NO. 5-05-0474
N O T IC E
Decision filed 02/28/07. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
CECIL V. CRETTON and CHERYL L. CRETTON, ) Appeal from the
Coadministrators of the Estate of Joyce E. ) Circuit Court of
Cretton, Deceased, ) St. Clair County.
)
Plaintiffs-Appellees, )
)
v. ) No. 00-L-64
)
PROTESTANT MEMORIAL MEDICAL CENTER, )
INC., d/b/a Memorial Hospital of Belleville, ) Honorable
) Robert P. LeChien,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE SPOMER delivered the opinion of the court:
The defendant, Protestant Memorial Medical Center, Inc., doing business as Memorial
Hospital of Belleville, appeals the following orders of the circuit court of St. Clair County
entered against the defendant and in favor of the plaintiffs, Cecil V. Cretton and Cheryl L.
Cretton, who are the coadministrators of the estate of Joyce E. Cretton, who is deceased: the
August 14, 2003, order entering a judgment in the amount of $950,000 on a jury verdict
rendered the previous day for the plaintiffs on their survival action against the defendant; the
March 7, 2005, order awarding sanctions in the amount of $129,089.90 against the
defendant; and the July 18, 2005, order denying the defendant's motion for a judgment
notwithstanding the verdict (n.o.v.), a new trial, a remittitur, and/or the vacation of the March
7, 2005, sanctions. For the reasons that follow, we affirm the orders of the circuit court.
On February 11, 1999, Joyce Cretton, who was in the advanced stages of chronic
obstructive pulmonary disease (COPD), was admitted to the defendant hospital. Although
she was initially treated in the intensive-care unit, Joyce was later transferred to the
1
intermediate-care unit. Joyce's condition deteriorated on February 26 and 27, and she passed
away on February 27, 1999. On February 3, 2000, the plaintiffs filed a two-count complaint
against the defendant, alleging that prior to her death, Joyce had been allowed to fall or was
dropped and that as a result Joyce suffered a subdural hematoma that ultimately resulted in
her death. Eventually, the case proceeded to a trial and led to the orders described above.
Although the plaintiffs prevailed on their survival action, the jury rendered a verdict–from
which the plaintiffs do not appeal–for the defendant on the plaintiffs' wrongful death action.
On appeal, the defendant raises eight issues, arguing that (1) the trial court erred in
denying the defendant's motion for a judgment n.o.v. and alternative motion for a new trial
on the survival action, (2) discovery sanctions entered by the trial court during the trial were
unwarranted and prejudicial, (3) the improper appearance of judicial partiality requires a new
trial, (4) errant evidentiary rulings require a new trial, (5) prejudicial and inappropriate
comments by counsel for the plaintiffs during the trial and in closing argument require a new
trial, (6) cumulative error mandates a new trial, (7) sanctions entered after the trial were in
error, and (8) the amount of the posttrial sanctions was in error. Because of the number of
issues and subissues involved in this appeal, additional facts will be provided and discussed
as needed throughout this opinion.
On appeal, the defendant first argues that the trial court erred in denying the
defendant's motion for a judgment n.o.v. and alternative motion for a new trial on the survival
action. We begin by reciting our standard of review.
"A judgment [n.o.v.] should not be granted unless the evidence, when viewed
in the light most favorable to the opponent, so overwhelmingly favored the movant
that no contrary verdict could possibly stand. Pedrick [v. Peoria & Eastern R.R. Co.],
37 Ill. 2d [494,] 510 *** [(1967)]. A judgment [n.o.v.] is inappropriate in situations
where ' "reasonable minds might differ as to inferences or conclusions to be drawn
2
from the facts presented." ' McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d
102, 132 *** (1999), quoting Pasquale v. Speed Products Engineering, 166 Ill. 2d
337, 351 *** (1995). The trial court should not reweigh the evidence and set aside
a verdict just because the jury could have drawn different conclusions or inferences
from the evidence or because the court feels that another result would have been far
more reasonable. [Citations.] Similarly, the appellate court should not usurp the
jury's role on questions of fact that were fairly submitted, tried, and determined from
the evidence which did not overwhelmingly favor either position. [Citations.] On
review, we apply a de novo standard to determinations on motions for judgments
[n.o.v.]. [Citation.]" Koehler v. Neighbors, 322 Ill. App. 3d 440, 445-46 (2001).
On a motion for a new trial, the trial court should weigh the evidence and set aside the
verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence.
Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). " 'A verdict is against the manifest weight
of the evidence where the opposite conclusion is clearly evident or where the findings of the
jury are unreasonable, arbitrary[,] and not based upon any of the evidence.' [Citations.]"
Maple, 151 Ill. 2d at 454. Whether to grant a motion for a new trial is addressed to the sound
discretion of the trial court, and the trial court's ruling on such a motion will not be reversed
"except in those instances where it is affirmatively shown that it clearly abused its
discretion." Maple, 151 Ill. 2d at 455. "In determining whether the trial court abused its
discretion, the reviewing court should consider whether the jury's verdict was supported by
the evidence and whether the losing party was denied a fair trial. [Citation.] Furthermore,
it is important to keep in mind that ' "[t]he presiding judge[,] in passing upon the motion for
new trial[,] has the benefit of his previous observation of the appearance of the witnesses,
their manner in testifying, and of [sic] the circumstances aiding in the determination of
credibility." ' [Citations.]" Maple, 151 Ill. 2d at 455-56.
3
In this case, the defendant contends the "uncontradicted evidence" presented at the
trial so overwhelmingly favored the defendant on the issue of the causation of Joyce's
physical pain and suffering prior to her death that the jury's verdict and damages should be
reversed or, alternatively, that at the very least the verdict is against the manifest weight of
the evidence and a new trial should be ordered. To adequately address the defendant's
argument, we must first consider the parameters of an award of damages for pain and
suffering in an action brought pursuant to the Survival Act (755 ILCS 5/27-6 (West 2002)).
"A survival action allows for the recovery of damages for injuries sustained by the deceased
up to the time of death." Ellig v. Delnor Community Hospital, 237 Ill. App. 3d 396, 401
(1992). Such an action preserves the right of action for a personal injury that accrued before
the death of the injured person and preserves causes of action relating to, inter alia,
prolonged pain and suffering, which would otherwise be extinguished upon the injured
party's death. Ellig, 237 Ill. App. 3d at 401. When determining whether the decedent
experienced conscious pain permitting a recovery pursuant to the Survival Act, a jury may
consider evidence regarding a decedent's injuries. Hall v. National Freight, Inc., 264 Ill.
App. 3d 412, 427 (1994). "It is not required that medical testimony be offered to establish
conscious pain and suffering where lay testimony describing a decedent's actions prior to
death[,] coupled with evidence concerning [the decedent's] injuries[,] is sufficient to support
a recovery. [Citation.] In making such a determination, an important factor is evidence
indicating that the decedent was conscious prior to death. [Citation.] Therefore, damages
for conscious pain and suffering may be sustained where the decedent was shown to have
been conscious prior to death and there is evidence from lay witnesses regarding what took
place prior to the cessation of consciousness. [Citation.]" Hall, 264 Ill. App. 3d at 427-28.
