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Adwent v. Novak

Court of Appeals of Illinois, First District, First Division

July 17, 2017

ZBIGNIEW ADWENT, Plaintiff-Appellant,
v.
RICHARD B. NOVAK, M.D., Defendant-Appellee.

         Appeal 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.

          OPINION

          MIKVA, JUSTICE.

         ¶ 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.

         ¶ 2 BACKGROUND

         ¶ 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.
A. Correct."

         ¶ 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 ...


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