NOTICE 2020 IL App (5th) 190149-U NOTICE Decision filed 09/04/20. The This order was filed under text of this decision may be NO. 5-19-0149 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
MARCIA PHILLIPS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 14-L-339 ) JANE GALE, ) Honorable ) Christopher T. Kolker, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court. Justices Moore and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court abused its discretion in barring defendant’s expert medical witness from testifying at trial as a sanction under Illinois Supreme Court Rule 219(a) (eff. July 1, 2002), where trial court found no deliberate disregard for its order by defendant or defendant’s expert, and the sanction defeated the goal of a trial on the merits.
¶2 Defendant, Jane Gale, was the operator of a motor vehicle traveling northbound on
East C Street in Belleville, Illinois, on June 30, 2016. Plaintiff, Marcia Phillips, was a
passenger in defendant’s vehicle when an accident occurred. Plaintiff was injured and
brought suit against defendant. The case was tried to verdict in favor of plaintiff. The trial
court entered judgment against defendant on March 12, 2019. Defendant appeals the
1 judgment of the trial court raising five issues for this court’s review. On the first issue of
whether the trial court abused its discretion in barring defendant’s expert medical witness
from testifying at trial as a sanction pursuant to Illinois Supreme Court Rule 219(c) (eff.
July 1, 2002), we vacate the order barring defendant’s expert witness and reverse the
judgment of the trial court.
¶3 BACKGROUND
¶4 In this section, we will focus on the background information contained in the record
relevant to the trial court’s decision to bar the defendant’s expert witness. On June 30,
2016, plaintiff was a passenger in defendant’s automobile when it struck the rear end of
another vehicle. Plaintiff was riding in the back seat and, according to her complaint,
sustained injuries to her neck, feet, back, cervical, shoulder, and lumbar area. Plaintiff sued
defendant alleging one count of comparative negligence. Plaintiff brought her complaint
against defendant by joining her as a party to a suit that plaintiff had pending concerning
two separate, unrelated automobile accidents which occurred on July 25, 2013, and April
24, 2015, and involved three defendants who were not involved in the accident at issue in
this appeal.
¶5 With respect to the two previous accidents, plaintiff initially filed suit on May 20,
2014, against a single defendant regarding the July 25, 2013, automobile accident. On
August 14, 2015, plaintiff amended her complaint and added counts against two additional
defendants in connection with the April 24, 2015, automobile accident. On February 21,
2017, plaintiff filed her second amended complaint adding the defendant in this appeal in
connection with the June 30, 2016, automobile accident. At the time that plaintiff was 2 permitted to file her second amended complaint, the case against the other defendants had
been pending for almost three years.
¶6 The defendant involved in the July 25, 2013, incident reached a settlement with
plaintiff and was dismissed with prejudice on March 17, 2016. On April 4, 2016, plaintiff
voluntarily dismissed one of the two defendants connected to the April 24, 2015, accident.
On November 14, 2018, the second defendant from the April 24, 2015, accident was
dismissed with prejudice, leaving the defendant in this appeal as the sole defendant in a
2014 case regarding the accident which occurred in 2016.
¶7 On November 20, 2017, defendant filed a motion to compel discovery alleging
plaintiff had failed to fully respond to defendant’s written discovery requests. Defendant’s
motion to compel stated that defendant had requested all of plaintiff’s medical records,
without limitation, and that plaintiff had objected to the release of any medical information
beyond a five-year period. On December 18, 2017, the trial court granted, in part,
defendant’s motion to compel discovery and directed plaintiff to sign any necessary
authorizations for plaintiff’s past medical treatment from the year 2000 forward.
¶8 On December 11, 2017, plaintiff filed a motion to compel discovery alleging
defendant had failed to completely respond to plaintiff’s written discovery requests.
Plaintiff had requested that defendant disclose any and all medications and/or drugs that
defendant had taken within 24 hours immediately prior to the accident. On January 27,
2018, prior to plaintiff’s motion to compel being heard by the trial court, defendant filed a
supplemental discovery response that listed the medications she had taken within 24 hours
immediately prior to the accident. 3 ¶9 On April 3, 2018, the trial court entered a scheduling order. The scheduling order
directed that all discovery, excluding controlled expert witnesses, be completed by July 24,
2018. The scheduling order also indicated that defendant was required to disclose
controlled expert witnesses by June 1, 2018, and that any request for a physical
examination pursuant to Illinois Supreme Court Rule 215(a) (eff. Jan. 1, 2018) 1 was
required to be noticed for hearing by July 1, 2018. The case was scheduled for jury trial on
September 24, 2018.
¶ 10 On June 1, 2018, defendant filed her controlled expert witness disclosures pursuant
to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2018). Defendant disclosed Dr. Joseph
Williams as a retained medical expert and indicated that Dr. Williams was to perform a
Rule 215(a) medical examination of plaintiff. Dr. Williams’s curriculum vitae was attached
to defendant’s disclosures.
¶ 11 Defendant filed a motion for a Rule 215(a) medical examination of plaintiff on June
29, 2018. The motion requested that plaintiff be required to appear for an evaluation by Dr.
