April 05, 2001
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| Antonios Kapsouris, Plaintiff-Appellant, v. Diane Rivera, Defendant-Appellee | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of DuPage County
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JUSTICE RAPP delivered the opinion of the court:
Plaintiff, Antonios Kapsouris, was a passenger in a vehiclethat was rear-ended by a vehicle driven by defendant, Diane Rivera.Plaintiff filed a complaint against defendant stating a cause ofaction for injuries plaintiff sustained in the accident. The casewas tried before a jury in the circuit court of Du Page County. The jury found for defendant and against plaintiff. The trialcourt entered judgment on the verdict. On appeal, plaintiffcontends that (1) the trial court erred in engaging in ex partecommunications with defense counsel; (2) the trial court erred inbarring opinion testimony; (3) the trial court erred when it failedto compel the production of photographs; and (4) the trial courterred in denying plaintiff's posttrial motion. We affirm.
In the complaint, plaintiff alleged that on February 11, 1998,he was a passenger in an automobile that was struck from behind. The complaint alleged that the accident was the result ofdefendant's negligence and that plaintiff received injuries fromthe accident. In a Supreme Court Rule 222 (166 Ill. 2d R. 222)affidavit that was filed with the complaint, plaintiff stated thatthe money damages sought did not exceed $50,000.
Defendant filed an answer to the complaint and a proof ofservice of Supreme Court Rule 213 (166 Ill. 2d R. 213)interrogatories upon plaintiff's counsel. Thereafter, the trialcourt set the matter for an arbitration hearing pursuant to themandatory arbitration system (735 ILCS 5/2--1001A et seq. (West1998)).
On April 20, 1999, plaintiff filed a notice of the documentshe intended to offer at the arbitration hearing accompanied by acopy of those documents pursuant to Supreme Court Rule 90(c)(166Ill. 2d R. 90(c)). Among those documents were Dr. Oleh S. Palay'sreports and bills. On May 7, 1999, plaintiff filed a certificateof service verifying service of "Plaintiff's response to[Defendant's] Interrogatories" and "Plaintiff's Response to[Defendant's] Document Request".
Both parties appeared at the arbitration hearing with counsel. The arbitrators rendered an award in favor of plaintiff and againstdefendant in the amount of $3,235.68. Thereafter, plaintiff fileda notice of rejection of the arbitration award, and the matter wasset for trial.
On October 15, 1999, plaintiff was granted leave to file hisRule 222 disclosure statement and amended Rule 222 disclosurestatement. In the amended Rule 222 disclosure statement, plaintiffdisclosed Dr. Oleh S. Palay, M.D., and Dr. Ralph DeStepheno, D.C.,as opinion witnesses. According to the amended disclosure, Dr.Palay would testify that plaintiff suffered posttraumatic cervicalsprain/strain; posttraumatic lumbosacral sprain/strain; post-traumatic cervicotrapezius and lumbar myofascitis; andposttraumatic cephalgia, resolved. Dr. Palay's reports and billswere previously provided to defendant in the Rule 90(c) notice. Dr. DeStepheno would concur with the findings of Dr. Palay.
On November 1, 1999, the trial court granted plaintiff leaveto file a second amended Rule 222 disclosure. The second amendeddisclosure statement added Dr. Robert Kempf, M.D., as an opinionwitness. According to the second amended disclosure, defendant hadpreviously been provided with the report of Dr. Kempf containinghis conclusions.
The case proceeded to trial on December 6, 1999. Defensecounsel brought a series of oral motions in limine, the last ofwhich requested the exclusion of the opinions of opinion witnessesnot disclosed in plaintiff's answer to Rule 213(g) interrogatories. Plaintiff's counsel responded by indicating to the court that hehad made full disclosure of all opinion witnesses in the Rule 222disclosures. Next, the following exchange took place:
"[DEFENSE COUNSEL]: Your honor, I believe 222's do notnegate 213's having to properly be answered.
THE COURT: She's right. Can you tell me, show me any lawthat says she's not right?
[PLAINTIFF'S COUNSEL]: Not off the top of my head, yourHonor, no.
