Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 24, Number 3 (24.3.

Transcription

1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 24, Number 3 ( ) Evidence and Practice Tips Joseph G. Feehan and Brad W. Keller Heyl, Royster, Voelker & Allen, P.C., Peoria Fraser v. Jackson: Second District Affirms Orders Barring Expert as Discovery Sanction and Awarding Fees Associated with Proving Reasonableness of Medical Bills In Fraser v. Jackson, 2014 IL App (2d) , the Illinois Appellate Court, Second District, upheld the trial court s decision to bar the defendant s medical expert as a discovery sanction. It also affirmed the trial court s order awarding the plaintiff his fees and expenses incurred in proving the reasonableness of charges from one medical provider after the defendant denied Illinois Supreme Court Rule 216 requests to admit regarding the reasonableness of those bills. The Fraser case emphasizes the importance of complying with Illinois Supreme Court Rule 213 and the consequences for failing to do so. Additionally, it demonstrates the importance of having a solid, good-faith basis for denying requests to admit regarding the reasonableness of medical bills prior to trial. Background Facts Fraser stemmed from a motor vehicle accident that occurred in Zion, Illinois, in September Fraser, 2014 IL App (2d) , 1. The defendant ran a stop sign and caused the plaintiff to suffer injuries to his lower back, neck, head, and knee. In 2011, the plaintiff filed suit against the defendant. As the case approached trial, several disputes arose and created the issues considered on appeal. First, a discovery dispute arose regarding Dr. Skaletsky, an expert retained by the defendant to examine the plaintiff pursuant to Illinois Supreme Court Rule 215. Id On July 31, 2012, following Dr. Skaletsky s retention, the plaintiff issued production requests asking for correspondence, reports, and invoices from the case, as well as deposition transcripts from any matters in which Dr. Skaletsky had previously served as an expert for defense counsel or for defendant s insurer. Id. 6. On the same day, the plaintiff issued a subpoena duces tecum to Dr. Skaletsky that requested reports and income records from his work as a medical expert since 2007, transcripts of any depositions he had given, any materials relied on in forming his opinions in the case, and records from a specific prior case in which he served as an expert. Id On August 3, 2012, Dr. Skaletsky informed the plaintiff s counsel that he would not comply with the subpoena issued to him on the grounds of physician-patient privilege. He proceeded to examine the plaintiff and review the plaintiff s medical records on August 13, Id. 8. He drafted a report of the same date regarding his examination and review. Defense counsel then disclosed Dr. Skaletsky as a controlled expert witness pursuant to Illinois Supreme Court Rule 213(f)(3) and noticed his evidence deposition for November. Id. On September 12, 2012, defense counsel responded to the plaintiff s subpoena to Dr. Skaletsky by Page 1 of 5

