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Kapsouris v. Rivera

April 05, 2001


Appeal from the Circuit Court of Du Page County. No. 98--AR--2596 Honorable Kenneth Moy, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Plaintiff, Antonios Kapsouris, was a passenger in a vehicle that was rear-ended by a vehicle driven by defendant, Diane Rivera. Plaintiff filed a complaint against defendant stating a cause of action for injuries plaintiff sustained in the accident. The case was tried before a jury in the circuit court of Du Page County. The jury found for defendant and against plaintiff. The trial court entered judgment on the verdict. On appeal, plaintiff contends that (1) the trial court erred in engaging in ex parte communications with defense counsel; (2) the trial court erred in barring opinion testimony; (3) the trial court erred when it failed to compel the production of photographs; and (4) the trial court erred in denying plaintiff's posttrial motion. We affirm.

In the complaint, plaintiff alleged that on February 11, 1998, he was a passenger in an automobile that was struck from behind. The complaint alleged that the accident was the result of defendant's negligence and that plaintiff received injuries from the accident. In a Supreme Court Rule 222 (166 Ill. 2d R. 222) affidavit that was filed with the complaint, plaintiff stated that the money damages sought did not exceed $50,000.

Defendant filed an answer to the complaint and a proof of service of Supreme Court Rule 213 (166 Ill. 2d R. 213) interrogatories upon plaintiff's counsel. Thereafter, the trial court set the matter for an arbitration hearing pursuant to the mandatory arbitration system (735 ILCS 5/2--1001A et seq. (West 1998)).

On April 20, 1999, plaintiff filed a notice of the documents he intended to offer at the arbitration hearing accompanied by a copy of those documents pursuant to Supreme Court Rule 90(c)(166 Ill. 2d R. 90(c)). Among those documents were Dr. Oleh S. Palay's reports and bills. On May 7, 1999, plaintiff filed a certificate of service verifying service of "Plaintiff's response to [Defendant's] Interrogatories" and "Plaintiff's Response to [Defendant's] Document Request".

Both parties appeared at the arbitration hearing with counsel. The arbitrators rendered an award in favor of plaintiff and against defendant in the amount of $3,235.68. Thereafter, plaintiff filed a notice of rejection of the arbitration award, and the matter was set for trial.

On October 15, 1999, plaintiff was granted leave to file his Rule 222 disclosure statement and amended Rule 222 disclosure statement. In the amended Rule 222 disclosure statement, plaintiff disclosed Dr. Oleh S. Palay, M.D., and Dr. Ralph DeStepheno, D.C., as opinion witnesses. According to the amended disclosure, Dr. Palay would testify that plaintiff suffered posttraumatic cervical sprain/strain; posttraumatic lumbosacral sprain/strain; post-traumatic cervicotrapezius and lumbar myofascitis; and posttraumatic cephalgia, resolved. Dr. Palay's reports and bills were previously provided to defendant in the Rule 90(c) notice. Dr. DeStepheno would concur with the findings of Dr. Palay.

On November 1, 1999, the trial court granted plaintiff leave to file a second amended Rule 222 disclosure. The second amended disclosure statement added Dr. Robert Kempf, M.D., as an opinion witness. According to the second amended disclosure, defendant had previously been provided with the report of Dr. Kempf containing his conclusions.

The case proceeded to trial on December 6, 1999. Defense counsel brought a series of oral motions in limine, the last of which requested the exclusion of the opinions of opinion witnesses not disclosed in plaintiff's answer to Rule 213(g) interrogatories. Plaintiff's counsel responded by indicating to the court that he had made full disclosure of all opinion witnesses in the Rule 222 disclosures. Next, the following exchange took place:

"[DEFENSE COUNSEL]: Your honor, I believe 222's do not negate 213's having to properly be answered.

THE COURT: She's right. Can you tell me, show me any law that says she's not right?

[PLAINTIFF'S COUNSEL]: Not off the top of my head, your Honor, no.

THE COURT: I will reserve it until 1:30 and you can go check your cases, but--

[PLAINTIFF'S COUNSEL]: Then I would ask for leave of Court to file amended 213's.

THE COURT: I can't do that."

The court granted defendant's motion in limine and excluded any opinion testimony by plaintiff's experts. In granting the motion, the trial court referred to Department of Transportation v. Crull, 294 Ill. App. 3d 531 (1998), and stated, "Counsels, I know the Kral [sic] opinion. The Kral [sic] opinion is if it's not in the 213's, it's out."

During plaintiff's case, plaintiff, the Glendale Heights police officer who responded to the accident, the driver of the rear-ended vehicle, the other passenger in the rear-ended vehicle, and Dr. Ralph DeStepheno, D.C., testified. Dr. DeStepheno's testimony was limited to the chiropractic treatment he administered to plaintiff because his opinion as to the injuries plaintiff sustained in the accident was excluded. Dr. DeStepheno testified that he treated plaintiff's neck and lower back pain with treatments including electrical stimulation, cryotherapy, ultrasound, and traction. Dr. DeStepheno also testified that the total bill for his services was $2,926.

Defendant was the only witness presented by the defense. Defendant did not deny striking the vehicle in which plaintiff was a passenger. Defendant testified that it was raining the night of the accident. Defendant claimed that the vehicle in which plaintiff was a passenger came to a sudden stop in front of her vehicle without signaling. Defendant said she was going about 20 ...

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