                                         2017 IL App (3d) 150502

                                Opinion filed April 24, 2017
     ____________________________________________________________________________

                                                 IN THE
                                  APPELLATE COURT OF ILLINOIS
                                            THIRD DISTRICT
                                                   2017

     REBECCA GAPINSKI, Individually, and as           )      Appeal from the Circuit Court
     Duly Appointed Administrator of the              )      of the 13th Judicial Circuit,
     Estate of Daniel W. Gapinski,                    )      La Salle County, Illinois.
     Deceased,                                        )
                                                      )      Appeal Nos. 3-15-0502
            Plaintiff-Appellee,                       )                  3-15-0506
                                                      )      Circuit No. 11-L-27
            v.                                        )
                                                      )

     MEENA GUJRATI, M.D., and CENTRAL                 )      Honorable

     ILLINOIS PATHOLOGY, S.C., a Domestic             )      Troy D. Holland

     Corporation, Defendant-Appellants                )      Judge, Presiding 


     ___________________________________________________________________________
           JUSTICE O’BRIEN delivered the judgment of the court, with opinion. 

           Justice Lytton concurred in the judgment and opinion. 

           Justice Carter specially concurred, with opinion. 

     ___________________________________________________________________________

                                            OPINION


¶1          Plaintiff Rebecca Gapinski, individually and as the administrator of the Estate of Daniel

     Gapinski, deceased, sought to recover for medical malpractice she alleged was committed by

     defendant Meena Gujrati, M.D., an employee of defendant Central Illinois Pathology, S.C. (CIP),

     and resulted in Daniel’s death from renal cell cancer. The jury found in favor of Rebecca, and the

     trial court entered a judgment against Gujrati and CIP in the amount of $1,727,409.50, jointly

     and severally. Gujrati and CIP appealed. We affirm.
¶2                                                FACTS

¶3          Daniel Gapinski, the late husband of plaintiff Rebecca Gapinski, began experiencing

     headaches and vision problems in early 2007. He saw his primary care physician, who referred

     him for magnetic resonance imaging (MRI). The results of the MRI indicated an undetermined

     tumor in his brain’s pituitary region. Giueseppe Lanzino, a neurosurgeon, performed a biopsy

     and removed as much as the tumor as possible. In March 2007, while an employee of defendant

     CIP, defendant Meena Gujrati, a neuropathologist, read the biopsy slides and determined the

     mass in Daniel’s brain was a primary, benign lesion called a meningioma.

¶4          Following a period of limited radiation, Daniel returned to work. In late 2008, Daniel’s

     symptoms returned, and in early 2009, he saw neurosurgeon Jeff Klopfenstein, who attempted to

     schedule surgery for late February. Daniel sought a second opinion from Lanzino, who had

     moved to the Mayo Clinic. Daniel saw Lanzino on January 28, 2009 and was referred to John

     Atkinson, another neurosurgeon at Mayo, who saw Daniel the following day. Daniel sought an

     additional consultation with Daniel Prevedello of the University of Pittsburgh Medical Center

     (UPMC), who performed two surgeries in early February 2009.

¶5          The tissues obtained from the UPMC surgeries were evaluated in the UPMC pathology

     department, and Daniel was diagnosed with metastatic renal cell carcinoma, which had spread to

     the pituitary gland in his brain. He opted to be treated at the University of Chicago Medical

     Center (UCMC), where Russell Szmulewitz, a medical oncologist, headed Daniel’s treatment

     plan. Szmulewitz obtained Daniel’s records from OSF St. Francis, which included the original

     tissue evaluated by Gujrati. A UCMC pathologist examined the tissues and found the original

     tissues included malignant cells, which he diagnosed as renal cell cancer. Daniel continued

     treatment at University of Chicago until his death.


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¶6          Daniel and Rebecca filed their complaint on February 4, 2011, naming Gujrati, CIP, OSF

     St. Francis Medical Center, and Illinois Neurological Institute (INI) as defendants and alleging

     negligence, apparent agency, and vicarious liability. On OSF’s motion for summary judgment,

     OSF and INI were dismissed. Gujrati and CIP filed their affirmative defense, arguing Rebecca’s

     complaint was time-barred by the statute of limitations. In May 2013, they filed a motion for

     summary judgment on the same grounds, which the trial court denied.

¶7          In February 2014, Gujrati, who was represented by the same law firm as CIP, sought

     leave to substitute a new law firm as counsel. Rebecca objected based on the timing of Gujrati’s

     motion, which was filed close to the scheduled start of trial. Ultimately, Rebecca agreed to the

     change in counsel if the trial court required the defense attorneys to take turns or alternate

     questioning witnesses and allowed only one of them at a time to represent the defendants. The

     trial court granted Gujrati’s motion to substitute and Rebecca’s request to ban dual

     representation. It allowed Gujrati and CIP to each have its own counsel, file individual pleadings,

     and litigate the individual cases until trial but ordered that counsel for Gujrati and CIP be

     allowed to participate only one at a time during the trial.

¶8          Also in February, the trial court granted Rebecca’s motion for partial summary judgment,

     finding that Gujrati and CIP were in an employee-employer relationship, that respondeat

     superior applied, and that CIP would be vicariously liable for Gujrati’s malpractice.

