proud judge in this case stated the reason it's a legal swap he believes that this was a collateral matter that should not be the subject of cross examination or any other evidence before the jury the judge stated that dr cottle may very well have perjured himself in the deposition and that can be addressed criminally or professionally but not to the detriment of the point by providing the relevant evidence of a collateral matter to the jury one other words and the judge reiterated those reasons when he ruled after the offer proof he said i'm going to go back to my original ruling so i don't think there's any question that dr mercado not tell the truth in his discovery decision and i don't say that lightly i understand that that is that is a serious ma to say that an attorney and physician an expert witness in the case has lied under oath and has discovered that but i would respectfully suggest you drop the first that on this record that's the only conclusion that you can rea  time of trial will testify in a different way hence the use of the discovery deposition has an impeachment tool already indicating that this was such a rare occurrence where a witness testif suggesting it because of this it's not a collateral matter when he testifies to it in his discovery deposition where he's defending his opinions in the case and he testified directly contrary to what he testified to his discovery of this discovery deposition he said that the reason he left was personal and he went on to scott's his father all right denied that it had anything to do with grade teacher any cheating scandal or anything like that wasn't specifically asked about that but we discovered that he lied about that his deposition and we took a step to take dr prime's deposition who was on the academic committee and he testified that without any objection this is an evidence deposition mind you were where he's asked about this he says he was on the academic committee and he was involved in a blatant cheating scandal and they recommended that he be expelled and he was allowed to transfer him out let me tell you let me go back to the discovery deposition and your question about let's say that he had told the truth of his deposition that if he had said look i was accused of cheating on examination but i didn't do we're not going to litigate that issue that's true we're not but the minute he lied about the minute that he under oath and torrent testified falsely about that that calls into question his opinions as an expert witness ok so if dr marcano is this coverage deposition was asked by you did you file a tax return in two thousand well he says no you says yes and you have proof that the  to the substance well it's related to the substance because he he's defending his opinions in this case ok he's an expert witness this is not like any of the cases that the point of his side it where you're trying to impeach some you were never trying to prove he cheated on him he what we wanted to show was that he lied about it in his discovery deposition and that calls into question his all of his opinions in my view i mean this to answer your specific question if he if you outright lied about it i mean that's that's a i would still say as an attorney as an attorney if he's lying under oath about something that's fair game now that doesn't mean we perform a mini trial on it all it means is that if he didn't file a tax return then on cross examination you get to bring that out and it calls into question his credibility we were allowed to do any of that we weren't allowed to cross examine him on it we weren't allowed to present any evidence on it and that's the difference  this particular testimony goes to his medical education his medical education on his resume he did not include this school college which was one year of his of his education in then i darn well better tell the truth about that in my deposition and the notion that he can just hide behind the fifth amendment is contrary to all notions of due process and by counsel can we back up just a moment  be expelled but we don't know whether or not that recommendation was accepted right so we don't know that he actually was required to leave the school because it is a legit cheating scandal we don't know because he took the fifth not a lawyer took the fifth amendment in a civil case and said i'm not going to answer because it's going to incriminate me there's only one conclusion you can reach from that and that is that he doesn't want to tell the truth about it because you know that he lied about it in this discovery that position now you know discovery depositions are very liberal ational you're entitled get into a lot of things ok now let's say this he testified in his discovery deposition all right let's say that he admitted it and he said yes i was involved in the cheating or i was alleged to approve volved in cheating scandal and that's the reason my left but look i didn't do it or it's irrelevant but we have an objection if he said i had i'm not going to answer that question because it has nothing to do with my opinions then you have been in camera inspection he can go in his counsel  scandal he was not asked specifically if he had to leave because of the cheating scandal he was asked why do you laugh and we pinned down the test he said personal reasons and then when he was asked about that he blamed it on his father he said my father had to leave he didn't say anything about that ok now if you back to the discovery deposition if he testified truthfully about it then he could problem our defense counsel could questioned him about it he could have said ok well tell me about that and we could develop discovery of that he's the attorney did he disclose that on his professional you know that i'm not sure i understand there though are you saying that the it was insufficient of the discovery deposition questioning was there any request to go further than what had been done during the discovery deposition no because we didn't need it we wanted to impeach him during his trial testimony and if he denied it then we would bring out the testimony of dr prime but say you want to