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June 30, 1997


Appeal from the Circuit Court of Cook County. HONORABLE MICHAEL J. KELLY, JUDGE PRESIDING.

Released for Publication August 5, 1997.

The Honorable Justice Gordon delivered the opinion of the court. Cousins, Jr. P.j. and Cahill, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

Barbara Parks, a former nurse at St. Bernard Hospital, filed a four-count complaint against defendants St. Bernard Hospital and Richard O'Young, M.D. Counts I and II, directed against the hospital, alleged defamation and retaliatory discharge; and counts III and IV, directed against O'Young, alleged defamation and tortious interference with contract. Prior to trial, the counts against St. Bernard Hospital were dismissed pursuant to a settlement agreement. At trial, the court directed a verdict in favor of O'Young on the tortious interference count; and the jury returned a verdict in favor of O'Young on the defamation count. The plaintiff appeals.

Parks' estate, which was substituted as the appellant upon Parks' death, argues that the trial court erred in granting three of defendant's motions in limine which barred plaintiff from presenting certain evidence and that the trial court erred in granting the directed verdict on plaintiff's tortious interference count. *fn1

Plaintiff's tortious interference count against Doctor O'Young alleged that on July 29, 1991 she was a recovery room nurse and he was a staff physician at St. Bernard Hospital. She alleged that, on that date, she observed O'Young violently shake the neck of a nine-year-old patient; verbally abuse that patient by making racially charged remarks about that patient; and mistreat the patient by inappropriately pulling on the traction apparatus to which the patient's leg was connected. The plaintiff further alleged that she prepared an occurrence report regarding that incident and gave the report to her supervisor. The plaintiff alleged that O'Young intentionally and with malice interfered with her employment and caused her termination with the hospital by making a false accusation that she had divulged confidential information about the incident to the patient's family.

I. Motions in Limine

Prior to trial, O'Young filed several motions in limine. The motions which are the subject of the instant appeal sought to exclude the following: evidence "relating to the specific nature or factual particulars of an alleged incident or occurrence which took place between Dr. O'Young and a minor patient *** on July 29, 1991"; evidence of purported misconduct by O'Young toward other patients; and evidence of a telephone conversation, which the plaintiff claimed to have overheard, between Reggie Williamson, a hospital employee, and a person thought by Parks to be O'Young.

The plaintiff argues that the trial court erroneously excluded evidence regarding O'Young's mistreatment of the patient on July 29, 1991 as well as his mistreatment of "other black children." The plaintiff argues that testimony from other witnesses who observed O'Young's treatment of the patient on July 29, 1991 as well as his treatment of "other black children" was probative of her credibility. She also argues that evidence regarding the July 29, 1991 incident was highly probative of O'Young's motivation to cause her discharge and would have shown that he was angered by her filing an incident report against him and that he feared possible discipline against himself.

The admission of evidence is within the sound discretion of the trial court, and a reviewing court will not reverse the trial court unless that discretion is abused. Gill v. Foster, 157 Ill. 2d 304, 626 N.E.2d 190, 193 Ill. Dec. 157 (1993). Evidence, though relevant, may be excluded if its probative value is substantially outweighed by such factors as prejudice, confusion, or Potential to mislead the jury. Gill, 157 Ill. 2d 304, 626 N.E.2d 190, 193 Ill. Dec. 157; Patch v. Glover, 248 Ill. App. 3d 562, 618 N.E.2d 583, 188 Ill. Dec. 13 (1993). It is within the trial court's discretion to balance the probative value of evidence against its prejudicial impact or tendency to create confusion and to decide whether the evidence should be admitted. Dominguez v. St. John's Hospital, 260 Ill. App. 3d 591, 632 N.E.2d 16, 197 Ill. Dec. 947 (1993).

The trial court's exclusion of evidence regarding O'Young's alleged treatment of the patient on July 29, 1991 as well as his alleged treatment of "other black patients" was not an abuse of discretion. That evidence would have been highly inflammatory in that it suggested that O'Young was abusive toward child patients and that he was racially prejudiced against black patients. That prejudicial impact far outweighed any marginal relevance that the evidence had in terms of explaining the reason for Parks' submission of an occurrence report against O'Young and in terms of suggesting a motive for O'Young's alleged actions against Parks. Moreover, even without the excluded testimony, the plaintiff was able to establish motive for O'Young's alleged defamation and interference with contract based upon admitted evidence showing that Parks filed an incident report on July 29, 1991 against O'Young in which she accused him of misconduct. Thus, there would be no material need to disclose the details of the alleged misconduct contained in the incident report to establish a retaliatory motive.

The plaintiff next contends that the trial court improperly granted O'Young's motion in limine to exclude the contents of a telephone conversation overheard by Parks between Williamson and another individual, whom Parks thought to be O'Young, in which Parks heard Williamson state "Doctor O'Young, Parks told the family?" The trial court initially excluded Parks' testimony concerning the content of that telephone conversation on the basis that it was hearsay. After further consideration, the court reaffirmed its prior ruling to exclude the testimony not on the basis of hearsay but because it was vague, equivocal, and imprecise.

Hearsay evidence is testimony in court regarding a statement made out of court offered for the truth of the matter asserted. It rests upon the credibility of the out-of-court asserter. Lundberg v. Church Farm, Inc., 151 Ill. App. 3d 452, 502 N.E.2d 806, 104 Ill. Dec. 309 (1986). See generally M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801.1 at 632 (6th ed. 1994) (hereinafter referred to as M. Graham, Illinois Evidence). The phrase "matters asserted" in the definition of hearsay includes "statements" that occur in question form if the declarant implicitly intended to express the inference for which the statement is offered. See generally, M. Graham, Illinois Evidence § 801.1, at 635-36. Cf. People v. Camp, 128 Ill. App. 3d 223, 470 N.E.2d 540, 83 Ill. Dec. 414 (1984) (holding that question "are you all right to drive the car" does not presuppose inability to drive as an implicit fact that must be true). Arguably, Williamson's statement was intended to express or repeat in question form the narrative statement apparently made by the other party on the telephone line (ostensibly O'Young). That statement implicitly asserts that the person conversing with Williamson was O'Young and that O'Young told Williamson that ...

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