author: JUSTICE QUINLAN

text:
    JAMES LEESON et al., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—2046
    Opinion filed November 1, 1989.

      Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Frank C. Stevens, and Eugene P. Griffin, of counsel), for appellant.
    Biswurm & Myers, Ltd., of Chicago (Robert J. Biswurm and Kirt D. Hyzy, of counsel), for appellees.
   JUSTICE QUINLAN

delivered the opinion of the court:

Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals a default judgment entered by the circuit court of Cook County which was entered as a discovery sanction. In its appeal, the defendant contends that the circuit court erroneously entered the default judgment because the discovery requests made by the plaintiffs were oppressive, were not relevant or material, and requested privileged information.

On October 11, 1985, James Leeson and Antoinette Heisman, the plaintiffs, were involved in an automobile accident when their vehicle was struck by a hit-and-run driver. As a result of the accident, Lee-son was hospitalized at Thorek Hospital and Medical Center (Thorek) from October 12 to October 22, 1985, and Heisman was hospitalized at Thorek from October 12 to October 30, 1985. The plaintiffs, at the time of the accident, had maintained an automobile insurance policy with the defendant, State Farm. Plaintiffs’ policy provided coverage for medical expenses, specifically stating, “[State Farm] will pay reasonable medical expenses, for bodily injury caused by accident *** [including] expenses *** for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and funeral services, eyeglasses, hearing aids and prosthetic devices.” On November 19, 1985, pursuant to this automobile policy, Leeson submitted a claim for $9,290.50 in medical expenses arising from the hit-and-run accident and Heisman submitted a claim for $12,954.50 in medical expenses.

Thereafter, plaintiffs periodically telephoned defendant’s Des Plaines office to determine whether defendant intended to pay their claims and, receiving no response, plaintiffs retained an attorney in March 1986. Plaintiffs’ attorney was informed that the defendant had not yet decided whether to pay those claims. Thereafter, on March 13, 1986, plaintiffs filed a two-count complaint at law against defendant. In count I, plaintiffs sought $22,245 plus costs, claiming that defendant had wrongfully breached its contract of automobile insurance with plaintiffs. In count II, plaintiffs sought $25,000 plus costs and attorney fees, alleging that defendant had unreasonably and vexatiously delayed in settling their claim in violation of the Illinois Insurance Code (Ill. Rev. Stat. 1987, eh. 73, par. 613 et seq.). Defendant filed an answer denying that plaintiffs’ medical treatments were covered under its automobile insurance policies because, it contended, the plaintiffs’ expenses were not reasonable or necessary.

After defendant had obtained plaintiffs’ medical records from the hit-and-run accident, it sent the records to INSPE Associates (INSPE), a corporation consisting of physicians who review medical records on behalf of insurance companies. INSPE was asked to determine whether the medical treatment claimed by plaintiffs as medical expenses were reasonable and necessary. Dr. Daniel Samo, a partner in INSPE, reviewed plaintiffs’ records and, on April 21, 1986, advised defendant that in his opinion certain expenses claimed by plaintiffs were inappropriate, excessive, unnecessary and unreasonable. Based on Dr. Same’s advice, defendant then refused to pay plaintiffs the full amounts they had submitted as medical expenses.

Plaintiffs subsequently filed interrogatories and a request for production of documents on July 2, 1986. On July 24, 1986, defendant filed objections to plaintiffs’ interrogatories 4(a) through 4(g) and 4(1) through 4(r), claiming that those interrogatories were irrelevant and immaterial to the issues in the case. Those particular interrogatories requested information concerning all independent medical examinations conducted by defendant on claims for automobile medical payment benefits submitted to defendant’s Des Plaines office between January 1, 1985, to December 31, 1985. Defendant also objected to portions of plaintiffs’ request for production, claiming that certain items sought by plaintiffs were irrelevant and immaterial. On July 25, 1986, defendant filed its answers to plaintiffs’ interrogatories; however, defendant again refused to answer interrogatories 4(a) through 4(g) and 4(1) through 4(r).