Williams on July 16, 2018. There is no trial court ruling regarding defendant’s June 29,
2018, motion for Rule 215(a) medical evaluation within the record. On July 20, 2018,
defendant filed a motion to continue the trial date stating that the parties had agreed that
plaintiff was to undergo a Rule 215(a) examination by Dr. Williams on July 16, 2018, but
1 Illinois Supreme Court Rule 215(a) provides that a court, upon motion, may direct a party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition at issue. Ill. S. Ct. R. 215(a) (eff. Jan. 1, 2018). A Rule 215(a) examination is commonly referred to as an independent medical examination.
4 that defendant had recently been informed that plaintiff could not be examined on that date
and would need to reschedule. Concurrent with the motion to continue, defendant filed
another motion for a Rule 215(a) medical examination which indicated that the parties had
agreed that plaintiff’s Rule 215(a) examination by Dr. Williams would occur on August
27, 2018.
¶ 12 On August 2, 2018, the trial court granted defendant’s motion for a Rule 215(a)
medical evaluation and reset the matter for jury trial on December 17, 2018. Plaintiff was
examined by Dr. Williams on August 27, 2018, and following the examination, defendant
filed a motion for extension of time to produce Dr. Williams’s report and findings from the
examination. The motion for extension of time to produce the Rule 215(a) report was
noticed for hearing on October 1, 2018; however, plaintiff filed an amended notice of
hearing changing the hearing date to October 15, 2018.
¶ 13 On October 4, 2018, plaintiff filed a motion to compel defendant’s response to
plaintiff’s supplemental interrogatories and requests for production, and to strike
defendant’s interrogatories and requests for production directed to plaintiff. According to
plaintiff’s motion, supplemental interrogatories and requests for production pursuant to
Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018) were propounded to defendant on
August 1, 2018, and defendant did not fully respond to the discovery requests. Plaintiff’s
motion went on to state that defendant’s objections to the supplemental written discovery
on the basis that it “appears to request information from Defendant’s attorneys rather than
from the Defendant” was nonsensical as defendant sought the same information from Dr.
Gornet, plaintiff’s treating physician. Plaintiff further argued that since Dr. Gornet was a 5 treating physician, and not a retained expert, defendant’s Rule 213(f) interrogatories and
requests for production directed to plaintiff should be stricken because the discovery
requests were “not only improper, they are simply too burdensome.”
¶ 14 On October 15, 2018, the trial court heard defendant’s motion for extension of time
and plaintiff’s motion to compel and strike. The trial court granted defendant’s motion for
extension of time to produce Dr. Williams’s report and findings from plaintiff’s Rule
215(a) medical examination and then granted in part, and denied in part, plaintiff’s motion
to compel and strike. The trial court struck all of defendant’s discovery requests regarding
Dr. Gornet but granted defendant’s discovery request seeking to determine whether
plaintiff’s Rule 215 examination was video recorded by an unknown party. Plaintiff was
given 21 days to produce the video of the examination or certify its nonexistence. Over
defendant’s objection, the trial court then granted plaintiff’s motion to compel and directed
“defendant, her law firm, and her insurer” to respond to plaintiff’s supplemental written
discovery regarding Dr. Williams by November 14, 2018. The trial court’s order 2 did not
provide any specific rulings regarding defendant’s objections to plaintiff’s supplemental
discovery nor did the trial court’s order set out any specific information or documents that
it was compelling defendant to disclose.
¶ 15 On November 14, 2018, defendant filed her supplemental responses in compliance
with the trial court’s October 15, 2018, order. Defendant’s supplemental responses
included, inter alia, for the previous five years, the total number of times Dr. Williams had
2 There is no record of proceedings for the trial court’s October 15, 2018, hearing within the record. 6 been retained by defendant’s law firm; the total number of times Dr. Williams had been
retained by defendant’s insurer; the total number of independent medical examinations
(IMEs) Dr. Williams had performed; Dr Williams’s past income from his medical-legal
work; a list of depositions given by Dr. Williams; and the amount defendant’s insurer and
attorney’s firm had paid to Dr. Williams for deposition testimony. According to
defendant’s supplemental responses, the only documents not produced were Dr. Williams’s
and defendant’s insurer’s tax records, which defendant stated she did not possess.
¶ 16 Plaintiff also served defendant with a request to admit facts and genuineness of
documents. Along with the written discovery requests, plaintiff served a subpoena
duces tecum directing a custodian of records or corporate representative of Dr. Williams’s
employer, Orthopedic Center of Illinois, to appear for a deposition and produce documents
concerning all of its physicians’ medical-legal services for all law firms and insurance
companies. On October 30, 2018, the clinical director of the Orthopedic Center of Illinois,
Julie Britz, appeared for the deposition.
