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Expert's Testimony is Insufficient to Create a Question of Fact in the Face of a Summary Judgment Motion where the Conclusion Lacks Factual Support

June 29, 2010Julie TeuscherRelated Practice Areas: Appellate and Medical Liability
Julie A. Teuscher

On June 29, 2010, the First District Appellate Court issued an opinion in which Cassiday Schade LLP represented St. Francis Hospital of Blue Island.  The Court affirmed summary judgment in favor of the defendants, finding that Plaintiff failed to establish through expert testimony that the defendants' alleged deviations proximately caused plaintiff's injuries.  The significance of this opinion stems from the Court's holding that plaintiff's expert's opinions that the "outcome would have been different" and the child "would have been delivered before the uterine rupture" if the defendants had complied with the standard of care were without factual support and therefore, insufficient to withstand the defendants' Motion for Summary Judgment.

Plaintiff sought pre-natal care at Lincoln Medical Center on November 5, 2001 when she was approximately 38 weeks pregnant.  Her history included two prior deliveries in 1999 and 2000 by cesarean section.  When her examining gynecologist had difficulty hearing fetal heart tones, he sent her for fetal monitoring at Ingalls Hospital which in turn, sent her to St. Francis.  Fetal monitoring at St. Francis Hospital was normal.  The nurse at St. Francis determined that the patient was having moderate Braxton - Hicks contractions, consulted with the on-call Obstetrician by phone and followed his instructions to contact the patient's Obstetrician, advise him of the results of the monitoring and instruct the patient to return to her Obstetrician.  Two days later, on November 7, 2001, the patient developed severe abdominal pain and was taken to Ingalls where she had an emergency cesarean section at which time it was discovered that the patient's uterus had ruptured.  The baby subsequently died on November 17, 2001. 

Plaintiff's only expert witness testified that the defendants deviated from the standard of care by failing to advise the mother that she was at increased risk for uterine rupture from contractions because of her history of two prior cesarean sections.  Plaintiff's expert also testified that the patient should have been seen by an Obstetrician with delivering privileges on November 5 who could have advised the patient of her treatment options, including a cesarean section or close observation.  Plaintiff's expert testified that the outcome would have been different and the baby would have been delivered before the uterine rupture if the defendants had acted appropriately.  

While Plaintiff's expert offered the opinion that the outcome would have been different, cross-examination revealed he had no factual support for his opinion.  He could not say whether additional monitoring between November 5 and November 7 would have revealed any abnormalities necessitating an immediate cesarean section.  Relying on its 2008 decision in Wiedenbeck v. Searle, the Court affirmed summary judgment for the defendants, finding that the expert's opinion would have allowed the jury to impermissibly speculate as to how and when definitive treatment should have been undertaken which might have prevented the outcome.

An expert's testimony, therefore, that the outcome would have been different had the defendants complied with the standard of care is insufficient to create a question of fact in the face of a summary judgment motion where the conclusion lacks factual support.

The time for challenging the attached opinion by way of a Petition for Re-Hearing or a Petition for Leave to Appeal to the Illinois Supreme Court has not yet expired, but we wanted to alert you to the existence and significance of this opinion.  If you have any questions regarding the decision, please contact a Cassiday Schade attorney.

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Cassiday Schade is a litigation law firm headquartered in Chicago, with a presence throughout the Midwest. We focus on providing our clients with exceptional and efficient representation and act as national or regional counsel for clients facing nationwide exposures.

With experience in virtually all areas of civil litigation, we have a diverse client base and our attorneys provide companies of various sizes with extensive trial experience and case preparation acumen. Throughout our history, we have represented individuals and companies in a variety of industries, including long-term care, insurance, financial services, manufacturing, construction, professional services and transportation. In addition to trial and appellate work, we provide both organizations and individuals with the tools to analyze and prevent risk before litigation arises.

We take pride in working with our clients and not just for them. Every case is different, and determining the best possible outcome is what our attorneys deliver. Sometimes this means aggressive preparation for trial, other times it may involve seeking an early resolution through alternative means, such as mediation or arbitration. Ultimately, our clients receive the benefit of having their matters handled with maximum efficiency and skill.



Cassiday Schade’s Admiralty & Maritime practice group represents clients in a wide range of maritime matters and understands the legal complexities that are an integral part of the marine industry.

At Cassiday Schade, we recognize the important distinction between trial and appellate work and the need for appellate specialists. Our attorneys have outstanding research, writing and oral advocacy skills and bring an original perspective and tailored strategy to each appeal. A significant portion of our strategy includes analyzing whether or not an appeal is the best course of action for our clients. Our practice group provides an appellate perspective when issues arise at trial, including the introduction of prejudicial evidence by an opponent, an opponent's efforts to limit the introduction of evidence favorable to the defense and jury instructions. We also become involved after litigation concludes, and offer guidance on post-trial motions and responses.

Cassiday Schade’s Civil Rights & Correctional Healthcare practice is dedicated to providing expert, cost-effective legal defense to correctional healthcare employers, as well as the doctors, nurses and other healthcare providers they employ. Our attorneys aren’t just excellent litigators, we are also industry experts and are intimately acquainted with trends, changes and legal developments that may impact our clients.

Cassiday Schade’s Commercial attorneys serve as advocates and business advisors to clients from a wide range of industries including banking, real estate financing and investment, health care, automobile sales and finance, financial services, insurance, manufacturing, and construction.