On September 16, 1986, plaintiffs then filed a motion to compel discovery pursuant to Illinois Supreme Court Rules 201, 213, and 214, alleging that defendant had failed to comply with the rules by not completely answering plaintiffs’ interrogatories and by not completely responding to plaintiffs’ request for production. (107 Ill. 2d Rules 201, 213, 214.) Plaintiffs asserted that the information sought in their interrogatories was material and relevant to count II of their complaint, where they had alleged that defendant vexatiously and unreasonably delayed in paying their claim. Defendant asked that the motion be denied.

A hearing on plaintiffs’ motion to compel was held on May 15, 1987. At that hearing, plaintiffs argued that their interrogatories were relevant and material in determining whether defendant unreasonably and arbitrarily used independent medical examinations in order to delay timely payment of claims. Plaintiffs also claimed that their interrogatories sought to determine what was “reasonable and necessary” according to the terms of the insurance policy issued by the defendant, as well as what criteria were used to determine whether a claim should be subjected to an independent medical examination. In response, defendant argued that the interrogatories were burdensome and would likely involve “hundreds” of claims. Defendant further contended that the information sought was irrelevant because the present case concerned only two policy holders and one accident and, therefore, information about all other claims would be helpful in determining whether the defendant acted arbitrarily and unreasonably with regard to this claim. Consequently, on May 21, 1987, the circuit court entered its order granting plaintiffs’ motion to compel answers to their interrogatories 4(a) through 4(g) and 4(1) through 4(q). Interrogatory 4(r) was stricken by the court as redundant.

On May 22, 1987, plaintiffs served a subpoena duces tecum, on INSPE, commanding INSPE to produce “[pjhotocopies of any and all reports or Independent Medical Examinations, on Defendant’s insureds’ medical records performed, received, prepared or referred between May 22, 1985 and May 22, 1987.” On June 17, 1987, defendant filed a motion to quash the subpoena duces tecum, again claiming that those documents which had been requested were also irrelevant and immaterial, were work product and/or subject to the attorney-client privilege. Defendant also filed, on June 22, 1987, a motion for rehearing of the circuit court’s May 21, 1987, order granting plaintiffs’ motion to compel discovery. In its motion for rehearing, defendant claimed that in order to comply with plaintiffs’ interrogatories, it would need to process at least 2,000 to 2,500 claim files, which would involve hundreds of hours of work.

Pursuant to plaintiffs’ motion to compel, defendant filed its answers to plaintiffs’ interrogatories on September 30, 1987. In its response, defendant said that 2,124 claims for medical benefit payments were processed through its Des Plaines office in the year 1985, and specifically in answer to interrogatories 4(b) through 4(g), defendant stated that the information was unknown and unavailable statistically.

Next, plaintiffs filed a motion for sanctions and asked that a default be entered against the defendant for failing to comply with plaintiffs’ discovery requests. Subsequently, on January 29, 1988, the court held a hearing on the various motions filed by the parties. At this hearing, defendant, over plaintiffs’ objections, presented the affidavit of Dr. Samo. In that affidavit, Samo stated that compliance with plaintiffs’ subpoena duces tecum would require INSPE to examine as many as 1,100 files and would cause “massive business disruption and substantial expense.” Defendant also presented Keith Katsma, a State Farm claim representative, to answer questions. The trial court allowed Mr. Katsma to answer questions after plaintiffs stated that they had no objections to Mr. Katsma responding to questions.