Turning again to the defendant's argument, we cannot agree with the defendant's
contention that "uncontradicted evidence" was presented at the trial on the issue of the
4
causation of Joyce's physical pain and suffering prior to her death. In fact, although the
defendant presented evidence that the pain and suffering could have resulted from Joyce's
COPD, rather than from the negligence of the defendant in allowing Joyce to fall or be
dropped, the plaintiffs presented evidence that contradicted the defendant's theory and that
pointed to the defendant's negligence as the cause of the pain and suffering. Specifically, the
plaintiffs presented, inter alia, the testimony of Dr. Harry Parks, by discovery deposition, that
when he conducted an autopsy on Joyce following her death, he found evidence of a brain
injury caused by a "significant" blow to the back of Joyce's head and that the brain injury,
which he confirmed was a subdural hematoma commonly referred to as a "contrecoup
injury," rather than COPD, caused Joyce's respiratory distress and ultimately her death. In
addition, Dr. Douglas Dothager, Joyce's treating pulmonologist, testified to the pain and
suffering accompanying Joyce's respiratory distress, agreeing that when he examined Joyce
in the hours before her death, he saw in her face that "she was frightened for her own life and
whether she would make it." Furthermore, Cheryl Cretton, Joyce's daughter, testified that
in the hours before her mother's death, Cheryl observed Joyce experiencing anxiety, difficulty
in breathing, "gasping for air," difficulty communicating, and difficulty keeping her eyes
open.
Clearly, the defendant's allegation to the contrary notwithstanding, evidence was
presented at the trial from which a reasonable jury could find for the plaintiffs regarding the
causation and existence of Joyce's physical pain and suffering prior to her death. Indeed,
although the defendant takes issue in particular with the testimony of Dr. Parks, the
defendant's objections go to the weight to be accorded to his opinion, not to its admissibility.
In fact, no cogent argument is provided by the defendant questioning the admissibility of Dr.
Parks's opinions. Accordingly, we decline to usurp the jury's role on this question of fact that
was fairly submitted, tried, and determined from evidence which does not overwhelmingly
5
favor either position. See Koehler v. Neighbors, 322 Ill. App. 3d 440, 445-46 (2001) (citing
McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999)). Likewise, we
decline to conclude that the trial court abused its discretion in denying the motion for a new
trial where, as here, the jury's verdict was supported by the evidence and the losing party was
not denied a fair trial. See Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). We conclude
the trial court did not err when it denied the defendant's motion for a judgment n.o.v. and
alternative motion for a new trial on the survival action.
Although the defendant mentions in passing in its opening brief that the amount of
damages awarded by the jury on the plaintiffs' survival action ($950,000) was almost twice
the amount suggested by counsel for the plaintiffs in closing argument as an appropriate
recovery ($500,000), the defendant does not develop any cogent argument in its opening
brief that, assuming an award of damages was permissible, the amount awarded was
excessive, and accordingly it has waived a consideration of that argument by this court. See
Official Reports Advance Sheet No. 12 (June 7, 2006), R. 341(h)(7), eff. Sept. 1, 2006
(points not argued in an opening brief are waived and shall not be raised in the reply brief,
in oral argument, or in a petition for rehearing). Accordingly, having found an award of
damages to be permissible, we decline to disturb the amount of damages awarded by the jury.
The defendant next argues that discovery sanctions entered by the trial court during
the trial were unwarranted and prejudicial. "Supreme Court Rule 219(c) (166 Ill. 2d R.
219(c)) authorizes a trial court to impose a sanction on a party who unreasonably fails to
comply with the court's discovery rules or orders. [Citation.] The trial court has discretion
to impose a particular sanction, and its decision will not be reversed absent a clear abuse of
discretion. [Citation.]" In re Marriage of Booher, 313 Ill. App. 3d 356, 359 (2000). In the
case at bar, the defendant argues that the sanctions entered against it were for conduct that
was not sanctionable and that the sanctions themselves were excessive. To adequately
6
understand the sanctions entered, a description of additional facts is necessary. As alluded
to above, one of the principal issues in the trial involved the allegation, by the plaintiffs, that
Joyce had been allowed to fall or was dropped and that as a result Joyce suffered a subdural
hematoma that ultimately resulted in her death. At the trial, Cheryl Cretton testified that on
February 25, 1999, her mother, Joyce, called Cheryl from the hospital and asked Cheryl to
come there. At the hospital, Joyce told Cheryl that the previous night, staff members had
dropped Joyce and let her fall to the floor while attempting to transfer her from one bed to
another. Cheryl further testified that after Joyce told her this, Cheryl confronted two nurses
she saw standing in the hallway about the alleged drop or fall and was directed by those
nurses to nursing supervisor Phil Schorfheide. Cheryl then recounted to Schorfheide what
she had learned from Joyce, and Schorfheide said he would look into the allegation.
However, Cheryl received no follow-up information from Schorfheide, nor was any entry
made in Joyce's medical record concerning the alleged drop or fall.
On September 25, 2001, the deposition of Schorfheide was taken. During the course
of the deposition, Schorfheide was asked if, prior to Joyce's death, he had, inter alia,
prepared any handwritten notes with respect to Joyce. Schorfheide answered that he had
noted a conversation he had with Cheryl about "some concerns" Cheryl had. Moments later,
as Schorfheide attempted to answer a follow-up question about his conversation with Cheryl,
he was interrupted by the defendant's trial counsel, who informed counsel for the plaintiffs
he believed that Schorfheide was "getting into" matters Schorfheide had been asked to do as
a part of a quality management council subcommittee review and that accordingly he was
going to invoke the protection of the medical studies statute (735 ILCS 5/8-2101 et seq.
(West 2000)) and instruct Schorfheide not to answer any questions about documents
Schorfheide might have authored as a part of that review. Several minutes later, counsel for
the plaintiffs asked Schorfheide the following question: "Did [Cheryl] say anything to you
7
about her mom having been dropped or having fallen?" Schorfheide answered "No."
Several follow-up questions were asked to ascertain whether Schorfheide had ever received
a report of the alleged drop or fall, all of which Schorfheide responded to, with the
defendant's trial counsel at his side, in the negative.
On October 9, 2001, shortly after the Schorfheide deposition, the defendant filed the
affidavit of defendant's employee Kerry Wrigley, who was the quality improvement
coordinator at the defendant hospital. The affidavit averred that the peer-review process to
which the defendant's trial counsel had referred during Schorfheide's deposition had been
initiated "on or about March 3, 1999," and that the privileged documents to which the
defendant's trial counsel had referred were "notes by an unknown author."
On July 31, 2003, days before the trial began, the trial court, at the request of the
plaintiffs, conducted an in camera review of the documents for which the defendant claimed
a privilege. During that review, the court found what it described as "a summary prepared
by nurse supervisor Schorfheide that flatly contradicted his sworn deposition testimony."
Specifically, a review of the record demonstrates that the trial court's in camera review
revealed that the document to which the defendant's trial counsel had referred when he
claimed privilege and instructed Schorfheide not to answer questions about his conversation
with Cheryl–a two-page document found at pages 21 and 22 of the privilege log that was
filed by the defendant on July 17, 2001–was the same document that, a mere two weeks after
the deposition, Wrigley had averred had been created by an author unknown. In addition to
this inconsistency, a review of the document reveals that it clearly states that the author of
it had been told by Cheryl of the alleged drop or fall. Furthermore, portions of the document
that apparently still have not been revealed to the plaintiffs mention, by name, other
employees of the defendant to whom the author of the document spoke on February 26 and
27 about Joyce's condition. Given this information–and the fact that the name "Phil" is
8
visible at the bottom of the document–Wrigley's averment that the author of the document
was unknown is unbelievable on its face, for even if Wrigley had somehow overlooked the
name "Phil" at the bottom of the document–a grave enough mistake for one preparing a
sworn affidavit, particularly when the defendant had been put on notice on April 3, 2001, via
interrogatories served on the defendant on that date, that the plaintiffs sought information
about a nursing supervisor named "Phil"–Wrigley could easily have spoken with any of the
defendant's employees named in the document to determine with whom they had spoken
about the issues described and thus to determine the identity of the author of the document.