¶9          In April 2014, CIP moved for a protective order, seeking to have Daniel’s original biopsy

     tissue recut and evaluated by its consulting opinion witnesses. Over plaintiff's objection, the trial

     court granted CIP’s motion and ordered that Gujrati and CIP be provided 10 cuts from the

     original tissue and that Rebecca also be provided 10 cuts. Per the court’s order, the recuts were

     available to the parties for staining and evaluation. CIP was allowed additional time until May 1,



                                                       3

       2014, to supplement its expert disclosures with opinions based on the recuts. Gujrati and CIP did

       not thereafter disclose any witnesses based on expert evaluation of the recuts.

¶ 10          On June 1, 2014, Rebecca filed her “rebuttal” disclosures regarding the recuts, including

       the opinion of her neuropathologist expert witness, Hannes Vogel, that the 2007 tissues

       “demonstrate[d] metastatic clear cell carcinoma of the kidney.” CIP moved to bar Rebecca’s

       rebuttal disclosures and Rebecca sought to convert her rebuttal disclosures to supplemental

       disclosures. The trial court denied CIP’s motion and granted Rebecca’s motion.

¶ 11          Daniel died on May 31, 2014, due to a metastasis to his abdomen from the kidney.

       Rebecca filed a first amended complaint, adding survival, wrongful death, and loss of consortium

       claims. Gujrati and CIP each answered and asserted affirmative defenses based on the statute of

       limitations. Gujrati and CIP also filed motions to dismiss based on the expiration of the statute of

       repose, which the trial court denied.

¶ 12          The trial ensued and the following evidence was presented. Daniel’s primary care

       physician, Joel Leifheit, saw Daniel in March 2007. Daniel was complaining of headaches and

       vision problems. Leifheit ordered various tests, including an MRI, which revealed a mass in

       Daniel’s brain. Leifheit referred Daniel to Giueseppe Lanzino, a neurosurgeon at OSF St. Francis

       Medical Center in Peoria. Lanzino performed surgery in March 2007, taking a biopsy of the

       mass and removing a limited portion of the tumor. Lanzino referred Daniel for radiation

       treatment. James McGee, a radiation oncologist, provided a course of radiation treatment.

¶ 13          After symptoms returned in September 2008, Daniel sought treatment with a new

       primary care physician, Ricardo Calderon, who referred Daniel to an endocrinologist and a

       neuro-ophthalmologist. An MRI in January 2009 showed the tumor had grown. In January 2009,

       Daniel also saw Lanzino and Atkinson, another neurosurgeon, at the Mayo Clinic. Daniel sought



                                                        4

       an additional opinion from Prevedello at UPMC. Prevedello performed two surgeries, and tissue

       he removed was tested. Based on the results of the tests, Daniel was diagnosed with metastatic

       renal cell carcinoma.

¶ 14          Rebecca testified to the chronology and details of Daniel’s illness and treatment. When

       she and Daniel met with Lanzino and Atkinson at Mayo Clinic in late January 2009, they both

       expressed concern that the tumor was not following the growth pattern of a classic meningioma.

       Atkinson was suspicious the tumor was not a benign meningioma and thought that it was

       behaving more like a malignancy.

¶ 15          Even after Atkinson expressed his concern that the tumor was behaving like a

       malignancy, Daniel continued to receive treatment based on the original diagnosis of a benign

       meningioma. Rebecca and Daniel received the diagnosis of metastatic renal cell carcinoma on

       February 12, 2009, from Prevedello at UPMC. Daniel’s kidney was removed in 2012, and he

       suffered a perforated bowel in 2013.

¶ 16          Vogel testified as a neuropathologist expert for Rebecca. He reviewed the 2007 slide that

       Gujrati examined, the slides from UPMC, and the recut slides. He also performed additional

       testing on the recut tissue. It was his opinion, based on a reasonable degree of medical certainty,

       that Gujrati deviated from the standard of care of a reasonably competent, well-trained

       pathologist or neuropathologist in reading Daniel’s biopsy samples as benign meningioma and

       not renal cell carcinoma. It was Vogel’s further opinion that Gujrati deviated from the standard

       of care in the stains she used to evaluate the tissue samples and in failing to include cancer as

       part of a differential diagnosis. Vogel also opined that Gujrati’s misdiagnosis was the proximate

       cause of the delay in Daniel’s treatment for cancer and that a different course of treatment would

       have been prescribed had Daniel been properly diagnosed.



                                                       5

¶ 17          James Brown testified as an expert in urology with a specialty in neurological oncology.

       He explained that when cancer starts in the kidney, like Daniel’s cancer, if the kidney is removed

       in an “opportune time,” the patient is cured without any further opportunity for the cancer to

       spread. Brown explained the course of treatment for someone diagnosed with primary kidney

       cancer that had spread to the brain, including removal of the kidney. When Daniel’s cancer was

       diagnosed as malignant in 2009, his kidney could not be removed because once he stopped

       taking certain medications used to treat his brain tumor, symptoms returned before the kidney

       surgery could take place. Brown explained the team approach to treatment. In his opinion, Daniel

       lost the opportunity for a cure and for the usual course of treatment because of the missed

       diagnosis.

