Brown v. Arco Petroleum Products Co.

JUSTICE FREEMAN, specially concurring:

I agree with Justice White’s determination that various errors committed at trial deprived defendants of a fair trial on the issue of liability. However, I write separately because that determination obviates the need to address the alleged excessiveness of the damages awarded in this case. The determination that defendants were denied a fair trial on the issue of liability necessarily requires a new trial on the issue of damages as well.

I agree with Justice White that the trial court improperly limited defendants’ cross-examination of plaintiff’s reconstruction expert, Thad Aycock, in prohibiting them from asking whether he had considered any of defendant Roland’s statement in forming his opinion as to the cause of the accident. However, I do not believe we need go so far as to conclude that, had defendants been allowed to ask that question, they would also have been entitled to disclose to the jury the portions of Roland’s deposition that Aycock considered, if any. I have that belief, not because it would have been improper to disclose to the jury the specific statements by Roland upon which Aycock relied, if any, but because no one knows, without engaging in pure speculation and conjecture, what defendants would have subsequently asked had they been allowed to ask that first question. As such, the dissent’s conclusion that “defense counsel wanted to cross-examine Aycock about Roland’s statements in the presence of the jury solely for the purpose of having the jury hear evidence which was not admissible” (195 Ill. App. 3d at 579) is a paragon of speculation and conjecture or, to use the dissent’s own colorful phrase, “a figment of an unwarranted presumption” (195 Ill. App. 3d at 578).

The support the dissent finds for that conclusion in defense counsel’s rejection of the opportunity to question Aycock, outside the presence of the jury, regarding the basis of his opinion is ephemeral, at best. Having been denied their right under Wilson v. Clark to reveal to the jury what Aycock had and has not considered in forming his opinion, defense counsel acted eminently reasonably in declining the futile gesture of making that inquiry outside the jury’s presence. Even had the defense learned through such questioning that Aycock had not relied on Roland’s statements, the only way to inform the jury of that fact was through Aycock’s testimony. Rather than attempting to detract, by innuendo, from Aycock’s testimony, without a good-faith intention to prove up “the facts” to which counsel supposedly alluded, as the dissent so poetically and yet so inaptly puts it, defendants were acting well within their rights to reveal to the jury that Aycock had not considered Roland’s statements in forming his opinion. Finally, the dissent’s reliance on the fact that Aycock did not, in fact, base his opinion on anything stated by Roland to find no error misses the point that the defense was entitled to reveal that fact to the jury as a means of impeaching Aycock’s opinion.

I also agree with Justice White that the trial court abused its discretion in allowing into evidence the statement of Anwar Younan that “normally” trucks would have lights on the top. Even assuming, as the dissent argues, that the rest of Younan’s deposition testimony relating to the lighting on Roland’s trucks was admissible under the rule of completeness, the specific testimony that “normally” trucks would have lights on the top and that defendant Roland’s did not was inadmissible.

That testimony essentially amounted to testimony that it was the custom in the trucking industry to have lights on top of trucks such as that involved in the accident in this case and that defendant Roland’s truck did not comply with that standard. Such testimony by Younan, however, was inadmissible due to the failure of plaintiff to establish any foundation therefor, i.e., to make any showing that Younan was sufficiently familiar, as an expert or otherwise, with the trucking industry that he could testify competently to its customary practices. Cf. Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App. 3d 35 , 411 N.E.2d 19 (expert witness not acquainted with defendant’s operations could properly testify to custom and practice of railroad industry in moving and lifting kegs of railroad spikes where his testimony demonstrated familiarity with the custom and practice of three railroads in such regard).

Unlike the situation in Crabtree, there was no showing here of Younan’s familiarity with the trucking industry to render him competent to testify as to its normal customs and practices. Contrary to the dissent’s implication in noting that Younan had been a truck driver, I do not believe that fact alone rendered him competent to testify to the normal customs and practices of the trucking industry. The trial court erred for this additional reason in allowing Younan’s statement into evidence that “normally” trucks have lights on the top.

I further agree with Justice White that it was reversible error to allow plaintiff’s counsel to use an unidentified text by an unidentified author to cross-examine defendants’ experts. 1 The precise rule stated in Darling is that experts may be cross-examined “as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. [Citation.] The author’s competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.” Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 336 , 211 N.E.2d 253 .

