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First Division
June 10, 2002

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Following a heart attack, plaintiff James Petre underwent coronary artery bypass surgery atSt. Francis Medical Center. A postoperative wound infection developed, ultimately necessitatingboth the removal of Petre's sternum and additional reconstructive surgery. Petre and his wife, Jane,brought a medical malpractice action against Dr. Vincent Kucich, who performed the bypass surgery,Kucich's practice group, Cardiovascular Medical Associates, S.C. (CMA), St. Francis MedicalCenter, Dr. Hershel Wix, Dr. Wix's partners (Drs. David Looyenga, Robert Prentice and GeorgeGustafson) and Dr. Wix's partnership, Hickory Cardiology Associates, Ltd. Certain Hickoryphysicians were responsible for plaintiff's postoperative monitoring and care.

Prior to trial, plaintiffs settled with and dismissed St. Francis Medical Center. Plaintiffs alsodismissed Drs. Wix, Looyenga, Prentice and Gustafson, as well as Hickory Cardiology Associates,Ltd.

Following a jury trial, the circuit court entered judgment in the amount of $465,000 on averdict rendered in favor of plaintiffs and against defendants Kucich and CMA.

On appeal, defendants argue that the trial court erred in relying on Spain v. Owens CorningFiberglass Corp., 304 Ill. App. 3d 356 (1999), in excluding evidence of the alleged negligence ofthe previously dismissed Hickory physicians, thus preventing defendants from asserting the so-called"empty chair" defense, i.e., from claiming that postoperative negligence on the part of the dismissedHickory physicians was the sole proximate cause of Petre's injuries. Defendants contend that thetrial court's decision to exclude such evidence and subsequent refusal to tender an appropriate juryinstruction on sole proximate cause (Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989)(hereinafter IPI Civil 3d No. 12.04)) denied defendants a fair trial.

Defendants also argue that the trial court erred in: (1) precluding defendants from presentingthe expert testimony of Dr. Daniel Hirsch with respect to the use of prophylactic antibiotics; and (2)allowing improper impeachment of defendants' expert Dr. Ronald Curran with what defendantsclaim to be a prior consistent statement. Finally, defendants assert cumulative error predicated on:(1) the trial court's rulings during voir dire and on certain other motions in limine; (2) the trial court'scomments before the jury with respect to a defense witness; and (3) comments by plaintiff's counselduring closing arguments.

We find that the trial court misapplied Spain and erred as a matter of law both in precludingevidence of the dismissed Hickory physicians' conduct and in refusing to give the appropriate juryinstruction, thereby denying defendants a fair trial. For the reasons that follow, we reverse thejudgment of the trial court and remand for a new trial.

BACKGROUND

On November 17, 1996, plaintiff James Petre suffered a heart attack and was taken to theemergency room at St. Mary's Hospital in Kankakee, Illinois, where he received cardiopulmonaryresuscitation and was placed on a ventilator. Dr. Hershel Wix, a cardiologist, evaluated defendantat St. Mary's and recommended that he be transferred to St. Francis Medical Center in Blue Island,Illinois, to undergo a triple coronary artery bypass graft (CABG). Dr. Wix admitted Petre to St.Francis and was one of five cardiologists whose treatment stabilized Petre's heart over the next eightdays.

Along with other medical problems, doctors suspected Petre suffered from aspirationpneumonia, which results when digestive materials are partially regurgitated and inhaled into thelungs. Petre's attending cardiologists consulted with a Dr. Vaishnov, a pulmonary disease specialist. In order to manage Petre's suspected pneumonia, Dr. Vaishnov and Petre's attending cardiologistsadministered the antibiotics Ancef, clindamycin and ceftazidime prior to the CABG procedure.

On November 26, 1996, Dr. Kucich performed Petre's CABG surgery and thereaftercontinued Petre on a regimen of both clindamycin and ceftazidime. Pursuant to standing orders ofthe physicians at St. Francis Medical Center and after conducting his own clinical evaluation, Dr.Kucich elected not to prescribe vancomycin to Petre as a postoperative prophylactic antibiotic. (Prophylactic antibiotics are utilized to prevent bacteria, including those normally present on theskin, from infecting a surgical wound.)

