By: Paul Porvaznik, Esq.
A triple shot of defeat. Actually, more like a quadruple shot. The defendant in Fraser v. Jackson, 2014 IL App (2d) 130283, lost at trial in a personal injury suit, his expert was barred from testifying as a discovery sanction, his objections to plaintiff’s medical records request to admit were deemed in bad faith, and, for good measure, he was sanctioned by the appellate court for filing an anemic brief. And how was your day?
The Second District affirmed a jury verdict for the personal injury plaintiff of over $60,000 in damages which included over $30,000 in medical bills. The Court also upheld the trial court’s exclusion of defendant’s medical expert testimony at trial and found that the defendant failed to answer plaintiff’s request to admit medical records in good faith.
Why is this case included in a newsletter about construction law and risk management? Because the principles of law expressed in this decision apply equally to construction litigation.
Discovery Sanctions: Rule 219 and 213 Interplay
Illinois Supreme Court Rule 213(f)(3) requires a party, upon written interrogatory to identify controlled expert witnesses and provide testimonial subjects, conclusions, opinions, qualifications and any written reports. SCR 213(f)(3). The rule demands strict compliance. Rule 219 provides a trial judge with an array of sanctions options including barring testimony from a party or its expert where it fails to comply with discovery rules or orders. SCR 219(c)(iv). Sanctions are committed to the trial court’s discretion and the purpose of sanctions is not to punish; but to motivate discovery compliance. Fraser, ¶¶ 28-29.
The Court found that the trial court properly barred defendant’s medical expert from testifying. The defendant tried the court’s patience to the breaking point by violating numerous discovery orders. The medical witness himself (defendant’s retained expert) failed to properly respond to the plaintiff subpoena for documents and the defendant also didn’t produce adequate documents despite multiple requests from the plaintiff. The trial judge gave defendant many chances to comply with discovery and entered progressive sanctions (sanctions less severe than an outright ban) before barring the defendant’s expert from testifying.
Medical Records: Evidentiary Foundation Rules
The Court also held that plaintiff laid a sufficient foundation for the admission of his medical bills in evidence.
In Illinois, the evidentiary foundation for admitting medical records can be established by a doctor’s deposition testimony or through testimony of a non-doctor employee who is familiar with the medical practice’s billing methods and reasonableness of the charges. (¶40).
At trial, the plaintiff offered evidence deposition testimony of several treating physicians and a medical billing specialist – all of whom testified that plaintiff’s medical treatment and bills were reasonable and commensurate with the type of injury that plaintiff suffered in the car crash. This testimony cumulatively satisfied the foundation requirements for admitting medical bills into evidence.
Costs and Attorneys’ Fees (Rule 219(b) and 216 interplay)
The Court also upheld the trial court’s $4,000 plus sanctions award against defendant for failing to respond in good faith to plaintiff’s request to admit that his medical bills were reasonable and necessary in both substance and amount. Illinois law allows a plaintiff to utilize a Rule 216 Request to Admit to seek admissions that his medical treatment and related expenses were reasonable and necessary in view of the plaintiff’s injury. (¶¶44-45). Rule 219(b) allows a plaintiff to recover fees and costs where he proves a requested fact that the defendant denies where the denial isn’t in good faith, based on privilege or some other permissible reason – even if the defendant doesn’t have a specific intent to obstruct the litigation process. SCR 219(b), (¶46).
Applying these rules, the Second District found the defendant’s failure to admit the reasonableness and amount of plaintiff’s medical bills wasn’t in good faith. Because of defendant’s denial of the records, plaintiff had to open up a case in another state (Wisc.) and subpoena a medical records agent to testify telephonically at trial. The Court found that because defendant made plaintiff jump through so many logistical hoops to get a billing agent to testify on a matter that should have been admitted, the trial court’s fees and costs award was proper. (¶47).
Lastly, the appeals court sanctioned the defendant for filing a frivolous appeal. Rule 375(b) – unlike Illinois’ discovery rules – is indeed designed to punish a litigant who files an appeal for improper reasons (such as to harass the other side or to needlessly run up costs). The Court found that defendant’s failure to support its various arguments with any cites to the record or, more importantly, to any legal authorities (i.e., “the trial court was wrong because, because, I said so gosh darnit!!), merited sanctions. (¶¶ 51-53).
A trial court has wide latitude to assess draconian discovery sanctions including barring witnesses. A request to admit a fact that’s not subject to meaningful dispute should be admitted by the opposing side. Otherwise, the party denying the requested fact or document will have to pay the requesting party’s fees and costs (such as the time and effort expended in securing the billing agent’s telephone testimony here) incurred in proving that fact/document. This case also illustrates that appellate briefs must comply with rules: facts must be supported by citations to the trial court record and legal arguments should be bolstered with legal authorities.
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