2 providing IRS 1099 forms from 2008 through 2011, and a list of payments made to Skaletsky from 2008 through Id Based on Skaletsky s failure to provide all materials requested in the plaintiff s subpoena, the plaintiff pursued an order from the court compelling compliance. The trial court agreed and ordered the defendant to comply with the subpoena requests on October 17, 24 and 31, The final order set a deadline for compliance at 5 p.m. on November 1, Id. 11. The trial court ordered production of reports, correspondence, and billing since 2007 and stated that if the materials were not produced in a timely manner, Skaletsky should produce his tax returns from 2008 to Id. 11. On the morning of November 1, 2012, the defendant filed a motion for a protective order related to the income information Dr. Skaletsky was asked to provide. The motion was granted and it was ordered that the information should be limited in its use to this case. Id. 11. Defense counsel then faxed the income tax returns to the plaintiff s counsel on November 4, Id On November 6, 2012, because the plaintiff had not received any of the correspondence or reports requested in the subpoena, the plaintiff filed an emergency motion requesting that the trial court bar Dr. Skaletsky from testifying at trial. Id. 12. The trial court granted the plaintiff s motion, barring Dr. Skaletsky as a discovery sanction pursuant to Illinois Supreme Court Rule 219(c). Id. 12. Defense counsel filed a motion to reconsider the order barring Dr. Skaletsky s testimony arguing that the plain meaning of the court s previous order was that Skaletsky could comply with the subpoena by submitting his tax returns if he did not wish to produce the other records requested in the subpoena. Id. 13. The trial court denied the motion, explaining that if the requests had been limited to income information, the disclosure of tax returns would have been sufficient. However, the court found that Skaletsky also refused to produce reports from his previous work as an expert witness, which were requested by subpoena. Id. The court found that as a result, the plaintiff would have been prejudiced in cross-examining Dr. Skaletsky at trial. Id. 13. The second dispute at issue on appeal was the admissibility of the plaintiff s medical bills from the Aurora Medical Group (Aurora) and whether the plaintiff could recover the costs associated with proving that the charges incurred were reasonable. A few months before trial, the plaintiff served Rule 216 requests to admit that certain charges were for reasonable and necessary treatment and that the charges were fair, reasonable, and customary. Id. 10. Included in the bills attached to the Rule 216 requests to admit were those from Aurora Medical Group. The defendant denied all of the requests to admit. Id. 10. At trial, the plaintiff offered evidence from three physicians that supported that the plaintiff s injuries were caused by the accident and that the treatment and charges incurred were reasonable and necessary. Id The plaintiff also called a billing representative from Aurora to testify that the bills ($34, of the total $44,369.11) contained fair, reasonable, and customary charges for the treatment rendered. Id. 18. To do so, the plaintiff was forced to open a case in Wisconsin pursuant to Wisconsin law and had to enlist the services of a Wisconsin law firm to serve the summons. Id. 18. At trial, the plaintiff received a verdict in the amount of $61, Id. 19. Several post-trial motions followed, including one filed by the plaintiff to recover the fees and costs expended to secure the trial testimony of the Aurora billing representative. The court granted the plaintiff s motion and denied the defendant s motion for a new trial. The defendant then appealed. Id. 19. Second District Decision The Illinois Appellate Court Second District emphasized two areas in which the defendant failed to comply with rules governing appeals. The appellate court first explained that the defendant had not complied with Illinois Supreme Court Rule 323 by failing to provide either a transcript of the trial court proceedings, a bystander s report, or an agreed statement of facts. Id. 22. Second, the court explained that the defendant had Page 2 of 5

3 not included a concise statement of the applicable standard of review for each argument presented on appeal. Id. 23. Despite the defendant s failure to comply with the rules, which the court pointed out are rules and not merely suggestions, the court went on to consider the substance of the defendant s appeal. Id Order Barring Dr. Skaletsky The first issue addressed on appeal was whether the trial court had abused its discretion in barring Dr. Skaletsky from testifying at trial. The plaintiff argued that it was proper to bar Dr. Skaletsky because the defendant had continuously and systematically disregarded the trial court s orders to produce discovery regarding Dr. Skaletsky, an argument which the court did not believe was an overstatement. Id. 30. The court explained that the defendant subjected himself to the requirements of Rule 213(f) by retaining and disclosing Dr. Skaletsky as an expert. Id. It explained that the defendant had been ordered to comply with the plaintiff s requests on three occasions, and that the defendant could have avoided the sanction imposed at any time before the granting of the plaintiff s motion to bar Skaletsky by merely complying with all requests made. Id. On appeal, the defendant reiterated his argument from the motion to reconsider that Skaletsky s income tax information was sufficient to demonstrate whether there was bias, and was therefore sufficient to fulfill the plaintiff s discovery requests. Id. 31. However, the Second District pointed out that the defendant ignored the trial court s explanation that the plaintiff requested reports from past cases. Id. 31. The court felt this nonproduction was more concerning because it limited the plaintiff s ability to effectively cross-examine Skaletsky. Id. 32. The appellate court further distinguished the two cases cited by the defendant that it felt were clearly inapposite to the case at issue. The court affirmed the trial court s ruling, finding that the initial order was clear on its face and was further explained on the trial court s ruling on the motion to reconsider. Id Medical Bills The Second District next considered whether the trial court abused its discretion in admitting the bills from the plaintiff s treatment at Aurora into evidence. The treating doctors testified at trial that the charges incurred were a direct result of the injuries the plaintiff suffered in the accident. Id. 39. One of the doctors had directly testified that the injuries were caused by the accident. Further, a billing representative from Aurora had testified that the charges were customary and reasonable for the services rendered. Id. The court pointed out that the treating physicians and billing representative could obviously not testify regarding the cause of the accident, but noted that the defendant admitted his negligence in causing the accident. Id. The court felt that based on the evidence, and reasonable inferences drawn therefrom, a jury could have reasonably concluded that the accident caused the plaintiff s injuries and that the treatment provided was necessary and reasonable. Id. Further, the court distinguished the defendant s citation to a worker s compensation case, Land and Lakes Co. v. Industrial Comm n, 359 Ill. App. 3d 582 (2d Dist. 2005), in which an award for medical expenses was reversed. In that case, the only foundational testimony for the medical bills came from the claimant himself. In its ruling, the Land and Lakes court explained that foundation could have been established through deposition testimony of physicians or through the testimony of a billing representative familiar with the treater s billing practices. Land and Lakes, 359 Ill. App. 3d at 591. Thus, the Second District ruled that the Land and Lakes case cited by the defendant actually supported its decision because it suggested that testimony similar to what the plaintiff had presented was sufficient to establish the admissibility of medical bills. Fraser, 2014 IL App (2d) , 40. Page 3 of 5