¶ 17 During her deposition, Ms. Britz admitted that the list of Dr. Williams’s depositions
omitted cancelled depositions for which the office received cancellation fees; that she
inadvertently used an outdated fee schedule for some of the depositions on her list; that she
had not checked to determine whether she could create a report of Dr. Williams’s and the
practice group’s fee revenues from telephone calls with attorneys; and that she had not
reviewed plaintiff’s chart before her deposition.
¶ 18 Ms. Britz did confirm that Dr. Williams had not testified at a trial for the past five
years, and Ms. Britz responded to questions concerning the list of dates, account numbers, 7 attorneys’ name, and phone numbers for all of Dr. Williams’s depositions conducted since
March 2013. However, Ms. Britz stated there was no means to determine whether the
depositions were for IMEs or treatment.
¶ 19 Ms. Britz stated that she believed that there would be an invoice in plaintiff’s chart
generated on October 24, 2018, documenting a charge of $500 for a telephone conference
between Dr. Williams and defendant’s counsel, but when asked to produce it, Ms. Britz
stated, “I don’t know. I don’t have her chart, I don’t have her records, I can’t say a hundred
percent.”
¶ 20 Ms. Britz testified that, to the best of her knowledge, she had produced plaintiff’s
entire chart, but she refused to access plaintiff’s chart during the deposition without
consulting her attorney. Ms. Britz also failed to produce the total income generated for
medical-legal work for the entire practice group. Concerning her compliance with the
subpoena, Ms. Britz testified that “[s]ome of these there’s no way we would be able to
produce.”
¶ 21 On November 5, 2018, Ms. Britz sent a follow-up correspondence to plaintiff’s
counsel indicating that both the charge and payment for the October 24, 2018, telephone
conference would be entered into the plaintiff’s chart once the fee had been paid and that,
to date, the fee had not been paid. Ms. Britz’s correspondence also indicated that she had
run the requested report and could confirm that Dr. Williams had not previously charged
or received payment for telephone conferences. Ms. Britz further confirmed in her
correspondence that the single printout of plaintiff’s account showing the IME charge and
payment were the only items in plaintiff’s chart. 8 ¶ 22 On November 16, 2018, plaintiff filed an emergency motion to bar the testimony of
Dr. Williams. According to plaintiff’s motion, Ms. Britz testified that she could produce a
report of cancellation fees and failed to do so; that she could produce a report of IMEs with
patient names and failed to do so; that she admitted that she made an error in the fee for
the dispositions which took place in 2018, stating that the fee was $1500 when in fact it
was $2000 and then “guessed” that fee increase was in January 2018, but could not testify
to the specific date; and that she could determine the person who had hired Dr. Williams
to perform IME with a manual review within their system and did not do so. The motion
also alleged that Ms. Britz stated that she believed she could possibly generate a report of
Dr. Williams’s and his practice group’s fee revenues from telephone calls with attorneys
and failed to do so, and failed to provide the invoice generated on October 24, 2018,
documenting the telephone conference Dr. Williams had with defendant’s counsel.
Plaintiff’s motion went on to allege that Ms. Britz never provided the name of the attorney
that represented the Orthopedic Center of Illinois.
¶ 23 Concerning documents, plaintiff’s emergency motion alleged that defendant
provided a figure of $218,000 in income for medical-legal work performed by Dr.
Williams, but did not provide any supporting documentation; that defendant failed to
produce 1099 tax records for Dr. Williams and defendant’s insurer; and that the records
indicate that Dr. Williams received a payment of $2500 on October 3, 2017, and that no
1099 or record was produced corresponding with that payment.
¶ 24 Plaintiff alleged in her emergency motion as follows:
9 “Although ordered by this Court on October 15, 2018, to produce the information
regarding its experts’ medical-legal work, Defendant categorically failed. When
asked for 1099 tax records, calendar entries, deposition notices, correspondence or
any and all other documents listing or giving evidence or the nature, frequency, case,
income, or hiring party for all medical legal work performed in the last five years,
Defendant failed to produce any of the information that Julie Britz testified she
could obtain.”
Finally, plaintiff’s motion noted that Dr. Williams’s evidence deposition was set for
November 27, 2018.
¶ 25 Defendant filed a response to plaintiff’s emergency motion on November 26, 2018.
In her response, defendant argued that plaintiff failed to identify, with particularity, how
defendant’s responses were deficient or noncompliant with the trial court’s order.
Defendant also noted that she did not possess any other records potentially responsive to
plaintiff’s Rule 213 discovery requests. Defendant further argued that plaintiff’s
emergency motion should be denied since the subpoena was directed to the Orthopedic
Center of Illinois and that the proper remedy would be to enforce the subpoena, which
plaintiff had not attempted.
¶ 26 Defendant also argued in her response that, in addition to not seeking enforcement
of the subpoena, the deposition of Dr. Williams had not been conducted. Defendant argued
that barring her expert witness would be an extremely harsh remedy and not justified in
light of defendant’s substantial compliance with the trial court’s order. According to
defendant, plaintiff had been provided “more than enough information to effectively cross- 10 examine Dr. Williams for potential bias or financial interest.” Finally, defendant requested
that, if the trial court deemed defendant’s responses incomplete, she be allowed seven days
in which to cure her compliance since the extension would not prejudice the plaintiff in
any manner.
