of care of a reasonably well-qualified obstetrician/gynecologist in 1993 in the care and treatment of a pregnant woman * * *." He responded by stating that he was familiar with the standard of care "as it relate[d] to [a] threatened abortion * * *." At his second deposition, Dr. Goldman was asked the following questions and gave the following answers:
"Q. And in 1993, in your opinion, is there any treatment that can be provided for a patient who has does have [sic] signs of threatened abortion?
A. Is there a treatment?
Q. Yes, that is within the standard of care.
A. Most people would say bed rest could be one. Some people have used phenobarbital which has never been shown, has never been tested within its efficacy one way or the other.
Q. Any other treatment is 1993 that, in your opinion, would be within the standard of care for a patient who shows signs of threatened abortion?
A. No. That the — those are the main ones."
Dr. Goldman's testimony at trial, that Dr. Han violated the standard of care when he prescribed progesterone suppositories and instructed the plaintiff to take one each night, was consistent with this deposition testimony. As a consequence, we find no violation of Rule 213.
The defendants also argue that, because Dr. Goldman was not an obstetrician/gynecologist, he was incompetent to testify that Dr. Han breached the standard of care. However, "[w]hether the expert is qualified to testify is not dependent on whether he is a member of the same specialty or subspecialty as the defendant". Jones v. O'Young, 154 Ill.2d 39, 43, 607 N.E.2d 224 (1992). Rather, the physician must be a licenced member of the school of medicine about which he proposes to testify and show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in either the defendant physician's community or a similar community. Jones, 154 Ill.2d at 43. Once this two-part test has been satisfied, the question of whether a physician is qualified and competent to state his opinion as an expert regarding the standard of care rests with the sound discretion of the trial court. Jones, 154 Ill.2d at 43. Since both Dr. Goldman and Dr. Han were licensed to practice medicine in all its branches, the first portion of the test has been satisfied. See Gill, 157 Ill.2d at 317. Accordingly, it is the second portion of the test that we address, namely, whether the record demonstrates that Dr. Goldman was sufficiently familiar with the methods, procedures, and treatment that a reasonably well-qualified physician would apply under circumstances similar to those faced by Dr. Han when he treated the plaintiff
The record reveals that Dr. Goldman was a board-certified pediatrician who had practiced medicine for 40 years and had earned a bachelor's degree in chemistry and a master's degree in biology. During the time he practiced medicine, he had also been a professor of pediatrics and pharmacology, a teratologist, and an investigator into the possible connection between drugs, including progestin, and birth defects. Nevertheless, as Dr. Goldman acknowledged, he has never been the primary prenatal-care physician for a patient. In support of her contention that Dr. Goldman was familiar with the methods, procedures, and treatment of an obstetrician providing medical care to a patient like herself, the plaintiff notes that he spent three months in an obstetrical ward and that he has collaborated with obstetricians in the care of patients. The plaintiff further asserts that Dr. Goldman's study of the effects of agents on the fetus and embryo required that he also understand their effects on the mother. However, Dr. Goldman's experience in obstetrical wards occurred during his pediatric residency, which was more than 40 years prior to the trial in this case. Additionally, his testimony about collaborating with obstetricians was limited to the treatment of patients that had been exposed to teratogens and toxins and did not include patients, like the plaintiff, that presented with signs of a possible miscarriage. Likewise, Dr. Goldman's studies into the effects of progesterone on a fetus, which was relevant to the issue of whether the drug caused Victoria's malformation, did not establish that he was familiar with how an obstetrician would care for a patient that presented with symptoms like the plaintiff. In our view, the evidence fails to establish that Dr. Goldman possessed the necessary knowledge and experience that would qualify him to give an opinion about the standard of care of an obstetrician who, like Dr. Han, treated a patient that presented with signs of a possible miscarriage. Accordingly, we find that the trial court abused its discretion in permitting Dr. Goldman to testify that Dr. Han deviated from the standard of care in his treatment of the plaintiff. See Northern Trust Co. v. Upjohn Co., 213 Ill. App.3d 390, 406-07, 572 N.E.2d 1030 (1991).