4 Costs and Attorney Fees The defendant s last argument on appeal was that the trial court erred in awarding the plaintiff the costs and attorney fees associated with securing the trial testimony of the Aurora billing representative. The court found that the plaintiff s requests to admit regarding the reasonableness of the charges contained within the Aurora bills were proper and that the defendant had a good-faith obligation to make a reasonable effort to secure answers. Id. 45. The appellate court explained that the trial court had indicated that the defendant lacked good faith in denying the requests to admit. The defendant disagreed, stating that his expert had already related to him an opinion that the treatment at Aurora was not related. Id. 48. The defendant also emphasized that he had chosen not to take the discovery depositions of the plaintiff s doctors and therefore did not know they would offer testimony regarding the necessity and reasonableness of medical expenses. Id The court rejected the defendant s arguments, first explaining that it failed to understand exactly what the defendant thought the nature of the doctors testimony would be other than the cause of the plaintiff s injuries, the nature of the diagnoses, and the necessity of the prescribed treatment. Id. The defendant s argument also ignored the fact that the award was for the amount the plaintiff expended to secure the billing representative s testimony that the charges were reasonable and customary. Id. 48. Moreover, the Second District found that the defendant ignored the trial court s rationale for imposing the award, which was that the defendant s refusal to admit was not in good faith. Id. Sanctions Finally, the Second District considered the plaintiff s request for attorney fees and costs associated with defending the appeal. The court explained that Illinois Supreme Court Rule 375(b) allows for the imposition of sanctions if it is determined that an appeal is frivolous or not taken in good faith. Id. 51. Further, it explained that the purpose of Rule 375(b) is to condemn and punish abusive conduct of litigants and their attorneys who appear before the appellate court. Id The defendant responded that barring Skaletsky was a severe sanction that came with great prejudice, but did not respond to the assertion that the defendant s second and third arguments had no support in case law. Id. 50. The court found that the defendant s failure to do so underscored the frivolous nature of the entire appeal and awarded sanctions pursuant to Rule 375(b). Id Conclusion The Fraser case emphasizes the importance of complying with Illinois Supreme Court Rule 213 and the consequences for failing to do so. Additionally, it demonstrates the importance of having a solid, good-faith basis for denying requests to admit regarding the reasonableness of medical bills prior to trial. About the Authors Joseph G. Feehan is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he concentrates his practice in commercial litigation, products liability, and personal injury defense. He received his B.S. from Illinois State University and his J.D. cum laude from the Northern Illinois University College of Law. Mr. Feehan is a member of the ISBA Tort Law Section Council and is also a member of the Peoria County, Illinois State, and American Bar Associations. Page 4 of 5

5 Brad W. Keller is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the areas of business and commercial litigation and tort litigation. He received his B.A. in Political Science from the University of Illinois in 2007 and his J.D. magna cum laude from University of Illinois College of Law in About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 24, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL , , , idc@iadtc.org Page 5 of 5