show that he was a a witness may be attacked or supported by evidence in the form of opinion or reputation but subject to these limitations the evidence may refer only to character for truthfulness run truthfulness evidence of truthful character is admissible only after the character witnesses were truthful has been attacked by opinion or reputation evidence or otherwise that's a rule my point is you are trying to offer a specific incident bad character verses in opinion o well i would respectfully disagree with your honor but we were doing was introducing evidence that he lied about it in his discovery deposition and that's different that's quite different if he had testified truthfully in this deposition and we had been allowed to explore that and that and i think the judge that would have been a discretionary determination for the judge because it's the same as these or the examination cases where someone has asked you know let's say in there that the case that's sought that they were alive on this a case where the person testified truthfully at trial that she didn't pass the board exam several times and they brought out well know as an attorney or as an expert you know there is nothing more important than the cross examination process this is not just about the plaintiff and the detriment to the plaintiff this is a case where d porcine has been hit with a one point three million dollars heard and it's based soley on the standard of care testimony of someone who let's just say for purposes of of argument he lied under oath about the reason why the dietary school would you be making the same argument here yes and the reason i would be making this argument is that we never asked for me trial all we wanted to do was question him about it and have him testify and if he of this well then he said peace with his discovery deposition where he obviously testifies differently but we were even allowed to do that because he took the fifth amendment and that creates  that he's testifying falsely i question this legal ruling that basically says look just because he lied a body what what is the judge determined was a collateral matter it's irrelevant and not because he gave his opinions a couple of years before that when he reviewed the case well if i'm an attorney doctor and i'm going to testify as an expert witness in the case and i'm question about something in my discovery deposition and i raise my hand and i say i'm going to tell the truth during this deposition if somebody asked me i mean i was involved in any cheating scandals but let's say that i wasn't i'm darn well going to tell the truth about  i'm not going to jeopardize my license i'm certainly not going to perjure myself and this is an attorney who how did himself as someone who prepared witnesses for trial was involved in the ethical aspects of the law he used that position to bolster his credibility he even went to the point to stay on direct to talk about his father how i'm very fair very very very fair because i don't want to parse my reputation or my family's reputation you think he opened the door who sang some of these things that he did well i think either way it comes in because he lied about it under oath you know if he had answered truthfully and not taken the fifth amendment i mean i have looked all of you have practiced law i know that criminally and simple i would venture to guess you've never run across a problems the only reason it became relevant is because he lied about it in this discovery deposition and all we wanted to do was questioned him about it let the jury decide and then if he denied it if he continued to maintain that well i mean if he if he did not then we wouldn't peach him with this discovery deposition but certainly it becomes relevant once he takes the fifth amendment and we're not even allowed to bring out dr prime's testimony which is  that he was involved in this cheating scandal but you know getting back to his father he uses his father to bolster his credibility yet as discovery deposition he claims that he says hat's the reason why he left but you don't want to litigate that all we ok if you look at his testimony and by the way we included all in our ten years if you look at his testimony he was asked it on his resume he included all his undergraduate regardless of he was a student didn't know anything else but he knew he was a student so he was asked about why that wasn't on his resume and that's when that the scutcheon they got into that discussion about that and and that's his medical education and all he had to do was tell the truth about all he had to do was tell the truth but he didn't do that and that's the problem you know this is the notion that he can take the fifth amendment this is ken this is an attorney going back if i'm going to be an expert and i'm going to raise my different action they knew it was coming they knew we were going to raise that issue but they didn't do that and we should be allowed to explore that i think i understand your reluctance but i would just ask the court to look very carefully at those cases because none of them deal with the situation where someone has took the attorney has lied under oath in discovery deposition and i mean i don't consider the collateral matter when you have an expert who has testified the way he please the court and council my name is brant holmes i have the privilege of representing kyla de mint in this appeal we respectfully request this court affirm the verdict of the jury the trial court provided both sides with a fair trial it is a question of whether or not the trial court engaged in a clear abuse of his sound discretion and ruling on the objection and there is no suggestion no indication that the judge clearly abused is sound discretion in this matter now when i read the defendant's opening brief i was somewhat confused on this issue this being raised because the defendant sided and quoted extensively from cases involving the question does an expert has an expert reach the threshold of being able to express an opinion in the case and so they cited the harrington case which was one in which a new trial was granted