¶ 27 On November 26, 2018, the trial court conducted a hearing on plaintiff’s emergency
motion. At the hearing, defendant noted that:
“[I]nformation has been produced on the number of IME’s that Dr. Williams has
done over the last five years, his deposition activity, his income from these
activities, the frequency of his medical/legal work, and his history of interactions
with defense counsel.”
Defendant also argued at the hearing that plaintiff failed to seek enforcement of the
subpoena or to conduct Dr. Williams’s deposition, both of which were avenues for
obtaining the information that was not in the possession of defendant or her counsel. As
such, defendant argued that plaintiff’s motion was premature because plaintiff could
conduct the deposition of Dr. Williams, and if any information were still lacking, the trial
court could then rule on plaintiff’s motion to bar.
¶ 28 Plaintiff’s argument at the hearing centered on the deposition of Ms. Britz and that,
although defendant’s supplemental responses indicated that she did not possess some of
the requested records, Ms. Britz acknowledged that the information was available.
Specifically, plaintiff stated that defendant’s counsel was informed at Ms. Britz’s
deposition that plaintiff needed “the medical/legal income of his practice, the medical/legal
income of Dr. Williams, I need [plaintiff’s] complete file.” Plaintiff also argued that there 11 was “mistakes in the compliance, inaccuracies.” Plaintiff noted that defendant had
produced a copy of a check to Dr. Williams in the amount of $2500 and that there is no
charge by Dr. Williams in that amount in the records produced by defendant. Further,
plaintiff noted that Ms. Britz never provided the name of the attorney that represented the
Orthopedic Center of Illinois and that plaintiff received an unsigned letter from Ms. Britz
stating, “Oh, that thing I told you is probably in our computer system, it’s not there.”
Finally, plaintiff noted:
“[PLAINTIFF’S COUNSEL]: *** So, on the 16th we filed this motion to
bar because this information was compelled. We already discussed it in chambers
with you.[3] We’ve done everything we possibly could to get the information ***.”
¶ 29 After arguments, the trial court stated:
“[Defendant’s counsel,] I understand your argument. And every once in awhile, oh,
God, about once every two or three years something like this happens where you
get—I’ll—a noncompliant IME is basically what it is who kind of goes rogue, not
because of the attorneys but just because their office does that. I don’t think it’s any
reflection on [defense attorneys] at all. It happens. I mean, we have seen it. We have
seen treaters do the same thing, to be fair, and every time it happens they get barred
because I’m not going to mess around with trying to send a deputy to Springfield
and having someone shackled and then brought down in a squad car with their
computer. That’s a little bit extreme. I just—if they’re noncompliant with that, I
3 There is no indication within the record concerning the date, or who was present, during the in- chambers discussion. 12 don’t even want to mess around with them if they’re not going to follow a subpoena.
I know, [plaintiff’s counsel], you guys have been diligent in your various attempts
trying to get compliance. Again, I understand it’s not [defense attorneys] themselves
that got a bad IME, and let’s move on with the trial.”
¶ 30 Upon completion of the hearing on plaintiff’s emergency motion, the trial court
issued the following order:
“This cause coming to be heard on Plaintiff’s Emergency Motion to Bar the
Testimony of Defendant’s 213(f)(3) witness, Joseph Williams, M.D. Counsel for
both parties appear and argue. Plaintiff’s Motion GRANTED. Video Evidence
Deposition of Dr. Joseph Williams set 11-27-18 at 5:00 pm is hereby stricken.”
¶ 31 On December 11, 2018, a hearing on the parties’ pretrial motions was conducted by
the trial court. The trial court granted plaintiff’s motion in limine to exclude any evidence
of plaintiff’s prior accidents, any injuries from her prior accidents, and any preexisting
medical conditions. The trial court based its decision on defendant’s failure to provide
expert medical testimony to prove the prior accidents, injuries, or preexisting conditions
were relevant to causation, damages, or some other issue of consequence. The defendant
was also not permitted to use plaintiff’s prior medical conditions or injuries for the purpose
of impeaching plaintiff’s medical witnesses. The trial court stated:
“I think then you end up down that road where you’re allowing the jury to throw
mud up against a wall for which there’s no causation. You would have to instruct
the jury—if I did it, you’d have to instruct the jury to then disregard it for purposes
of causation. And to me you’re creating mass confusion with the jury if you do that. 13 But the cases I read, especially in light of Campbell[4] or in that Hawkes case, it’s
defendant’s burden to get testimony that links it up. And I haven’t—I don’t see that
burden being met.”
¶ 32 The case proceeded to trial on December 17, 2018. After the close of evidence, the
trial court granted plaintiff’s oral motion for a directed verdict on the issue of past medical
special damages. The trial court stated:
“The problem for the defendant is the only evidence in the record—the only
competent evidence is [plaintiff’s medical witnesses’] linking it up, linking up the
treatment to the accident. There is—the treatment at issue. There is zero evidence
to the contrary.”