THE COURT: I will reserve it until 1:30 and you can gocheck your cases, but--
[PLAINTIFF'S COUNSEL]: Then I would ask for leave ofCourt to file amended 213's.
THE COURT: I can't do that."
The court granted defendant's motion in limine and excludedany opinion testimony by plaintiff's experts. In granting themotion, the trial court referred to Department of Transportation v.Crull, 294 Ill. App. 3d 531 (1998), and stated, "Counsels, I knowthe Kral [sic] opinion. The Kral [sic] opinion is if it's not inthe 213's, it's out."
During plaintiff's case, plaintiff, the Glendale Heightspolice officer who responded to the accident, the driver of therear-ended vehicle, the other passenger in the rear-ended vehicle,and Dr. Ralph DeStepheno, D.C., testified. Dr. DeStepheno'stestimony was limited to the chiropractic treatment he administeredto plaintiff because his opinion as to the injuries plaintiffsustained in the accident was excluded. Dr. DeStepheno testifiedthat he treated plaintiff's neck and lower back pain withtreatments including electrical stimulation, cryotherapy,ultrasound, and traction. Dr. DeStepheno also testified that thetotal bill for his services was $2,926.
Defendant was the only witness presented by the defense. Defendant did not deny striking the vehicle in which plaintiff wasa passenger. Defendant testified that it was raining the night ofthe accident. Defendant claimed that the vehicle in whichplaintiff was a passenger came to a sudden stop in front of hervehicle without signaling. Defendant said she was going about 20miles per hour when she applied her breaks and her vehicle slidinto the rear of the other vehicle.
The jury returned a verdict for defendant and againstplaintiff. Plaintiff's posttrial motion was denied. Plaintifftimely appeals.
Plaintiff's first argument on appeal is that the trial courtcommitted reversible error when it engaged in ex partecommunications with defense counsel concerning settlement withoutplaintiff's consent. Defendant argues that the report ofproceedings does not show that any ex parte communications tookplace; plaintiff waived the issue because he did not object to theprocedure at trial; and, if such communications took place, theywere with plaintiff's consent.
Supreme Court Rule 63 prohibits ex parte communications withthe trial court concerning a pending matter. See 155 Ill. 2d R. 63A.(4). However, "[a] judge may, with consent of the parties,confer separately with the parties and their lawyers in an effortto mediate or settle matters pending before the judge." 155 Ill.2d R. 63 A.(4)(c).
We note that in defendant's response to plaintiff's posttrialmotion defendant admitted that ex parte communications occurred butargued that they were with both parties' consent. The ex partesettlement communications were held off the record, and thereforewe cannot determine whether they were with plaintiff's consent. Itis clear, however, that plaintiff first alleged in his posttrialmotion that the ex parte settlement communications were without hisconsent. Errors raised for the first time in a posttrial motionthat were not objected to at the time of the purported errors arewaived on appeal. Palanti v. Dillon Enterprises, Ltd., 303 Ill.App. 3d 58, 64 (1999). Had plaintiff made his objection on therecord at his first opportunity after the ex parte communications,the trial court could have ruled on the objection and we would notbe in the dark on this issue.
Moreover, in addition to plaintiff's failure to object on therecord, any light that was shed on this issue at the hearing onplaintiff's posttrial motion is of no help to us because the recordon appeal includes only the order denying plaintiff's posttrialmotion and not a report of the proceedings concerning that motion. An appellant has the burden to present a sufficiently completerecord of the proceedings at trial so that the reviewing court willbe fully informed regarding the issues in the case, and, in theabsence of such a record on appeal, it will be presumed that theorder entered by the trial court was in conformity with the law and had a sufficient factual basis. Belfour v. Schaumburg Auto, 306Ill. App. 3d 234, 244 (1999). Doubts that arise from theincompleteness of the record will be resolved against theappellant. Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984).
If the plaintiff did consent to the ex parte communications inan effort to settle this case, the trial court erred in failing tomake a record of that consent. If, on the other hand, plaintiffdid not consent to ex parte communications, it was improper for thetrial court to permit such communications. In any event, plaintiffdoes not claim harm or prejudice as a result of the ex partecommunications, and we find none.