for the plaintiff because this expert who was a chiropractor also claimed to be a medical doctor and it turned out that he had never had a medical license to practice medicine in flynn that was a case in which again the question was did the expert reach the threshold and this doctor she had all right sorry the doctor had claimed that he had never taken the board sort of patient boards never taken the exam before but he had recently just recently taken the exam was waiting for the results and they were able to show that in fact he had taken the boards on at least two prior occasions and failed and both times in the reply brief it became crystal clear what the issue that the defendants were raising at page two of their reply brief they quote from the statements that were made to judge glenn and they say this is not in the realm of those cases where the expert has attained the threshold to testify so in other words the cases involving threshold the cases they cited in their only bring their say it's not applicable those decisions are not applicable why because they're telling us in their reply brief we're not challenging dr mcconnell those credentials or whether he possesses the credentials that he claims to possess his license in illinois board certified into dr terry he has done hundreds of thousands of the same surgical procedures that doctor or sheeny of perform in this case on carbon so they're not challenging him so those cases don't even apply so what do we get down to we get down to they attempted to impeach dr macondo on a collateral matter and the court properly granted the motion in limine a this was an incident that happened some thirty years ago and this fourth district a public court the expert witness had apparently authored a report in favor of a patient saying you've got a medical malpractise case and i don't want to pick seven years but seven years later when it comes to trial that same doctor testified in a case that there was no malpractise against the hospital and they said well we ought to be able to bring this up it shows that you know he's going to change his opinions you know he can't be trusted at cetera et cetera and just a stockman correctly pointed out that this was on a collateral issue we have brought out in our case the o'brien versus meyer case which i think does kind of go into the issue of collateral attempt at that impeachment on collateral issues here the the doctor that she was licensed in florida to practice medicine and it turned out that she had taken the eleanor i examination four times that it never passed the appellate court said that was  error to let that cross examination in because she had method threshold and what you're really doing is is trying to bring up something collateral something that happened prior to her becoming a licensed p now when we were in laws pool at least what i recall from my evidence instructor was they drilled into us they drilled into the students you know not every lie not what you think is a lie not every inconsistency that you are going to find can you use it in a case clearly and graham when you pull up that book and you look under impeachment collateral matters if you recall if you're old enough like me i do recall the late irving younger you know the ten commandments of cross examination and he talked about the same issue you are there a trial to prove the issue in the case and in this case did the defendant commit malpracti if that's not what you're trying to prove through the cross examination of the witness it's collateral and you can't pursue it so dr macondo in this discovery deposition you went to school the first  and you transferred to a hollow shell yes i said why did you do that well i did it for personal reasons but that's kind of the sum total of what you get out of the deposition they never asked him did you leave because your nation a cheating scandal you know are you a defeater did you lie what did you do they didn't ask any of them they later go and take a deposition of a doctor of crime who readily admitted he had no personal knowledge as to any of this he sat on some kind of a credential room or an academic committee and apparently made a recommendation has no idea what became of it so on the state of this record we have no idea the defendants cannot prove and taking well that's because as you correctly pointed out when you are attempting to impeach on a collateral issue you have to take the witnesses answer as final and that is in the people we've cited and i absolutely agree with you justice turner the trial judge in this case would have been wholly justified in preventing the defendant from wasting the judge's time in the middle of the trial and having the jury sit back in the jury room while they're going through this so called whole offer a proof he told in his deposition that he left for personal reasons and that answer is final and you can impeach him why are we going through this charade at trial going fishing and trying to say well let's come up with let's find out one of the reasons why he left he was really telling the truth about that and so whether or not in this offer of proof which the judge could have simply found need any offer proof it's collateral i don't care what the reason is it's collateral you can't use it so it doesn't matter whether dr marcano in this so called offer approve said you know this happened thirty years ago i really don't remember the specifics of it or he takes the fifth amendment and the judge said well you know you could think the fifth amendment and if he felt he was being persecuted so he takes the fifth amendment whatever his answer is or no answer it's wholly immaterial this is not admissible whatever he was going to say or not it is going to say was going not going to be admissible let me give you a simple example let's say that in a deposition a witness is asked clearly and concisely have you ever been convicted of a felony or misdemeanor involving dishonesty or false faith in the witnesses no i never have are you sure about that have you ever been convicted of a felony or misdemeanor involving dishonesty or false statement oh absolutely