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Warrender v. Millsop

April 23, 1999

LAURIE L. WARRENDER, PLAINTIFF-APPELLANT,
v.
CHRISTINE CAMIL MILLSOP, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Lake County No. 96-L-240 Honorable Terrence J. Brady, Judge, Presiding

The opinion of the court was delivered by: Justice Colwell

Plaintiff, Laurie L. Warrender, brought this action against defendant, Christine Camil Millsop, for injuries suffered in an automobile accident. A jury trial was held on the issue of damages only. Despite plaintiff's claim of over $15,000 in damages, the jury awarded her $4,988. Plaintiff now appeals, contending (1) that defendant failed to timely disclose her opinion witness, Dr. Elizabeth Kessler, and that the trial court abused its discretion in allowing Dr. Kessler to testify; (2) that the trial court similarly erred in allowing defendant to introduce an untimely produced surveillance video of plaintiff; and (3) that the trial court erred in refusing to strike part of Dr. Kessler's testimony. We agree with plaintiff's first two arguments and remand the cause for a new trial.

On April 15, 1994, defendant*s automobile rear-ended plaintiff*s automobile at a stop light in Lake County. Plaintiff filed suit against defendant on April 3, 1996, seeking damages for neck, shoulder, and lower back injuries that plaintiff allegedly suffered as a result of the accident. Plaintiff received care from several medical specialists subsequent to the accident and continued to receive medical care through the date of trial.

In May 1996, the parties served interrogatories on each other pursuant to Supreme Court Rules 213(f) and (g) (177 Ill. 2d Rs. 213(f), (g)) to obtain the names of potential witnesses and opinion witnesses. Defendant's answers, sent to plaintiff in July 1996, stated, "Defendant[] [has] retained no opinion witness at this time[;] however, the right to do so is reserved." Plaintiff answered in August 1996 and named Dr. Burt Schell and Dr. R.E. Schultz as her opinion witnesses. Both doctors had treated plaintiff since the car accident. On August 21, 1996, the trial court established the following litigation schedule: plaintiff was to identify her expert witnesses by November 10, 1996; defendant was to identify her expert witnesses by December 10, 1996; discovery was to be completed by January 10, 1997; and a jury trial was to be held on February 10, 1997.

In October 1996, defendant*s attorneys, Theodore Poehlmann and his associate, Stephen Tasch (collectively, Poehlmann), received certain medical records pursuant to subpoena. Included were the medical records of Dr. Thomas Burnstine, who treated plaintiff several times in 1995. On November 7, 1996, plaintiff*s attorney, Robert Long, sent a letter to Poehlmann supplementing plaintiff's interrogatory answers. Long's letter stated in pertinent part, "Dr. Thomas Burnstine, a treating neurologist, is expected to testify regarding the nature, extent and duration of Plaintiff's injury, in accordance with the report and records that were produced pursuant to subpoena and all reasonable inferences and Conclusions flowing therefrom."

On January 14, 1997, plaintiff moved to reschedule the trial. Long indicated that he and Poehlmann were discussing submitting the case to alternative dispute resolution and that plaintiff's medical treatment continued. The trial court granted the motion and reset the trial for August 4, 1997.

Plaintiff saw Dr. Jennifer Capezio, a rheumatologist, for the first time on February 17, 1997. In response to defendant's request for supplemental interrogatory answers, Long sent Dr. Capezio's February medical notes to Poehlmann on May 22. Although one set of Dr. Capezio's February notes was illegible, Long included a second set of legible notes that he had obtained from Dr. Capezio. Long's accompanying cover letter stated that the diagnosis of plaintiff's condition was unclear and that plaintiff's treatment continued. In a letter dated May 30, Poehlmann thanked Long for Dr. Capezio's medical notes and suggested submitting the case to binding arbitration.

On July 1, 1997, Long filed a joint motion to reschedule trial and a motion to set a pretrial date. The trial court subsequently set a July 18, 1997, pretrial date and a September 29, 1997, trial date. Plaintiff's pretrial memorandum, filed on July 18, identified Dr. Capezio as plaintiff's "primary physician" and as a person expected to testify at trial. The pretrial memorandum included Dr. Capezio's diagnosis of plaintiff's condition ("chronic cervical myofascial syndrome, primarily involving the neck and shoulder") and detailed Dr. Capezio's likely testimony. The memorandum further stated that Dr. Burnstine and Dr. Schell "reached the same basic opinions" as Dr. Capezio did and that Dr. Schultz's diagnosis was "fundamentally the same as that reached by Dr. Capezio." The memorandum also contained the thrust of Dr. Schultz's anticipated testimony.

Late in July 1997, Poehlmann moved to reschedule the trial. The trial court granted defendant's motion on August 12 and gave the case a final trial date of October 27, 1997.

Poehlmann sent Long supplemental interrogatory answers on July 30, 1997. The answers stated in relevant part, "The Defendant discloses that Dr. Ronald Pawl will testify to his opinions regarding his examination of the Plaintiff and that which was subsequently incorporated into his record; investigation continues." Long did not believe that Dr. Pawl had ever examined plaintiff. On July 31, Poehlmann sought leave to depose Dr. Capezio. The court granted his request on August 7.

Dr. Burnstine examined plaintiff again on August 3, 1997. In a letter dated August 14, Long informed Poehlmann of plaintiff's visit to Dr. Burnstine and reminded Poehlmann that Dr. Burnstine would testify at trial. Long referred to Dr. Burnstine as plaintiff's "most important witness." Long also wrote that he had been unable to speak with Dr. Burnstine directly and therefore could not "be more revealing of [Dr. Burnstine's] opinion," but that the doctor would testify as "previously indicated."

Poehlmann contacted Dr. Kessler, a neurologist, on August 19, 1997. Poehlmann sent Dr. Kessler the complaint at law, some medical records, and a letter asking her if she would testify as defendant's opinion witness. Although Dr. Kessler had worked for Poehlmann in the past, this was the first time that Poehlmann contacted her relating to the instant matter. Dr. Kessler agreed to act as defendant's expert, and, on September 8, Poehlmann sent her all of the medical records in his possession.

On October 7, plaintiff visited Dr. Capezio, who made a typewritten report of her findings and diagnosis. Long gave Poehlmann that report on October 9. That same day, Poehlmann took Dr. Burnstine*s discovery deposition. Poehlmann deposed Dr. Capezio on October 15.

Poehlmann telephoned Long on October 14 to inform Long of his intention to file another motion to reschedule trial. Without revealing that he had retained Dr. Kessler as defendant's opinion witness, Poehlmann asked Long if he would agree to filing the motion jointly. Long agreed to the joint motion, which Poehlmann filed on the morning of October 16. That same ...


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