After the CABG procedure, Dr. Kucich and assisting surgeon Robert Applebaum trackedPetre's progress for the initial two-day postoperative period. In accordance with the custom andpractice of St. Francis Medical Center, Petre's attending physicians then managed his clinical care. Cardiologists, including Drs. Looyenga and Gustafson, as well as the nurses and staff of St. FrancisMedical Center, managed Petre's day-to-day postoperative care, including observing the surgicalwound, evaluating Petre for discharge and signing his eventual discharge order.

On December 2, 1996, the date of Petre's discharge, a St. Francis nurse took a culture samplefrom Petre's surgical wound. A resulting lab report directed to Dr. Gustafson indicated the presenceof methycillin-resistant Staphylococcus epidermis (MRSE) bacteria, a strain against which thevarious antibiotics Petre was taking had little effect. Dr. Looyenga examined Petre and approvedhis discharge. At the time of Petre's discharge, Dr. Kucich was unaware of the results contained inthe lab report. Dr. Kucich had no further clinical contact with Petre following his discharge.

Beginning on December 6, 1996, Dr. Wix followed Petre's recovery from Wix's office inKankakee. Dr. Wix, examining Petre on December 6, 1996, found no outward sign of anydifficulties with Petre's surgical wound. Petre made further follow-up visits to Dr. Wix on December10, 13 and 20, 1996. On each of these visits, Dr. Wix noted a "serous [watery] discharge" fromPetre's surgical wound. During a subsequent office visit on January 3, 1997, Dr. Wix noted aworsening of the condition of Petre's sternal wound and suspected the presence of a bacterialinfection.

Dr. Wix referred Petre to an infectious disease specialist, Dr. Daniel Hirsch, who diagnosedPetre with a sternal wound infection.(1) Due to the severity of the infection, Dr. David Dreyfuss (aconsulting plastic surgeon) performed a "debridement" (removal of contaminated and/or dead tissue)and removal of Petre's sternum, as well as further reconstructive surgery. Dr. Dreyfuss continuedto monitor Petre's status and on May 1, 1997, released Petre to return on an as-needed basis.

Petre and his wife, Jane, subsequently filed suit against, inter alia, both Dr. Kucichpersonally and Kucich's practice group, Cardiovascular Medical Associates, S.C. (CMA), allegingnegligent failure to prescribe the antibiotic vancomycin, which is effective against MRSE bacteria,on a prophylactic basis. The Petres' complaint further alleged that defendants: (1) prescribedexcessive amounts of corticosteroids, thereby predisposing Petre to infection; (2) failed to recognizethe presence of an infection prior to Petre's discharge from St. Francis on December 2, 1996; (3)failed to respond appropriately to the lab report identifying the nature of the infection; and (4) failedto provide responsible surgical follow-up after Petre's discharge from St. Francis Hospital. Plaintiffs'complaint alleged similar negligence on the part of Drs. Wix, Looyenga, Prentice and Gustafson (theHickory physicians), as well as their partnership, Hickory Cardiology Associates, Ltd., and St.Francis Medical Center.

Just prior to trial, plaintiffs settled with and dismissed St. Francis Medical Center. Plaintiffsalso dismissed the Hickory physicians and Hickory Cardiology Associates, Ltd.

Plaintiffs then moved in limine to bar defendants from presenting evidence that the Hickoryphysicians had been joined as defendants in the lawsuit but were then dismissed, and from elicitingor referring to any standard of care opinions concerning the Hickory physicians (hereinafterPlaintiffs' Motion in limine No. 2). After initially ruling that defendants would be permitted tosubmit evidence of the Hickory physicians' conduct at trial, the trial court reversed itself andexcluded any such evidence in reliance on Spain v. Owens Corning Fiberglass Corp., 304 Ill. App.3d 356 (1999). The trial court also refused to give a jury instruction on sole proximate cause (IPICivil 3d No. 12.04).

The sole issue presented to the jury was whether Dr. Kucich negligently failed to administerthe antibiotic vancomycin to Petre prior to performing Petre's bypass surgery. Plaintiffs' theory wasthat had Kucich prescribed vancomycin prior to surgery, Petre would not have developed the MRSEinfection that ultimately resulted in the removal of his sternum and subsequent reconstructivesurgery. No issue was raised, nor was any expert testimony presented, regarding any care Dr. Kucichprovided after Petre's November 26, 1996, CABG surgery.

On June 9, 2000, the jury returned a verdict in favor of plaintiff James Petre and againstdefendants Dr. Kucich and CMA in the amount of $465,000; however, the jury denied Jane's claimfor loss of society. The trial court entered judgment on the verdict accordingly.

