Wrobleski v. De Lara

727 A.2d 930 (1999)

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Nature of the Case

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Facts

P claimed that D negligently damaged P's small intestine during a laparoscopic procedure performed by D. During the laparoscopy, D found a number of adhesions in P's abdominal cavity. Part of the omentum -- a fatty apron that covers the front part of the abdominal wall -- had adhered both to the abdominal wall and to part of the small intestine. D removed the adhesions with a pair of surgical scissors. It is undisputed that some damage was done to the small intestine during that removal. Whether through an actual puncture or as the result of necrosis arising from other trauma, a perforation occurred, which allowed contents of the intestine to leak into the abdominal cavity. This caused pain, an infection, and the need for corrective surgery. The experts disagreed both as to what caused that perforation and as to whether the perforation resulted from negligence. P's experts, Drs. Battle and Lilling, asserted that D was negligent. The three medical experts who testified for D concluded that there was no negligence -- that D's conduct was within the appropriate standard of care and that the perforation was not the result of negligence on her part. P elicited, without objection, that Dr. Battle had testified some 50 to 60 times for medical malpractice plaintiffs, that about 25 of those appearances had been for clients of Mr. Ellin, who served as P's attorney, and that, in the preceding twelve months, Dr. Battle had earned between $30,000 and 50,000 from testifying as an expert, which amounted to about 15% of his income. Dr. Battle stated that about 80% of his appearances had been on behalf of plaintiffs. Mr. Ellin brought out that, in about half of the cases Dr. Battle reviewed for him, the doctor opined that there was no malpractice and that, to the best of Dr. Battle's knowledge, Mr. Ellin did not take those cases. During Dr. Lilling's pretrial deposition, the doctor disclosed how much he had been paid by Mr. Ellin for his services and stated that the total amount he earned from testifying as an expert witness was less than 20% of his total income. He refused to reveal the total amount of income he received from testifying as a witness. He also refused at trial when asked. D objected to questioning Dr. Lilling about the total income he received from testifying. The court overruled the objection but did not require Dr. Lilling to answer. The question was put whether the witness was willing to disclose the information, and once again the witness declined. He did reveal that he had earned $ 27,000 from Mr. Ellin's cases in 1995. D got the verdict. P appealed claiming that the allowance of the unanswered question was error.