LINDA BATSON, Plaintiff-Appellant, v. TOWNSHIP VILLAGE ASSOCIATES, LP; SUGAR CREEK REALTY, LLC; and SCHINDLER ELEVATOR CORPORATION, Defendants-Appellees.
Docket No. 5-17-0403
Appellate Court of Illinois, Fifth District
January 7, 2019
2019 IL App (5th) 170403
Appeal from the Circuit Court of Madison County, No. 13-L-1181; the Hon. William A. Mudge, Judge, presiding. Judgment: Certified question modified and answered; cause remanded.
Roy C. Dripps, Charles W. Armbruster III, and Michael T. Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, of Maryville, for appellant.
Donald J. Ohl and Jessica A. Brasel, of Knapp, Ohl & Green, of Edwardsville, and Dan H. Ball, Randy J. Soriano, R. Bruce Duffield, and Ambika Behal, of Bryan Cave LLP, of St. Louis, Missouri, for appellees.
OPINION
¶ 1 The plaintiff, Linda Batson, filed a complaint alleging that she was injured while riding in an elevator that was owned or controlled by defendants, Township Village Associates, LP, and Sugar Creek Realty, LLC, and maintained by defendant, Schindler Elevator Corporation (Schindler). The plaintiff moved to bar the testimony of defendants’ examining physician because neither the examining physician nor the defendants provided a copy of the examiner‘s report to plaintiff‘s counsel within the time required under
PROCEDURAL BACKGROUND
¶ 3 The plaintiff filed this action seeking damages for personal injuries and thereby placed her physical condition at issue. During the discovery process, Schindler, along with the other defendants, filed a motion pursuant to
¶ 4 On August 15, 2016, Dr. Rotman examined the plaintiff and dictated the report of his examination. On August 31, 2016, Dr. Rotman faxed a copy of his report to Schindler‘s counsel. Dr. Rotman did not, however, fax, mail, or otherwise deliver a copy of his report to plaintiff‘s counsel.
¶ 5 On September 13, 2016, counsel for all parties appeared for the video evidence deposition of Dr. Steven Baak, one of the plaintiff‘s treating physicians. This deposition had been previously noticed by plaintiff‘s counsel on August 3, 2016. Before questioning began, plaintiff‘s counsel indicated that he wished to make a record. Plaintiff‘s counsel stated that he had not received a copy of Dr. Rotman‘s report and that, under
¶ 6 After plaintiff‘s counsel made his record, there was a lengthy back and forth discussion between Schindler‘s counsel and plaintiff‘s counsel. In summary, Schindler‘s counsel initially indicated that he did not agree that the plaintiff had been prejudiced by not having Dr. Rotman‘s report in time for Dr. Baak‘s deposition. Schindler‘s counsel stated that based on the case management order, he thought he “was not required” to produce the report of his expert at that time. Schindler‘s counsel also asserted that this was the first time the plaintiff had made a request for the report and that he would give plaintiff‘s counsel a copy of the report, thereby ameliorating any alleged prejudice. Schindler‘s counsel then handed a copy of the report to plaintiff‘s counsel and offered to reschedule or delay the start of Dr. Baak‘s deposition.
¶ 7 In response, plaintiff‘s counsel suggested that the fact that Schindler‘s counsel had a copy of the report and plaintiff did not and that Schindler‘s counsel did not produce the report to the plaintiff within the 21-day time limit set forth in
¶ 8 The plaintiff‘s motion to bar Dr. Rotman‘s testimony was filed on September 13, 2016. Plaintiff‘s motion alleged that Dr. Rotman examined the plaintiff on August 15, 2016, and that Dr. Rotman failed to provide a copy of his report of the examination to plaintiff‘s counsel. The plaintiff further alleged that the defendants had not requested, and the court had not granted, any extension of time to provide a copy of the report to the plaintiff. The plaintiff asserted that under
¶ 9 On October 24, 2016, Schindler filed a memorandum in opposition to the plaintiff‘s motion to bar. Schindler noted that plaintiff‘s motion to bar was based on a
requirements of
¶ 10 On October 26, 2016, the trial court heard arguments on the plaintiff‘s motion to bar Dr. Rotman‘s testimony but delayed a ruling to allow supplemental briefing. On January 12, 2017, the trial court issued a written order denying the plaintiff‘s motion to bar. In its order, the court found that it was undisputed that “Dr. Rotman did not ‘mail or deliver’ to the attorneys for ‘the party examined’ his ‘written report of the examination’ within 21 days, nor did Schindler‘s counsel.” The court specifically found that no “extensions or modifications” had been granted by the court. The court agreed the supreme court rules are not aspirational but then stated that “it must weigh various factors when ruling on discovery violations, including surprise, the prejudicial effect, the nature of the testimony, the diligence of the adverse party, timely objection to the testimony, and the good faith of the party calling the witness.” Given those factors, the court determined that the plaintiff had ample time to construct trial strategy, as the trial was seven months away. The court denied the plaintiff‘s motion to bar the testimony of Dr. Rotman, concluding that it had discretion to permit the examiner to testify despite the time violation and that the plaintiff was not unduly prejudiced.