¶ 18          On cross-examination, Brown stated that in his opinion, Daniel had stage 4 renal cell

       cancer in March 2007 and had a poor prognosis. Patients with stage 4 cancer had a five-year

       survival rate of 12 to 14% in 2007, with a median survival time of 12 to 14 months. If Daniel had

       been properly diagnosed in 2007, Brown would have told Daniel that his five-year survival rate

       was 10 to 15%, even with treatment. Because of Daniel’s brain tumor, Daniel had a very limited

       chance to live beyond 10 years. During Brown’s testimony, the defense objected on the grounds

       that his testimony was beyond the scope of his expertise and that his trial testimony was

       cumulative and duplicative of the other witnesses.

¶ 19          Defendant Meena Gujrati, the neuropathologist who analyzed the original biopsy tissues

       in 2007, testified. Her report regarding Daniel’s tissue samples did not indicate he had cancer.

       Her final pathological diagnosis was a pituitary tumor, meningioma. Her diagnosis was based

       upon histologic examination and the clinical information she received from the surgeon Lanzino




                                                       6

       that the tissue looked like a meningioma. When she diagnosed Daniel in 2007, she was an

       employee of defendant CIP.

¶ 20          Prevedello, the neurosurgeon who operated on Daniel in February 2009, testified that he

       began treating and operated on Daniel for a meningioma based on the medical history. Because

       of bleeding from the tumor, he had to conduct two surgeries. He performed a biopsy, and his

       analysis of the frozen section showed malignant characteristics, which he characterized as an

       aggressive meningioma. He was surprised when told by the UPMC pathologist that Daniel had

       renal cell cancer. He immediately told Daniel, which occurred on February 11. He also ordered

       an MRI, which showed a mass in Daniel’s kidney.

¶ 21          Russell Szmulewitz, a medical oncologist, testified. He had a subspeciality in

       genitourinary oncology, including kidney cancer, and treated Daniel for the five-year period

       before his death. The majority of patients with renal cell cancer die and treatment merely delays

       the death. He did not know whether Daniel would have had a significantly longer survival had he

       received treatment for cancer in 2007 instead of 2009. In 2013, the cancer metastasized to

       Daniel’s abdomen. If he had been properly diagnosed, Daniel would not have suffered abdomen

       problems, later bleeding events, and seizures. In his opinion, with a proper diagnosis, Daniel

       could have been cancer free in 2007.

¶ 22          Susan Pannullo, a neurosurgeon and neurologist with a subspecialty in neuro-oncology,

       testified as a retained expert. She explained what the treatment plan for Daniel would have been

       in 2007 as compared to 2009, had he been properly diagnosed. As much of Daniel’s tumor that

       could be removed was removed in 2007 and a correct diagnosis would not have changed that

       outcome. Similarly, the surgeries that occurred at UPMC removed as much of the tumor as

       possible without damaging Daniel’s vision. It was unsafe to give Daniel additional radiation after



                                                       7

       the surgeries at UPMC because of the prior radiation he received. In her opinion, although “not

       within [her] subspecialty,” Daniel’s tumor had less chance of spreading to his abdomen had the

       proper treatment plan been provided for Daniel in 2007. The defense objected on the grounds

       that her testimony was beyond the scope of her expertise and that her trial testimony was

       cumulative and duplicative.

¶ 23          John Buatti testified as Rebecca’s retained radiation oncology expert. He discussed the

       reasonableness of Daniel’s treatment plan options. In his opinion, the two-year delay in diagnosis

       had a substantial impact. If Daniel had been properly diagnosed in 2007, he would have received

       more aggressive radiation to his brain tumor, within the limitations of the tumor’s location.

       Buatti would have been able to radiate the tumor with low risk with aggressive treatment. Daniel

       could not receive a therapeutic dose of radiation in 2009 because of the misdiagnosis in 2007. On

       cross-examination, Buatti acknowledged that even with all appropriate treatments, the success

       rate for renal cell carcinoma with brain metastases was 10 to 20%, with a median survival length

       of 15 to 18 months for metastatic pituitary renal cell carcinoma. The average survival rate in

       2007 for someone in Daniel’s condition would have been 12 to 14 months. During Buatti’s

       testimony, the defense objected on the grounds that his testimony was beyond the scope of his

       expertise and that his trial testimony was cumulative and duplicative.

¶ 24          Several family members testified that they accompanied Daniel to doctor appointments

       and treatment sessions and that at no time prior to the diagnosis at UPMC did any doctors

       indicate Daniel had cancer. Daniel’s evidence deposition was played for the jury. When he

       finished radiation after his brain tumor was first removed, he thought he was cancer free. None

       of the doctors he saw said he had cancer until he was diagnosed after the surgeries at UPMC. At




                                                       8

       that time, he was told his brain tumor was cancerous and had started in the kidney. He lost his

       opportunity to live a life because of the misdiagnosis.

¶ 25          Geoffrey Murdoch, an anatomic pathologist with a specialty in neuropathology at UPMC,

       testified by evidence deposition. He analyzed the tissue samples and diagnosed metastatic renal

       cell carcinoma. Atkinson testified by evidence deposition. He was a neurosurgeon and pituitary

       specialist. In his view, Daniel’s tumor was not acting in a “benign” manner. Although he did not

       remember the conversation with Daniel and Rebecca, he would have shared his view with Daniel

       and described the tumor as “aggressive.” In his opinion, the tumor was surgically incurable.