Defendants moved to vacate the judgment entered on the jury verdict and for judgmentnotwithstanding the verdict, or in the alternative for a new trial. Defendants further moved pursuantto section 2-1205 of the Code of Civil Procedure (735 ILCS 5/2-1205 (West 1998)) for a remittiturin the amount of $5,000 to reflect the settlement in favor of St. Francis Medical Center. The trialcourt denied defendants' motions for judgment notwithstanding the verdict and for a new trial, butgranted the motion for remittitur. This appeal followed.

ANALYSIS

I. Sole Proximate Cause

Generally, the admissibility of evidence is a matter committed to the sound discretion of thetrial court, and its decision will not be reversed on review absent a clear abuse of that discretion.Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92 (1995). However, because the relevantfacts are undisputed and because the trial court excluded proposed evidence based solely on itsinterpretation of case law, our review is de novo. Kleinwort Benson North America, Inc. v. QuantumFinancial Services, Inc., 181 Ill. 2d 214, 218 (1998).

Plaintiffs' expert, Dr. Barry Fields, opined during discovery that the Hickory physicians werenegligent in failing to detect and treat Petre's infection before sternal debridement and reconstructivesurgery became necessary. In ruling on Plaintiffs' Motion in limine No. 2, the trial court stated thatdefendants would be allowed to elicit evidence of the Hickory physicians' alleged negligence solelyin the context of cross-examination of Dr. Fields with respect to that opinion. Over defendants'objection, however, the trial court later reversed itself and barred any such evidence, relying onSpainv. Owens Corning Fiberglass Corp., 304 Ill. App. 3d 356 (1999).

In Spain, Shirley Spain, as administrator of her deceased husband's estate, filed suit againstseveral asbestos manufacturers, including the Owens-Corning Fiberglass Corporation, alleging thatthe manufacturers were responsible for her husband's asbestos-exposure injuries and resulting death. Prior to trial, all defendants with the exception of Owens-Corning settled or were dismissed.Spain,304 Ill. App. 3d at 358.

Owens-Corning then moved in limine to be allowed to present decedent's videotapeddeposition testimony concerning decedent's multiple asbestos exposures unrelated to Owens-Corning. TheSpain court refused to admit this evidence pursuant to Lipke v. Celotex Corp., 153 Ill.App. 3d 498 (1987), another asbestos-related decision. In Lipke, the appellate court held that a party"guilty of negligence cannot avoid responsibility merely because another person is guilty ofnegligence contributing to the same injury." Lipke, 153 Ill. App. 3d at 509. TheLipke courtconcluded that "the fact that plaintiff used a variety of asbestos products does not relieve defendantof liability for his injuries. Evidence of such exposure is not relevant." Lipke, 153 Ill. App. 3d at509. The Spain court thus excluded evidence of decedent's other asbestos exposures.Spain, 304Ill. App. 3d at 365.

In contrast, an entirely different set of circumstances shaped our supreme court's decision inLeonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995). In Leonardi, plaintiffs, asadministrators of decedent's estate, brought a medical malpractice action against several defendantsseeking damages stemming from an improperly performed Cesarean section procedure. Prior to trial,decedent's attending physician (a named defendant in the malpractice suit) died and his estate settled. Plaintiffs then moved in limine to bar evidence relating to the alleged negligence of any person otherthan the remaining named defendants. The trial court denied the motion and allowed evidencerelating to the deceased attending physician's standard of care. Leonardi, 168 Ill. 2d at 90-92. Theappellate court upheld the trial court's ruling. Leonardi v. Loyola University of Chicago, 262 Ill.App. 3d 411, 415-16 (1993).

On appeal to the Illinois Supreme Court, plaintiffs argued that the trial and appellate courtserred in denying their motion in limine predicated on the "common law principle that there can bemore than one proximate cause of an injury, and that a person is liable for his or her negligentconduct whether it contributed wholly or partly to the plaintiff's injury as long as it was one of theproximate causes of the injury." (Emphasis in original.) Leonardi, 168 Ill. 2d at 92-93, citingNelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 88 (1964).

The Leonardi court held that plaintiffs' reliance on this principle was misplaced, as it"presumes that a defendant's conduct is at least a proximate cause of the plaintiff's injury." (Emphasis in original.) Leonardi, 168 Ill. 2d at 93, citing Restatement (Second) of Torts