not never had never in my life and so you come to trial and counsel has a certified copy of a record of a conviction in another jurisdiction showing that this witness pleaded guilty to a felony twenty five years well judge i want to use this why why do you think you can use it w he lied in his deposition he said he's never been convicted of a phony and luck he has been convicted of a felony i can prove it he's a liar and the judge said you know what you may be right but people first of montgomery says you can't use it it's more than ten years old it doesn't come in we don't allow it that's what we talk about when we talk about collateral issues and so we don't go down that side street like the judge had a lot of patience here because most judges would have said i don't need your offer proof we don't need to hear from dr mercado we're not going to ask him any more questions about this a trial let's move on counsel you've already taken the deposition of this doctor hires or anything else you want to offer or not regard you have some of the half months from the time i rule before trial that this wasn't coming and yet i think anything else to offer have you done anything else about this to change my mind could you change my mind no matter what answer he gives it's going to be collateral you can't you have to accept his answer fine now there was some suggestion made here that well maybe the illinois rule of evidence but again looking at the replied they've told us that that doesn't apply and again wotan from counsel statement at trial the impeaching event was lying under oath in this case and that's a different rule six zero eight is the character witness rule this is this is not about the doctor's character in general three minute rule six so wait doesn't apply didn't have any intention the judge said if you have some reputation evidence you want to come in to break in with a witness to testify about his reputation or truth aracely you're welcome to do that they didn't do that and they know under rule six oh wait i think it's just as holder white alluded to rule six side eight specifically states you cannot bring in an alleged specific incident past incident to try to prove a bad reputation or veracity that is barred under illinois law even perjury yes unless you bring in a witness who says you know what i know dr mark cottle personally and i know of those who know of his reputation for truth and veracity and can you testify under oath what that opinion is yes and he would give that opinion yes that could come in but they didn't want to do that and they apparently couldn't find a witness who would do that so it doesn't come in under any circumstance and in fact he any time you take a witness in a discovery deposition and that witness says something materially different from what you found out at deposition at trial you can say well our witness is committed perjury but again it doesn't come in if it's on a collateral issue and this is exactly what the situation is here the trial court was very patient the court allowed him to do the offer proof and the court properly pointed out this offer group of insufficient being willing to agree testify and review it pays to have a patient against a health care provider and one final comment on this before i move on to the issues of the rich what if the shoe were on the other happened thirty years before this trial and we wanted to bring that into evidence this case what do you think the defense response to that would have been they would have taken umbrage at even the suggestion that we would have any right to do that but let's take the example of the shoe truly being on the other foot what if the file judge here had allowed the proposed testimony of the proposed line of questioning on this issue abuse of discretion still right that's what i can assure you if there had been a defense verdict we would have been up here in the appellate court claiming that the judge abused its discretion in allowing this to come in be tremendously prejudice you do you don't have these mini trials within him within a trial not belong in the case and it and the judge correctly ruled that he used his sound discretion in not allowing this case to dipali into some kind of where you know what really happened thirty years ago and when you read this record can you tell what did really happen thirty years ago there is no indication there is no there is no solid it's like you're trying to find a graph smoke and they're saying they were entitled to do  and all of this on that record and it's their obligation to present that record if you don't wait until trial and it's already collateral the judges are rules collateral that's a pretty dangerous practice and take well i'm going to put the witness up no offer proof and and rely on the witness to give me what i'm looking for are you kidding me the witness has no obligation responsibility to do that and we certainly as plaintiff had no obligation a responsibility to do anything with regard to the defendant on this issue now with regard to the claim group to thirteen violations the trial court was in the best position to consider and rule upon the issues pertaining to rule two thirty and dr mercado in his rule in his six twenty two report indicated merrily and he says yes i performed each of the surgeries that dr borsch e v f for form and also i treat patients with conservative management and i'm familiar with that area of care treatment that's kind of a summary of what he was saying and hair trigger object should not judge and this this violates rule two thirteen of course it didn't violate rule two thirteen we were laying the foundation that dr mcconnell is familiar in his practice with not only the surgical  procedures performed and also with conservative approaches and management to the care and treatment of these of these conditions of these but conditions that were involved in this case and that was exactly what he was talking about in this six twenty two and in his deposition in a trial was it in the context of justifying his the standard of care no i don't even believe it was in that context and i think that same