Montes v. Mai

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Montes v. Mai

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-2774 Rel

Case Date: 02/25/2010

Preview:FOURTH DIVISION February 25, 2010

No. 1-08-2774 NORMA MONTES, Plaintiff, v. CARTER MAI, Defendant-Appellee (Fernando Perez, Third-Party Respondent-Appellant.) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorable Kathy M. Flanagan, Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court: The primary issue to be decided in this appeal is whether a chiropractor is a "physician" under Illinois Supreme Court Rule 204(c) (166 Ill. 2d R. 204(c)) and is therefore entitled to be paid "a reasonable fee" for time spent testifying in a discovery deposition in a case in which he is not a party. For the reasons set forth below, we conclude that the term "physician" as used in Rule 204(c) includes chiropractors, and we affirm the hourly fee set by the trial court for the chiropractor's deposition. In addition, we vacate the trial court's order of contempt against the chiropractor in this case.

1-08-2774 BACKGROUND In 2007, plaintiff Norma Montes brought an action against Carter Mai for injuries sustained when the car in which she was a passenger was struck by Mai's vehicle. Dr. Fernando Perez, a chiropractor with the Neck and Back Clinic in Chicago, treated Montes after the accident. Dr. Perez is not a party to the lawsuit; he is a third-party subpoena respondent. In May 2008, Mai subpoenaed Dr. Perez to testify at a discovery deposition regarding the chiropractic services he provided to Montes. Derrick D. Wallery, the president of the Neck and Back Clinic, responded in writing that "Dr. Perez's fee for Depositions is $550 per hour and must be paid in advance with a two hour minimum" and that Dr. Perez was unavailable at the requested date and time. Mai's counsel responded with an offer of $300 per hour for Dr. Perez's deposition time with no minimum payment or prepayment. That offer was refused. The Neck and Back Clinic submitted financial records for the trial court's in camera review to determine whether $550 was a reasonable hourly fee for Dr. Perez's deposition testimony. On July 30, 2008, after reviewing the submitted documentation, the court ruled that an hourly fee of $66.95 was reasonable, with no minimum payment or prepayment. In response to that ruling, Dr. Perez refused to be deposed, and he sought to appeal the trial court's order pursuant to Illinois Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), challenging the $66.95 hourly fee as "fundamentally unfair" given the financial data provided to the court. On September 15, 2008, the trial court denied Dr. Perez's request for a Rule 304(a) finding and held Dr. Perez in contempt for refusing to appear for his deposition pursuant to subpoena, fining him $50. The fine was stayed pending Dr. Perez's appeal of the July 30, 2008,

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1-08-2774 order. Dr. Perez now appeals the July 30, 2008, order under Illinois Supreme Court Rule 304(b)(5) (210 Ill. 2d R. 304(b)(5)), which governs appeals from orders finding a person in contempt with a monetary or other penalty without the requirement of a special finding under Rule 304(a).

ANALYSIS On appeal, Dr. Perez contends that the trial court abused its discretion in ordering him to accept a $66.95 hourly fee for his deposition testimony when the documentation submitted to the court supported a higher amount. He also argues that the court erred in holding him in contempt and imposing a monetary sanction when his refusal to participate in the deposition was in good faith. We agree with Mai, however, that the first question to be answered is whether Dr. Perez, as a chiropractor, is a "physician" under Rule 204(c) entitled to a reasonable fee for his discovery deposition testimony. Neither party raised that issue in the trial court. Rule 204(c) states: "The discovery depositions of nonparty physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the subsequent consent of the deponent or under a subpoena issued upon order of court. A party shall pay a reasonable fee to a physician for the time he or she will spend testifying at any such deposition. Unless the physician was retained by a party for the purpose of rendering an opinion at trial, or unless otherwise ordered

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1-08-2774 by the court, the fee shall be paid by the party at whose instance the deposition is taken." 166 Ill. 2d R. 204(c). Mai contends that the term "physician" as used in the rule does not refer to chiropractors and that Dr. Perez is therefore only entitled to the statutory witness fee of $20 per day plus 20 cents per mile of necessary travel. See 705 ILCS 35/4.3(a) (West 2000). Although Mai waived the issue of Rule 204(c)'s applicability to chiropractors by failing to raise that argument in the trial court, waiver is a limitation on the parties and not on the court, and we may consider an issue not raised in the trial court if the issue is one of law and is fully briefed by the parties. See Petre v. Cardiovascular Consultants, S.C., 373 Ill. App. 3d 929, 938, 871 N.E.2d 780, 789 (2007). No Illinois case has defined "physician" as that term is used in Rule 204(c). See generally T. Harris, Fees for Physician Testimony: What's Reasonable?, 96 Ill. B.J. 460, 462 (2008). Although a supreme court rule is not a statute enacted by the Illinois legislature, the interpretation of a rule involves application of the same standards used in statutory interpretation. Longstreet v. Cottrell, Inc., 374 Ill. App. 3d 549, 552, 871 N.E.2d 72, 74 (2007); Buckholtz v. MacNeal Hospital, 313 Ill. App. 3d 521, 525, 729 N.E.2d 949, 953 (2000). The words utilized by the Illinois Supreme Court should be given their plain, ordinary and popularly understood meanings. Longstreet, 374 Ill. App. 3d at 552, 871 N.E.2d at 74. The word "physician" has been defined as "a person skilled in the art of healing: one duly authorized to treat disease: a doctor of medicine" (Webster's Third New International Dictionary 1707 (1986)) and also as "[a] practitioner of medicine; a person duly authorized or licensed to treat diseases; one lawfully engaged in the practice of medicine." Black's Law Dictionary 1147 (6th 4

1-08-2774 ed. 1990). A 1917 Illinois Supreme Court case defined "physician" as "one versed in or practicing the art [of] medicine, and the term is not limited to the disciples of any particular school." People ex rel. Gage v. Siman, 278 Ill. 256, 115 N.E. 817 (1917) (holding that although an osteopathic physician does not use medicine or operate on patients, he treats patients for physical ailments and thus is a "physician" under the Vital Statistics Act). The supreme court further stated: "The term `medicine' is not limited to substances supposed to possess curative or remedial properties, but has also the meaning of the healing art,

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