Katsma said that in the year 1985, defendant was presented with approximately 2,100 medical payment claims at State Farm’s Des Plaines office, but defendant did not know which 2,100 claims out of all the claims that defendant received that year were for medical benefit payments. Katsma explained that defendant would need a computer specialist to write and run a computer program to find the 2,100 medical benefit payment claims, a task that would take two to three days. Defendant would then, it said, need a claims handler to examine each of the 2,100 files in order to answer plaintiffs’ interrogatories. Defendant estimated that this examination would take approximately 500 hours, or 15 minutes per file. Plaintiffs declined to cross-examine Katsma, on the asserted basis that this proceeding was not an evidentiary hearing. Nevertheless, the court denied defendant’s motion to quash. Defendant also asserted that privilege prevented disclosure, citing, for the first time, the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1003(e)) and the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755.10a) which, it claimed, also prevented disclosure. The court held that those statutes did not apply in this case and also denied defendant’s motion for rehearing and plaintiffs’ motion for sanctions.

On May 26, 1988, a hearing was held on plaintiffs’ motion for default. Following the hearing, the circuit court struck defendant’s answer to plaintiffs’ complaint and entered a default order against the defendant. The court held that there was a contumacious refusal on the part of the defendant to comply with the court’s orders, but the court reserved the ruling on the issue of attorney fees. The court then entered an order finding that its order of default was final and appealable, and this appeal followed.

Defendant raises three issues on appeal. Initially, defendant contends that the material requested was immaterial and irrelevant, the discovery request was oppressive, and the material was protected from discovery by the Illinois Code of Civil Procedure and the Illinois Insurance Code (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1003(e); Ill. Rev. Stat. 1987, ch. 73, par. 755.10a), and that the trial court erroneously held that these statutes did not apply.

We will first address the defendant’s contention that the trial court abused its discretion in entering a default judgment here because the discovery requested by plaintiffs was not relevant or material. Defendant argues that plaintiffs’ complaint addressed only the plaintiffs’ individual claims and that defendant’s handling of any other claims was completely irrelevant to the case at hand. Disagreeing, plaintiffs argue that defendant’s handling of other claims was relevant and material to their contention that the defendant breached its contract of insurance with them and vexatiously and unreasonably delayed paying their claims.

The rules regarding discovery were enacted in order to enable attorneys to effectively prepare, evaluate and present their cases. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 910, 513 N.E.2d 958, 966.) The objectives of discovery are to enhance the truth-seeking process. (King, 160 Ill. App. 3d at 910, 513 N.E.2d at 966.) Accordingly, great latitude is allowed in the scope of discovery, and the concept of relevance for discovery purposes is broader than the concept of relevance for purposes of the admission of evidence at trial. (Pemberton v. Tieman (1983), 117 Ill. App. 3d 502, 504-05, 453 N.E.2d 802, 804.) Therefore, relevance for discovery purposes includes not only what is admissible at trial, but also that which leads to what is admissible. (Pemberton, 117 Ill. App. 3d at 504-05, 453 N.E.2d at 804.) However, the right to discovery is limited to disclosure of matters that will be relevant to the case at hand in order to protect against abuses and unfairness, and a court should deny a discovery request where there is insufficient evidence that the requested discovery is relevant or will lead to such evidence. (Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 232, 443 N.E.2d 1125, 1128.) The rules governing discovery give great discretion to the trial court, and its exercise of discretion will not be disturbed on appeal absent an abuse of discretion. Pemberton, 117 Ill. App. 3d at 505, 453 N.E.2d at 804.

Here, however, we find that despite the broad concept of relevancy for discovery purposes, the trial court abused its discretion in ruling that the discovery sought by plaintiffs was relevant and material. The central issue in this case was whether the medical expenses claimed by plaintiffs were reasonable and necessary. Hence, whether the defendant unreasonably and vexatiously refused to pay these benefits, then, hinges on whether these specific medical expenses themselves were reasonable. Accordingly, we cannot see how the information sought concerning the 2,100 other unrelated medical claims submitted to defendant’s Des Plaines office was at all material and relevant to the issue at hand.

Defendant also contends in its appeal that the trial court erroneously entered a sanction of default against it because the materials requested by plaintiffs were oppressive. Defendant’s argument that the discovery was oppressive is based on Katsma’s statement that defendant would need a computer specialist to create a computer program in order to locate the files, that it would then have to ship the files from Bloomington, Illinois, to Golf Mill, Illinois, that it would require approximately 500 hours for a claims analyst to review the files, and that based on Dr. Samo’s estimate, it would take approximately 40 hours and at least $2,000 to $3,000 to merely photocopy documents in order to comply with the subpoena duces tecum.

