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Green v. Papa

Court of Appeals of Illinois, Fifth District

February 5, 2014

DARLENE GREEN, f/k/a Darlene Riskovsky, Plaintiff-Appellant,

Appeal from the Circuit Court of St. Clair County. No. 08-L-178. Honorable Vincent J. Lopinot, Judge, presiding.



In a legal malpractice action arising from defendants' representation of plaintiff in the Court of Claims with respect to an accident in which plaintiff's car was struck by a Department of Transportation truck, the trial court's judgment for defendants was affirmed, since the basis of the malpractice claim was that defendants' negligence led the Court of Claims to exclude certain medical evidence, which in turn caused the Court of Claims to conclude that a later fall was the primary cause of plaintiff's injuries; however, the decision of the Court of Claims to exclude the evidence was a result of the court's erroneous conclusions of facts and law, not her counsel's malpractice.

For Appellant: Patricia A. Zimmer, Ripplinger & Zimmer, LLC, Belleville, IL.

For Appellees: Daniel F. Konicek, Michael J. Corsi, Konicek & Dillon, P.C., Geneva, IL.

JUSTICE SPOMER delivered the judgment of the court, with opinion. Justice Stewart concurred in the judgment and opinion. Justice Cates specially concurred, with opinion.



Page 608

The plaintiff, Darlene Green, formerly known as Darlene Riskovsky, appeals from the December 20, 2012, order of the circuit court of St. Clair County, which entered a judgment in favor of the defendants, John T. Papa and Callis, Papa, Hale, Szewczyk, & Danzinger, P.C. (Papa), on Darlene's complaint for legal malpractice. On appeal, Darlene argues that the circuit court erred in finding that Papa did not breach his duty to Darlene, and assuming there had been a breach of duty, it was not the proximate cause of Darlene's damages. For the reasons that follow, we affirm.

As an initial matter, Darlene filed a motion to strike section I from Papa's brief because Papa cited to an unpublished order of this court when making his statement of the standard of review. We took Darlene's motion with the case. Upon consideration, we grant Darlene's motion in part. We find that the first paragraph of section I does cite to an unpublished order of this court, and as such is in violation of Illinois Supreme Court Rule 23(e) (eff. July 1, 2011). Accordingly, we grant Darlene's motion to strike that paragraph. However, because, in the second paragraph of section I, Papa does not cite to an unpublished order, but instead addresses the case cited by Darlene in the statement of the standard of review contained in her brief, the motion to strike is denied as to that paragraph. As to the third paragraph, we also find the motion to strike well-taken, because it provides a statement of the standard of review as advocated in the first paragraph and provides no additional citation to authority beyond the unpublished order. In conclusion, Darlene's motion to strike is granted as to paragraphs 1 and 3 of section I of Papa's brief, but is denied as to paragraph 2.


On April 18, 2008, Darlene filed a complaint in the circuit court of St. Clair County, alleging a cause of action for legal malpractice against Papa. According to the complaint, Darlene was involved in a motor vehicle accident on April 28, 1998, in which the car she was driving was hit by a dump truck owned by the Illinois Department of Transportation (IDOT) and driven by one of its employees. On April 29, 1998, Darlene entered into a contract with Papa for legal representation to recover for damages she sustained as a result of the accident. On February 8, 1999, Papa filed a claim on Darlene's behalf in the court of claims against IDOT. On March 18, 2004, Papa represented Darlene in a hearing before the court of claims on Darlene's claim. On March 28, 2006, the court of claims issued an opinion, in which it excluded from evidence the deposition testimony of one of Darlene's treating providers, Dr. Schoedinger, finding that the deposition was a discovery deposition under Illinois Supreme Court rules. In the opinion, the court of claims awarded

Page 609

Darlene $17,000 for her injuries and property damage, finding that IDOT was not responsible for treatment Darlene received after October 5, 1998. On April 12, 2006, Papa filed a petition for rehearing, which, according to the complaint, was denied on March 7, 2007. However, we note that no order denying the petition for rehearing appears in the record received by this court in the instant appeal.

According to Darlene's complaint, Papa breached his duty to her by failing to properly serve a notice of evidence deposition for Dr. Schoedinger, Darlene's treating orthopedic surgeon. The complaint also accuses Papa of breaching his duty by failing to present evidence that the treatment she received by Dr. Schoedinger was proximately caused by the April 1998 accident and failing to present evidence that a subsequent event on October 5, 1998, further detailed below, was not a proximate cause of her injuries and treatment. A bench trial was held before the circuit court on Darlene's legal malpractice claim on October 15, 2012, wherein the following evidence relevant to this appeal was adduced.