An intentional deception or a disturbing lack of competence is the only explanation for the
claim, in a sworn affidavit, that the author of the document was unknown.
The court's in camera review also revealed the following factual scenario with regard
to the Schorfheide deposition: when counsel for the plaintiffs began to probe into what
Schorfheide had been told by Cheryl about the alleged drop or fall, the defendant's trial
counsel attempted to hide the proof, found in the document, that Schorfheide had been told
of the alleged drop or fall, by invoking privilege and instructing Schorfheide not to answer
further questions. The defendant's attorneys then sat idly by while, moments later,
Schorfheide gave patently false testimony, repeatedly denying any knowledge of the drop or
fall, in direct and blatant contradiction to the information found in the document for which
the defendant's trial counsel had just invoked privilege. Although the defendant's trial
counsel later claimed, at a posttrial hearing held on January 20, 2004, that the documents for
which he had invoked privilege during the Schorfheide deposition were other documents
authored by Schorfheide–found at pages 45 and 46 of the privilege log filed by the defendant
on July 17, 2001–neither of these documents discusses Schorfheide's conversation with
Cheryl. In fact, only the document found at pages 21 and 22 of the privilege log discusses
Schorfheide's conversation with Cheryl, and only it could have formed the basis for the
9
defendant's trial counsel's invocation of privilege regarding written notes about that
conversation. Accordingly, we find the defendant's trial counsel's self-serving claim that he
was invoking privilege for the other documents to be unbelievable and unsupported by the
record.
Furthermore, even if we were to assume, arguendo, that the document containing
written notes about Schorfheide's conversation with Cheryl was privileged, once Schorfheide
decided to answer questions about his conversation with Cheryl about the alleged drop or
fall, he was obliged to answer them honestly, and the defendant's trial counsel–whose
knowledge, we reiterate, of Schorfheide's admission that Cheryl had told Schorfheide of the
alleged drop or fall is demonstrated by counsel's invocation of privilege with regard to the
document authored by Schorfheide and detailing that admission–was obliged as an officer
of the court to ensure he did so. We stress again that the document in question is a mere two
pages in length. Given the fact that in the first four sentences of the document Schorfheide
admits both that he had a conversation with Cheryl and that Cheryl told him of the alleged
drop or fall, it simply defies belief that the defendant's trial counsel could know that the
document discussed Schorfheide's conversation with Cheryl–and therefore prompt counsel
to invoke privilege when counsel for the plaintiffs attempted to question Schorfheide about
that conversation–without also knowing that in the document a mere two sentences later
Schorfheide admitted that Cheryl had told him of the alleged drop or fall and that
Schorfheide was testifying falsely. Once more, only an intentional deception or a disturbing
lack of competence could explain the actions of the defendant's trial counsel in failing to
correct the false testimony of Schorfheide or take other appropriate measures.
Accordingly, we do not believe that the trial court erred in concluding that the
defendant and its counsel were guilty of intentional deception and intentional discovery
violations. That conclusion was reasonable, given the facts available to the trial court
10
following its in camera review and to this court on review. As the trial court later stated, in
its order regarding the sanctions entered after the trial, "[The] plaintiffs were preparing their
case without knowledge of the false early disclosures and unaware of the lies told by
Schorfheide in deposition." On notice that it was dealing with a party that had abused the
discovery process and otherwise attempted to mislead the court, during the course of the trial
the judge then crafted Rule 219(c) sanctions to prevent further intentional deception or other
misconduct by the defendant. The Rule 219(c) sanctions with which the defendant takes
issue in its brief are the following: (1) an order that the hospital was barred from contending
it did not know about Cheryl's complaint that her mother had been dropped and injured; (2)
finding, as a matter of law, that the defendant had a duty to include all relevant medical
information in Joyce's medical history and that the defendant breached that duty when it
failed to include in the medical record the medical history that Joyce alleged she had been
dropped and injured; (3) finding, as a matter of law, that the nurses and employees of the
defendant involved in Joyce's bed-to-bed transfer were agents of the defendant; (4) barring
the defendant from eliciting any testimony the direct or indirect purpose of which was to
address any standard of care related to its conduct in investigating Joyce's complaint and its
failure to treat the complaint as medical history or as a reporting "occurrence"; (5) barring
the defendant's expert witnesses from providing the opinion that Joyce was not dropped
unless the expert first assumed that the medical history was tainted by the exclusion of the
pertinent medical history of the alleged drop or fall; and (6) barring the defendant's expert
witnesses from testifying that the circumstances did not warrant a treatment of the medical
history as anything less than a complaint that deserved medical follow-up. We have
thoroughly reviewed the nature and scope of the sanctions entered, and we conclude they
were a reasonable attempt by the court to prevent further misconduct. The defendant's
allegations to the contrary notwithstanding, the sanctions were not punitive in nature, nor
11
were they excessive; they were tailored to effectuate a fair trial on the merits that conformed
to the rules of discovery and trial procedure and to prevent the further abuse of those rules
by the defendant.
The defendant next contends that the improper appearance of judicial partiality
requires a new trial. Specifically, the defendant contends that the trial judge's responses to
objections voiced by counsel for the defendant did not appear impartial and expressed the
trial judge's opinion of the defendant's witnesses to the jury, that the trial judge improperly
commented on the defendant's witnesses, and that the trial judge failed to adequately address
negative media coverage of the trial and the events underlying it. We shall address each of
these contentions in turn.
The defendant first alleges that the trial judge's responses to objections voiced by
counsel for the defendant did not appear impartial and expressed the trial judge's opinion of
the defendant's witnesses to the jury. Specifically, the defendant takes issue with comments
by the judge that were made after the defendant repeatedly attempted to take advantage of
the fact that Joyce's medical record contained no information about the alleged drop or fall.
The judge was forced to remind the jury of the reason the medical record did not contain that
information: Schorfheide had failed to chart the alleged drop or fall, despite the fact that he
was aware of it. The comments about which the defendant complains are no more than
reasonable attempts by the trial judge to control an attorney who was trying desperately to
distort the facts of the case to his client's benefit, in contravention of an earlier order by the
court that if the defendant were to comment about the medical record, the defendant would
have to admit while doing so that the record was tainted by Schorfheide's failure to chart the
alleged drop or fall. The judge in this case acted conscientiously and showed fairness,
impartiality, and restraint when dealing with a belligerent defendant. There was no error.
The defendant next alleges that the trial judge improperly commented on the
12
defendant's witnesses. The defendant takes issue with the following statement of the trial
judge to counsel for the plaintiffs: "I think one of the parts of your cross[-]examination was
to demonstrate that the witness kept notes as opposed to a witness shredding notes." The
judge made this statement when overruling an objection by the plaintiffs and finding that the
defendant's line of inquiry into the retention of notes was proper. The judge's statement was
a reasonable explanation to counsel for the plaintiffs for why he was overruling her. The
defendant's suggestion that the statement was the trial court's veiled attempt to convey to the
jury that "he believed [the defendant's] witnesses were in the practice of shredding their
notes" is absurd and unworthy of further comment. There was no error.
