Is Expert Testimony Needed?

    The case of Toni Thornton has raised many important issues in Illinois.  I wrote about the young woman two years ago when her lawsuit was on appeal after a first trial on the issues, “When Outside Information Taints Jurors and Verdicts,” August 2006 Chicago Lawyer.

    After a verdict for the defense, the appellate court reversed.  All of the defendants then settled except the doctor, and the case proceeded to a second trial with Spesia, Ayers & Ardaugh of Joliet representing Thornton.  A jury found for the mother and against the doctor on the grounds of negligent infliction of emotional distress and awarded her $750,000.  The doctor appealed the verdict, but the appellate court affirmed.  Thornton v. Garcini, M.D., 88N.E.2d 1217 (3d Dist. 2008).  At this writing, defendant’s petition for leave to appeal to the Illinois Supreme Court is pending on the issue of whether the plaintiff needed to present expert testimony in order to prove her claim for negligent infliction of emotional distress.

    The case involves Thornton giving birth to a premature infant in 2000.  She was in labor and arrived at the hospital at 6 a.m.  Her obstetrician was called and initially prescribed medication for her at about 6:30 a.m.   By 7:10 a.m., he was called at least three different times and told that it was an emergency and that no other doctor was available to deliver the baby.  Her doctor lived 25 minutes from the hospital; after showering, he finally arrived at 8:20 a.m.

    In the meantime, the nurses at the hospital struggled with Thornton, whose baby was in a breech position.

    With the baby’s arm and head still in her birth canal, they could do no more without a doctor present but cover the baby’s head with a blanket as Thornton lay there in the hospital waiting for more than an hour.  She saw and felt the baby kicking.  He put his little hand around her finger.  Then the flickering stopped.

    When the doctor arrived it took about one minute to deliver the dead infant.  They wrapped Jason in a blanket and she held him for a while.

    “I tried to close his mouth.  It fell back open,” she testified at trial.

    Following this horrific event, she could not stop reliving it, even after seeking medical treatment.

    Reminders of the baby and the tragedy were everywhere, including the remarkable facial similarity to her older son as she watched him sleep.


    The issue was whether a paid expert is necessary to establish the mother’s emotional distress caused by the defendant’s actions, which she expressed on the witness stand.  Is expert testimony really necessary to convey this mother’s anguish and horror from reliving this event?

    Thornton’s mother also testified at trial that her daughter cried all the time following t his incident and the she was “not the same person.”

    In Thornton, the court relied upon precedent of the Illinois Supreme Court that a general negligence approach is utilized involving a claim of negligent infliction of emotional distress: duty, breach of duty, and injury proximately caused by that breach.  Corgan v. Muehling, 143 Ill.2d 296, 574 N.E.2d 602 (1991).

    There, the court held that it had “not lost its faith in the ability of jurors to fairly determine what is, and is not emotional distress.”  Thornton, quoting Corgan, 143 Ill.2d at 312.

    It is well settled that Illinois law does not require a contemporaneous physical impact or injury as the result of the defendant’s negligence in order to recover for negligent infliction of emotional distress.  The Illinois Supreme Court eliminated that requirement in Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961). 

    Negligent infliction of emotional distress involves conduct that goes beyond the bounds of decency and would be considered intolerable in a civilized society.

    The Thornton court relied upon Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App.3d 694, 701, 697 N.E.2d 743, 748 (1998), which held that, “The existence or nonexistence of medical testimony goes to the weight of the evidence but does not prevent this issue from being submitted to the jury . [citing Corgan v. Muehling].

    “Expert, or medical, testimony is not needed to prove things that are common knowledge.  Any average, reasonable person can readily evaluate a claim or emotional distress...”  Clark, 297 Ill.App.3d at 701.

    Dr. Garcini’s patient was a pregnant woman.  It was reasonably foreseeable that if he negligently caused this occurrence, a mother could suffer emotional distress, forever changing the patient’s life and that of her family’s.  The wisdom of the Illinois Appellate Court here is apparent and one hopes that, in considering the petition for leave to appeal, the Illinois Supreme Court would agree.