MOUNT VERNON – Chief Judge Andrew Gleeson correctly barred testimony of orthopedic expert Peter Anderson as a sanction for discovery violations, Fifth District appellate judges ruled on Jan. 7.
They affirmed Gleeson’s entry of judgment on a jury verdict awarding about $130,000 to Tyree McKinney for injuries from a crash on Interstate 64.
The Justices blamed both sides for discovery breakdowns that left Anderson’s status uncertain as trial began.
Justice Judy Cates wrote, “Here, the parties placed the trial court between the proverbial rock and a hard place, a situation which was easily avoidable.”
McKinney sued Daniel Newgent in 2018, after Newgent’s vehicle struck the rear of McKinney’s vehicle while he sat in traffic.
Gleeson set trial Oct. 21, 2019, with a discovery deadline of Aug. 15.
Newgent moved for an extension on the deadline, stating he needed to depose McKinney’s physicians and others.
Newgent disclosed Anderson as an expert but stated he hadn’t received his report.
Anderson practices at Illinois Southwest Orthopedics in Glen Carbon.
McKinney objected to an extension on Sept. 20, claiming Newgent didn’t provide Anderson’s conclusions and opinions.
Newgent sent Anderson’s report to McKinney a day later and followed up with a notice of intent to depose Anderson on Oct. 17.
Gleeson held a hearing on an extension on Oct. 1, and granted it on Oct. 9.
He reserved judgment on admitting Anderson’s deposition subject to compliance with the spirit of discovery.
On Oct. 10, McKinney asked for the number of persons Anderson examined for Newgent’s attorneys at Freeark, Harvey and Mendillo in Belleville.
McKinney asked for the number of plaintiffs Anderson examined for defendants or insurers in worker compensation or civil cases.
He asked for the amount of payments that law firms, insurers and employers made to Anderson in five years for examinations, tests, reports, reviews, and testimony.
The next day McKinney directed Illinois Southwest Orthopedics records custodian Wanda Hartsoe to appear for a deposition on Oct. 16.
On the same date McKinney moved to accelerate discovery so he could prepare for cross examination at the depositions five and six days later.
At a hearing on Oct. 15, Gleeson asked Newgent’s counsel if he would produce information by 5 p.m.
Counsel said they were working on it and getting it together.
That didn’t satisfy Gleeson, and he granted the motion to accelerate.
On the trial date, McKinney filed an emergency motion to bar Anderson.
Gleeson reviewed the depositions of Anderson and Hartsoe, held a hearing, and granted the motion.
At trial, McKinney asked jurors to award $343,414.60.
He sought $120,000 for future surgery, $90,000 for past and future pain and suffering, and $90,000 for past and future loss of normal life.
He asked for $8,989 in past medical expenses, $521.60 in lost earnings, and $33,904 in future lost earnings due to recovery from surgery.
Jurors awarded nothing for future surgery or lost earnings in recovery.
They rendered four $30,000 awards, for past pain and suffering, future pain and suffering, past loss of normal life, and future loss of normal life.
They added medical expenses and lost earnings for a total of $129,510.60.
Gleeson entered judgment and Fifth District judges supported him.
Cates found Newgent’s counsel indicated he was gathering materials at the Oct. 15 hearing and failed to object to the scope of discovery at the Oct. 21 hearing.
“Generally, a party is permitted to show possible bias with evidence that the proponent of an expert paid for his testimony,” Cates wrote.
“This information is vital to enabling a party to effectively cross examine an expert on his potential bias, partisanship, or financial interest.”
She found Gleeson emphasized that he allowed untimely disclosure on the condition that McKinney’s discovery requests were fully answered.
She found Newgent knew his disclosures were deficient after Hartsoe’s deposition and took no action to supplement his responses before Anderson’s deposition.
She found McKinney’s counsel could have been more proactive but apparently sat back and waited while the defense floundered.
Justices Mark Boie and Randy Moore concurred.
Michelle Rich, Thomas Rich, and Kristina Cooksey of Belleville represented McKinney along with Shannon McDonald of Edwardsville.
Joel Beckwith and Michael Murphy of the Freeark firm represented Newgent.