The defendant also alleges that the trial judge failed to adequately address negative
media coverage of the trial and the events underlying it. Specifically, the defendant alleges
the trial court erred when it denied the defendant's motion for a mistrial after an article
discussing the case appeared in the St. Louis Post-Dispatch in the middle of the trial. The
article quoted a statement, purportedly made in court but outside the presence of the jury,
from the trial judge to the effect that the defendant "swept" Joyce's medical history "under
the carpet and hid it." The defendant contends the trial court "failed to offer [the defendant]
the same chance to poll the jury that it had previously offered" to the plaintiffs after a letter
the defendant's chief executive officer, Harry Maier, had written to employees of the
defendant appeared in the Belleville News-Democrat–a letter in which Maier had
proclaimed–falsely, it turns out, in light of Schorfheide's admission that he had lied in his
deposition–that no attempt to deny the existence of the alleged drop or fall had been made
by employees of the defendant.
It is true that following the appearance of Maier's letter in the Belleville News-
Democrat, the trial judge asked counsel for the plaintiffs if she wished to poll the jury, and
even though counsel for the plaintiffs declined to poll the jury, the offer itself should have
13
put the defendant on notice that the trial judge was more than willing to poll the jury if
circumstances so required. It is equally true that the defendant never asked to have the jury
polled following the publication of the St. Louis Post-Dispatch article. Indeed, the defendant
was reminded that for a mistrial to be granted, the article "would have to be something that
the jury knew about." Nevertheless, the defendant did not ask to poll the jury. The defendant
does not provide any legal authority for the proposition that the court must sua sponte afford
to a party the opportunity to poll the jury, even in the absence of a request from that party to
poll the jury, and we are aware of no authority to that effect. Indeed, in the principal case
relied upon by the defendant, People v. Weaver, 90 Ill. App. 3d 299, 306 (1980), aff'd on
other grounds, 92 Ill. 2d 545 (1982), one of the parties made a specific request that the jury
be polled. In this case, the defendant had the opportunity to determine if any prejudice had
resulted from the St. Louis Post-Dispatch article. However, the defendant failed to avail
itself of that opportunity. Furthermore, although the defendant claims that the trial judge
denied the defendant's "motion for a new trial without reading the motion or the attached
offending newspaper article," the record citation following this rather bold claim is to pages
R1048 and R1049 of the report of proceedings–pages that are not included in the record on
appeal created by the defendant and filed with this court for this appeal and that, according
to the index of the record prepared by the defendant, do not exist. In light of the defendant's
failure, at the trial, to ask to have the jury polled and the defendant's citation, on appeal, to
nonexistent pages of the record, we decline to find error in the trial court's denial of the
defendant's motion for a mistrial.
The defendant next contends that errant evidentiary rulings require a new trial. The
defendant takes issue with five rulings or sets of rulings by the court, each of which shall be
addressed in turn. We begin, however, by reciting the relevant standard of review: we will
not reverse on the basis of an erroneous evidentiary ruling unless the error was prejudicial
14
or the result of the trial has been materially affected. Stricklin v. Chapman, 197 Ill. App. 3d
385, 388 (1990). The first evidentiary error asserted by the defendant is that the admission
into evidence of Joyce's unredacted death certificate violates both the Code of Civil
Procedure (735 ILCS 5/8-2001 (W est 2002)) and the Vital Records Act (410 ILCS 535/25
(West 2002)). In its opening brief, the defendant contends the admission into evidence of
the death certificate prejudiced the defendant because "it addressed issues central to case
[sic][] and lent the improper appearance of government approval to [the plaintiffs'] view of
these issues." Specifically, the defendant objects to the evidence because the certificate listed
Joyce's closed head injury as the cause of her death and because it stated the injury occurred
"by history dropped" and listed the date of injury as the date of the alleged drop or fall. The
defendant contends that hearsay found within the certificate–"by history dropped" and the
listing of the date of injury as the date of the alleged drop or fall–was relevant only to prove
the truth of the matter asserted: that a drop occurred and that it was the cause of Joyce's
death.
As noted above, we will not reverse on the basis of an erroneous evidentiary ruling
unless the error was prejudicial or the result of the trial has been materially affected.
Stricklin v. Chapman, 197 Ill. App. 3d 385, 388 (1990). In this case, we conclude that even
if we assume, without deciding, that the admission of the death certificate into evidence was
erroneous, the defendant has not demonstrated prejudice sufficient to warrant a reversal.
With regard to the defendant's assertion that the certificate should not have been admitted
into evidence because it listed Joyce's closed head injury as the cause of her death and was
improperly used to attempt to prove that proposition, we note that the jury found for the
defendant on the plaintiffs' wrongful death action, a finding that negates any possible
prejudice to the defendant regarding Joyce's cause of death. As explained above, the claim
upon which the plaintiffs prevailed–and the claim upon which this appeal is based–is the
15
plaintiffs' survival action. The elements that must be proven to recover for pain and suffering
in a survival action–and that were proven in this case–are discussed at length elsewhere in
this opinion. The actual cause of the death of a victim has no bearing on an otherwise proper
survival action, and so the defendant could suffer no prejudice in the survival action from a
document listing Joyce's cause of death.
With regard to the defendant's assertion that the certificate should not have been
admitted because hearsay found within the certificate–"by history dropped" and the listing
of the date of injury as the date of the alleged drop or fall–was relevant only to prove the
truth of the matter asserted (here, that a drop or fall actually occurred), we note that the
certificate does not state that a drop or fall occurred. Rather, the certificate states only that
a history of a drop or fall had been conveyed to the coroner, a fact of which the jury was
already aware. Likewise, the date of the alleged drop or fall had also already been conveyed
to the jury, and we do not believe that the jury would view the certificate as anything other
than what it was–a reflection, but not a confirmation, of allegations of which it was already
aware. Just as the jury was free to conclude, on the basis of all the other evidence presented,
that no drop or fall ever happened, so, too, was the jury free to come to that conclusion on
the basis of the contents of the death certificate, which stated nothing to the contrary.
Accordingly, we see no prejudice to the defendant in the admission of the certificate into
evidence.
The second evidentiary error asserted by the defendant is that a privileged document
should not have been admitted into evidence. The document about which the defendant
complains is, according to the defendant's opening brief, the same document discussed in
detail above and found at pages 21 and 22 of the privilege log. As discussed above, this
document, authored by Phil Schorfheide, demonstrates that Schorfheide had been told by
Cheryl about Joyce's alleged drop or fall. The defendant claims that the document was
16
created as a part of a quality management council subcommittee review and, thus, is afforded
the protections of the medical studies statute (735 ILCS 5/8-2101 et seq. (West 2000)). The
burden of establishing a discovery privilege under the medical studies statute is on the party
seeking to invoke it. Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741,
746 (2003). No privilege exists with regard to information or documents that might have
been relied upon in the peer-review process but were generated prior to the process. Chicago
Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 403 (1998).
Here, the defendant has failed to meet its burden to prove that the document was
created after the convening of the review process. The only evidence put forth by the
defendant in its opening brief in support of its contention that the document was created after
the convening of the review process is the affidavit of Wrigley, also discussed in detail
above, which recites in rote fashion–as it does for virtually all the documents in the privilege
log–that the document in question was "prepared specifically for use by and at the direction
of" the review committee. However, we have already determined that W rigley's
affidavit–which also claimed that the author of the document in question was unknown–is
unbelievable on its face. We decline to give weight to this inherently unbelievable affidavit,
and we conclude that it offers no proof of when the document in question was created.
Furthermore, as the plaintiffs point out, even if we were to give weight to Wrigley's affidavit,
blanket conclusions such as those found in Wrigley's affidavit that information was generated
at the request of a reviewing committee are not enough to invoke the protections of the
medical studies statute. See Chicago Trust Co., 298 Ill. App. 3d at 404. An affidavit is
ineffective when the statement contained therein is "pure conclusion, bereft of facts"
(Chicago Trust Co., 298 Ill. App. 3d at 404). Finally, we note that Schorfheide, who actually
authored the document in question, testified that he did not know when it had been created
or to whom he conveyed it after authoring it. The defendant did not adequately prove that
17
the document was created after the convening of the review process, and the trial court did
not err when it ruled the document in question was not protected by the medical studies
statute.