¶ 33 The jury rendered a verdict in favor of plaintiff on December 18, 2018, and awarded
plaintiff damages in the amount of $182,540.08. Defendant filed a motion for new trial on
January 17, 2019. The trial court denied defendant’s motion for new trial and entered a
final judgment on March 12, 2019.
¶ 34 Defendant now appeals the judgment of the trial court, raising five issues for this
court’s review. First, defendant argues that the trial court abused its discretion in barring
defendant’s expert medical witness from testifying at trial as a Rule 219(c) sanction.
Second, defendant states that the trial court abused its discretion in excluding evidence of
4 Both Campbell v. Autenrieb, 2018 IL App (5th) 170148, and Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994 (2003), discuss and apply the holding in Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), that where a defendant seeks to introduce evidence of a plaintiff’s prior injury or medical condition at trial, the defendant must first introduce expert evidence showing why the prior injury or medical condition is relevant to causation, damages, or some other issue of consequences unless the trial court determines a lay person could readily appraise the relationship without expert assistance. 14 plaintiff’s prior accidents, injuries, symptoms, and medical treatment. Third, defendant
claims that the trial court erred in granting plaintiff’s motion for directed verdict concerning
plaintiff’s medical special damages. Fourth, defendant maintains that the trial court abused
its discretion in excluding evidence of plaintiff’s medical expert’s history as a medical
witness for personal injury plaintiffs, his history of working with plaintiffs’ counsel, and
his income for his work as a witness. Fifth and finally, defendant argues that the trial court
abused its discretion in excluding evidence that plaintiff’s religious beliefs precluded her
from having a medical treatment to facilitate a future surgery.
¶ 35 ANALYSIS
¶ 36 The first issue defendant raises on appeal is whether the trial court abused its
discretion in barring defendant’s expert medical witness from testifying at trial as a Rule
219(c) sanction. Defendant acknowledges that the imposition of sanctions is within the trial
court’s discretion, but argues that the trial court imposed an unduly harsh sanction given
that defendant did not engage in in any deliberate, contumacious, or unwarranted disregard
for the trial court’s authority. Defendant states that the trial court’s ruling barring Dr.
Williams formed the basis for the trial court’s later ruling precluding defendant from
presenting any evidence of plaintiff’s preexisting conditions and injuries. According to
defendant, the trial court’s ruling barring Dr. Williams altered the makeup of the evidence
presented to the jury resulting in the trial court’s entry of a directed verdict for plaintiff on
her medical special damages.
¶ 37 Defendant also argues that plaintiff could have effectively cross-examined Dr.
Williams on any potential bias, since plaintiff had sufficient information concerning the 15 type of medical-legal work Dr. Williams had performed in the previous five years and the
compensation for that work. Defendant also notes that Dr. Williams was never deposed
and, as such, argues that plaintiff’s emergency motion was premature. It is defendant’s
position that the trial court should have allowed Dr. Williams’s deposition to proceed and,
if still warranted, then address plaintiff’s emergency motion. Further, defendant states that
the trial court could have allowed defendant seven days in which to cure any
noncompliance identified by the trial court. Defendant claims that barring Dr. Williams did
not balance the needs of discovery and the resolution of the issues on their merits, but
instead, disregarded the merits entirely.
¶ 38 Illinois Supreme Court Rule 219 provides possible consequences for a party’s
refusal to comply with rules or orders relating to discovery. Ill. S. Ct. R. 219 (eff. July 1,
2002). Specifically, Rule 219(c) provides a nonexclusive list of sanctions a trial court may
impose for noncompliance with a discovery order entered by the court, ranging from a
mere stay in the proceedings to the dismissal of the offending party’s cause of action. Ill.
S. Ct. R. 219(c) (eff. July 1, 2002). The decision to impose sanctions pursuant to Rule
219(c) and, if so, the type and degree of the sanction, is largely within the sound discretion
of the trial court, and that decision will not be disturbed absent a clear abuse of discretion.
Shimanovsky v. General Motors Corp., 271 Ill. App. 3d 1, 7 (1994).
¶ 39 However, “[b]arring a witness from testifying [under Rule 219] is a drastic sanction
[for nondisclosure] and should be exercised sparingly.” Curran Contracting Co. v.
Woodland Hills Development Co., 235 Ill. App. 3d 406, 412 (1992). It is a sanction in the
16 category of the most extreme sanctions available to the trial court where less severe
sanctions could be utilized to compel compliance with discovery.
¶ 40 In determining which sanctions to impose under Rule 219(c), the trial court must
seek to accomplish the object of discovery, and not seek to impose punishment. “Sanctions
are to be imposed only when the noncompliance is unreasonable, and the order entered
must be just. [Citation.] A just order is one which, to the degree possible, insures both
discovery and trial on the merits.” White v. Henrotin Hospital Corp., 78 Ill. App. 3d 1025,
1027-28 (1979). A party’s noncompliance is “unreasonable” when there has been a
deliberate and pronounced disregard for a discovery rule or order. Shimanovsky, 271 Ill.
