Foley v. Fletcher, 2005 WL 2276972 (1st Dist.)
213 Portion of Decision
Relevant Facts:
A baby was born with cerebral palsy. Her parents sued the obstetrician claiming she was negligent in attempting a vaginal deliver after a c-section (VBAC). The jury awarded the plaintiffs $16 million. In essence, the plaintiffs' 213(f)(3) disclosures stated the defendant-doctor breached the standard of care by failing to inform the patient of the general risks of VBAC. At trial, the expert was asked what informed consent meant and testified the patient "needs to know why she's at risk, what in her history or examination puts her at risk, and if the situation changes with time, any additional risks need to be explained to the patient". The expert then testified about the specific factors that put the patient/mother at risk.
Issue on Appeal:
Whether plaintiff's expert included new opinions that were not disclosed before trial pursuant to Supreme Court Rule 213(f)(3)?
Holding/Bottom Line:
The expert's opinions where not new, but were logical corollaries to what had been disclosed. A witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it. The testimony at trial must be encompassed by the original opinion.
Risk of Future Harm / Holding/Bottom Line:
The plaintiffs' expert testified the child had an increased future risk of scoliosis and hip dislocation, but could not quantify the risk as slight, moderate or significant or predict whether the risk would materialize in this child's case. Jury's award of $1 million for risk of future harm was vacated because the plaintiffs' expert could not quantify the risk of future injury. Therefore, the jury's award was speculative and not supported by the evidence.
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