MOUNT VERNON – St. Clair County Circuit Judge Christopher Kolker spoiled a trial before it began by barring a doctor’s testimony, Fifth District appellate judges ruled on Sept. 4.
They erased a verdict for plaintiff Marcia Phillips, finding Kolker improperly excluded surgeon Joseph Williams as a sanction in a discovery dispute.
“We cannot locate anything within the record that indicates that the trial court determined any bad faith on the part of the defendant,” Justice David Boie wrote.
“Defendant was given no warning that the trial court was considering such a harsh sanction and lesser sanctions were available to the trial court that would have met the object of discovery and ensuring a trial on the merits.”
Kolker’s order resulted in summary judgment against defendant Jane Gale on liability and causation, leaving no decision for the jury but damages.
They awarded $182,540.08.
Justices Randy Moore and Milton Wharton concurred.
Phillips and Gale rode together in a vehicle in 2016, with Gale at the wheel.
An accident occurred on East C Street in Belleville, and Phillips sued Gale in 2017.
In April 2018, Kolker set trial Sept. 24 of that year.
On June 1, Gale disclosed Williams as an expert who would examine Phillips.
On June 29, Gale asked Phillips to appear on July 16.
Gale moved to continue the trial by agreement on July 20, stating Williams couldn’t examine Phillips on July 16.
Gale stated the examination would occur Aug. 27.
On Aug. 2, Kolker set trial Dec. 17.
On Aug. 27, Williams examined Phillips.
On Oct. 4, Phillips moved to compel responses to discovery about Williams.
On Oct. 15, Kolker ordered Gale, her firm, and her insurer to respond by Nov. 14.
“The trial court’s order did not provide any specific rulings regarding defendant’s objections to plaintiff’s supplemental discovery nor did the trial court’s order set out any specific information or documents that it was compelling defendant to disclose,” Boie wrote.
“There is no record of proceedings for the trial court’s Oct. 15 hearing within the record.”
On Oct. 30, Phillips deposed Orthopedic Center of Illinois clinical director Julie Britz, Williams’s employer.
Her statements showed a casual attitude about his records, fees, and charts.
On Nov. 14, Gale provided the number of times her law firm retained Williams, the number of times her insurer retained him, the number of his examinations, his past income, and a list of his depositions.
On Nov. 16, a month before trial, Phillips moved to bar Williams.
She claimed Britz didn’t produce information she said she could produce.
Gale responded on Nov. 26, stating Phillips failed to identify how particular responses were deficient or didn’t comply with the court’s order.
Gale claimed she gave Phillips more than enough information to examine Williams for potential bias or financial interest.
At a hearing that day Kolker focused on Britz and the orthopedic center.
“Oh god about once every two or three years something like this happens,” Kolker said, according to the ruling.
“A noncompliant IME is basically what it is, who kind of goes rogue not because of the attorneys but just because their office does that.
“Every time it happens they get barred because I’m not going to mess around with trying to send a deputy to Springfield and having someone shackled and then brought down in a squad car with their computer.”
He granted the motion and struck Williams’s deposition.
He excluded evidence of prior accidents and medical conditions on Dec. 11, for lack of expert testimony connecting them to causation or damages.
As trial ended he told jurors Phillips’s witnesses linked the treatment to the accident and there was “zero evidence to the contrary.”
Gale alleged five errors on appeal, but Fifth District judges found they needed only to resolve the exclusion of Williams.
“Plaintiff does not cite, and this court cannot locate, any portion of the record that indicates the trial court found a deliberate or pronounced disregard for its order by defendant,” Boie wrote.
“As such, defendant’s noncompliance cannot be held as unreasonable.
“Although plaintiff argues that defendant exercised bad faith, plaintiff does not cite to any portion of the record, and we cannot locate anything within the record, that indicates that the trial court determined any bad faith on the part of the defendant.”
He wrote that much of the information Phillips requested exceeded the scope necessary to expose any bias or interest.
He wrote that Kolker could have allowed the deposition to proceed and could have then barred his testimony if Phillips couldn’t examine him effectively.
Attorney Michael Schroer of Edwardsville represented Gale.
Attorneys Thomas Rich, Michelle Rich, Kristina Cooksey, and Aaron Chappell, all of Belleville, represented Phillips.