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Smith v. P.A.C.E.

June 28, 2001

TIMOTHY SMITH, PLAINTIFF-APPELLANT,
v.
P.A.C.E. , A SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, AND GERALD RAPAPORT, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF P.A.C.E., DEFENDANTS-APPELLEES, AND FLORENCE BOONE, INDIVIDUALLY AND IN HER CAPACITY AS CHAIRMAN OF THE BOARD OF DIRECTORS OF P.A.C.E.; THE BOARD MEMBERS OF P.A.C.E., INDIVIDUALLY AND IN THEIR CAPACITY AS BOARD MEMBERS OF THE P.A.C.E. BOARD OF DIRECTORS; JOSEPH DIJOHN, INDIVIDUALLY AND IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF P.A.C.E.; AND THE REGIONAL TRANSPORTATION AUTHORITY, DEFENDANTS. TIMOTHY SMITH, PLAINTIFF-APPELLANT,
v.
GERALD RAPAPORT, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Hoffman

Not Released For Publication

TIMOTHY SMITH, PLAINTIFF-APPELLANT,
v.
P.A.C.E. , A SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, AND GERALD RAPAPORT, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF P.A.C.E., DEFENDANTS-APPELLEES, AND FLORENCE BOONE, INDIVIDUALLY AND IN HER CAPACITY AS CHAIRMAN OF THE BOARD OF DIRECTORS OF P.A.C.E.; THE BOARD MEMBERS OF P.A.C.E., INDIVIDUALLY AND IN THEIR CAPACITY AS BOARD MEMBERS OF THE P.A.C.E. BOARD OF DIRECTORS; JOSEPH DIJOHN, INDIVIDUALLY AND IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF P.A.C.E.; AND THE REGIONAL TRANSPORTATION AUTHORITY, DEFENDANTS. TIMOTHY SMITH, PLAINTIFF-APPELLANT,
v.
GERALD RAPAPORT, DEFENDANT-APPELLEE.

The opinion of the court was delivered by: Justice Hoffman

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE DAVID DONNERSBERGER JUDGE PRESIDING

 APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE KATHY FLANAGAN, JUDGE PRESIDING.

Timothy Smith, the plaintiff in this refiled negligence action, was barred from introducing any evidence in support of his claim for lost income and also barred from calling any witnesses upon the trial of the cause by reason of his having failed to comply with discovery in his original action. Thereafter, on motion of the defendant, Gerald Rapaport, the circuit court entered summary judgment against the plaintiff, finding that, absent an ability to call witnesses, he would be unable to meet his burden of proof. The plaintiff appeals from the summary judgment in favor of Rapaport and from the orders entered in both his original and refiled actions preventing him from introducing evidence in support of his claim for lost income and barring him from calling any witnesses at trial.

The following facts pertaining to the plaintiff's original negligence action, which he voluntarily dismissed, are relevant to our disposition of this appeal. On July 30, 1996, the plaintiff filed a negligence action (hereinafter referred to as the "original action") in the circuit court of Cook County against Rapaport, his employer, the Regional Transportation Authority, and others, in which he alleged that, on July 31, 1995, his vehicle was struck by a bus driven by Rapaport. The plaintiff sought damages for personal injury, medical expenses, and lost income. In response to interrogatories propounded by the defendants on March 7, 1997, the plaintiff identified Richard J. Siggins as an occurrence witness and the plaintiff's treating physicians, Drs. Frank M. Phillips and Bruce Reider, as expert witnesses he intended to call to testify at trial. According to Rapaport, the plaintiff faxed his answers to the defendants' attorneys on October 8, 1997, and mailed copies of the answers on October 29, 1997.

On October 22, 1997, the defendants propounded supplemental interrogatories to the plaintiff, requesting information concerning his injuries, medical treatment, medical expenses, lost income, and other damages. On April 1, 1998, the plaintiff filed answers to the supplemental interrogatories, again identifying Siggins as an occurrence witness who would testify at trial. The plaintiff also stated that he had been unable to work since the date of the accident but failed to provide any of the requested information concerning the name of his employer and the amount of his salary at the time of the occurrence and the amount of income that he claimed to have lost. In response to a question requesting the names of all treating health care professionals, the plaintiff again listed Drs. Phillips and Reider and also listed Dr. Horton, Dr. Zelkowitz, Dr. Edward Michals, and Dr. Vijaya Morankar. He failed, however, to furnish any of the information requested concerning the dates upon which these doctors treated him, their bills, and whether any of them issued written reports.

On April 6, 1998, the defendants propounded additional interrogatories, requesting the identity of each witness the plaintiff intended to call at trial and the subject of each witnesses' testimony. With respect to witnesses who were to offer opinion testimony, the defendants further requested the witnesses' qualifications, their conclusions and opinions, along with the bases therefore, and copies of any reports they had prepared.

On May 18, 1998, the defendants filed a motion to dismiss, alleging that the plaintiff had failed to provide complete answers to their interrogatories, failed to respond to their production requests, and failed to appear for his deposition. There is no indication in the record that the trial court ever ruled upon this motion.

On June 17, 1998, the defendants served the plaintiff with a supplemental request for the production of documents relating to any loss of income from self-employment and requesting that he execute the requisite forms for the release of his Federal income tax returns for the years 1994 through 1997.

On June 30, 1998, the defendants' attorneys took Siggins' discovery deposition and commenced taking the plaintiff's discovery deposition. On October 23, 1998, the defendants' ...


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