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Fraser v. Jackson

Court of Appeals of Illinois, Second District

March 27, 2014

WILLIAM FRASER, Plaintiff-Appellee,
JOHN JACKSON, Defendant-Appellant

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[Copyrighted Material Omitted]

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As Corrected.

Appeal from the Circuit Court of Lake County. No. 11-L-727. Honorable Christopher C. Starck, Judge, Presiding.


On appeal from the entry of a judgment for plaintiff in an action arising from a vehicular collision, the appellate court held that the trial court did not abuse its discretion in barring defendant's expert medical witness from testifying due to defendant's failure to comply with discovery orders concerning the witness, that plaintiff laid a proper foundation for certain medical bills, and that assessing defendant with the costs plaintiff incurred in obtaining evidence to support those medical bills when defendant denied plaintiff's request to admit that evidence pursuant to Supreme Court Rule 216 was not an abuse of discretion, and the appellate court imposed sanctions on defendant pursuant to Supreme Court Rule 375 for the fees and costs incurred by plaintiff in defending defendant's frivolous appeal.

Robert S. Wilson, of Vernon Hills, for appellant.

Nathan J. Mirocha and Samuel J.H. Weyers, both of Law Offices of Nathan J. Mirocha LLC, of Chicago, for appellee.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and the opinion.


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[¶1] Plaintiff, William Fraser, sued defendant, John Jackson, for damages resulting from a motor vehicle collision that occurred on September 4, 2009, in Zion, Illinois. After a jury trial, plaintiff was awarded damages in the amount of $61,372.43, which included medical expenses of $31,372.43. In this appeal, defendant raises three issues: (1) whether the trial court erred in barring his expert witness, Dr. Gary Skaletsky, from testifying at trial; (2) whether plaintiff laid a proper foundation for admitting certain of his medical expenses into evidence; and (3) whether the trial court erred in awarding costs and attorney fees to plaintiff. Additionally, plaintiff asserts that this appeal is frivolous and warrants sanctions pursuant to Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994). We affirm, with sanctions.


[¶3] The record on appeal consists of a four-volume common-law record; one supplemental common-law record; and one report of proceedings that includes: (1) plaintiff's attorney's closing argument to the jury on November 14, 2012; and (2) the hearing on various posttrial motions held on February 13, 2013. The following facts are gleaned from the record.

[¶4] On September 4, 2009, defendant was driving a dump truck east on 9th Street in Zion, while plaintiff was driving a pickup truck south on Green Bay Road. Plaintiff had the right of way. Defendant failed to stop at the stop sign on 9th Street at Green Bay Road and struck plaintiff's vehicle. As a result, plaintiff suffered injuries to his lower back, neck, head, and knee.

[¶5] On August 30, 2011, plaintiff sued defendant, seeking damages for the injuries he received. The complaint alleged that defendant's negligence caused plaintiff to suffer permanent injuries and sought damages in excess of $50,000.

[¶6] On July 31, 2012, plaintiff issued supplemental production requests to defendant concerning Dr. Skaletsky, a neurosurgeon retained by defendant to evaluate plaintiff pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011). Plaintiff requested documents and other material, including correspondence, reports and invoices from Dr. Skaletsky that were submitted to defendant's counsel and his insurance company. Plaintiff also requested deposition transcripts from any matters in which Dr. Skaletsky had previously served as a retained expert for defendant's counsel or his insurance company.

[¶7] Also on July 31, plaintiff issued a subpoena duces tecum to Dr. Skaletsky, requesting any reports, correspondence, and income records generated since 2007 by his acting as a medical expert or consultant; transcripts of any deposition or trial testimony he had given since 2007; and any scholarly work authored by himself or others that he relied upon in forming an opinion in this case. Plaintiff also requested copies of all medical records provided by attorneys to Dr. Skaletsky concerning a prior McHenry County case in which he was involved as an expert witness.

[¶8] On July 31, pursuant to Rule 215, the trial court ordered plaintiff to be examined by Dr. Skaletsky as a medical opinion witness. In a letter dated August 3, 2012, Dr. Skaletsky, citing physician-patient privilege, informed plaintiff's counsel that he would not comply with the discovery requests contained in the subpoena duces tecum . On August 13, Dr. Skaletsky examined plaintiff and reviewed medical records and diagnostic imaging studies from

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the day of the accident. Dr. Skaletsky's written report was dated August 13. On August 17, pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007), defendant disclosed Dr. Skaletsky as a " Controlled Expert Witness." On August 29, defendant noticed up his evidence deposition of Dr. Skaletsky for November 2.

[¶9] In a letter dated September 12, defendant's counsel tendered to plaintiff's counsel Dr. Skaletsky's response, dated August 3, to the subpoena duces tecum ; Internal Revenue Service 1099 forms for 2008 through 2011; and a list of payments made to Dr. Skaletsky from 2008 through 2011.

[¶10] On September 17, pursuant to Illinois Supreme Court Rule 216 (eff. Jan. 1, 2011), entitled " Admission of Fact or of Genuineness of Documents," plaintiff filed his requests to admit that certain charges were for reasonable and necessary treatment and that the charges were fair, reasonable, and customary. The bills included were, inter alia, for services rendered to plaintiff from Vista Medical Center East, Aurora Medical Group, Aurora Healthcare, Aurora Medical Group Imaging, and Wheaton Franciscan Medical Group. In his answer filed September 28, defendant denied all of these requests to admit.

[¶11] On October 17, 24 and 31, the trial court ordered defendant to produce the materials requested in the subpoena duces tecum . The order issued on October 31 set a deadline for compliance, at 5 p.m. on November 1. The trial court ordered Dr. Skaletsky to produce all correspondence and reports that he authored, or were authored on his behalf, since 2007 in his capacity as medical consultant or expert; all invoices and billing statements generated since 2007 by, or on behalf of, Dr. Skaletsky in his capacity as medical consultant or expert; and all correspondence, reports, invoices, and billing statements sent by, or on behalf of, Dr. Skaletsky to defendant's lawyers or his insurance company. That order also provided:

" (4) If the materials are not produced in a timely manner, Dr. Skaletsky shall produce his tax returns from 2008-2011[.]"

On the morning of November 1, defendant filed a motion for a protective order " related to the income, and, [ sic ] income tax information of [Dr. Skaletsky]." The trial court granted the motion and ordered that all information and documents received by plaintiff pertaining to Dr. Skaletsky's income and income tax returns would be " limited in its use to the cause within."

[¶12] On November 4, defendant's counsel faxed to plaintiff's counsel Dr. Skaletsky's income tax returns from 2007 through 2011. On November 6, because plaintiff had not received any of the correspondence or reports requested in the subpoena duces tecum, plaintiff filed an emergency motion seeking to bar Dr. Skaletsky from testifying. The trial court granted the emergency motion as a discovery sanction, pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002).

[¶13] On November 8, defendant's counsel filed a motion to reconsider barring Dr. Skaletsky's testimony and argued:

" Judge, I believe that the plain meaning of the court's order was that if the doctor did not turn over those documents; the invoices, and, I believe, the reports from the other cases, then he was to then turn over the tax returns.
If the court had contemplated barring Dr. Skaletsky just for not producing the documents in the subpoena rider, then it would serve no purpose for him to turn over tax returns because there was a protective order ...

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