¶ 26          Rebecca rested and Gujrati and CIP both moved for a directed verdict based on expiration

       of the statute of limitations. Rebecca moved for partial summary judgment, seeking a finding the

       case was timely filed. The trial court denied CIP’s motion and granted Rebecca’s motion.

¶ 27          The defense presented its case. Michael Naughton testified as a retained medical

       oncologist expert. In his opinion, Daniel had stage 4 renal cell carcinoma in 2007, and his tumor

       was incurable. Daniel’s median survival rate in 2007 was two years, and he had approximately a

       10% chance of a five-year survival. Because the tumor was located near important structures in

       the brain, it would not have been possible to remove the entire tumor in 2007. Daniel’s long-term

       survival was not impacted by the two-year delay in diagnosis. In his opinion, earlier treatment

       would not have altered the outcome.

¶ 28          McGee, Daniel’s treating radiation oncologist in 2007, testified that had he known the

       tumor was malignant and not benign, he would not have ordered more or different radiation. The

       tumor was touching areas of the brain that are very sensitive to damage from radiation, which

       limited the radiation treatment Daniel could receive.




                                                        9

¶ 29          Joseph Simpson testified as a radiation oncology expert. He opined that in 2007, Daniel’s

       condition was incurable because it had metastasized to the brain and that it was no more curable

       in 2007 than in 2009. The radiation dosage Daniel received was appropriate, regardless of the

       diagnosis. Removal of Daniel’s kidney would have helped his short-term survival but not his

       long-term chances.

¶ 30          Ty Abel testified as a retained neuropathology expert and as an expert on the standard of

       care applicable to Gujrati. The slides reviewed by Gujrati were consistent with a diagnosis of

       benign meningioma and she used a reasonable choice of tests in reaching her diagnosis. Under

       the applicable standard of care, she was not required to do additional testing or seek a second

       opinion. In his opinion, her diagnosis complied with the standard of care of a reasonably careful

       neuropathologist.

¶ 31          Arieh Shalhav, a urological oncologist, testified. He began treating Daniel in 2009 when

       he evaluated Daniel for kidney removal surgery. Daniel’s tumor was likely always aggressive

       and stage 4 tumors are unlikely to be cured. The small size of the kidney tumor in 2009 when it

       had already metastasized was suggestive of a cancerous component.

¶ 32          Gujrati testified. She diagnosed Daniel with a benign meningioma after testing the biopsy

       samples. She explained how the slides indicated meningioma, not cancer. She performed

       hematoxylin and eosin (H&E) immunohistochemical staining and other special stains. Based on

       her initial diagnosis, she did not perform a CD10 stain, which would have been more specific to

       a renal cell carcinoma. In her view, she complied with the standard of care in reading the slides

       and making the diagnosis. The standard of care did not require her to obtain a consultation. She

       agreed that Daniel had renal cell carcinoma in 2007.




                                                      10 

¶ 33              The jury returned a verdict in favor of Rebecca in the amount of $1,727,409.50, and the

       trial court entered a judgment order against Gujrati and CIP. They filed motions for judgments

       notwithstanding the verdict and for a new trial. They also moved to reduce the judgment. The

       motions were heard and denied. Gujrati and CIP timely appealed.

¶ 34                                                ANALYSIS

¶ 35              There are six issues on appeal: whether the trial court erred when it barred Gujrati and

       CIP from dual representation, allowed supplemental disclosure of the opinion of Gapinski's

       expert witness and the testimony of several of Rebecca's expert witnesses, found the complaint

       was not barred by the statute of limitations, and denied Gujrati and CIP's motions for a new trial

       based on the conduct of Rebecca's attorney, and whether the jury verdict was against the

       manifest weight of the evidence.

¶ 36              The first issue is whether Gujrati and CIP were denied a fair trial where the trial court

       barred them from dual representation. The defense argues that by barring the attorneys for both

       defendants from both actively participating in the trial, the trial court allowed the counsel for

       each defendant to only represent its client’s interests half the time and expected both defense

       attorneys to represent the other defendant, a non-client.

¶ 37              The trial court has the authority to control the questioning of witnesses and the

       presentation of evidence. Ill. R. Evid. 611(a) (eff. Jan. 1, 2011). A trial judge has inherent

       authority to control his courtroom. Mason v. Snyder, 332 Ill. App. 3d 834, 842 (2002). Each

       defendant in a multidefendant case is entitled to present an expert in its defense. Taylor v. County

       of Cook, 2011 IL App (1st) 093085, ¶ 36. We review a trial court’s rulings regarding the

       admissibility of witness testimony for an abuse of discretion. Taylor, 2011 IL App (1st) 093085,

       at ¶ 23.



                                                         11 

¶ 38          We find the trial court’s ruling to bar dual representation was not in error. When Gujrati

       moved to substitute counsel in February 2014, the trial was scheduled to begin June 16. Rebecca

       objected on the basis of the timeliness of the motion and the potential adverse consequences

       substitution of counsel would have on the trial date. At this point, the case had been pending for

       three years. Arguably, the trial court would have been within its discretion to deny Gujrati’s

       motion to substitute outright. Instead, it exercised discretion by offering a compromise to the

       parties. Rebecca agreed to Gujrati’s substitution of counsel if Gujrati and CIP were barred from

       both participating in the trial at the same time.