Next, plaintiff contends that the trial court erred inexcluding opinion testimony not previously disclosed in plaintiff'sanswers to Rule 213(g) interrogatories because the opinionwitnesses and their opinions had been disclosed in Rule 222disclosures. In response, defendant emphasizes the Rule 213(g)interrogatory she served on plaintiff and argues that, sincedefendant did not disclose the required information pursuant toRule 213(g), the trial court was correct in excluding the opiniontestimony. Defendant further argues that plaintiff's Rule 222disclosures were not adequate substitutes for answers to Rule213(g) interrogatories.
The standard of review of decisions imposing sanctions for theviolation of discovery rules is whether the trial court abused itsdiscretion. People v. Schambow, 305 Ill. App. 3d 763, 766 (1999).The purpose of such sanctions is not to punish but to insure fairdiscovery and a trial on the merits. Vallajo v. Mercado, 220 Ill.App. 3d 1, 8 (1991).
Supreme Court Rule 222 is titled "Limited and SimplifiedDiscovery in Certain Cases" 166 Ill. 2d R. 222. Subsection (a)deals with the applicability of the rule and provides in pertinentpart as follows:
"(a) Applicability. This rule applies to all casessubject to mandatory arbitration, civil actions seeking moneydamages not in excess of $50,000 exclusive of interest andcosts, and to cases for the collection of taxes not in excessof $50,000." 166 Ill. 2d R. 222(a).
Rule 222 sets forth reforms in the discovery process in thecases it applies to by imposing mandatory disclosure and puttinglimits on the discovery process. 166 Ill. 2d R. 222, CommitteeComments, at cxix. The rule is triggered by the filing of an"Affidavit re Damages Sought" as set forth in paragraph (b) of theRule. 166 Ill. 2d R. 222(b), Committee Comments, at cxix. Rule 222 is applicable in this case because money damagessought are less than $50,000 and also because this is a casesubject to mandatory arbitration. Plaintiff filed the affidavitregarding damages sought, but then Rule 222 was largely abandoned. Our review of the record reveals that neither party made a timelyRule 222 disclosure, and defendant never made one at all. We alsonote that discovery was not completed prior to the arbitrationhearing as is required by Supreme Court Rule 89. 166 Ill. 2d R.89.
In any event, the issue we are presented with is whether thedisclosure of opinion witnesses in response to a Rule 213(g)interrogatory is required where the same disclosure is madepursuant to Rule 222. For the reasons that follow, we hold that itis not.
Rule 222 governs discovery in all cases to which it applies. Accordingly, in such cases, opinion witnesses must be disclosedpursuant to the mandatory disclosure of Rule 222 and not Rule213(g). Rule 222(a) states, "Except as otherwise specificallyprovided by this rule, the general rules governing discoveryprocedures remain applicable to cases governed by this rule." 166Ill. 2d R. 222(a). The procedure and scope of the disclosure ofopinion witnesses are clearly two of the items specificallyprovided for by Rule 222 (see 166 Ill. 2d R. 222(d)(6)); therefore,the disclosure of opinion witnesses in cases that fall within Rule222 is governed by Rule 222. Whether a Rule 213(g) interrogatoryrequesting the disclosure of opinion witnesses is answered is of noconsequence in cases to which Rule 222 applies as long as Rule 222is complied with. Accordingly, plaintiff's Rule 222 disclosureswere sufficient in this case, and the opinion testimony should nothave been excluded based on plaintiff's failure to comply with Rule213(g) interrogatories.
The trial court made a comment that seems to suggest that thediscovery procedures of Rule 222 are applicable only up to thearbitration hearing and not beyond. The record shows the followingexchange:
"[PLAINTIFF'S COUNSEL]: And I agree there is a reason forRule 222, is there not, and this is a small case.
THE COURT: Makes no difference. You are at trial now andthat's why the 222's don't [inaudible]."
This is clearly incorrect because Rule 222 applies to cases otherthan those subject to mandatory arbitration. In fact, mandatoryarbitration does not exist in every county of this state, but Rule222 is still applicable to cases where money damages sought do notexceed $50,000. Therefore, Rule 222 must govern the discoveryprocedures to which it speaks throughout the entire case to which it applies.