could be true with the other issues they've brought up with regard to the screwing that was a fact in the case pain because the screw isn't placed correctly and it's certainly consistent with a doctor it is suing a subsequent treating orthopedic surgeon who said when she came into my here because of that place well we say because  for the screw was gross motion of the bones of the group of the big toe so these are all consistent his opinions of deviations were as expressed in his six twenty two report and elaborated upon and corollaries to those opinions of the court having heard all of this a trial and knowing what had gone on before trial in that trial says i don't find that it is so far so inconsistent or so different from the opinions that have been thirteen to thirteen and certainly nothing that would be so seriously prejudicial as to deprive the defendant of a fair trial like to briefly mention with regard to the jury instructions  well and i would say with regard to the issue of route two thirteen i believe the record is clear in closing argument i don't believe there was one of jackson made during closing argument when i'm pointing out even if there was some issue that partly was maybe beyond the two thirteen it was not focused on it was an elaborate on it wasn't used in a way to tactically harm punish or prejudice the defendant throughout any of the rest of the trial and certainly not during closing  addressing the objections based on rule two thirteen with regard to the jury instructions plaintiff instruction one thousand was a nine but it was an issue in the case no patient can consent to now being malpractise and with regard the to the the consent forms informed consent forms those were front and center of the jury the judge had given a limited instruction when they came in and he fell  appropriate at the end of the case to make sure that the jury was began reminded that they couldn't go into the jury room and speculate that because she was told about all of these horrors that could happen as a result of care and treatment that won't since she knew about all that she can't recover from the defense that would have been a miscarriage of justice and there is no suggestion that that instruction which was concise that that in any way misstated the law is a correct where he was asked whether or not about his medical education and he lied about it and then it came out later that that was alive you're darn right that they would do it they would try to bring that in and they would bury it rightfully so this because i'd love to research if a plaintiff were to testify that clears if this defendant or anyone were to testify that clearly when asked about whether you ever been convicted of a felony and he said no no no and then it comes out that he outright lied in his deposition about it that goes to his credibility now it's a different situation when there's no question about it this is something that he was asked about in this discovery deposition and he lied about that's all we wanted to do we didn't want a mini trial this would have been a simple matter if in the example that he's talking about there would have been a simple matter of just let it go the jerk make him answer the question you testified truthfully about it it wouldn't even be an issue but the minute he lied about it under oath it became an issue and you know these cases that we cited i would ask you to look at those cases it cases involving perjury where you have someone who has lied under oath this this kind of stuff does come to me i'm those cases cases involving their qualifications to even give the opinion that they're a but some of them are that's true but they are also cases where someone has lied under oath and it becomes relevant because of that you're right he's brought up we're not questioning his whether or not we find that it is a plant or man and i believe that's basically true if if let's say he was a question about that let's say a doctor born jenny was a question and he wanted to come in and present evidence that while he was transferred from the school because of a cheat scandal i would agree with you the judge has discretion under those circumstances to say look that's a cloud or matter but if he's asked about his deposition as an attorney an that comes in that's a completely different situation so we're talking about the quality of the lie the gravity of the law is how do you i think if you you don't about it because he didn't want to but enough well if he's an expert witness and he's going to testify under oath and he has an obligation to tell the truth and if he didn't want to answer the question because it was collateral he shouldn't  of look it's personal it's personal and i'm not going to answer that question but instead he went on and he lied about and then took the fifth amendment at trial it's a different situation and i suggest to you that when somebody spread ability is an issue in a case like that as an expert witness and they lie about something that's not on their resume they one year of his medical school was at the school college it sounds like you're saying that we should make a special exception for expert witnesses that basically they lie about anything and automatically wasn't western their opinion in the case and they should be able to be impeached well that necessarily anything but you have to look at each case and here we have an expert who is both an attorney and a medical physician and who tout his experience as a boy really does that change the rule regarding you know impeachment on collateral matters how does that about if it's about trying to attack someone to credibility because of something they did in the past it's not about when they testified falsely and they did deposition it's a different situation i guess my collateral matter rule basically states that it's a collateral if it is not relevant to a material issue in the case so you only get to impeach if it is relevant to material into the case in the sounds like to me that expert witness an attorney under these circumstances whys about something like that in their discovery deposition it turns out that that's