¶ 39          The trial court considered that allowing both Gujrati and CIP to present opening and

       closing statements and question witnesses would be redundant and unnecessary and would

       prejudice Rebecca. The trial court noted that the liability at issue was vicarious as to CIP, and if

       Gujrati was found liable, CIP was also liable, and conversely, if Gujrati was not liable, CIP

       would not be liable. They shared a commonality of interests. Until shortly before trial, the

       defendants were represented by the same law firm. After Gujrati was allowed new counsel, the

       defendants filed independent pleadings until the trial started. At trial, each defendant was

       allowed to present its own expert witnesses and to question them. They were barred only from

       both participating at the same time and were not denied a fair trial.

¶ 40          The next issue is whether the trial court erred by allowing supplemental disclosure of the

       opinion of Vogel, Rebecca’s expert witness. Gujrati and CIP argue that the disclosure of Vogel’s

       opinions regarding the recuts was untimely and that Vogel was allowed to present impermissible

       rebuttal testimony.

¶ 41          Rule 213 mandates that parties supply and identify the subject matter of their witnesses;

       the witnesses’ conclusions, opinions, and their bases; the witnesses’ qualifications; and any



                                                           12 

        reports prepared by the witnesses. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007). The opinions of an

        expert are limited to what was disclosed per Rule 213 or in a discovery deposition. Ill. S. Ct. R.

        213(g) (eff. Jan. 1, 2007). When new or additional information becomes available, parties have a

        duty to “seasonably supplement or amend” the prior disclosure. Ill. S. Ct. R. 213(i) (eff. Jan. 1,

        2007). Supplemental disclosure is required as soon as the additional information is known. Lucht

        v. Stage 2, Inc., 239 Ill. App. 3d 679, 692 (1992). “ ‘[A] witness may elaborate on a previously

        disclosed opinion’ as long as the testimony is encompassed by the original opinion and is not a

        new reason” for it. Kovera v. Envirite of Illinois, Inc., 2015 IL App (1st) 133049, ¶ 63 (quoting

        Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 849 (2010)). The purposes of Rule 213 are to avoid

        surprise and discourage tactical gamesmanship. Sullivan v. Edward Hospital, 209 Ill. 2d 100,

        109-10 (2004). We will not reverse a trial court’s decision whether to admit expert opinion per

        Rule 213 unless it was an abuse of discretion. Sullivan, 209 Ill. 2d at 109.

¶ 42           The trial court considered that the defense opened the door by asking for the recuts and

        that Rebecca’s late disclosure of Vogel’s opinion was contemplated in the order granting the

        defense motion. Rebecca was required to “seasonably supplement” Vogel’s disclosures after he

        evaluated the recuts, which she timely did. There was no surprise or prejudice to the defendants.

        Vogel’s original opinion disclosed that the 2007 tissues showed renal cell cancer and his

        supplemental disclosure stated the same opinion. We find the trial court did not abuse its

        discretion in allowing Rebecca’s disclosure of Vogel’s opinion based on the recuts.

¶ 43	          The third issue is whether the trial court erred in allowing the testimony of several of

        Rebecca’s expert witnesses, which Gujrati and CIP challenge as duplicative and beyond the

        scope of their areas of expertise. They also a claim proper foundation was not established for the

        testimony and it should not have been admitted.



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¶ 44          To establish a foundation for an expert’s testimony, the proponent must establish that the

       witness is a licensed member of the school of medicine about which he will offer an opinion and

       that the witness is familiar with the methods, procedures and treatments that other doctors in his

       or similar communities observe. Purtill v. Hess, 111 Ill. 2d 229, 242-43 (1986). When the

       foundational elements are established, the trial court then considers whether the expert is

       competent to testify in the case before it. Alm v. Loyola University Medical Center, 373 Ill. App.

       3d 1, 5 (2007). An expert’s actual experience in practice may provide the necessary knowledge

       of the applicable standards of care and allow him to opine about whether the defendant deviated

       from the standard of care. Hubbard v. Sherman Hospital, 292 Ill. App. 3d 148, 154 (1997).

¶ 45          The trial court has discretion over the cross-examination of witnesses and may “permit

       inquiry into additional matters as if on direct examination.” Ill. R. Evid. 611(b) (eff. Jan. 1,

       2011). Cross-examination allows the questioning party to probe bias, partisanship or financial

       interest and is a principal safeguard against errant expert testimony. Trower v. Jones, 121 Ill. 2d

       211, 217 (1988). The trial court’s admission of evidence, including expert testimony, will not be

       overturned absent an abuse of discretion. Davis v. Kraff, 405 Ill. App. 3d 20, 28 (2010).

¶ 46          Gujrati and CIP complain that Rebecca’s expert witnesses, Brown, Pannullo, and Buatti,

       offered duplicative testimony and were permitted to testify beyond their areas of expertise. We

       disagree. The experts established their qualifications and testified based on their knowledge and

       understanding of cancer and its treatment. They explained they worked in multidisciplinary

       teams with other tumor or cancer specialists and were familiar with the procedures and

       treatments. We find the experts’ testimonies were properly admitted and were not beyond their

       areas of expertise.




