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Linn v. Damilano

March 11, 1999


Appeal from Circuit Court of Vermilion County No. 95L248 Honorable Thomas J. Fahey, Judge Presiding.

The opinion of the court was delivered by: Justice Garman


Plaintiff Wayne E. Linn was injured when his car was struck from behind by a car driven by defendant Marcella F. Damilano. After a trial in the circuit court of Vermilion County, the jury rendered a verdict in favor of plaintiff on his negligence claim, finding no comparative negligence on his part, and awarded damages of $15,480.66. Plaintiff appeals, arguing that the trial court improperly denied his motion to bar the testimony of the impartial medical expert and erred when it refused to give his tendered nonpattern jury instruction. As a result of these errors, plaintiff asserts, he is entitled to a new trial on the issue of damages. We affirm.


Plaintiff filed suit in December 1995. The trial court entered a case management order on February 28, 1997, providing in part that all depositions were to be completed by November 11, 1997. The order also contains the notation "IME Deadline - August 1, 1997," referring to an examination by an impartial medical examiner pursuant to Supreme Court Rule 215 (166 Ill. 2d R. 215).The examination was conducted on July 18, 1997, by Arthur C. Lorber, M.D. Plaintiff subsequently filed a motion to bar the doctor's testimony. A copy of a letter from Lorber to defense counsel, dated November 15, 1997, was attached to the motion. In the letter, the doctor opined, based on his examination and the medical records provided to him, that plaintiff was "an elderly individual who is showing signs of multiple system failure on a degenerative, age-related basis[,] unrelated to his involvement in the motor-vehicle accident." Plaintiff argued this disclosure of opinion violated the scheduling order and Supreme Court Rule 213 (166 Ill. 2d R. 213), and he would have "absolutely no opportunity to do a discovery deposition" of the doctor prior to the scheduled trial.

Defendant responded that after Lorber's timely examination, plaintiff disclosed additional medical records and it was necessary to have Lorber review those records. In addition, defendant argued, at plaintiff's supplemental deposition, after the date of Lorber's letter, plaintiff disclosed the existence of several other doctors who had been treating him for conditions he attributed to the accident. As a result, defendant requested the motion to bar Lorber's testimony be denied and the trial date be reset to allow additional discovery.

On December 5, 1997, the trial court denied plaintiff's motion, continued the jury trial to a later date, and ordered all depositions to be taken by February 1, 1998. The parties, by agreement, took several depositions after this date, including Lorber's discovery deposition on March 3, 1998, and videotaped evidence deposition on March 20, 1998.

During the evidence deposition, plaintiff made repeated objections to the doctor's testimony regarding information obtained from plaintiff's past medical records. For example, when the doctor testified that he learned from the medical records that plaintiff had previously undergone a computerized axial tomography (CAT) scan of his brain, counsel objected, "Anything that was specifically learned from the records is hearsay." Later, counsel asked for a continuing objection to be noted stating, "Specific testimony from medical records is hearsay." The hearsay objections were subsequently overruled by the trial court.

On March 24, 1998, plaintiff filed a motion pursuant to Supreme Court Rules 215, 218, and 219 (166 Ill. 2d Rs. 215, 218, 219), again seeking to bar presentation of Lorber's videotaped testimony. Plaintiff's motion acknowledged that, as a result of the continuance, he was not prejudiced by the denial of the previous motion. However, plaintiff stated that an additional report prepared by Lorber was provided to him on the day of the discovery deposition and another report was provided only two days before the evidence deposition, in violation of Rule 215.

The trial court granted the motion in part, barring testimony with respect to material not contained in the doctor's original documents dated July 23, 1997, and December 9, 1997.

At the jury instruction conference, plaintiff tendered the following nonpattern instruction:

"Testimony by Dr. Arthur Lorber which repeated entries from medical records is not to be considered by you as evidence of the truth of the entries from those medical records so repeated, but may be considered by you only as a portion of the information relied upon by Dr. Arthur Lorber in forming his opinions."

Defendant objected that the proposed instruction was argumentative and it "invite[d] error" because it was a nonpattern instruction. Plaintiff cited several cases in support of his argument that it was "absolutely mandatory that a limiting instruction be given." The trial court refused the tendered instruction.

The record on appeal contains transcripts of evidence depositions, the jury instruction conference, and the hearing on plaintiff's posttrial motion. It does not, however, contain a transcript of the trial itself. Thus, except for the trial court's handwritten notation, "Overruled," in the margin of the transcript of Lorber's deposition, we have no information regarding plaintiff's argument in support of his hearsay objection or the trial court's ruling. Because the appellant is responsible for providing a complete record on appeal, including a report of proceedings (155 Ill. 2d R. 321), any doubt ...

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