The entire record of the March 18, 2004, proceedings before the court of claims was admitted into evidence, but, as stated above, the order denying Papa's petition for rehearing is missing. Assistant Attorney General Melissa Ellison, representing IDOT, made an objection to the submission of Dr. Schoedinger's deposition testimony into evidence, taking the position that it was a discovery deposition, rather than an evidence deposition. In making this argument, attorney Ellison relied on the fact that the cover of the deposition transcript designated the deposition as a discovery deposition and that the notice of deposition failed to designate the deposition as an evidence deposition in accordance with Illinois Supreme Court Rule 202 (eff. Jan. 1, 1996). In response, Papa informed the court of claims that he had an agreement with a prior attorney for the Attorney General, Jason Boltz, that all of the depositions of Darlene's treating providers were to be taken for purposes of evidence and that although the notice of the other two depositions of Darlene's treating providers, Dr. Lin and Dr. King, contained the exact same language as the notice for Dr. Schoedinger's deposition, both Dr. Lin's and Dr. King's depositions were designated as evidence depositions. All three deposition notices stated that they would be taken " pursuant to the Illinois Statutes and Supreme Court Rules governing discovery and evidence depositions."

In addition, Papa pointed out in his argument to the court of claims that he would never have reason to conduct a discovery deposition of his client's own treating providers and that the depositions were conducted in a manner consistent with an evidence deposition, with him first examining Dr. Schoedinger, followed by cross-examination by Mr. Boltz for IDOT, followed by redirect by Papa, and recross by Mr. Boltz. Finally, Papa requested that should the court of claims find that the deposition testimony be excluded, he be allowed to reopen the proofs and retake Dr. Schoedinger's deposition for the purposes of evidence. At the bench trial on Darlene's legal malpractice claim against him, Papa also testified that he conferred with Darlene during a break in the proceedings before the court of claims, advising her of the possible impact of the disallowance of Dr. Schoedinger's testimony, and asked if she would like to seek a continuance, but that Darlene indicated that she wanted to move forward with the trial. However, Darlene testified that she did not recall such a conversation.

Page 610

At the conclusion of the attorneys' arguments before the court of claims regarding the admissibility of Dr. Schoedinger's deposition, the commissioner reserved ruling on the issue and reminded the parties that the judges of the court of claims would be the final arbiters of the deposition's admissibility. Thereafter, the following relevant evidence was adduced before the court of claims. Darlene testified regarding the circumstances surrounding the motor vehicle accident, her injuries, pain, and suffering, and the details of her treatment. Darlene testified that following the accident, she experienced pain in her neck, lower back, hips, and buttocks. After conferring with Papa a day after the accident, she consulted with Dr. King, a chiropractor, regarding her pain. After several chiropractic treatments, Dr. King referred her for a consultation with a neurologist, Dr. Naseer, and a pain management specialist, Dr. Lin. Darlene testified that by September or October of 1998, her neck pain had resolved but she continued to experience pain in her lower back, hips, and buttocks. In October 1998, Dr. King referred Darlene to Dr. Schoedinger, an orthopedic surgeon, who performed surgery in 1999. Darlene testified that since the surgery, her symptoms have improved but that she still has some ongoing pain.

At the end of her direct examination, Darlene testified that roughly in September or October of 1998, she went to sit in a chair at work, but it rolled out from under her. She landed on her arm, but her hips hit the floor. She testified, however, that the character and content of her pain complaints did not change following the chair fall. Finally, Darlene testified that she did fill out an incident report about the chair fall, as it was the policy of her employer to document all incidents. Darlene's medical bills were admitted into evidence, totaling $58,000, approximately $40,000 of which were incurred after October 5, 1998. Darlene testified that these bills were submitted for payment to her employer in conjunction with her workers' compensation claim resulting from the April 1998 motor vehicle collision and that all had been paid.

At the conclusion of Darlene's testimony, the parties had another discussion with the commissioner regarding the admissibility of Dr. Schoedinger's deposition. Papa again stated his position that the deposition was an evidence deposition, but asked that should it be deemed to be discovery that the record be left open so that the deposition could be retaken. Attorney Ellison again stated her position that the deposition was a discovery deposition. The commissioner stated that he would leave the record open only if the parties agreed and again reserved ruling on the admissibility of the deposition.

The deposition of Dr. Charles King was admitted into evidence. The cover of the deposition designates that the deposition is an evidence deposition. Dr. King testified that he is a chiropractor and began treating Darlene on April 29, 1998, when she presented with lower back pain. Dr. King testified that Darlene had two MRIs, one on July 26, 1998, and the second on October 15, 1998. According to Dr. King, both MRIs showed the same disc damage. He testified that he expected Darlene to need treatment for her injuries in the future due to expedited degeneration above the fusion that was eventually performed by Dr. Schoedinger. He testified ...

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