We are aware that, with respect to opinion witnesses, theinformation required to be disclosed is the same under either rule. Supreme Court Rule 222(d) provides in pertinent part:
"(d) Prompt Disclosure of information. Within the timesset forth in section (c) above, each party shall disclose inwriting to every other party:
(6) The names, addresses, and telephone numbers ofeach person whom the disclosing party expects to call asan opinion witness at trial, the subject matter on whichthe opinion witness is expected to testify, theconclusions and opinions of the opinion witness and thebases therefor, the qualifications of the opinionwitness, and copies of any reports prepared by theopinion witness." 166 Ill. 2d R. 222(d).
Supreme Court Rule 213(g) provides in pertinent part:
"(g) Opinion Witnesses. An opinion witness is a personwho will offer any opinion testimony. Upon writteninterrogatory, the party must state:
(i) the subject matter on which the opinion witnessis expected to testify;
(ii) the conclusions and opinions of the opinionwitness and the bases therefor; and
(iii) the qualifications of the opinion witness;
and provide all reports of the opinion witness." 166 Ill. 2dR. 213(g).
The only difference is that under Rule 222 the parties mustmake the disclosure within 120 days after the filing of aresponsive pleading. See 166 Ill. 2d R. 222(d). Under Rule 213(g)the disclosure is required only upon written interrogatory. See166 Ill. 2d R. 213(g).
Because the information disclosed is the same under eitherrule, it made little difference in this case whether plaintiff'sopinion witnesses were disclosed in a document called "Answer toDefendant's Rule 213 Interrogatories" or in one titled "Rule 222Disclosure." We note that the Third District has held that thetrial court did not err in allowing expert testimony where,although not disclosed under former Supreme Court Rule 220 (134Ill. 2d R. 220), the expert's opinions were disclosed indepositions and therefore there was no surprise. Bloomquist v.Ely, 247 Ill. App. 3d 656, 664-65 (1993).
Defendant cites Parker v. Illinois Masonic Warren BarrPavilion, 299 Ill. App. 3d 495 (1998), in support of her argumentthat the nondisclosure of opinion witnesses and their opinionspursuant to Rule 213(g) requires the exclusion of the opiniontestimony. While Parker is good authority for the point of lawthat an expert's direct testimony is limited to facts and opinionsdisclosed in discovery (Parker, 299 Ill. App. 3d at 501), there wasno Rule 222 disclosure made in Parker. Further, defendant cites noauthority for her argument that plaintiff's Rule 222 disclosureswere not adequate substitutes for answers to Rule 213(g)interrogatories.
Similarly, the Crull case, mentioned by the trial court, is not on point. In Crull, the Fourth District held that the trialcourt abused its discretion by allowing an opinion witness totestify regarding previously undisclosed opinions. Crull, 294 Ill.App. 3d at 537. Compliance with Rule 213(g) was at issue in Crull,not whether a Rule 222 disclosure is sufficient without a Rule213(g) disclosure in cases falling under Rule 222.
Accordingly, we hold that the trial court abused itsdiscretion in finding a discovery violation and sanctioningplaintiff with the exclusion of opinion testimony.
Having held that the trial court erred in excluding opiniontestimony, we must decide whether plaintiff suffered prejudice dueto this error and is therefore entitled to a new trial. Theappellate court may consider errors in the exclusion of evidenceand grant a new trial where the error was serious and prejudicial. Lagestee v. Days Inn Management Co., 303 Ill. App. 3d 935, 942(1999).
To recover damages for defendant's alleged negligence,plaintiff had to prove that defendant owed a duty to plaintiff,that defendant breached that duty, and that the breach of duty wasthe proximate cause of the plaintiff's injuries. First SpringfieldBank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). In this casethere were no special interrogatories submitted to the jury; it simply found for defendant and against plaintiff. When a juryenters a general verdict for defendant, we do not know the basisfor that verdict. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992).
Even though the trial court excluded opinion testimony as toplaintiff's injuries, plaintiff did present uncontroverted evidenceof damages from his injuries. The jury heard evidence thatplaintiff suffered from neck and lower back pain, that he received a bump on his head and on his knee, and that he was taken to thehospital by ambulance where he had X rays. The parties stipulatedto the amount of the hospital's bill. The jury also heard thatplaintiff incurred $2,926 in chiropractic bills as a result oftreatment for his pain. Yet the jury assessed no damages.
