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Morgan v. Morgan

October 23, 2003

KEVIN WAYNE MORGAN, SR., PLAINTIFF-APPELLEE, AND CHRISTINA L. MORGAN, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
WANDA RICHARDSON, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 98-L-258 Honorable George J. Moran, Judge, presiding.

The opinion of the court was delivered by: Presiding Justice Hopkins

UNPUBLISHED

The defendant, Wanda Richardson, appeals from jury verdicts after a jury trial on damages only in the personal-injury action filed by the plaintiffs, Kevin and Christina Morgan. The cause of action arose as a result of an automobile accident on Route 159 in Collinsville, Illinois, on the evening of January 7, 1998. The plaintiffs were traveling south on Route 159, with Christina driving the car and Kevin riding in the front passenger seat. Route 159, at the point of the accident, was a three-lane highway, with a northbound lane, a southbound lane, and a middle, turn lane. As the plaintiffs neared the parking lot of the Shop 'N Save on Route 159, Christina saw the defendant's car stopped at the exit, apparently in readiness to exit the parking lot and turn onto Route 159. Christina stated that she was not driving fast because it was drizzling and the pavement was wet that evening. As Christina drove past the defendant's vehicle, which Christina said was stopped "inches" from Route 159, "out of the corner of [her] eye" she saw the defendant pull out of the exit. The defendant collided with the rear passenger side of Christina's car, forcing Christina's car out of the lane in which she had been driving.

After the accident, Christina and one of her two sons, who had been in the back seat of her car, went to the emergency room at Anderson Hospital. At the hospital, Christina was treated for a knee injury and was released. Kevin did not go to the hospital at that time. However, the following day, Kevin woke up with pain in his lower back and with problems ambulating and urinating. Kevin went to the emergency room at Anderson Hospital at that time. Kevin was subsequently treated by other medical providers, including Dr. Riaz Naseer, a neurologist, for his lower back pain. The plaintiffs filed their complaint for personal injuries against the defendant on April 22, 1998.

The defendant answered the plaintiffs' complaint on August 3, 1998, and included a counterclaim against Christina for contribution. The defendant also raised the affirmative defense of contributory negligence. In both the counterclaim and the affirmative defense, the defendant claimed that Christina had failed to decrease the speed of her vehicle and to take evasive action to avoid the collision, had driven her vehicle at a speed greater than was reasonable for traffic conditions and the use of the roadway, had failed to keep her vehicle under control, and had failed to keep a proper lookout for other vehicles on the roadway.

On August 7, 1998, the defendant served the plaintiffs with written interrogatories. In the interrogatories, the defendant asked that the plaintiffs supply, pursuant to Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)), the name and address of each opinion witness the plaintiffs would be calling to testify, the subject matter of the opinion witness's testimony, and the opinion witness's conclusions and opinions and the basis therefor, including the opinion witness's reports, the opinion witness's qualifications, and the "identity of any written reports of the opinion witness regarding this occurrence." In response to this specific interrogatory, the plaintiffs stated, "Unknown at present other than treating medical personnel."

A letter sent from the plaintiffs' attorney to the defendant's attorney on April 23, 1999, reflected Kevin's medical bills incurred until that time; however, the plaintiffs' counsel stated that Kevin was still undergoing treatment. Counsel's letter included a reference to a bill from Dr. Naseer. In Kevin's discovery deposition, taken on June 11, 1999, Kevin testified that he was still treating with Dr. Naseer. On June 23, 1999, the defendant filed a subpoena duces tecum in which the defendant sought all of Kevin's medical records from Dr. Naseer. The defendant admitted that she received all of Dr. Naseer's records in July 1999.

On November 24, 1999, the plaintiffs' attorney sent another letter to defense counsel. The letter listed more bills relating to Kevin's treatment by Dr. Naseer. Dr. Naseer's evidence deposition was taken on August 30, 2000. In the evidence deposition, the defendant made objections to several opinions given by Dr. Naseer. The defendant claimed that the opinions had not been disclosed pursuant to Rule 213(g). The defendant moved in limine on the second day of the trial, December 12, 2000, for the exclusion of Dr. Naseer's opinion testimony as presented in his evidence deposition. In her motion, the defendant alleged a Supreme Court Rule 213(g) violation. The motion was presented to the trial court three months after the disclosure of Dr. Naseer's opinions in his evidence deposition. The evidence deposition of the defendant's opinion witness, Dr. Kenneth Rybicki, had been taken on October 3, 2000, after Dr. Naseer's deposition and more than two months prior to the trial.

On February 22, 2000, Christina moved for a summary judgment on liability on both her complaint and the defendant's counterclaim. The trial court granted Christina's motion for a summary judgment and ruled that the plaintiffs' claims would go to the jury on the issue of damages only.

At the jury trial on damages, Christina and Kevin testified. Dr. Naseer's evidence deposition and Dr. Rybicki's evidence deposition were read to the jury. Dr. Naseer's testimony established that Kevin's injuries from the January 1998 accident were a lumbosacral strain and a bulging disc. Dr. Rybicki's testimony established that Kevin's injury from the January 1998 accident was the lumbosacral strain only. Dr. Rybicki refused to connect Kevin's bulging disc to the accident because Kevin had no magnetic resonance imaging test (MRI) done prior to the accident to compare to the postaccident MRI. On this basis, Dr. Rybicki said that he could neither prove nor disprove whether Kevin's bulging disc was a pre-existing condition or whether it was an injury resulting from the accident.

Following the trial, the jury returned a verdict for Kevin and awarded him $67,000 in damages. The jury also returned a verdict in favor of Christina and awarded her $5,000 in damages: $3,000 for the injury to her knee and $2,000 for property damage to her car. The defendant appeals.

ANALYSIS

The defendant first contends that the trial court abused its discretion in allowing Dr. Naseer to testify at the trial to opinions not previously disclosed pursuant to Rule 213(g). The defendant claims that Dr. Naseer's testimony regarding the causal relationship of Kevin's injuries to the accident, the need for certain medical tests for Kevin that were attributed to his injuries from the accident, the effect of Kevin's injuries on his physical activities and employment abilities, the permanency of the injury, Kevin's present and future pain and suffering, and his need for future medical treatment was not disclosed by the plaintiffs in written interrogatories or supplemental answers, a violation of Rule 213(g). The defendant claims that the testimony resulted in unfair surprise and prejudice to her.

Addressing the defendant's argument requires a two-part analysis: whether the plaintiffs complied with Rule 213(g) and, if not, whether a sanction was required. See Warrender v. Millsop, 304 Ill. App. 3d 260 (1999). Discovery rules are mandatory rules for the parties to follow. Warrender, 304 Ill. App. 3d at 265. Rule 213(g) requires that, upon written interrogatory, a party must disclose the subject matter, conclusions, opinions, qualifications, and reports of an opinion witness. Warrender, 304 Ill. App. 3d at 265. Supreme Court Rule 213(i) (177 Ill. 2d R. 213(i)) provides that a party has a ...


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