App. 3d at 7.
¶ 41 In this case, the trial court stated that “[Orthopedic Center of Illinois’s]
noncomplian[ce] with that, I don’t even want to mess around with them if they’re not going
to follow a subpoena. *** Again, I understand it’s not [defense counsel] themselves that
got a bad IME.” Plaintiff does not cite, and this court cannot locate, any portion of the
record that indicates the trial court found a deliberate or pronounced disregard for its order
by defendant. As such, defendant’s noncompliance cannot be held as unreasonable.
¶ 42 Plaintiff, however, argues that the law assigns defendant accountability over the
actions of her controlled expert witness and, as such, defendant is responsible for any
failure to fully respond to plaintiff’s supplemental discovery. Plaintiff cites to Kubicheck
v. Traina, 2013 IL App (3d) 110157, which noted that:
“The discovery rules impose enforceable obligations upon the parties, including a
duty to disclose relevant and discoverable information relating to their controlled 17 expert witnesses. [Citation.] The failure to make such disclosures in a timely and
complete fashion justifies sanctions against the parties, even if the failure is the
result of actions taken or not taken by the controlled witnesses themselves.” Id. ¶ 39.
¶ 43 In Kubicheck, the information that the expert failed to provide was a list of case
names and numbers for all cases in which the expert had testified by deposition or in court,
and the names of the other lawyers or law firms who had retained the witness as an expert
during the past five years. Id. ¶¶ 12, 14. Such information went directly to the identification
of any potential bias on behalf of the expert. The trial court had issued two orders directing
the party to provide the information and they failed to do so. Id. ¶ 13. The deposition of the
expert had been conducted and the information was not provided. Id. ¶ 15. A list was
eventually provided shortly before trial, but then determined to be incomplete while the
trial was ongoing. Id. ¶¶ 17, 18. The trial court allowed the expert to testify but later granted
the party’s motion for new trial stating that the court did not give sufficient weight to the
importance of the information not provided by the expert. Id. ¶¶ 18, 25. Although the trial
court did not find any misconduct on behalf of the party, the trial court did find that, “ ‘[A]t
a minimum [expert’s name] has shown gross disregard for the rules of this Court which are
designed to provide a fair procedure.’ ” Id. ¶ 25. As such, the party was held accountable
for the “ ‘gross disregard for the rules of this Court’ ” by its expert.
¶ 44 Unlike Kubicheck, the trial court in this matter found no gross disregard for its order
by defendant’s expert. The trial court specifically noted the Orthopedic Center of Illinois’s
noncompliance and, by quashing Dr. Williams’s deposition, the trial court did not allow
the expert himself to cure any deficiencies in his employer’s noncompliance with plaintiff’s 18 subpoena. Further, defendant did provide a list of Dr. Williams’s depositions, along with
the names and phone numbers of the law firms, conducted within the previous five years
and a letter stating that he had not testified in a trial within the previous five years. The trial
court made no finding that defendant’s expert had blatantly or grossly disregarded a rule
or order of the court for which defendant could be held accountable.
¶ 45 We would also note that the court in Kubicheck stated:
“However, even assuming arguendo that this court has the authority to grant
the relief sought by [plaintiff] under Rule 366(a)(5), it would be premature and
inappropriate to do so. As noted above, the purpose of a discovery sanction under
Rule 219(c) is to coerce compliance with discovery rules and orders and encourage
trial on the merits, not to punish the dilatory party. [Citations.] *** Barring
[defendant’s expert] from testifying during the retrial would be a purely punitive
sanction, and an onerous one at that. It would not have the effect of ensuring
complete discovery or encouraging trial on the merits. To the contrary, it would
result in the exclusion of the defense’s only expert witness aside from [defendant]
himself. [Defendant’s expert] should be given an opportunity to make a complete
and timely disclosure of all relevant information before the retrial. If he fails to do
so, the trial court may revisit its July 2011 order and bar him from testifying.
However, it would be premature and improperly punitive to enter such a sanction at
this time. The trial court’s decision not to bar [defendant’s expert] from testifying
on retrial was not an abuse of discretion, and we will not disturb that decision.” Id.
¶ 43. 19 ¶ 46 Along with determining whether a party’s noncompliance was unreasonable, the
next factor to be considered is whether the order barring Dr. Williams was a just order that
insured both discovery and trial on the merits. White, 78 Ill. App. 3d at 1027-28. The trial
court granted summary judgment on the issue of liability and proximate cause, and the jury
trial proceed solely on the issue of damages. Defendant, however, could present no
evidence of plaintiff’s preexisting injuries or medical conditions since the trial court barred
her expert and expert testimony would be required to demonstrate the relevancy of
plaintiff’s prior injuries. See Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 59 (2000)
(requiring expert testimony demonstrating that prior injury is relevant to causation,
damages, or some other issue of consequence unless the trial court determines that the
nature of the prior and current injuries are such that a lay person could readily appraise the
relationship, if any, between those injuries without expert assistance). We agree with the
Kubicheck court that there can be no trial on the merits when one party is completely
prohibited from presenting evidence on the sole issue before the jury. As such, the trial
court’s sanction of barring Dr. Williams did not insure both discovery and a trial on the
merits.