                                                       14 

¶ 47          The defendants further argue that Vogel improperly testified as to what he would have

       done in testing the slides instead of what the standard of care required. This argument is not

       supported by the record. Vogel testified that in his opinion, to a reasonable degree of medical

       certainty, Gujrati’s analysis of the slide was a deviation from the standard of care. He then

       discussed what he would have done in compliance with the standard. He did not use his personal

       practice to establish the standard of care.

¶ 48          The defendants argue that the trial court allowed Rebecca’s witnesses to provide

       volunteer statements during cross-examination, rather than answering with a “yes” or “no.” The

       cross examination of the expert witnesses was properly allowed by the trial court. The witnesses

       either answered “yes” or “no” or with a statement that explained why a “yes” or “no” answer

       was inappropriate. We find Gujrati and CIP were not denied a fair trial by the court’s evidentiary

       rulings regarding expert witness testimony.

¶ 49          The fourth issue is whether the trial court erred when it denied Gujrati and CIP’s motion

       for summary judgment and for a directed verdict on limitation grounds. They argue the evidence

       overwhelmingly established that Rebecca had knowledge of Daniel’s injury and that Gujrati

       caused the injury more than two years before she filed her complaint, making her complaint

       untimely.

¶ 50          The statute of limitations for medical malpractice claims is two years from “the date on

       which the claimant knew, or through the use of reasonable diligence should have known *** of

       the existence of the injury or death for which damages are sought.” 735 ILCS 5/13-212(a) (West

       2012). Time begins to run under section 212(a) when the plaintiff reasonably discovers the

       defendant’s negligence might have contributed to the injury, not when the plaintiff knows of the

       injury. Mackey v. Sarroca, 2015 IL App (3d) 130219, ¶ 15. The time when a plaintiff knew or



                                                      15 

       should have known of the injury and that it was wrongfully caused are generally a question of

       fact but can be determined as a matter of law where the facts are undisputed and only one

       conclusion may be drawn from them. Castello v. Kalis, 352 Ill. App. 3d 736, 744 (2004). The

       trial court’s denial of motions for summary judgment and for a directed verdict are reviewed de

       novo. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 42; Jones v.

       DHR Cambridge Homes, Inc., 381 Ill. App. 3d 18, 28 (2008).

¶ 51          Rebecca used reasonable efforts to determine whether Daniel had an injury and whether

       it was wrongfully caused. After the initial benign diagnosis in 2007 and subsequent treatment,

       Daniel was warned to watch for the recurrence of his symptoms. When his symptoms returned in

       September 2008, Daniel saw his primary care doctor, and in January 2009, Daniel met with a

       neurosurgeon. Daniel next saw Lanzino and Atkinson in late January 2009, and both doctors

       observed the tumor was not acting like a benign tumor. Rebecca testified that she began to

       suspect cancer after the meeting with Lanzino and Atkinson. However, both Lanzino and

       Atkinson consulted with Daniel for a meningioma and neither informed them that Daniel had

       cancer. When Daniel saw Prevedello at UPMC in early February, he, too, treated Daniel as if he

       had a meningioma. Prevedello was surprised when he was informed by the pathologist that the

       tissues he removed during the surgery were malignant. He immediately informed Daniel and

       Rebecca that he had renal cancer on either February 11 or 12, 2009.

¶ 52          We find the complaint was timely filed on February 4, 2011. Up until the results from the

       tissues removed during the UPMC surgeries were delivered to Prevedello, Daniel was treated for

       a benign tumor. When his symptoms returned in 2008, he immediately sought medical advice

       and did so again when the symptoms continued in 2009. Throughout the term of his illness,

       Daniel used reasonable diligence in securing treatment. He was not aware until February 11 or



                                                     16 

       12, 2009, that the tumor was cancerous. Once he discovered that he was injured and that his

       injury was wrongfully caused, he and Rebecca filed their complaint within two years. The trial

       court did not err in denying Gujrati and CIP’s motions for summary judgment and a directed

       verdict.

¶ 53          The fifth issue is whether the trial court erred in denying Gujrati and CIP’s motion for a

       new trial based on the conduct of Gapinski’s counsel. Gujrati and CIP accuse plaintiff’s counsel

       of running “roughshod” over the trial court and their rights. They also complain of counsel’s

       objections during trial, improper questioning on cross-examination, and violation of the trial

       court’s in limine rulings.

¶ 54          Attorney misconduct and improper argument may be the basis for a new trial. Grillo v.

       Yeager Construction, 387 Ill. App. 3d 577, 600-01 (2008) (citing First National Bank of

       La Grange v. Glen Oaks Hospital & Medical Center, 357 Ill. App. 3d 828, 833 (2005)). To

       support the grant of a new trial, the improper conduct must substantially prejudice the party.

       Grillo, 387 Ill. App. 3d at 601. When a trial court sustains an objection and gives the jury a

       limiting instruction, any prejudice from the improper comment is cured. Grillo, 387 Ill. App. 3d

       at 601. We review a trial court’s denial of a motion for a new trial for an abuse of discretion.

       Graham v. Northwestern Memorial Hospital, 2012 IL App (1st) 102609, ¶ 21.