Not every error on the part of a trial court in the admission of evidence requires reversal and a new trial. Where, however, "the case is a close one on the facts, and the jury might have decided either way, any substantial error which might have tipped the scales in favor of the successful party calls for reversal." Both v. Nelson, 31 Ill.2d 511, 514, 202 N.E.2d 494 (1964).
The evidence in this case was not so conclusive as to render harmless the trial court's error in admitting Dr. Goldman's standard-of-care testimony. The opinions offered by Drs. Molo and Han are in sharp contrast to that of Dr. Abramson on the question of whether Dr. Han breached the standard of care in his treatment ofthe plaintiff, and the jury could have resolved the issue in favor of either party. Consequently, we cannot say that Dr. Goldman's opinion testimony on this subject did not influence the verdict and tip the scales in favor of the plaintiff. For this reason, we reverse the judgment entered in favor of the plaintiff and remand this matter to the circuit court for a new trial.
Having determined that the defendants are entitled to a new trial, we nevertheless address other issues raised by the defendants that may reoccur on remand.
The defendants argue that the trial court erred by granting the plaintiffs motion in limine, barring them from introducing evidence that the plaintiff continued to bleed after August 6, 1993. In her motion in limine, the plaintiff asserted that the bleeding for which Dr. Han treated her stopped around August 6 and that her episodes of bleeding on September 20 and 30 were irrelevant because they occurred after Victoria's limbs had formed. The sole grounds for the defendants' opposition to the plaintiffs motion was their contention that evidence of post-August 6 bleeding tended to support their theory that Victoria's birth defect was caused by vascular disruption. Drs. Burton and Brent discussed the possibility that the plaintiffs bleeding during her pregnancy indicated that Victoria's malformation was caused by some means other than progesterone. Dr. Burton testified that, in her opinion, Victoria's birth defect was caused by vascular disruption and stated that first trimester bleeding was associated with limb-reduction malformations. However, Dr. Burton also testified that, although she believed that bleeding indicated that there was a risk of a limb-reduction defect, she did not know whether the plaintiffs bleeding, at any time, was causally related to Victoria's malformation. Dr. Brent testified that the plaintiffs bleeding "during the early part of her pregnancy" was a probable cause of Victoria's limb-reduction defect but did not address the particular question of whether the bleeding on September 20 and 30 supported his view. At the hearing on the plaintiffs motion in limine, the defendants conceded that they were unable to provide the trial court with an expert witness who had or would opine that post-August 6 bleeding was evidence that Victoria's malformation was caused by vascular disruption. The trial court granted the plaintiffs motion in limine but also stated: "if I make a mistake and you can show me where I'm wrong, I'm willing to reconsider." The record fails to reveal that the defendants asked the trial court to reconsider its ruling. The discovery depositions of Drs. Burton and Brent do not demonstrate that the plaintiffs bleeding on September 20 and 30 tended to prove that Victoria's limb-reduction defect was caused by vascular disruption. As a consequence, we find that the trial court did not abuse its discretion in granting the plaintiffs motion in limine in this regard. Bullard v. Barnes, 102 Ill.2d 505, 519, 468 N.E.2d 1228 (1984).
Next, the defendants argue that the trial court abused its discretion by excluding evidence that Victoria's umbilical cord was not inserted into the center of the placenta, a condition known as velamentous insertion, and that studies have associated this condition with limb-reduction defects. The trial judge granted a motion in limine filed by the plaintiff that barred Dr. Brent from testifying about velamentous insertion. At trial and prior to Dr. Brent's testimony, the defendants asked the trial judge to reconsider his previous ruling and permit Dr. Brent to testify about velamentous insertion. Without comment, the trial judge denied the defendants' request. On appeal, the defendants state that the "exclusion of the evidence was apparently based on the plaintiffs argument that Dr. Brent's testimony was `hypothetical,' because he could not explain the mechanism by which a velamentous insertion caused a birth defect, but could only testify that there was a statistical association between [this condition] and the birth defect." In response, the plaintiff maintains that the trial court's denial of the defendants' motion to reconsider its previous ruling should not be disturbed because the defendants failed to make a formal offer of proof. Alternatively, the plaintiff asserts that the trial court committed no error in barring Dr. Brent's testimony because his opinion, that velamentous insertion was a probable cause of Victoria's birth defect, was speculative and, therefore, inadmissible.
