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Avery v. Sabbia

December 01, 1998

DONALD AVERY, PATRICK WATTS, AND QUINTIN WILKERSON, PLAINTIFFS,
v.
MICHELLE A. SABBIA, DEFENDANT-APPELLANT (DAVID P. CALIMAG, MOVANT-APPELLEE).



APPEAL FROM THE ILLINOIS CIRCUIT COURT OF COOK COUNTY, No. 95-M1-304978 THE HONORABLE RONALD F.BARTKOWICZ, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Cousins delivered the opinion of the court:

Plaintiffs (who are not a party to this appeal) filed a negligence action against defendant, Michelle Sabbia, for injuries resulting from an automobile accident. After discovery was closed, the trial court granted defendant's motion to reopen discovery for the limited purpose of deposing plaintiffs' treating physicians, including Dr. David P. Calimag. Thereafter, Dr. Calimag made a motion for a full protective order of his discovery deposition taken May 3, 1997, which was granted until further order of court. On appeal, defendant contends that: (1) the trial court abused its discretion in sealing Dr. Calimag's deposition transcript as no legal basis existed for the trial court's order; and (2) this matter should have been considered by the United States District Court before which an action under the Racketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S.C. §1962 (West 1996)) was pending.

BACKGROUND

On May 11, 1993, plaintiffs Donald Avery, Patrick Watts and Quintin Wilkerson were involved in an automobile accident with defendant Michelle Sabbia. Three days later, on May 14, 1993, at the request of a referring doctor, Dr. David P. Calimag examined Watts and Wilkerson and performed electromyography (EMG) examinations on both to test for nerve damage. The results of Dr. Calimag's neurological consultations indicated that plaintiffs' muscles were "normal."

On July 13, 1994, plaintiffs filed suit against defendant. Discovery in the case was closed on March 17, 1995, and the case went to mandatory arbitration on April 20, 1995. The arbitrators found in favor of plaintiffs and awarded each plaintiff $1,000. Plaintiffs, however, rejected the arbitration award.

On September 12, 1996, defendant moved to reopen discovery for the limited purpose of deposing plaintiffs' treating physicians, including Dr. Calimag. Defendant specifically indicated that she wanted to depose Dr. Calimag to determine what afflictions he was ruling out by performing EMG studies on each patient. The trial court granted the motion on October 21, 1996.

Two weeks following the defendant's motion to reopen discovery, defendant's insurance carrier, State Farm Mutual Automobile Insurance Company (State Farm), filed a lawsuit in federal court against approximately 30 doctors and lawyers, including Dr. Calimag. In the federal case, State Farm sued under the RICO act, alleging that certain individuals staged automobile accidents to obtain money from State Farm under false pretenses. The allegations against Dr. Calimag were that he conducted and/or billed for unnecessary examinations of alleged patients who were referred to him by doctors higher up in the conspiracy chain. The federal case also listed over 500 accidents that it claimed were part of the scheme, including the accident in the present case.

As a result of Dr. Calimag being noticed for six different state court personal injury depositions at or around the same time the federal case was filed, counsel for Dr. Calimag filed numerous motions praying for protective orders that would seal the doctor's deposition transcripts for use in only each pending action. Dr. Calimag asserted, in each case, that he believed State Farm engaged its attorneys to take multiple depositions of Dr. Calimag for the purpose of obtaining discovery for the pending federal case and not for the purpose of obtaining discovery in the state court personal injury cases.

On January 27, 1997, Dr. Calimag filed his first motion for a protective order in this case that sought to restrict the use of his deposition to the case before the trial court and not allow defendant's attorney to give the deposition to State Farm to be used in the prosecution of the pending federal case. Dr. Calimag specifically alleged that the attempt to depose Dr. Calimag: (1) was a misuse of state court discovery procedures since State Farm hired defendant's attorney to defend her case; (2) improperly taxed the resources of the state courts for discovery that should be taken in federal court; and (3) gave State Farm the opportunity to unfairly take multiple depositions of Dr. Calimag for use in the federal case, in violation of Supreme Court Rule 201(c) (134 Ill. 2d R. 201(c)).

At the hearing on the motion, the trial court determined that there was insufficient evidence showing that State Farm was taking Dr. Calimag's deposition for use in the federal case. In an attempt to eliminate questions not relevant to the case at hand, the court ordered that a limited deposition proceed in the court's presence on May 3, 1997, without a protective order.

Following completion of the deposition, Dr. Calimag filed a motion for a full protective order regarding the deposition transcript, which would limit the use of his deposition to the case before the court. Dr. Calimag asserted that State Farm's failure to settle the case was further indicia that Dr. Calimag's deposition was taken for the purpose of using it in the federal RICO action, which illustrates an abuse of the discovery process of the circuit court.

At the September 12, 1997, hearing on Dr. Calimag's motion, the trial court granted plaintiffs' motion to vacate their rejection of the arbitration award. Thereafter, on October 10, 1997, the trial court granted Dr. Calimag's motion for full protective order sealing the deposition transcript until further order of the court. Defendant appeals from this order.

After defendant initiated her appeal, on July 31, 1998, the federal court dismissed all charges against Dr. Calimag in the federal case, with prejudice, based upon a settlement agreement between the parties. As a result, defendant moved this court to supplement the record on appeal with the federal court order. On October 20, 1998, this court denied defendant's motion, without prejudice, subject to her compliance with Rule 324 (134 Ill. 2d R. 324), which permits the clerk of the trial court to certify the record on appeal.

On October 30, 1998, the trial court granted defendant's motion to amend the record on appeal to include the final judgment order. Pursuant to the trial court's order, the clerk of the circuit court prepared an amendment to the record on appeal to include the aforementioned federal court order, thereby complying with Rule 324. Defendant then included an additional contention in her reply brief that asserted "with the settlement and dismissal ...


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