¶ 11 On September 6, 2017, the plaintiff filed a motion to reconsider the ruling on the plaintiff‘s motion to bar Dr. Rotman‘s testimony and also asked the court to strike the defendants’ cross-examination of Dr. Baak as a sanction for the discovery violation. On September 13, 2017, Schindler filed a response in opposition to the motion to reconsider. On September 16, 2017, the court issued an order denying the motion to reconsider its ruling on the motion to bar Dr. Rotman‘s testimony. The court took the request to strike the cross-examination of Dr. Baak under submission pending review of the deposition transcript.
¶ 12 During a final pretrial conference on September 20, 2017, the plaintiff requested that the trial court certify a question for interlocutory appeal under
ANALYSIS
¶ 14 This court granted the plaintiff‘s petition for interlocutory appeal under
more than one reasonable interpretation, we may consider the committee comments, the reason, necessity, and purpose for the rule. Friedman v. Thorson, 303 Ill. App. 3d 131, 135, 707 N.E.2d 624, 626 (1999). The construction of a supreme court rule presents a question of law which is reviewed de novo. Robidoux, 201 Ill. 2d at 332.
¶ 15
“(c) Examiner‘s Report. Within 21 days after the completion of the examination, the examiner shall prepare and mail or deliver to the attorneys for the party requesting the examination and the party examined duplicate originals of a written report of the examination, setting out the examiner‘s findings, results of all tests made, and the examiner‘s diagnosis and conclusions. The court may enforce compliance with this requirement. If the report is not delivered or mailed to the attorney for the party examined within the time herein specified or within any extensions or modifications thereof granted by the court, neither the examiner‘s report, the examiner‘s testimony, the examiner‘s findings, X-ray films, nor the results of any tests the examiner has made may be received in evidence except at the instance of the party examined or who produced the person examined. No examiner under this rule shall be considered a consultant.”
Ill. S. Ct. R. 215(c) (eff. Mar. 28, 2011).
¶ 16 The first sentence in
¶ 17 The second sentence in
¶ 18 The third sentence in
Rule“). Further, the third sentence contains no requirement that the party seeking the remedy must establish prejudice, and we will not depart from the plain language by reading such a condition into it.
¶ 19 Based on its plain language,
¶ 20 The defendants have cited two cases, Linn v. Damilano, 303 Ill. App. 3d 600, 708 N.E.2d 533 (1999), and Lilegdon v. Hanuska, 85 Ill. App. 2d 262, 229 N.E.2d 314 (1967), in support of their argument that
¶ 21 In Linn, the parties, by agreement, continued to take depositions and conduct discovery well after the discovery deadline, and the defendant‘s examining physician reviewed medical records and deposition testimony of plaintiff‘s treating physicians, which came to light after the plaintiff‘s examination. The examining physician wrote supplemental reports based upon the additional medical information. The defendant provided the supplemental reports to the plaintiff a few days before the discovery and evidence depositions of the examining physician. The plaintiff moved to bar the evidence deposition of the defendant‘s examining physician in its entirety because the defendant failed to timely disclose one supplemental report. The trial court granted the plaintiff‘s motion in part, barring the testimony with respect to the material not contained in the examining physician‘s original reports. Thereafter,
¶ 22 In Linn, the complained-of discovery violation involved the late production of a supplemental report by the examining physician, and the issue was whether the trial court erred in refusing to bar the entirety of the examining physician‘s deposition testimony based on that discovery violation. It appears that the appellate court considered the impact of Rules 213, 215, and 218 but proceeded to analyze the discovery violation under