The third evidentiary error asserted by the defendant is that undisclosed expert
testimony on the standard of care in this case, and other undisclosed "expert" testimony,
should not have been admitted into evidence. Specifically, the defendant takes issue with
testimony given by nurses Nancy Weston, Kathy Schmidt, Karen Krooswyk, and Joyce
Tomlinson. We begin by noting that Weston, the defendant's vice president of nursing, did
not offer testimony on the standard of care relevant to any issue in controversy in this case.
The defendant complains that during the cross-examination of Weston as an adverse witness,
"Weston was allowed to testify to general hospital standards of care for patient care and the
standard of care for bed-to-bed patient transfers" and "was later permitted to answer a
question regarding what the standard of care would have been in 1999 for transferring a
non[]ambulatory patient while reducing the risk of injury." The defendant neglects to inform
the court, however, that although Weston did testify she believed that patients in 1999 were
entitled to "high-quality, cost-effective services," she specifically testified that she did not
consider her testimony to set or describe a standard of care, which, she testified, she believed
was "an action or an intervention evidence-based." Nor does the defendant inform the court
that although Weston was asked several times about standards of care in general, at no time
did Weston testify about "the standard of care for bed-to-bed patient transfers," nor did she
testify regarding what the standard of care was in 1999 for transferring a nonambulatory
patient while reducing the risk of injury. To the contrary, when asked about the latter, she
testified that because she was not employed by the defendant in 1999, she could not testify
about "what was in place" then. Accordingly, we find no error–and thus no potential
prejudice to the defendant–in the admission of Weston's rather general, innocuous, and
18
irrelevant testimony into evidence.
The defendant also objects to certain testimony of nurse Kathy Schmidt. Specifically,
the defendant contends that when counsel for the plaintiffs elicited an agreement from
Schmidt that in February 1999 "the nurses [employed by the defendant] were obligated to
follow [the Nursing and Advanced Practice Nursing Act (Act) (225 ILCS 65/5-1 et seq.
(West 2002))] in rendering good, adequate medical care" to Joyce, counsel was improperly
questioning Schmidt "regarding the standard of care in nursing." The defendant makes no
coherent argument for how the defendant might have been prejudiced by Schmidt's
agreement that the nurses were obligated to follow the Act, nor does the defendant explain
how Schmidt's agreement improperly established a standard of care. The defendant cites no
testimony linking the Act to any action or inaction on the part of any hospital employee in
this case or to any testimony linking the Act to any standard of care in this case. The
defendant's argument is not persuasive.
The defendant next objects to certain testimony of nurse Karen Krooswyk, the
plaintiffs' expert witness in this case. Specifically, the defendant contends that even though
the plaintiffs' disclosure specifically stated that Krooswyk would testify with regard to "the
nursing standard of care in allowing a patient to fall or be dropped in a transfer, in failing to
protect a patient during a transfer, and in failing to report a fall or drop if there was reason
to believe it had occurred," it did not state that Krooswyk would testify about the standard
of care "in bed positioning during a bed-to-bed transfer." Accordingly, the defendant
contends, Krooswyk should not have been allowed to testify about the latter. However, the
defendant fails to explain how Krooswyk could have testified, in the context of this case, to
that which had been disclosed without also testifying about bed positioning during a bed-to-
bed transfer. The defendant's claim of unfair surprise regarding Krooswyk's testimony is
unpersuasive. The disclosure rendered by the plaintiffs was adequate to apprise the
19
defendant that Krooswyk might testify about bed positioning during a bed-to-bed transfer.
The defendant also takes issue with certain testimony of nurse Joyce Tomlinson.
Tomlinson was one of the nurses who participated in the transfer of Joyce Cretton, and
although Tomlinson denied that Joyce had fallen or been dropped during the transfer, she
testified that the transfer was "a little rougher" than she would have liked. The defendant
contends that Tomlinson's testimony about closed head injuries and their symptoms should
not have been allowed because Tomlinson had not been disclosed as an expert on those
subjects. We do not agree. First, we note that none of the testimony of Tomlinson to which
the defendant objects related to the facts at issue in this case. In the testimony complained
of, Tomlinson did not testify about the causation of the head injury at issue in this case, nor
did she testify about the presence or absence of any symptoms of a closed head injury in
Joyce or about any pain and suffering Joyce might have experienced as a result of that head
injury. In fact, Tomlinson denied that Joyce suffered any injury at all. Based upon her
admission that she had cared for "many" patients with subdural hematoma, Tomlinson merely
answered general questions about the various ways head injuries present themselves, before
returning to her denial that Joyce had fallen or been dropped during the transfer. She then
continued to testify about the events surrounding the transfer, but she did so not as an expert
but on the basis of her direct observation of those events. We note as well that the only
objection made contemporaneously with Tomlinson's testimony was that the questions asked
of Tomlinson called "for medical opinions." There was no objection that Tomlinson was
providing undisclosed expert testimony about an issue in the case. We are unable to see how
any prejudice to the defendant resulted from Tomlinson's testimony, and we conclude there
is no merit to the defendant's contention that we should reverse the trial court on the basis of
her testimony.
The fourth evidentiary error asserted by the defendant is that undisclosed expert
20
testimony via hearsay statements read to the jury from a neurology textbook during the cross-
examination of the defendant's expert witness should not have been admitted into evidence.
The defendant contends the admission of this evidence prejudiced the defendant because "it
surreptitiously allowed [counsel for the plaintiffs] to introduce such evidence as being
pertinent to the standard of care." We agree with the defendant that the trial court erred in
allowing counsel for the plaintiffs to read from the textbook without first laying a proper
foundation (which, we note, would have been very easy for her to do). However, as noted
above, we will not reverse on the basis of an erroneous evidentiary ruling unless the error
was prejudicial or the result of the trial was materially affected. Stricklin v. Chapman, 197
Ill. App. 3d 385, 388 (1990). Here, a close review of the report of proceedings reveals that
the entire cross-examination in question was an attempt by counsel for the plaintiffs to
discredit the defendant's expert witness's theory that it was COPD, rather than a head injury,
that caused Joyce's death. Because the cross-examination focused only on the cause of death,
on the possibility that Joyce's death was caused by a head injury rather than COPD, it was
relevant only to the plaintiffs' wrongful death action, upon which the defendant prevailed.
The cross-examination of this witness did not involve the plaintiffs' survival action in any
way, shape, or form: there was no testimony at all during the cross-examination about pain
and suffering or the other elements of the claim upon which the plaintiffs prevailed and from
which the defendant now appeals or about whether the alleged drop or fall and the allegedly
resulting head injury actually took place. Accordingly, we find no prejudice to the defendant
in the erroneous admission of this evidence.
The fifth and final evidentiary error asserted by the defendant is that the trial court
erred when it allowed the plaintiffs, following the close of the evidence, to amend their
complaint. Specifically, the defendant contends the trial court permitted the plaintiffs "to file
an amended complaint that set forth completely new theories of duty, breach, and causation
21
at the close of evidence," because the amended complaint added the allegation that the
defendant was negligent when it allowed Joyce "to fall, be significantly jarred, or otherwise
become injured." Although the amendment was made in response to testimony from the
defendant's own expert witness, Dr. Mary Case, that Joyce's subdural hematoma could have
been caused by a "jarring," the defendant nevertheless claims that the amendment operated
to "surprise" the defendant and denied the defendant the opportunity to defend against the
newly alleged theory of recovery.