¶ 47 Several other factors are usually considered in determining whether the exclusion
of a witness is an appropriate sanction for a party’s noncompliance with discovery under
Rule 219. These factors 5 include: (1) the surprise to the adverse party, (2) the prejudicial
5 Both parties discuss the five factors set forth in King v. American Food Equipment Co., 160 Ill. App. 3d 898, 967 (1987). These five factors are also listed in Ashford v. Ziemann, 99 Ill. 2d 353, 369 (1984), but other decisions, such as Phelps v. O’Malley, 159 Ill. App. 3d 214, 224 (1987), and Curran Contracting Co. v. Woodland Hills Development Co., 235 Ill. App. 3d 406, 411 (1992), list an additional factor of “the 20 effect of the testimony, (3) the diligence of the adverse party, (4) the timely objection to
the testimony, and (5) the good faith of the party calling the witness. King v. American
Food Equipment Co., 160 Ill. App. 3d 898, 967 (1987); see also Curran Contracting Co.
v. Woodland Hills Development Co., 235 Ill. App. 3d 406, 411 (1992) (listing the above
factors along with an additional factor of “the nature of the testimony”).
¶ 48 Defendant states that there was no surprise to plaintiff since Dr. Williams was not a
late disclosure and also acknowledges that plaintiff was diligent in seeking discovery.
Defendant further states that there are no issues involving the timeliness of any objections
and that neither the plaintiff nor the court challenged defendant’s good faith in responding
to plaintiff’s discovery. As such, defendant argues that the primary factor in determining
whether the trial court abused its discretion in barring Dr. Williams rests on the factor of
the prejudicial effect of the testimony.
¶ 49 According to defendant, there was no prejudice to plaintiff due to any discovery
violation since defendant had disclosed sufficient information concerning Dr. Williams’s
past medical-legal work, his past income from that work, and his history with both
defendant’s counsel and defendant’s insurer. Defendant maintains that plaintiff could have
examined Dr. Williams effectively on the issue of his potential bias and/or challenged his
credibility at trial under the arguments that Dr. Williams had a financial interest in this case
or in working with defense counsel or defendant’s insurer in the future given the
nature of the testimony.” We will not address the factor of “the nature of the testimony” since the factor is not determinative to our analysis.
21 information provided. Defendant asserts that the failure to calculate and disclose
Orthopedic Center of Illinois entire practice group’s revenues for telephone conferences
and deposition cancellation fees, or Dr. Williams’s tax returns, did not prevent plaintiff
from challenging Dr. Williams’s credibility, because plaintiff’s ability to cross-examine
Dr. Williams did not require absolute specificity regarding the dollar amounts of the
compensation.
¶ 50 Plaintiff, however, argues that the King factors do not support defendant’s position.
Although plaintiff acknowledges that there was no factor of surprise or diligence, it is
plaintiff’s position that defendant’s failure to produce the discovery was highly prejudicial
as it precluded plaintiff from being able to conduct an effective cross-examination of
defendant’s expert since there were inconsistencies and/or discrepancies in Dr. Williams’s
deposition fees. Plaintiff states that she could not have conducted an effective examination
of Dr. Williams with the information provided since the information was not accurate.
¶ 51 Plaintiff further argues that defendant’s failure to produce all of the information
requested by plaintiff was in bad faith, since defendant did “absolutely nothing to urge her
controlled expert to comply with the Court’s Order” or “even attempt to obtain the
mandated discovery” According to plaintiff, the barring of defendant’s expert witness was
due in part to defendant’s own inaction.
¶ 52 Both parties agree there was no surprise to plaintiff and that plaintiff was diligent in
seeking discovery. As such, the first King factor ((1) the surprise to the adverse party)
favors defendant and the third King factor ((3) the diligence of the adverse party) favors
plaintiff. The fourth King factor ((4) the timely objection to the testimony) also favors 22 plaintiff. Although plaintiff argues that defendant exercised bad faith, plaintiff does not
cite to any portion of the record, and we cannot locate anything within the record, that
indicates that the trial court determined any bad faith on the part of the defendant. As such,
the fifth King factor ((5) the good faith of the party calling the witness) favors defendant.
We agree with defendant that the second King factor ((2) the prejudicial effect of the
testimony) is the determining factor. We note, however, that there is no testimony since
Dr. Williams’s deposition was not allowed to proceed, but both parties have argued the
prejudicial effect of the incomplete discovery under this factor, and we will consider those
arguments.
¶ 53 Although plaintiff argues that she was prejudiced by the missing information, we
do not find that all the information requested by plaintiff was critical for her cross-
examination of Dr. Williams. As noted by the court in Pontiac National Bank v. Vales,
2013 IL App (4th) 111088:
“In response to the prevalence of expert testimony in modern-day litigation and the
difficulty of disproving an expert’s opinion testimony, the Illinois Supreme Court
decided to expand the permissible bounds of expert cross-examination. [Citations.]
