*fn1 REPORTER'S NOTE: ROBERT C. HELSEL, District Judge, was
appointed to hear case No. 62,210, on the September 1990 docket
vice Justice Abbott pursuant to the authority vested in the
Supreme Court by Article 3, § 6(f) of the Kansas Constitution.
The opinion of the court was delivered by
This is a personal injury action arising from an automobile
accident. The defendant admitted liability, and the case was
tried on the issue of damages. The jury returned a verdict in
favor of the plaintiff in the amount of $24,047. The defendant
appealed, asserting four claims of error. The Court of Appeals,
in an unpublished opinion filed March 9, 1990, found no
reversible error on three of the claimed grounds but held there
was reversible error in the plaintiff's cross-examination of
defendant's expert medical witness and remanded the case for a
new trial. Plaintiff sought review of the issue on which the
reversal and remand were ordered, and her petition for review was
Preliminarily, it should be stated that we have reviewed the
three issues in which the Court of Appeals found no reversible
error and are satisfied that the Court of Appeals adequately and
properly determined the same. This opinion will, accordingly, be
confined to the issue on which plaintiff sought review.
The expert witness involved herein was Dr. Joseph Lichtor, an
orthopedic surgeon practicing in Kansas City. At the time of the
trial herein, Dr. Lichtor had been the subject of exclusion as a
witness in Jones v. Bordman, a Johnson County case, which was
the subject of a then pending interlocutory appeal. Our decision
in Jones was filed on July 8, 1988, (Jones v. Bordman,
243 Kan. 444, 759 P.2d 953 ) some four months after the trial
herein. The trial court had excluded Dr. Lichtor after taking
judicial notice of a decision of Judge Marion Chipman, who had
disqualified Dr. Lichtor as a witness in Barnett v. Drees,
Johnson County case No. 85-C-4694. Defense counsel herein was
aware of these Johnson County events and filed a motion in limine
seeking an order precluding plaintiff's counsel from
cross-examining Dr. Lichtor relative to his disqualification in
Barnett v. Drees.
The motion was partially granted by the trial court. Inquiry
would be limited to: (1) whether the witness has been
disqualified from testifying as an expert witness in any court
before; and (2) whether the witness has been disqualified from
testifying as a witness. The trial court intended the questions
be answered by a yes or no, and there would be no inquiry into
the reasons given by the trial court in Barnett v. Drees for
excluding Dr. Lichtor as a witness. The court and counsel
understood the ruling but when Dr. Lichtor took the stand the
situation rapidly landed in the proverbial handbasket. The basic
determination to be made is whether the ultimate course of the
testimony was the result of plaintiff's counsel's disregard of
the order in limine or the result of Dr. Lichtor's responses to
In order to make this determination, it is necessary to follow
the progression of the testimony. On direct examination by
counsel, Dr. Lichtor gave his professional credentials, discussed
how his practice had changed as the result of advancing years and
a bout with cancer, and stated that he now mainly confined his
practice to evaluations of people who have been injured. The
following question and answer then occurred:
"Q. What do you mean by evaluations of people that
have been injured?
"A. Well, I do what is called an independent medical
examination. I'm asked by an attorney or a
company or I'm a consultant for the government.
I've done cases for the State of Kansas, the City
of Topeka, City of Olathe, of people who have
been injured. And they send them to me for an
independent medical examination for me to gather
all the facts, evaluate the patient and give an
opinion, an opinion that is not influenced by
whoever is sending it to you or the patient or
anybody else, or another doctor."
Dr. Lichtor was then asked if he had done an "independent"
evaluation of plaintiff, and he stated that he had. The witness
then discussed how he had reached his "independent" opinion
relative to plaintiff's condition by examining her and reviewing
all of her medical records. He concluded that she had received a
few bumps and bruises from the collision which had killed the
other driver. When asked to explain plaintiff's complaints of
back pain, when he could find no physical reason therefor, the
witness discussed compensation-oriented symptoms. The direct
examination was then concluded with more statements relative to
his extensive experience in forensic medicine and how he was a
medical advisor to the federal government and federal judges on
Social Security matters.
Cross-examination commenced with extensive interrogation as to
Dr. Lichtor's fees for his independent medical evaluations. He
was then asked if his qualification to testify as an expert
witness had ever been rejected. He replied, "One time." He was
asked if this had occurred more than one time. He replied, "Not
that I'm aware of or was involved with." Counsel asked him if
there were two instances of disqualification. The witness stated
that one was not final as the judge therein was "being
investigated by the Supreme Court of the State of Kansas." He was
then asked about certain findings made in Barnett v. Drees
tending to show Dr. Lichtor's testimony favored whoever had hired
him (these were not identified to the jury as to their source).
Defense counsel objected to a question as to what Judge Chipman
had found in his order of disqualification on the basis of
hearsay. Plaintiff's counsel stated this inquiry was being made
as the result of the witness having repeatedly stressed in his
direct testimony that he gave independent evaluations and the
witness's unresponsive attacks on Judge Chipman. The following
then occurred in a bench conference:
"THE COURT: I'm going to sustain that objection.
However, Dr. Lichtor is volunteering in his responses
allegations about what findings Judge Chipman did or
did not make. If he continues to do that I'm going to
allow Mr. Kugler [plaintiff's counsel] more latitude
inquiring into the basis of his statements in that
regard. I think we need to get away from relitigating
or from litigating the issue of Judge Chipman's
order. I think it's proper cross-examination to
determine that whether he has been excluded from
testifying as an expert witness. And that was the
substance of my previous order. But I don't want Dr.
Lichtor up there trying his complaints against Judge
Chipman or anyone else before this jury.
"MR. KUGLER: My only problem is, Judge, I have yet
to get him to give me just a straight answer. The
fact of Judge Chipman's order was to exclude him from
testifying as an expert witness in this case. He has
"THE COURT: Can counsel stipulate to that, that was
"MR. HASTY [defendant's counsel]: That's what he
"MR. KUGLER: No, he didn't. He has said that Judge
Chipman is being investigated. He's filed an appeal.
He never answered that question.
"THE COURT: Did that case ever go to trial?
"MR. HASTY: No. It's on appeal.
"THE COURT: Went up on interlocutory appeal?
"MR. HASTY: That's why we moved in limine that the
whole thing not be brought up. It's interlocutory.
"MR. KUGLER: It's still an order excluding him from
testifying. And it's a valid order. It's not
reversed. It's a valid, final order.
"MR. HASTY: It is not a final order. It's on
interlocutory appeal. It's not even been tried. It's
"MR. KUGLER: If I just get an answer to my one
question, has he been excluded.
"MR. HASTY: If he asks that ...