A pleading may be amended at any time, before or after the judgment, to conform the
pleadings to the proofs. 735 ILCS 5/2-616(c) (West 2004). "This section is to be liberally
construed so that cases are decided on their merits and not on procedural technicalities.
[Citation.] Whether amendment of pleadings is to be allowed is a matter within the sound
discretion of the court, and absent an abuse of this discretion, a court's determination will not
be overturned on review. [Citation.] Doubts about allowing amendments should be resolved
in favor of amendment; however, where the amendment is made to conform the pleadings
to the proof, the amendment will not be allowed unless the evidence already produced
supports the amendment. [Citation.]" Pry v. Alton & Southern Ry. Co., 233 Ill. App. 3d 197,
213 (1992).
In this case, the defendant's claim of surprise is unpersuasive. First, the defendant was
well aware of Dr. Case and her theory that Joyce's subdural hematoma could have been
caused by a "jarring." Indeed, Dr. Case was the defendant's own expert witness, the "jarring"
theory was the defendant's theory, and the defendant had disclosed Dr. Case and her "jarring"
theory to the plaintiffs a full nine months before the trial began. Second, the amendment in
question did not "set forth completely new theories of duty, breach, and causation." The
theory that the defendant was negligent when it allowed Joyce "to fall, be significantly jarred,
or otherwise become injured" is completely consistent with the theory advanced in the
22
original complaint filed by the plaintiffs, which set forth a number of allegedly negligent and
careless acts on the part of the defendant, including, inter alia, that the defendant negligently
and carelessly attempted to transfer Joyce by forcing her to attempt to stand when she could
not, that the defendant negligently and carelessly failed to have adequate assistance during
the bed-to-bed transfer, that the defendant negligently and carelessly allowed Joyce "to fall"
during the transfer, and that the defendant negligently and carelessly failed to inform anyone
that Joyce had fallen during the transfer. The original complaint then alleged that as a direct
and proximate result of "one or more of the foregoing negligent acts or omissions" by the
defendant, Joyce was injured. We conclude that the fact that some kind of "jarring" might
have occurred during one or more of the aforementioned acts of negligence and/or
carelessness is implicit in the allegations of the original complaint. There is no merit to the
defendant's contention that the amendment operated to "surprise" the defendant.
The defendant also contends that because of the sanctions discussed earlier in this
opinion, the defendant "was expressly barred by [the trial court] from presenting evidence"
to defend against the theory of "jarring." This contention is unpersuasive; in fact, it simply
is untrue. Following the disclosure of Schorfheide's lies and the defendant's misconduct with
regard to those lies, the defendant was prevented, inter alia, from contesting (1) that a fall
was alleged, (2) that the alleged fall had been reported to Schorfheide, and (3) that the
allegations made to Schorfheide were not properly reported and documented in Joyce's
medical record. Furthermore, the defendant's expert witnesses were prevented from
providing the opinion that Joyce was not dropped unless the expert first assumed that the
medical history was tainted by the exclusion of the pertinent medical history of the alleged
drop or fall. However, no sanction imposed by the trial court ever "expressly barred" the
defendant from defending itself from the underlying accusation that Joyce actually fell, was
dropped, and/or was jarred. In fact, the question of whether anything happened in the
23
hospital to cause Joyce's head injury was always open for challenge–it was one of the key
issues before the jury, and the defendant was always free to advance its position on this issue.
That the defendant was unsuccessful in doing so does not equate with being prevented from
attempting to do so. There is no merit to the defendant's contention that sanctions prevented
it from defending against a theory of "jarring."
The defendant also contends that even though the defendant's expert witness Dr. Case
and her theory of "jarring" had been disclosed by the defendant nine months prior to the trial,
the plaintiffs nevertheless were required to disclose Dr. Case as an expert witness in support
of their position. The defendant cites no authority in support of its contention that a witness
disclosed as an expert by one party must also be disclosed by the opposing party, lest the
originally disclosing party be surprised and prejudiced by the witness testifying in a manner
consistent with the original disclosure, and finding the defendant's contention unconvincing,
we decline to consider it further.
The amendment in this case was made to conform the pleadings to the proof, and the
evidence produced prior to the introduction of the amendment supported the amendment.
Accordingly, under long-standing, existing Illinois precedent–and under the plain language
of the Code of Civil Procedure (735 ILCS 5/2-616(c) (West 2004))–the amendment in this
case was permissible.
The defendant next contends that prejudicial and inappropriate comments by counsel
for the plaintiffs during the trial and in the closing argument require a new trial. However,
the defendant has presented absolutely no evidence or argument regarding any allegedly
"prejudicial and inappropriate" comments during the trial and has therefore waived this issue
on appeal. See Official Reports Advance Sheet No. 12 (June 7, 2006), R. 341(h)(7), eff.
Sept. 1, 2006 (points not argued in an opening brief are waived and shall not be raised in the
reply brief, in oral argument, or in a petition for rehearing). With regard to allegedly
24
"prejudicial and inappropriate" comments in the closing argument, the defendant contends
that counsel for the plaintiffs "repeatedly made improper and highly inflammatory comments
regarding [the defendant's] case, counsel[,] and witnesses during closing argument."
However, in the record on appeal that the defendant prepared and forwarded to this court for
this appeal, the defendant has failed to include any of the pages of the report of proceedings
cited by the defendant in support of this argument–pages R667, R668, R671, and R682. It
is the appellant's responsibility to provide an adequate record on appeal, and in the absence
of a complete record, this court is compelled to assume that the missing evidence supports
the lower court's decision. People v. Haycraft, 349 Ill. App. 3d 416, 429 (2004).
Nevertheless, because the plaintiffs do not raise the issue of the missing pages and do
not contest the accuracy of the remarks to which the defendant takes exception, we shall
consider the defendant's contention that counsel for the plaintiffs "repeatedly made improper
and highly inflammatory comments regarding [the defendant's] case, counsel[,] and witnesses
during closing argument." Specifically, the defendant objects to counsel's purported
statement that she tends to get upset "when [she] believe[s] people are only telling half
truths" and when she allegedly reminded the jury that it had been proven that Schorfheide
had lied, in the presence of attorneys for the defendant, at his deposition and had thereby
deprived the plaintiffs, until just before the start of the trial, of critical information about
Joyce's alleged drop or fall. The defendant claims that counsel's comments were
inappropriate because there was no evidence that the defendant's attorneys "encouraged any
lies or misstatements by Schorfheide" or that the defendant's attorneys "intentionally withheld
non[]privileged information from" the plaintiffs. We have addressed in detail above the
misconduct of the defendant in relation to Schorfheide's notes and his deposition testimony.
Suffice it to say that we conclude that the comments of counsel for the plaintiffs about this
issue were a fair and accurate representation of what happened and were not "improper and
25
highly inflammatory." Because these comments were supported by the record, we decline
to conclude they were inappropriate. See Holton v. Memorial Hospital, 176 Ill. 2d 95, 128
(1997) (where the record supports a claim that opposing counsel or parties falsified evidence,
counsel may fairly comment upon that evidence).