¶ 23 In Lilegdon, the plaintiff claimed that the trial court committed prejudicial error in permitting the defendant‘s examining physician to testify where the examining physician‘s report had not been furnished to plaintiff within the time required by Illinois Supreme Court Rule 17-1 (eff. Oct. 21, 1957). Lilegdon, 85 Ill. App. 2d at 271. At that time, Rule 17-1 provided that the examining physician shall deliver an original report to the attorney for the party examined within 20 days after the completion of the examination, and in no event later than 10 days before trial. Ill. Rev. Stat. 1965, ch. 110, § 101.17-1. The facts show that on February 23, 1966, Judge Schultz entered an order directing the plaintiff to submit to an examination by defendant‘s examining physician within 20 days. Pursuant to the order, the plaintiff was scheduled to appear for an examination on March 14, 1966. On March 4, 1966, another judge in the circuit dismissed the case for want of prosecution. On March 14, 1966, the plaintiff moved to vacate the order of dismissal, and therein noted that on March 7, 1966, she requested a 10-day delay in the examination, which was agreed to by defendant‘s examining physician. The dismissal order was vacated. The case was moved to the active trial calendar and subsequently called for trial on April 13, 1966. Meanwhile, the plaintiff submitted to the examination on March 24, 1966, and the defendant delivered a copy of the physician‘s report to the plaintiff‘s counsel on April 12, 1966. Thus, the report was furnished to the plaintiff‘s counsel within 20 days of completion of the examination but less than 10 days before trial. When the defendant called its examining physician as a witness at trial, the plaintiff objected on the ground that the report had not been provided 10 days prior to trial as required. After considering the arguments of counsel,
¶ 24 In Lilegdon, the appellate court did not engage in an analysis of the character of Rule 17-1, and made no specific finding that the specific penalty in the rule was mandatory or discretionary. The appellate court determined that “the sequence of the facts presented to the court justified the use of sound discretion by the court in determining whether the penalty for failure to comply with the time requirement should be applied.” Lilegdon, 85 Ill. App. 2d at 272. Upholding the trial court‘s ruling based on the “sequence of the facts presented” suggests that the appellate court concluded that the delay in furnishing the report was attributable to the plaintiff‘s request to postpone the medical examination and the plaintiff‘s apparent lack of diligence in prosecuting the case, and therefore there was either no violation by defendant or the plaintiff was estopped from asserting a violation. Lilegdon is clearly distinguishable, and again, the court did not address the question before us.
¶ 25 The defendants have argued, in the alternative, that the amended case management orders entered by the trial court governed the time for disclosure of retained expert witnesses and
thereby modified the time requirements of
¶ 26 In this case, there is no indication that the defendants requested an extension of time to deliver Dr. Rotman‘s report to the plaintiff pursuant to
¶ 27 Rule 215 is a tool of discovery. Strict enforcement of the specific time limits set forth in
CONCLUSION
¶ 29 We conclude that the failure to deliver a copy of the examiner‘s report to the attorney for the party examined within the time specified by
¶ 30 Turning again to the certified question on appeal, though we find that it is inartfully worded and incomplete, it essentially asks whether the trial court has discretion to permit an
examining physician to testify where the examiner‘s report has not been mailed or delivered to the attorney for the party examined within the 21 days after completion of the examination or within any extensions or modifications granted by the court. Accordingly, our answer to the certified question, as modified, is in the negative.
¶ 31 Finally, we note that prior to the oral arguments, the plaintiff filed a motion for leave to cite as additional authority a recent case from this court, and the defendants filed a response in opposition. The motion was taken with the case and is hereby granted.
¶ 32 Certified question modified and answered; cause remanded.
¶ 33 JUSTICE WELCH, specially concurring:
¶ 34 I concur with the majority‘s decision to reverse and remanding the judgment of the Madison County circuit court. The function of a jury is to be the fact finder. The duty of a jury is to truthfully find all facts. The purpose of the Illinois Supreme Court rules is to give a structure for attorneys to follow so that the facts can be presented to the jury.
¶ 35 Additionally, as the function of the trial court is to marshal the attorneys and the evidence so that the jury can fairly find all the facts, trial judges use their knowledge and experience in carrying out this function. In this case, the physician examined the plaintiff on August 15, 2016, and faxed the report to Schindler‘s counsel on August 31, 2016, well within 21 days as required by