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03/29/96 ALBERT POLK v. DIEU CAO

March 29, 1996

ALBERT POLK, PLAINTIFF-APPELLANT,
v.
DIEU CAO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Willie B. Wright, Judge Presiding.

Presiding Justice McNULTY delivered the opinion of the court: Gordon and Hourihane, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Plaintiff Albert Polk brought suit against defendant Dieu Cao, for injuries he allegedly received when the bus he was driving was hit by defendant's car. Defendant admitted negligence and the case proceeded to trial on the issues of whether defendant's negligence proximately caused plaintiff's alleged injuries and what amount of money would reasonably compensate plaintiff for those injuries. The jury found that defendant's negligence proximately caused plaintiff's injuries and awarded plaintiff $680, which was for plaintiff's pain and suffering. Plaintiff filed a post-trial motion for a new trial on the issue of damages, but the trial court denied the motion. Plaintiff appeals, contending that the trial court erred in: (1) redacting opinions and diagnoses from plaintiff's medical records; (2) barring plaintiff's medical expense claims; (3) barring plaintiff's wage loss claim for noncompliance with defendant's Rule 237 (134 Ill. 2d R. 237) notice to produce; and (4) denying defendant's motion for a new trial on the issue of damages. We reverse and remand for a new trial on the issue of damages.

Plaintiff first claims that the trial court erred in reacting from plaintiff's medical records from Weiss Memorial Hospital the doctor's medical diagnosis and opinion as to when plaintiff would be able to return to work. The trial court determined that these subjective portions of plaintiff's medical records should be redacted since their reliability could not be assessed by cross-examining the doctor who made these findings. Admission of medical record evidence is governed by Supreme Court Rule 236, which was recently amended to include medical records. 145 Ill. 2d R. 236. However, the fact that medical records are admissible as business records does not deny the trial court the right to determine that certain portions of the records should be redacted. The admission of evidence is within the sound discretion of the trial court, and the trial court's ruling will not be reversed absent a clear showing of abuse of that discretion. Congregation of Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 636 N.E.2d 503, 201 Ill. Dec. 71 (1994). We cannot say that that discretion was abused here.

Plaintiff's next contention is that the trial court abused its discretion in refusing to allow plaintiff to reopen his case in chief for the purpose of introducing plaintiff's medical bills into evidence. After plaintiff rested his case, a side-bar was held, and the court twice asked plaintiff if he rested his case. After plaintiff responded in the affirmative, the court stated, "There are no medical bills in evidence, so there is no issue at this point as to medical expenses, medical services." Plaintiff's counsel then stated that he thought he would get plaintiff's medical bills into evidence as a business record. The court pointed out that there was no evidence in the record that the bills had been paid. Defendant then moved for a directed verdict as to medical costs on the basis that the bills were not properly in evidence and there was no evidence that the bills had been paid. Plaintiff's counsel then moved to reopen his case for the purpose of admitting plaintiff's medical bills into evidence and asking plaintiff whether he paid the medical bills. The court denied plaintiff's request, stating:

"Counsel, I came back here not to give you an advantage or give you a disadvantage. At this point, since this whole subject came up as a result of questions that I asked, I'm not going to allow you to reopen for that purpose, otherwise it wouldn't come up. Do what you can. Call your next witness, otherwise you've rested."

Generally, the decision to reopen a case to allow the introduction of additional evidence rests within the sound discretion of the trial court and the trial court's decision will not be reversed absent an abuse of discretion. A-Tech Computer Services Inc. v. Soo Hoo, 254 Ill. App. 3d 392, 627 N.E.2d 21, 193 Ill. Dec. 862 (1993). The factors to be considered in determining whether a party should be permitted to reopen a case include: (1) whether the failure to introduce the evidence occurred because of inadvertence or calculated risk; (2) whether the adverse party will be surprised or unfairly prejudiced by the new evidence; (3) whether the new evidence is of the utmost importance to the movant's case; and (4) whether any cogent reason exists to justify denying the request. A-Tech Computer Services, 254 Ill. App. 3d at 402-03.

Applying these factors to the instant case, we find that the trial court abused its discretion in denying plaintiff's request to reopen his case to introduce plaintiff's medical bills. It appears that plaintiff's counsel failed to introduce these bills during his case in chief either through inadvertence or under a mistaken belief as to when the bills could be properly introduced. Either way, we do not find plaintiff's counsel's failure to introduce the bills to be a calculated risk. Defendant was clearly not surprised or unfairly prejudiced by plaintiff's request to place the medical bills into evidence. Plaintiff not only testified at trial regarding his medical treatment, but also disclosed in interrogatory answers, filed more than two years before trial, that he would be seeking medical expenses at trial. Furthermore, the evidence of plaintiff's medical bills was of the utmost importance to his case since a substantial part of plaintiff's case was recovery of medical expenses. We find that no cogent reason existed to bar plaintiff from reopening his case since defendant had not yet opened his case in chief when plaintiff made his motion to reopen. The trial court was reluctant to allow plaintiff to reopen his case since it was the trial court, and not plaintiff, who raised the fact that the bills had not been introduced. While we recognize the trial court's concern, we cannot assume that plaintiff's counsel would not at some point soon thereafter have realized his error and asked for permission to reopen his case.

Plaintiff next contends that the trial court abused its discretion when it barred plaintiff's claim for lost wages based on his failure to comply with Supreme Court Rule 237. 134 Ill. 2d R. 237. Prior to opening statements, during the parties' Rule 237 conference, defendant moved and the trial court granted defendant's motion to have plaintiff's wage loss claim barred due to his failure to produce tax returns at trial as defendant's Rule 237 notice requested.

Supreme Court Rule 237 provides in pertinent part:

"The appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. The notice also may require the production at the trial of documents or tangible things. *** Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate." 134 Ill. 2d R. 237(b).

Sanctions for Rule 237 violations are to be imposed only when

noncompliance is determined to be unreasonable. Hawkins v. Wiggins, 92 Ill. App. 3d 278, 415 N.E.2d 1179, 47 Ill. Dec. 866 (1980). In determining whether noncompliance is unreasonable, the court should consider whether the offending party's conduct was the result of a deliberate and pronounced disregard for court rules. Hawkins, 92 Ill. App. 3d at 282. In determining the propriety of a discovery sanction, factors to be considered include: (1) the surprise to the opposing party; (2) the prejudicial effect of the testimony; (3) the diligence of the opposing party in seeking discovery; (4) timely objection to the testimony; and (5) the good faith of the party offering the testimony. Hawkins, 92 Ill. App. 3d 278, 415 N.E.2d 1179, 47 Ill. Dec. 866. A trial court's determination as to the appropriateness of a particular sanction is left largely ...


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