The defendant also takes issue with comments, allegedly made in closing argument
by counsel for the plaintiffs, that the defendant was "the Enron of Belleville" and with the
purported comment of the judge, when he overruled the defendant's objection to counsel's
comments, that "[t]he jury has heard evidence related to the problems with the medical
history and the fact that these matters were not discovered until just Monday of last week or
so." The defendant contends the judge's comment "endorsed to the jury [the plaintiffs']
cover-up theory." Counsel is afforded wide latitude in closing argument. Ellington v. Bilsel,
255 Ill App. 3d 233, 238 (1993). Although we do not approve of comments such as the
alleged labeling of the defendant as "the Enron of Belleville," given the significant evidence
of misconduct by the defendant in this case, discussed in detail above, we cannot conclude
that any of the comments objected to by the defendant on appeal are so beyond the realm of
fair commentary supported by the evidence to be unduly prejudicial. Nor do we agree that
the judge's purported comment–which, if made, accurately reflected the evidence presented
to the jury–served to endorse the plaintiffs' cover-up theory. Accordingly, we find no merit
to the defendant's unsupported contention that comments made by counsel for the plaintiffs
in closing argument require a new trial.
The defendant next contends that cumulative error mandates a new trial. Specifically,
the defendant posits, "Although each of the errors previously described individually warrants
the granting of a new trial, their cumulative effect denied [the defendant] a fair trial."
However, as explained in great detail above, we have found no prejudicial errors on the part
of the trial court. Accordingly, in the absence of even one prejudicial error, we decline to
26
conclude that cumulative error mandates a new trial.
The defendant next contends that the sanctions under Supreme Court Rule 137 (155
Ill. 2d R. 137), entered after the trial, were in error. The defendant alleges two errors in the
entry of the sanctions: first, that the defendant did not file any pleading sanctionable under
Rule 137 and, second, that the posttrial sanctions were duplicative of the Rule 219(c)
sanctions discussed above and thus are not permissible. We begin our analysis by providing
some background information about Rule 137 sanctions. "Rule 137 states that both the
parties and the attorneys have an affirmative duty to conduct an inquiry of the facts and the
law before filing an action, pleading, or other paper and that the failure to make such an
inquiry could subject them to sanctions." Rankin v. Heidlebaugh, 321 Ill. App. 3d 255, 259-
60 (2001); 155 Ill. 2d R. 137. The rule requires, inter alia, that a party or litigant make a
reasonable inquiry into the basis for any pleading or other paper and not to interpose the
pleading or other paper for any improper purpose. 155 Ill. 2d R. 137; Rankin, 321 Ill. App.
3d at 260. "The purpose of Rule 137 is to prevent the abuse of the judicial process by
penalizing those who bring vexatious or harassing actions without sufficient foundation.
[Citation.] This rule is penal in nature and must be strictly construed. [Citation.]" Rankin,
321 Ill. App. 3d at 260.
"The burden on a party seeking [Rule 137] sanctions is to show that the
opposing party made untrue and false allegations without reasonable cause.
[Citation.] The trial court must employ an objective standard to determine whether
a party made a reasonable inquiry; subjective good faith is insufficient to meet the
burden of Rule 137. [Citations.]
When reviewing a trial court's decision to impose sanctions, the appellate court
must determine whether the circuit court's decision was informed, based on valid
reasons, and followed logically from the circumstances of the case. [Citation.]"
27
Burrows v. Pick, 306 Ill. App. 3d 1048, 1050-51 (1999).
"To determine whether a particular inquiry by an attorney or party who has signed a pleading
was reasonable, we must look to the facts and circumstances that existed at the time the
pleading was filed." Burrows, 306 Ill. App. 3d at 1054. "The law is well settled that the
appellate court should give considerable deference to the court's decision to impose
sanctions[,] and that decision will not be reversed absent an abuse of discretion." Burrows,
306 Ill. App. 3d at 1051. A trial court abuses its discretion with regard to Rule 137 sanctions
when no reasonable person could take the view that the court adopted. Whitmer v. Munson,
335 Ill. App. 3d 501, 514 (2002).
The defendant contends the trial court in this case granted Rule 137 sanctions on the
basis of two pleadings: the defendant's response to the plaintiffs' interrogatories dated July
19, 2001, and the defendant's privilege log, dated July 17, 2001. With regard to the
interrogatories, the specific interrogatory in question, number 25, asked the defendant to
identify "the nursing supervisor at defendant hospital known as Phil (last name unknown)
who discussed [with Cheryl Cretton] the problems encountered during the transfer [of Joyce
Cretton]." The defendant answered that it "denie[d] that the substance of the conversation
was as described in this interrogatory" and then identified Phil Schorfheide as the only
nursing supervisor named Phil. The trial court found in its order entering sanctions that the
defendant's answer was the equivalent of denying "that Schorfheide even had a conversation
with [Cheryl] about her mother's problem on transfer," a position that contradicted the
information found in the defendant's privilege log in the document found at pages 21 and 22.
The trial court concluded that "[n]othing short of conscious disregard and utter indifference
for the truth" could explain "how the hospital could make the connection between Cheryl
Cretton and Phil Schorfheide but fail to associate him with [the document found at pages 21
and 22 of the privilege log]."
28
The defendant contends its response to interrogatory 25 was not false and was not
sanctionable, because the defendant "truthfully and completely" identified Schorfheide and
because the answer did not contradict the privilege log but "merely disputed the vague
characterization of the 'discussion' referenced in the interrogatory." However, we believe
that the position taken by the trial court–that the answer was an attempt to deny the existence
of a conversation between Schorfheide and Cheryl in which Cheryl reported the alleged drop
or fall–is reasonable and equally plausible and that the trial court did not abuse its discretion
in so concluding. The trial court's decision was informed, based on valid reasons, and
followed logically from the circumstances of the case. Likewise, the court's decision was
legitimately premised on an examination of the facts and circumstances that existed at the
time the pleading was filed, not on hindsight. By the time the defendant filed its answer to
interrogatory 25, the defendant had already filed a privilege log that verified a conversation
between Schorfheide and Cheryl in which Cheryl reported the alleged drop or fall.
Accordingly, any subsequent attempt to deny that such a conversation occurred could
legitimately be seen as both false and without reasonable cause. We cannot conclude that
no reasonable person would take the view adopted by the trial court. Accordingly, we
conclude that the trial court did not abuse its discretion when it determined that the defendant
and its agents were subject to Rule 137 sanctions for its false pleading.
With regard to the sanctions entered because of the claim in the privilege log that the
author of the document at pages 21 and 22 was unknown, we have already explained, in
detail above, that the identity of the author of the document could have been easily
ascertained, for even if one somehow overlooked the name "Phil" at the bottom of the
document, anyone genuinely interested in determining the identity of the author could easily
have spoken with any of the defendant's employees named in the document to determine with
whom they had spoken about the issues described and thus in that way determine who
29
authored the document. The defendant notes that the attorney who signed the privilege log
testified at a February 11, 2004, hearing that at the time she signed the privilege log, she did
not know who had authored the document. However, none of the excuses offered by the
attorney negates the fact, explained above, that a reasonable inquiry concerning the content
of the document itself easily would have led to the identity of the author. The facts and
circumstances that existed at the time the pleading was filed on July 17, 2001, demonstrate
that a reasonable inquiry had not been made prior to the filing of the false statement, in the
privilege log, that the author of the document at pages 21 and 22 was unknown.
Accordingly, we do not believe that the trial court abused its discretion in concluding that the
defendant and its agents were subject to Rule 137 sanctions for its false pleading. The trial
court's decision was informed, based on valid reasons, and followed logically from the
circumstances of the case.