The representation of contractors, developers and design professionals has been a focus of Cassiday Schade since the inception of the firm. The depth of our experience covers the broad spectrum of all points where construction and the law intersect. Our list of clients includes the largest general contractors in Illinois as well as owners, architects, engineers and specialty subcontractors. We routinely represent these companies in their biggest and most problematic cases. While we have the ability to staff large accounts, we keep our client teams small so that our attorneys remain familiar with the client’s background and needs. This ensures efficiency and consistency in our representation of our clients.

Cassiday Schade’s Employment practice group represents organizations in a wide range of employment related disputes. As part of our litigation strategy, our attorneys provide an early assessment of each case to determine the best avenue toward resolution, considering both the nature and potential exposure of the claim and the needs of the client.

Cassiday Schade’s Environmental and Toxic Injury practice group serves clients who are, or may be, exposed to claims arising from the manufacture, sale or use of potentially toxic and hazardous substances, and to the threat of litigation arising from environmental claims attendant to land, air and water pollution. Our firm is often retained to handle not only the litigation of active lawsuits, but to monitor litigation for nationwide corporations, advise corporations on risk reduction and coordinate the nationwide defense strategy for corporations facing toxic tort, product liability and other commercial issues. Our success is determined by a skilled team of attorneys with industry acumen and access to a large network of experts and consultants. No matter the issue, our overarching goal is the same: to bring our clients the best possible result through proactive and individualized service.

The family law practice at Cassiday Schade covers a broad spectrum of work, from simple separation agreements to the most intricate and delicate situations. Our success stems from the precision, persistence and care to which we apply ourselves with respect to the law, as well as the ability to communicate thoroughly and compassionately with our clients, from the initial consultation to the final agreement or judicial ruling.

Cassiday Schade’s Hospitality and Retail practice represents a wide-range of clients in complex litigation matters, including hotels and hotel chains, hotel management companies, hotel property owners, franchisees, restaurants, bars, shopping malls, and event production companies. In addition, our skilled team of attorneys is committed to providing our clients with guidance and risk-management strategies to avoid future litigation. This includes but is not limited to, legal counseling, alternative dispute resolution and pre suit negotiations.

Cassiday Schade’s Insurance practice group provides full-service litigation, transactional and alternative dispute resolution capabilities to insurance carriers and other commercial entities. Our expert team of attorneys is focused on providing clients with prompt, direct advice regarding the risks presented in any given situation, both preventively and when litigation arises. Our team also frequently utilizes litigation alternatives such as contractual resolutions, standstill agreements and mediation, all of which can be of great assistance in complex insurance matters.

We represent some of the nation’s top hospitals and other healthcare providers in the successful defense of malpractice litigation. The actions we defend are approached with the highest level of professional consideration and we have tried hundreds of cases to verdict in over 50 counties nationally. Our industry expertise and innovative use of technology to create demonstrative evidence during trial provides clients with the most successful defense possible. We also have access to a network of the most qualified consultants and experts who provide guidance and work closely with our team of attorneys on these lawsuits.

Cassiday Schade’s Nursing Home & Long-Term Care practice group represents nursing homes, assisted living facilities, hospices, home health care agencies and rehabilitation centers. At the core of our practice is an understanding of the difficulty inherent in effectively addressing the quality of care provided to individuals whose health is compromised. Our attorneys are a dedicated group of litigators with extensive industry knowledge of OBRA Regulations, the Illinois Administrative Code and the Nursing Home Care Act. We are committed to partnering with our clients in the investigation, planning, direction and defense of a case to determine the most efficient and practical resolution.

Cassiday Schade’s Products Liability practice group has extensive knowledge of state and federal product liability laws and the applicable standards governing the design, manufacture and distribution of products. Our attorneys’ first step is product identification, specifically to examine our clients’ involvement in the design, manufacture, and/or distribution. This includes following paper trails and pursuing investigation to locate and preserve evidence. We also immediately analyze whether any legal defenses, such as statutes of limitations or repose, can be asserted. Our experience in the industry provides us with access to the most sophisticated experts. We act quickly to retain the best consultants, provide them with all applicable materials and obtain their input in order to present the best legal and technical defense.

Professional liability cases are often complex, both factually and procedurally. Cassiday Schade’s Professional Liability practice group services a wide range of clients including accountants, architects and engineers, attorneys, nursing homes, officers and directors, paramedics and psychologists. Our attorneys realize the importance of understanding burdens of proof, standards of care and the need to promptly identify the right consultants and experts. We stay abreast of case law and developments in the profession so that we can bring the highest level of knowledge and understanding to a given case. Our practice team involves our clients in all aspects of litigation, keeping them informed and seeking their input.

Cassiday Schade’s Transportation practice group represents motor carriers, owners, operators, trucking companies and insurance carriers in what are often catastrophic accidents involving trucks, trains, buses, vans, automobiles and other modes of transportation. Our rapid response team of attorneys, accident reconstructionists and transportation investigators is on-call 24 hours a day and can be immediately dispatched to preserve and document physical evidence, inspect vehicles and perform a download of the electronic control module. We also frequently defend cases where the first notice is the lawsuit. Our attorneys perform early assessments of both the liability and damage aspects of each case. This analysis often leads to an early resolution by way of alternative dispute methods including mediation.



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