In those cases, the supreme court held that it is permissible to cross-examine an
expert witness about the amount and percentage of income that he generates from
his work as an expert witness, the frequency with which he testifies as an expert,
and the frequency with which he testifies for a particular side, in order to expose
any bias, partisanship, or financial interest that may taint his testimony and
opinions. [Citations.] Nevertheless, cross-examination is not a ‘free-for-all.’ It is not 23 a proper function of cross-examination to harass expert witnesses or to
unnecessarily invade their legitimate privacy. Such unbridled cross-examination
discourages reputable professionals from testifying during trial, making it difficult
for parties to obtain the expert testimony necessary to meet their burden of proof.”
Id. ¶ 17.
¶ 54 Although we acknowledge that defendant failed to provide some information, much
of that information pertained to Dr. Williams’s employer and exceeded the scope necessary
to expose any bias, partisanship, or financial interest of Dr. Williams. Thus, while the King
factors of the diligence of the adverse party and the timely objection to the testimony favor
plaintiff, the important factors of surprise, prejudice, and good faith weigh in defendant’s
favor.
¶ 55 Plaintiff argues that the trial court granted defendant “extension after extension” and
“postponed trial” to allow defendant an opportunity to comply with discovery. A review of
the record, however, demonstrates a single trial court order concerning plaintiff’s motion
to compel. Defendant’s motion to continue the trial date was based on plaintiff’s need to
reschedule the IME and was not related to defendant’s responses to plaintiff’s supplemental
discovery. As such, the record reflects a single trial court order directing defendant’s
discovery responses and, contrary to plaintiff’s argument, there is nothing in the record to
indicate that the trial court postponed the trial to allow defendant an opportunity for
compliance.
¶ 56 Plaintiff also argues that a trial court’s sanction of barring an expert witness is a
necessary means to ensure the speedy and efficient resolution of cases and that a trial court 24 should not hesitate to bar testimony when a party unreasonably refuses to comply with
discovery, citing Fraser v. Jackson, 2014 IL App (2d) 130283, ¶ 29, and Campen v.
Executive House Hotel, Inc., 105 Ill. App. 3d 576, 587 (1982). In the cases cited by
plaintiff, however, the conduct of the offending party was more egregious than in the
present case. The trial court in Fraser ordered compliance on three separate occasions, and
the offending party in Campen failed to disclose relevant discovery information until trial.
Fraser, 2014 IL App (2d) 130283, ¶ 29; Campen, 105 Ill. App. 3d at 587.
¶ 57 Here, the trial court’s order granting plaintiff’s motion to compel generally directed
defendant to respond to plaintiff’s supplemental discovery and did not set out any specific
information that it determined was lacking in defendant’s initial responses. The trial court’s
order also did not address whether some of the requested information may have been
outside the appropriate scope of discovery.
¶ 58 We further note that defendant was given no warning that the trial court was
considering such a harsh sanction and that lesser sanctions were available to the trial court
that would have met the object of discovery and ensuring a trial on the merits. Defendant
had requested seven days in which to cure any deficiencies identified by the trial court. We
are mindful that trial courts are watchful of their dockets and loath to allow cases to linger
for years; however, it was the trial court itself that allowed this claim to be joined to a cause
of action that had already been pending for almost three years. Further, Dr. Williams’s
deposition was scheduled for the day after the hearing on plaintiff’s emergency motion.
The trial court could have allowed his deposition to proceed, then, if the trial court
25 determined that plaintiff was unable to effectively cross-examine him or that Dr. Williams
failed to provide relevant information, bar his testimony at trial.
¶ 59 Where discretion is vested with the trial court, this court is hesitant to disturb those
findings. In determining whether a trial court imposed appropriate sanctions, this court
must review the factors set forth above on a case-by-case basis, being mindful that the trial
court is in the best position to determine the means of ensuring compliance with its orders.
However, where a case is basically decided on a single ruling of the trial court, such as the
dismissal of a cause of action, or in this matter, the barring of an expert witness that defeats
the entire defense, we must ensure that the sanction awarded by the trial court comports
with the standards discussed above to ensure the object of discovery and a trial on the
merits. Under the circumstances of this case, we agree with defendant that the trial court
imposed an extremely harsh sanction for defendant’s nondisclosure and that the sanction
was an abuse of discretion.
¶ 60 Therefore, we vacate the order barring defendant’s expert witness, reverse the
judgment of the trial court, and remand this matter for further proceedings. Although we
vacate the trial court’s order barring defendant’s expert witness at this point, our decision
does not restrict the trial court from further addressing any discovery issue concerning
defendant’s expert, if necessary. Because we have determined that the trial court erred in
barring defendant’s expert witness, defendant’s remaining issues are moot and will not be
addressed.
26 ¶ 61 CONCLUSION
¶ 62 For the foregoing reasons, we vacate the order barring defendant’s expert witness,
reverse the judgment of the trial court, and remand this matter for further proceedings.
¶ 63 Reversed and remanded.