Implicit in the rule stated in Darling, for the use of a treatise in cross-examination of an expert, is the requirement that the publication being so used and its author be identified to the witness and the trial court. 2 That requirement is implicit in the rule because, without their identification, it could never be determined at trial whether the authority being so used is “recognized” and whether its author is competent. As such, the dissent’s conclusion that Darling was inapplicable in this case, where plaintiff’s counsel indisputably read from some unidentified publication by some equally unidentified author in cross-examining defendant’s experts, because he did not identify the work from which he was reading but merely asked general propositions is sophistry. It is precisely to preclude counsel from impeaching expert witnesses in the manner attempted here that the rule in Darling exists. The dissent’s rationalization of the conduct of plaintiff’s counsel in this regard puts a premium on subterfuge and chicanery. No court and no judge at any level should condone such conduct by counsel regardless of the ends sought to be achieved by doing so.

I further agree with Justice White that the trial court’s error in allowing plaintiff’s counsel to argue the passive alcohol diffusion theory before the jury compounded the error in allowing him to cross-examine defendants’ experts without identifying the work from which he was reading or its author. Although the dissent deftly sidesteps the Darling issue, its justification of counsel’s conduct in this latter regard completely ignores a fundamental rule of trial procedure. That rule is that evidence used for impeachment cannot generally be used as substantive evidence. The rule applies to medical treatises used to impeach expert witnesses. (Piano v. Davison (1987), 157 Ill. App. 3d 649 , 510 N.E.2d 1066 ; Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42 , 463 N.E.2d 216 ; Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681 , 434 N.E.2d 793 .) Moreover, even accepting the dissent’s characterization of the statements read by plaintiff’s counsel as mere general propositions, it cannot be seriously contested that those statements were not substantive evidence of the assertions made therein, if not due to the failure of any of defendants’ experts to accept their validity and to plaintiff’s counsel’s failure to identify the work and author quoted, then due to plaintiff’s failure to prove up the statements through her own witnesses. In short, even conceding the testimony raising the possibility of errors in the post-mortem blood analysis, there was no substantive evidence tending to support plaintiff’s theory of passive alcohol diffusion which counsel could have properly referred to in arguing to the jury.

Moreover, Dr. Schaffer’s mere concession that “probably there are a number of people” who believe the theory of passive alcohol diffusion, upon which the dissent heavily relies to justify counsel’s argument of the theory to the jury, is a slender thread which snaps under the tug of scrutiny. Dr. Schaffer also testified, when asked whether he knew of any authoritative literature supporting the passive alcohol diffusion theory:

“There have been numerous citations, and they have not been peer reviewed and do not appear in the literature, but they appear as manuscripts written by certain experts that testify in these related matters dealing with the phenomenon of passive diffusion or some type of diffusion process whereby after death the alcohol leaves the stomach contents and diffuses through the rest of the body, and then this is what you pick up when you measure an alcohol determination.

There has never been any scientific data to support such, and for that reason, I personally do not consider it authoritative.”

Thus, Dr. Schaffer’s testimony, in toto, provided little support, if any, for the theory of passive alcohol diffusion. In view of that fact and defendant’s other experts’ unequivocal rejection of the theory, Dr. Schaffer’s mere concession that a number of unidentified people subscribed to the theory was insufficient evidentiary support to allow plaintiff’s counsel to argue the theory to the jury as substantive evidence, especially in view of plaintiff’s failure to prove up the theory through any witnesses of her own. In addition, there certainly was no evidentiary basis for counsel’s argument that “there are articles out there” supporting the passive alcohol diffusion theory.

I believe that the last two related errors committed by plaintiff’s counsel so prejudiced defendants that they alone warrant a new trial on liability and, thus, on damages. Moreover, I do not belleve that it can rationally be contested that all of the errors cited in Justice White’s opinion and in this opinion cumulatively denied defendants a fair trial on all issues. However, given the errors infecting the jury’s finding of liability, I do not believe we need address the issue of the excessiveness of the verdict.

The dissent has incorrectly attributed testimony of Dr. Hughes, defendants’ neurophysiological expert, to Dr. Konacki, the pathologist who conducted the post-mortem examination of decedent, and testimony of Dr. Konacki to Dr. Hughes.

The requirements of identifying a treatise used in cross-examination as well as its author have long been recognized in the law. See Scneder v. Wabash R.R. Co. (Mo. 1954), 272 S.W.2d 198, 207 ; Gulf, C. & S. F. R. Co. v. Farmer (Tex. 1909), 115 S.W. 260, 262 , overruled on other grounds Sanchez v. Schindler (Tex. 1983), 651 S.W.2d 249 .