Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 12 L 10734
Honorable Casandra Lewis, Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court, with
opinion. Presiding Justice Connors and Justice Harris
concurred in the judgment and opinion.
1 Plaintiff Zbigniew Adwent brought a medical malpractice
suit against defendant Dr. Richard B. Novak. On October 5,
2015, a jury returned a verdict in favor of Dr. Novak. On
appeal, Mr. Adwent claims that the trial court abused its
discretion in two respects: (1) by barring testimony from Mr.
Adwent's expert witness, James Hayes, that Dr.
Novak's chart regarding his treatment of Mr. Adwent was
missing a page; and (2) by refusing to give a jury
instruction on contributory negligence. Because we find
neither of these rulings are an abuse of the trial
court's discretion, we affirm.
3 Mr. Adwent filed his initial complaint on September 20,
2012, alleging that, during two office visits in September
2010, Dr. Novak was negligent in failing to properly
investigate or treat his medical conditions, which included
back pain, Group B streptococcus, bacteremia, and diabetes.
The initial complaint was brought against Dr. Novak and Novak
Family Medical, but two days before trial Mr. Adwent was
given leave to file a first amended complaint against Dr.
Novak only. In his answer to Mr. Adwent's first amended
complaint, which was filed during the trial on October 1,
2015, the only affirmative defense that Dr. Novak pleaded was
Mr. Adwent's failure to mitigate damages.
4 A. Pre-Trial Proceedings
5 On September 19, 2014, Mr. Adwent filed disclosures
pursuant to Illinois Supreme Court Rule 213(f) (eff. Jan. 1,
2007), disclosing his intention to call James Hayes as a
forensic document examiner. Attached to the disclosures was a
report in which Mr. Hayes noted that he had examined 22 pages
of the "original Novak Family Medical office chart"
for Mr. Adwent and opined: "Based upon the examination
and comparisons of the exhibits I have determined that the
exhibits submitted are not the complete record of the
Zbigniew Adwent medical records." Mr. Hayes further
explained that his conclusion was based on "the presence
of developed latent images on the submitted documents that
could not be correlated to the records. Images from page 21A
are not found in the records."
6 On September 20, 2015, Dr. Novak filed a motion in
limine to bar Mr. Hayes from testifying, arguing that
Mr. Hayes's opinion was "inconclusive and
speculative." Attached to the motion was a transcript of
Mr. Hayes's December 2014 discovery deposition, in which
he explained that his opinion was based on latent images
found on a billing record at page 21A of Mr. Adwent's
medical records. According to Mr. Hayes, these latent images
reflected writing- including the initials "FU, "
which he believed referred to "follow up, " as well
as "entries for blood pressure and pulse and other
entries that ha[d] not been deciphered but [we]re clearly
visible on the document"-that had been made on another
piece of paper while it was laid on top of page 21A. Mr.
Hayes concluded that, because the latent images on page 21A
did not appear as actual writing on any page in Mr.
Adwent's medical records, the records were not complete.
7 Mr. Hayes conceded in his deposition that he had no
knowledge of whether the writing that appeared in the latent
images on page 21A concerned Mr. Adwent. Mr. Hayes also could
not be sure that the writing was Dr. Novak's; although
the handwriting on the latent images was consistent with Dr.
Novak's handwriting on Mr. Adwent's medical chart,
Mr. Hayes "had not rendered an opinion regarding
authorship." Mr. Hayes also acknowledged the narrow
scope of his opinion:
"Q. So your single opinion in this case is that there
are latent images shown on Page 21A, the billing record
entry, that you cannot correlate to any other handwritten
entry on any other page of Mr. Adwent's medical chart.
8 The trial court granted Dr. Novak's motion to bar Mr.
Hayes from testifying at trial. The court noted that the
proposed testimony was "totally speculative" and
that there was no way to know if the writing in the latent
image was "work related" or even "related to
this particular patient." The court continued,
"[a]nd if it is related to this particular patient, we
don't know what he was trying to say. I mean, I don't
know how that could be ...