Melecosky v. McCarthy Bros.

489 N.E.2d 1115, 141 Ill. App. 3d 84, 95 Ill. Dec. 387, 1986 Ill. App. LEXIS 1878
CourtAppellate Court of Illinois
DecidedFebruary 10, 1986
DocketNo. 4—85—0374
StatusPublished
Cited by3 cases

This text of 489 N.E.2d 1115 (Melecosky v. McCarthy Bros.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melecosky v. McCarthy Bros., 489 N.E.2d 1115, 141 Ill. App. 3d 84, 95 Ill. Dec. 387, 1986 Ill. App. LEXIS 1878 (Ill. Ct. App. 1986).

Opinion

JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff appeals from a judgment entered on a jury verdict, in favor of the plaintiff and against both defendants, in the circuit court of Champaign County. Plaintiff was awarded $40,000 for damages sustained as a result of the defendants’ alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.).

In October of 1980, plaintiff, Stanley Melecosky, was working as an apprentice welder on the construction of a multistory animal clinic at the University of Illinois in Urbana. Defendant, C. Iber and Sons, Inc., was the coordinating contractor for the Animal Clinic Project (Project). Defendant, McCarthy Brothers Company, a prime contractor on the Project, was assigned, in part, to erect structural steel.

On October 9, 1980, plaintiff was assisting in a welding operation at the construction site. Plaintiff was working beneath a steel girder that had been previously suspended by a rope. According to the record, the rope severed and the girder fell, striking the plaintiff on the head and upper back. An examination and X rays taken immediately after the. incident revealed that plaintiff’s injuries included a “sprained back and a chip fracture of the third lumbar vertebra.”

Thereafter, on October 30, 1980, plaintiff brought an action for damages against defendants in the circuit court of Champaign County. The complaint alleged that plaintiff sustained injuries as a result of defendants’ failure to properly supervise the safety precautions taken at the job site by permitting the steel girder to be suspended by a rope, in violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.).

A jury trial commenced on March 4, 1985. Two medical experts in the area of orthopedic surgery were called to testify. Dr. Bharat Mehta, plaintiff’s treating physician, was called to testify at trial by the plaintiff. Dr. Robert Mussey, a nontreating physician, was called by defendant C. Iber and Sons, Inc.

Plaintiff also sought to introduce the evidence deposition of Dr. Donald Miller, a nontreating physician. The trial court found that Dr. Miller’s opinions were based on both subjective and objective findings and excluded the deposition in its entirety.

At the conclusion of the trial, the jury returned a verdict for the plaintiff against both defendants and damages were awarded in the amount of $40,000. Judgment was entered on the verdict and plaintiff’s post-trial motion was denied. Plaintiff now appeals.

On appeal, plaintiff does not expressly allege inadequacy of damages. Rather, plaintiff contends that the trial court committed reversible error in excluding the evidence deposition of Dr. Donald Miller.

The record reveals that approximately four months prior to trial, plaintiff went to Dr. Donald Miller at the suggestion of his attorney. Dr. Miller was aware that plaintiff had been referred to him by an attorney. Miller was also aware that litigation was pending and that he would be called to testify on plaintiff’s behalf.

Dr. Miller performed an examination of plaintiff but was not asked to render treatment. Plaintiff provided Miller with a history, which included his version of the occurrence, the injuries sustained and the treatment he received. Thereafter, Miller performed the Valsalva and Allen tests and took X rays of plaintiff. It was estimated that the examination, including the tests performed and the X rays taken, lasted approximately 1 hour and 15 minutes.

Deposition testimony reflects that on direct examination Miller was first asked to relate and summarize the history as given to him by the plaintiff. Next, Miller was asked to disclose, “based both on subjective and objective findings,” the results of his physical examination as to the severity and permanency of plaintiff’s injury. Miller was also asked whether, from both an objective and subjective standpoint, plaintiff’s injuries were caused by the girder falling on him.

Defendants objected during the deposition, arguing that since Miller was a nontreating physician and his opinions were based, in whole or in part, on subjective findings then the testimony was inadmissible hearsay.

Plaintiff sought to introduce Miller’s deposition at trial. The trial court refused the use of this deposition “on the ground that, throughout the deposition, there are references made to the formation of the opinion by the doctor based on subjective symptoms of the plaintiff.”

Plaintiff contends that pursuant to Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert, denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, Dr. Miller’s entire deposition was admissible. Plaintiff urges that Wilson expressly contemplated and sanctioned opinion testimony, from either a treating or nontreating physician, based on plaintiff’s own statements.

Defendants assert that the deposition was properly excluded as Wilson does not extend to the opinions of nontreating physicians based on the subjective complaints of a plaintiff made in anticipation of trial. We agree.

In Wilson, the supreme court held that due to the high degree of reliability of hospital records, an expert may render an opinion based on facts contained in those records, even if the records themselves are not in evidence. In so holding, the Wilson court explicitly adopted Rule 703 of the Federal Rules of Evidence. The rule states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Fed. R. Evid. 703; see 28 U.S.C. app. 711 (1982).

As pointed out in the Advisory Committee Notes to Rule 703, facts or data upon which expert opinions are based may, under the rule, be derived from the “presentation of data to the expert outside of court and other than by his own perception.” (Fed. R. Evid. 703, Advisory Committee Notes; see 28 U.S.C. app. 711 (1982).) The comment further states:

“[A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients ***.” Fed. R. Evid. 703, Advisory Committee Notes; see 28 U.S.C. app. 711 (1982).

The Wilson court determined that the key element in applying Rule 703 was whether the source of information upon which the expert based his opinion was of a type that is reasonably relied upon by experts in the field. (Wilson v. Clark (1981), 84 Ill.

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Related

In Re Marriage of Taylor
559 N.E.2d 1150 (Appellate Court of Illinois, 1990)
Melecosky v. McCarthy Brothers Co.
503 N.E.2d 355 (Illinois Supreme Court, 1986)

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Bluebook (online)
489 N.E.2d 1115, 141 Ill. App. 3d 84, 95 Ill. Dec. 387, 1986 Ill. App. LEXIS 1878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melecosky-v-mccarthy-bros-illappct-1986.