The jury here could well have found (1) that defendant was notnegligent (i.e., owed no duty or owed a duty but did not breachit), or (2) that defendant's negligence was not the proximate causeof plaintiff's injuries. Under theses circumstances, it made nodifference whether the jury heard evidence concerning the extent ofplaintiff's injuries. Questions of negligence, breach of duty, andproximate cause are preeminently questions of fact to be determinedby the jury and can be set aside only when a reviewing court isclearly satisfied that the verdict is unwarranted by the evidence. Zelinski v. Security Lumber Co., 133 Ill. App. 3d 927, 932 (1985). When credible evidence supports a verdict, a reviewing court willnot set that verdict aside merely because reasonable conclusionsother than the ones drawn by the jury exist. Yowell v. Ringer, 217Ill. App. 3d 353, 362 (1991). Accordingly, we hold that the trialcourt's error was harmless because the plaintiff has not shown howthe outcome would have been different had the jury heard opiniontestimony as to the extent of plaintiff's injuries.
Plaintiff also argues that the trial court erred when itfailed to compel the production of certain photographs of thevehicles involved in the accident and when it failed to issue arule to show cause against the insurance company. The recordindicates that plaintiff withdrew his petition for a rule to showcause. We hold that plaintiff waived the argument concerning themotion to compel the photographs when he stipulated to the extentof damage to the vehicle that was rear-ended.
Plaintiff's last argument on appeal is that the trial courterred in denying his motion for judgment n.o.v. Plaintiff contendsthat defendant's liability is clear, as defendant struck in therear the vehicle in which plaintiff was a passenger; there was noindication that the accident was not defendant's fault; andplaintiff presented evidence of his damage due to injuries incurredas a result of the accident. Accordingly, plaintiff contends thatthe only issue for the jury was the amount of damages that resultedfrom the accident and that the case should be remanded for theentry of a judgment for plaintiff in an amount consistent with theproof at trial. We disagree.
A judgment n.o.v. is properly entered only in cases where theevidence, viewed in a light most favorable to the opponent, sooverwhelmingly favors the movant that no contrary verdict based onthat evidence could ever stand. Pasquale v. Speed ProductsEngineering, 166 Ill. 2d 337, 351 (1995). The court cannot entera judgment n.o.v. if there is any evidence, together withreasonable inferences to be drawn therefrom, that demonstrates asubstantial factual dispute or where the assessment of thecredibility of the witnesses or the determination regardingconflicting evidence is decisive to the outcome. Maple, 151 Ill.2d at 454 (1992).
As stated above, in this case the evidence presents a questionfor the jury as to whether defendant was negligent or the proximatecause of plaintiff's injuries. The fact that a rear-end collisionoccurs does not automatically establish the liability of the driverof the rear vehicle. Thomas v. Northington, 134 Ill. App. 3d 141,145 (1985) In a rear-end collision automobile accident case, it isthe responsibility of the trier of fact to determine whether therear driver was acting reasonably under the circumstances or thatthe accident was unavoidable. See Casey v. Pohlman, 198 Ill.App. 3d 503, 508 (1990) (and cases cited therein). The evidence,viewed in a light most favorable to defendant, shows that defendantwas driving 20 miles per hour, at night and in the rain, when thevehicle carrying plaintiff suddenly stopped in front of her without signaling. At that point, according to plaintiff, sheapplied her breaks and slid into the rear end of the vehicle.
We cannot say that reasonable inferences drawn from theevidence presented at trial so overwhelmingly favor plaintiff thatno contrary verdict could ever stand. Moreover, plaintiff cites noauthority for and we find no merit in the assertion that the jurycould not conclude that the negligence of the driver of the vehiclecarrying plaintiff proximately caused plaintiff's injuries simplybecause there was no claim made against that driver. Accordingly,plaintiff's motion for judgment n.o.v. was properly denied.
For the foregoing reasons, the judgment of the circuit courtof Du Page County is affirmed.
Affirmed.
BOWMAN and BYRNE, JJ., concur.