The defendant also contends the posttrial sanctions were duplicative of the Rule
219(c) sanctions discussed above and thus are not permissible. We do not agree. The Rule
219(c) sanctions, as explained above, were not punitive in nature–they were entered during
the course of the trial and were tailored to effectuate a fair trial on the merits that conformed
to the rules of discovery and trial procedure and to prevent the further abuse of those rules
by the defendant. The Rule 137 sanctions, on the other hand, were punitive, and they were
entered after the conclusion of the trial to punish the defendant and its attorneys for their
misconduct. Furthermore, the Rule 219(c) sanctions were in the nature of evidentiary rulings
limiting the conduct of the defendant at the trial, whereas the Rule 137 sanctions were in the
nature of monetary penalties imposed upon the defendant. Nevertheless, the defendant
contends that "there were simply no Rule 137 motions or sanctions pending before the trial
court at the completion of the trial" because all the issues of misconduct and deceit had been
addressed by the Rule 219(c) sanctions. In support of this proposition, the defendant cites
30
the trial judge's statement on August 11, 2003: "I have all but completed an order that
summarizes everything that I think is pertinent to any ruling related to sanctions in this case."
There are two problems with the defendant's position. First, the statement quoted above is
taken entirely out of context. It was made by the judge while ruling on the defendant's
motion for a mistrial, discussed above, not at the conclusion of the trial. Second, the trial
judge subsequently stated, both orally and in a written order, that his comments addressed
only the Rule 219(c) sanctions and that it had always been his intention not to stop the trial
to hold a minitrial, within the trial, on the issue of the Rule 137 sanctions. The record does
not contradict the position taken by the trial judge, and we decline to disturb his finding that
the portion of the plaintiffs' motion for sanctions that related to Rule 137 remained viable
after the trial. Accordingly, we conclude that the posttrial sanctions were not duplicative of
the Rule 219(c) sanctions discussed above and are permissible.
The defendant also contends that "the trial court erred in permitting plaintiffs' counsel
to conduct discovery solely to support an [Attorney Legislative and Disciplinary Commission
(ARDC)] charge" against trial counsel for the defendant. According to the defendant,
counsel for the plaintiffs "herself admitted that the real purpose of the post[]trial deposition
of Schorfheide was to seek information in support of an ARDC complaint." We do not agree
with the defendant's accusation that an improper purpose motivated the plaintiffs' desire to
take a posttrial deposition of Schorfheide. To the contrary, an objective reading of the record
reveals that the deposition was a necessary component of the plaintiffs' development of a
record supporting the Rule 137 sanctions. Again, there was no error.
The final argument raised on appeal by the defendant is that the amount of the
aforementioned posttrial sanctions was erroneous. Specifically, the defendant contends that
the $125,000 in attorney fees and $4,089.90 in costs awarded as sanctions are "excessive and
without support in the record." We do not agree. In general, a petition for attorney fees must
31
present the court with detailed records containing facts and computations upon which the
charges are predicated and specifying the services provided, by whom they were performed,
the time expended, and the hourly rate charged. Chicago Title & Trust Co. v. Chicago Title
& Trust Co., 248 Ill. App. 3d 1065, 1072 (1993). In assessing the reasonableness of fees, the
trial court should consider a variety of factors, including the skill and standing of the
attorneys employed, the nature of the case, the novelty and difficulty of the issues involved,
the degree of responsibility required, the usual and customary charge for the same or similar
services in the community, and whether there is a reasonable connection between the fees
charged and the litigation. Chicago Title & Trust Co., 248 Ill. App. 3d at 1072. The trial
court is permitted to use its own knowledge and experience to assess the time required to
complete particular activities, and a court of review may not reverse an award of attorney
fees merely because it might have reached a different conclusion. Olsen v. Staniak, 260 Ill.
App. 3d 856, 866 (1994). With regard to Rule 137 sanctions, the law is well-settled that this
court should give considerable deference to the trial court's decision to impose sanctions, and
that decision will not be reversed absent an abuse of discretion. Burrows v. Pick, 306 Ill.
App. 3d 1048, 1051 (1999). A trial court abuses its discretion with regard to Rule 137
sanctions when no reasonable person could take the view the court adopted. Whitmer v.
Munson, 335 Ill. App. 3d 501, 514 (2002). We have thoroughly reviewed the arguments of
both parties, as well as the sanctions orders of the trial court and the methodology used to
compute the amount of the sanctions requested, and we cannot conclude that no reasonable
person could take the view the court adopted.
First, we note that because counsel for the plaintiffs operated under a contingency fee
agreement with the plaintiffs and therefore did not keep detailed records of the time spent in
the preparation for and the execution of the case, the plaintiffs' original request for sanctions
was in the amount of $316,350 for attorney fees (roughly one-third of the amount of the
32
jury's verdict) and $24,542.57 in expenses. The trial court rejected this request and asked the
plaintiffs to return with a detailed estimate of the actual hours worked on this case with
regard only to the recognized misconduct of the defendant. The plaintiffs then filed an
amended petition for attorney fees and expenses in which the plaintiffs requested $136,080
in attorney fees and $4,089.90 in expenses, advising that these requests represented
"expenses and estimations" made in "a good faith effort to supplement the record." The
judge determined that the defendant's false pleadings without reasonable cause in this case
became "the cornerstone of the entire baseless defense." The judge noted, as was
permissible, his own expertise in evaluating attorney fees in litigation of this kind, as well
as the skill and standing of the attorneys employed, the nature of the case, and the novelty
and difficulty of the issues involved, particularly where, as here, one is faced with a
defendant that "cheats and hides evidence." On the basis of these factors, the court awarded
$125,000 in attorney fees and $4,089.90 in costs. The trial court was in a better position than
is this court to determine the reasonableness of the fees specified in the plaintiffs' petition,
having observed the defendant's misconduct and the ramifications deriving therefrom
throughout the proceedings. We simply cannot conclude that no reasonable person could
take the view the court adopted, and we decline to make a de novo decision regarding the
appropriate award of attorney fees (see Chicago Title & Trust Co. v. Chicago Title & Trust
Co., 248 Ill. App. 3d 1065, 1075 (1993)).
For the foregoing reasons, we affirm the August 14, 2003, order entering a judgment
in the amount of $950,000 on a jury verdict rendered the previous day for the plaintiffs on
their survival action against the defendant; the March 7, 2005, order awarding sanctions in
the amount of $129,089.90 against the defendant; and the July 18, 2005, order denying the
defendant's motion for a judgment n.o.v., a new trial, remittitur, and/or the vacation of the
March 7, 2005, sanctions.
33
Affirmed.
WELCH, P.J., and DONOVAN, J., concur.
34
NO. 5-05-0474
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
CECIL V. CRETTON and CHERYL L. CRETTON, ) Appeal from the
Coadministrators of the Estate of Joyce E. ) Circuit Court of
Cretton, Deceased, ) St. Clair County.
)
Plaintiffs-Appellees, )
)
v. ) No. 00-L-64
)
PROTESTANT MEMORIAL MEDICAL CENTER, )
INC., d/b/a Memorial Hospital of Belleville, ) Honorable
) Robert P. LeChien,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: February 28, 2007
___________________________________________________________________________________
Justices: Honorable Stephen L. Spomer, J.
Honorable Thomas M. Welch, P.J., and
Honorable James K. Donovan, J.,
Concur
___________________________________________________________________________________
Attorneys Michael A. Pollard, Lindsay A. Philiben, Garrett Phipps, Damon Stevens, Baker &
for McKenzie, LLP, One Prudential Plaza, 130 East Randolph Drive, Chicago, IL 60601;
Appellant Edward S. Bott, Robert L. Duckels, Greensfelder, Hemker & Gale, P.C., 2000
Equitable Building, 10 South Broadway, St. Louis, MO 63102-1774
___________________________________________________________________________________
Attorney Judy L. Cates, Candice C. Kusmer, The Cates Law Firm, L.L.C., 216 W est Pointe
for Drive, Suite A, Swansea, IL 62226
Appellees
___________________________________________________________________________________