The opinion
JUSTICE McNAMARA, dissenting:
I believe that plaintiff should be granted a new trial because of certain improper and inflammatory remarks made by defense counsel during closing argument. Both the trial judge and the majority acknowledge that the comments were improper, but found that they were not sufficiently prejudicial to warrant a new trial. I believe otherwise.
The comments in question were directed to the testimony of Dr. Portman, one of four expert witnesses who testified in favor of plaintiff.
Plaintiff called one witness as an expert in cardiovascular and thoracic surgery; another was called as an expert in internal medicine; and a third was called as an expert in obstetrics and gynecology. Dr. Portman was called as an expert in gynecology. All four witnesses testified that, based upon a reasonable degree of medical and surgical certainty, the care provided by defendants deviated from the standard of care, thus leading to the death of plaintiffs daughter.
Prior to trial, the trial court granted plaintiff’s motion in limine prohibiting defendants from asking Dr. Portman about any abortions he may have performed during his years of practice. When granting this motion, over defendants’ rigorous objection, the trial court stated that any references to abortion would be inflammatory.
When Dr. Portman was called as a witness, at defendants’ request the trial judge modified his earlier in limine ruling. The court permitted defense counsel to ask Dr. Portman one question relating to the nature of his work at each facility where he had practiced. The court admonished defense counsel not to mention abortion, and defense counsel complied with that direction. However, when asked about the nature of his practice, Dr. Portman replied that “it was office gynecology, family planning, reproductive control, first trimester abortion procedure.”
I turn now to the following improper, comments made by defense counsel during closing argument:
“And let me just tell you about the people who came in here to make criticisms. Dr. Portman who had never seen a dissection of an aneurism in his practice, who had never treated a patient with a dissection of the aorta, who of the last six years of the last fifteen or ten had spent the greater majority of his time in those years doing first trimester abortions, doing those things that interrupt pregnancy during the first five months.”
At that point, the trial court denied plaintiff’s request for a sidebar and instructed defense counsel to proceed with his argument. The court allowed plaintiff’s counsel to object to the remarks but surprisingly overruled the objection. The ruling was surprising because there had been no testimony that Dr. Portman had spent the greater majority of his time doing first-trimester abortions. After the court’s ruling, defense counsel proceeded as follows:
“Dr. Portman said that he was in Macon, Georgia; and he had a clinic doing that type of work; and that he was in Wisconsin. And he had a clinic, and he was doing that type of work. And that he came to Chicago and he opened up a clinic for one month and closed it. That’s the gentleman who is going to make a criticism of the vascular surgeon and what the vascular surgeon saw and did.”
Since Dr. Portman volunteered the information that he had performed abortions, defense counsel did nothing improper in the presentation of evidence. However, his comments during closing argument were not only untrue, but were inflammatory and highly prejudicial to plaintiff’s case. Abortion is an incendiary issue. Defense counsel’s remarks in this case demonstrate his recognition that abortion has divided this country between those who believe that any abortion amounts to murder versus those who believe in a woman’s right to have an abortion at any time. As a subject matter, abortion has no probative value in the medical malpractice case before us. The remarks constituted a veiled attack on Dr. Portman’s character, and no one can assess the impact they may have had on the jury. (See Poole v. University of Chicago (1989), 186 Ill. App. 3d 554 , 542 N.E.2d 746 .) Such comments should not be countenanced.
Nor can the remarks be found to be harmless error on the ground that Dr. Portman’s testimony was merely cumulative since plaintiff presented three other expert witnesses. Each of the witnesses had a field of medical expertise, and the remarks directed about Dr. Port-man may have been fatal to plaintiff’s case.
At oral argument before this court, defense counsel stated that it was not the defense which acted improperly, but rather it was plaintiff’s counsel who acted unwisely in offering as an expert witness a doctor who had performed abortions. No statement could demonstrate more vividly the prejudice plaintiff suffered as a result of the comments in question.
I do not find that any of the other assignments of error complained of by plaintiff warrant a new trial. I would, however, reverse the judgment of the trial court and remand for a new trial on the basis of the prejudicial closing argument.