¶ 55          Gujrati and CIP offer a number of instances in which they maintain plaintiff’s counsel

       acted egregiously, interjected improper commentary, violated motions in limine and the dual

       representation bar, and substituted different criteria instead of using the standard of care. The

       evidence does not support their claims. We did not discover any examples of egregious behavior

       by plaintiff’s counsel that would justify a new trial. In other instances of which the defendants

       complain, the trial court properly sustained the defense objections or overruled Rebecca’s



                                                      17 

        objections. The court struck Rebecca’s question in violation of the motion in limine and barred

        counsel from moving forward on that line of questioning. Comments by plaintiff’s co-counsel

        were directed toward trial logistics and did not violate the dual representation bar. We find there

        was no impropriety in the conduct of plaintiff’s counsel such that the defense was substantially

        prejudiced and no error by the trial court in denying the defendants’ motion for a new trial.

¶ 56           The final issue is whether the jury verdict was against the manifest weight of the

        evidence. Gujrati and CIP argue that Rebecca failed to establish that Gujrati’s misdiagnosis was

        the proximate cause of Daniel’s injury and death and that the jury’s verdict was not supported by

        the evidence.

¶ 57           To sustain a cause of action for medical malpractice, a plaintiff must allege and prove

        (1) the proper standard of care applicable to measure the medical professional’s conduct, (2) a

        deviation from the standard, and (3) an injury that was proximately caused by the deviation.

        Willaby v. Bendersky, 383 Ill. App. 3d 853, 863-64 (2008). In medical malpractice cases, expert

        testimony is generally needed to establish the standard of care and its breach. Willaby, 383 Ill.

        App. 3d at 864 (citing Snelson v. Kamm, 204 Ill. 2d 1, 43-44 (2003)). This court reverses a jury

        verdict only when it was against the manifest weight of the evidence. Snelson, 204 Ill. 2d at 35.

¶ 58	          The defense argues that its witnesses were more credible and believable than the experts

        for Rebecca and that the testimony of their experts defeated the theory of the case supported by

        Rebecca’s experts. The jury was responsible for determining issues of witness credibility. Both

        sides presented evidence in favor of their theory of the case. The jury chose Rebecca’s theory

        over Gujrati and CIP’s theory and found the testimony of Rebecca’s experts more compelling

        than the testimony of the defense experts. Rebecca’s witnesses established the standard of care




                                                        18 

       and that Gujrati deviated from it and caused injury. We find the jury’s verdict was not against the

       manifest weight of the evidence.

¶ 59             For the foregoing reasons, the judgment of the circuit court of La Salle County is

       affirmed.

¶ 60             Affirmed.

¶ 61             JUSTICE CARTER, specially concurring.

¶ 62             I join the majority opinion without reservations. However, I write separately in order to

       present an additional rationale in support of the holding, finding that the defendants were not

       denied a fair trial when the trial court limited the defendants’ attorneys to participating only one

       at a time during the trial. It is not uncommon for judges in some cases encompassing claims or

       defenses held by multiple parties, such as class actions, derivative lawsuits, mass tort actions, or

       other representative actions, to place some controls over the litigation, including empowering

       one attorney to conduct part of the trial. See Principles of the Law: Aggregate Litigation §1.05

       cmts. b, c (Am. Law Inst. 2009). Likewise, it would not be unusual, in a situation where the

       parties’ litigation interests are nominally the same, for the judge to place some reasonable

       limitations on the parties regarding trial participation, subject to due process concerns. The

       decisions made by a trial judge in overseeing his or her courtroom or in maintaining the progress

       of a trial are generally reviewed for an abuse of discretion. See In re D.T., 212 Ill. 2d 347, 356

       (2004).

¶ 63             The due process clause of both the Illinois and United States Constitutions requires, at a

       minimum, that litigants have a full and fair opportunity to litigate an issue before they are bound

       by that issue’s resolution. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2; Central

       Illinois Public Service Co. v. Allianz Underwriters Insurance Co., 158 Ill. 2d 218, 225-26 (1994)


                                                         19 

       (insurers were deprived of procedural due process when they were barred from participating at

       trial and also denied a severance). A fundamental requirement of due process is that a party be

       afforded the opportunity to be heard at a meaningful time and in a meaningful manner, with the

       operative term being “ ‘meaningful.’ ” In re D.W., 214 Ill. 2d 289, 316 (2005); see Mathews v.

       Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

       “ ‘Due process is flexible and calls for such procedural protections as the particular situation

       demands’ ” related to time, place, and circumstances. Mathews, 424 U.S. at 334 (quoting

       Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). However, meaningful participation does not

       mean that parties with a common interest have a right to overlap their questions and arguments.

       That is, a principle complimentary to due process is the rule that trial court judges may manage a

       trial in order to promote efficiency within the limits of due process. See Ill. R. Evid. 611(a) (eff.

       Jan. 1, 2011).

¶ 64          Illinois Rule of Evidence 611 sets out the basic principle that the trial court has the

       authority to control all aspects of a trial, including the order of presentation of evidence and the

       manner in which the proceedings will be conducted in general. See Ill. R. Evid. 611(a) (eff. Jan.

       1, 2011). In addition, under Illinois Rule of Evidence 403 (eff. Jan. 1, 2011), evidence can be

       excluded based on consideration of undue delay, waste of time, or needless presentation of

       cumulative evidence. As to examination of witnesses, Professor Wigmore indicated that it had

       long been a tradition that but one attorney should question during a single stage in the

       examination of a single witness. 3 John H. Wigmore, Evidence § 783 (Chadbourn rev. ed. 1970).