Here, the nature and purpose of Dr. Brent's excluded testimony are obvious on this record. Thus, a formal offer of proof was unnecessary to preserve this issue for review by this court. Smith v. Black Decker (U.S.), Inc., 272 Ill. App.3d 451, 458, 650 N.E.2d 1108 (1995). Regarding the speculative nature of Dr. Brent's opinion, he explained, at his deposition, that no one witnesses the effects of velamentous insertion during pregnancy and that, accordingly, the association between this condition and birth defects is statistically based and hypothetical. Dr. Brent testified that he reviewed the pathology report, which stated that Victoria's umbilical cord was marginally attached and a portion of her blood vessels transgressed the membrane. According to Dr. Brent, the report demonstrated that a velamentous insertion was present. Thereafter, Dr. Brent was asked whether he had, based upon a reasonable degree of medical certainty, formulated a differential diagnosis to determine the most probable cause of Victoria's malformation. Dr. Brent answered by listing multiple probable causes, including velamentous insertion. A medical expert witness can testify in terms of possibilities and probabilities as to the cause of an injury or condition. Baird v. Adeli, 214 Ill. App.3d 47, 65, 573 N.E.2d 279 (1991). But his opinions "must be based on a reasonable degree of medical certainty," and he "may not guess, surmise, or conjecture as to a possible cause for the injury based on matters which could not be shown to have existed." Baird, 214 Ill. App.3d at 65. Here, there was evidence that a velamentous insertion occurred; accordingly, Dr. Brent's testimony was not based on speculation or conjecture. Furthermore, his testimony that velamentous insertion was a probable cause of Victoria's limb-reduction defect was based upon a reasonable degree of medical certainty. Under these circumstances, Dr. Brent's testimony that velamentous insertion was a probable cause of Victoria's limb-reduction defect should have been admitted. The defendants were prejudiced by the trial court's ruling because it prevented them from defending their case by presenting an alternative cause of Victoria's birth defect. Consequently, we find that the trial court abused its discretion by denying the defendants' motion to reconsider the previous ruling which barred Dr. Brent from testifying about velamentous insertion as being a probable cause of Victoria's malformation. See Becht v. Palac, 317 Ill. App.3d 1026, 1035, 740 N.E.2d 1131 (2000).
Finally, we will address the matter of the plaintiffs conditional cross-appeal. As noted earlier, the plaintiff filed a conditional cross-appeal, asserting that the trial court erred in a number of its evidentiary rulings. However, the defendants argue that the cross-appeal "is not proper because the judgment was wholly in the plaintiffs favor." We agree.
"A party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment." Material Service Corp. v. Department of Revenue, 98 Ill.2d 382, 386, 457 N.E.2d 9 (1983). It is the judgment of the trial court that gives rise to an appeal, not what else may have been said by the court. Material Service Corp., 98 Ill.2d at 387. So long as the judgment was entirely in favor of the appellee, specific findings of the trial court which may have been adverse to the appellee do not give rise to a right of cross-appeal. Material Service Corp., 98 Ill.2d at 387; Piersall v. Sports Vision of Chicago, 230 Ill. App.3d 503, 512, 595 N.E.2d 103 (1992); People ex rel. Village of Buffalo Grove v. Village of Long Grove, 173 Ill. App.3d 946, 953, 526 N.E.2d 670 (1988).
In this case, the judgment below was entirely in favor of the plaintiff. Therefore, no basis exists for a cross-appeal, and it is dismissed.
For the foregoing reasons, the judgment of the circuit court is reversed, this cause is remanded for a new trial, and the plaintiffs cross-appeal is dismissed.
Reversed and remanded; cross-appeal dismissed.
THEIS and KARNEZIS, JJ., concur.