       Professor Wigmore pointed out that the rule had been recognized in both judicial proceedings

       generally and in a few statutes. Wigmore, supra. It thus appears that there is no rule prohibiting




                                                        20 

       judges, at their discretion, from allowing examination of witnesses and presentation of arguments

       to be split or divided between the attorneys for parties with identical interests.

¶ 65          That same authority existed in the English common-law tradition as found in Campbell’s 1

       Report of Cases determined at Nisi Prius. Where separate attorneys appeared for several

       defendants with the same interest, only one counsel could be heard when addressing the jury or

       when conducting examination of the witnesses. Chippendale v. Masson (1815) 171 Eng. Rep.

       56; 4 Camp. 174; cf. Doe v. Roe (1809) 170 Eng. Rep. 1155; 2 Camp. 280 (generally the

       examination of a witness should be carried out by only one counsel when a party is represented

       by several attorneys, but there can be exception to that rule if justice requires). In Chippendale,

       Chief Justice Gibbs 2 stated:

                      “[T]he interest of the defendants being the same, I can only hear one counsel. This

                      is a rule I received from a judge of whom no one can speak without respect and

                      almost reverence; I mean my very learned and excellent predecessor, Chief

                      Justice Mansfield.[3] By this rule I will abide. It cannot be left in the power of a

                      number of defendants whose interests are precisely the same, by separating in

                      their defences, to make 20 causes out of one. I consider it a remote possibility that

                      such an attempt should be made; but rules of practice must be framed with a view

                      to enforce the regular and decorous conduct of judicial business. I therefore

                      consider it as established, that where several defendants in the same interest

                      defend separately, the counsel who happens to be senior, and he alone, can


              1
                  John Campbell, 1st Baron Campbell, PC, QC (September 17, 1779 to June 24, 1861) Chief
       Justice, Queen’s Bench (March 5, 1850 to June 24, 1859).
                2
                  Sir Vicary Gibbs, PC, KC (October 27, 1751 to 1820) Chief Justice of the Common Pleas (1814
       to 1818).
                3
                  Sir James Mansfield, SL, KC (1733 to November 23, 1821) Chief Justice of the Common Pleas
       (1799 to 1814).
                                                         21 

                      address the jury. The witnesses are to be examined by counsel successively, in the

                      same manner as if the defence were joint and not separate.” Chippendale, 171

                      Eng. Rep. at 56-57; 4 Camp. at 174-75.

¶ 66          In the instant case, the trial judge had the same concerns as those found in the old English

       case. The trial court was concerned with protecting witnesses from unduly confusing and

       excessive cross-examination and repetitive arguments. At the posttrial motion hearing, the trial

       court explained its reasoning as to the dual representation procedure:

                              “To have both Defendants present an opening statement, closing statement

                      and question the witnesses I think would have been redundant and unnecessary

                      given the facts and circumstances that we have here. The trial took nearly a month

                      as we conducted it. I think it was well within this court’s discretion to limit the

                      Defendants in the manner that it did to prevent repetition and to assure the trial

                      proceeded in a timely manner.

                              This is not a circumstance where liability of each Defendant was based on

                      some kind of different facts at different times or some kind of factual differences.

                      It was liability, it was just that, it was vicarious liability. If Dr. Gujrati was found

                      liable, Central Illinois Pathology was also going to be found liable. I think to

                      allow multiple closing arguments, to allow multiple opening statements, and to

                      allow multiple questioning would have prejudiced the Plaintiff in this case and

                      would have been an inefficient use of trial time.”

¶ 67          Earlier, before the trial, the trial judge articulated his reasoning as follows:

                      “I think it comes down to a trial management issue as to questioning of witnesses,

                      and Mr. Vedrine’s point it’s something the court is going to have to deal with at


                                                        22 

                      trial if an issue comes up where that witness has been asked the question by one

                      counsel and the other counsel is going to try to ask the same question, the court is

                      going to have to deal with this. This court wants an efficient trial. I don’t want to

                      keep dealing with questions, nuances of questions. I want it to run efficiently.”

¶ 68          Given a court’s power to control the conduct of trial procedure, the trial judge can, at his

       discretion, split examination of witnesses and divide the opening statements and closing

       arguments between counsel for separately represented defendants with identical interests. In this

       particular case, the trial judge reasoned that to allow multiple arguments and questions would

       have been redundant and unnecessary given the nature of the case, since if Dr. Gujrati was found

       liable, then Central Illinois Pathology would also be found liable based on principles of vicarious

       liability. The defendants had a commonality of interest in the defense.

¶ 69          Defendants in the instant case have failed to point to any evidence or argument that they

       were prevented from introducing at the trial. The defendants simply do not show they were

       prejudiced in any manner. Nothing in the procedures that were followed resulted in unfairness to

       any party, violated fundamental due process, or constituted an abuse of discretion. Both

       defendants, through their attorneys, were afforded the opportunity to be heard at a meaningful

       time and in a meaningful manner during this trial.

¶ 70          Thus, for the reasons stated above, I respectfully specially concur with the majority

       opinion.




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