In response, plaintiffs deny that their discovery request was oppressive. Plaintiffs contend that defendant failed to submit any proper evidence in support of its claim that the discovery was oppressive. Plaintiffs argue that Dr. Samo’s affidavit cannot properly be considered in support of defendant’s claim of oppressiveness because that affidavit pertained to the subpoena duces tecum, not to the interrogatories. Similarly, plaintiffs argue that Katsma’s statements cannot be considered because those statements were not made at an evidentiary hearing. Finally, plaintiffs maintain that their discovery requests were not, in any event, oppressive.

In arguing the issue of oppressiveness, both parties discuss People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6, and Mead Reinsurance Co. v. Superior Court (1986), 188 Cal. App. 3d 313, 232 Cal. Rptr. 752. In Bua, the Illinois Supreme Court stated that a trial court must carefully exercise its discretion in matters pertaining to discovery “in order to balance the needs of truth and excessive burden to the litigants.” (Bua, 37 Ill. 2d at 193, 226 N.E.2d at 14.) There, the court held that an order requiring production of all records relating to “model years of the Corvair 1960 through 1965” was an abuse of discretion because the accident upon which the plaintiffs’ complaint was based involved a 1961 Corvair. (Bua, 37 Ill. 2d at 193-94, 226 N.E.2d at 14.) Defendant contends that the Bua case supports its argument that the plaintiffs’ discovery request here for all the medical benefit claims submitted to defendant’s Des Plaines office in 1985 was oppressive. Plaintiffs, on the other hand, distinguish Bua, noting that the plaintiffs in Bua sought records for five years, while they sought records for only one year.

In Mead, the insurer challenged the trial court’s order compelling discovery of all of its claim files, similar to the claim at issue in this case, from 1979 through 1985, contending that the discovery request was oppressive. (Mead, 188 Cal. App. 3d at 315, 232 Cal. Rptr. at 752.) The California Court of Appeals agreed, noting that compliance with the discovery request would require the insurer to transport its files from New York to California, and would also require five full-time adjusters to manually evaluate at least 13,000 files, a task that would take each adjuster approximately 5^2 weeks. Mead, 188 Cal. App. 3d at 318, 232 Cal. Rptr. at 754.

Defendant, State Farm, argues that Mead is applicable to this case and that the excessive burden placed on the defendant here in complying with the discovery outweighs the needs for truth. Plaintiffs distinguish Mead from this case because they contend that the insurer there presented detailed information in support of its claim of oppressiveness, while the defendant here failed to provide any specific evidence.

A trial court has broad discretion in determining what sanctions to impose, and a court’s exercise of that discretion will not be disturbed absent an abuse of discretion. (Peoples Gas, Light & Coke Co. v. Chicago Black Improvement Association (1986), 148 Ill. App. 3d 1093, 1096, 502 N.E.2d 8, 10.) Courts consider the striking of a party’s pleadings to be the most severe sanction, and thus, that sanction is only proper when a party’s actions show a deliberate, contumacious or unwarranted disregard for the court’s authority. (Peoples Gas, 148 Ill. App. 3d at 1096, 502 N.E.2d at 10.) Once a court imposes a sanction on a party for refusing to comply with discovery, however, the sanctioned party has the burden of showing that the noncompliance was reasonable or justified. Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196, 533 N.E.2d 22, 26.

We believe that the defendant has sustained its burden of showing that its noncompliance with the trial court’s discovery order was justified on the grounds of oppressiveness. Balancing the “needs of truth and excessive burden to the litigants” (Bua, 37 Ill. 2d at 193, 226 N.E.2d at 14), we find that the trial court abused its discretion in ruling that the discovery requested was not oppressive. Compliance with the discovery would require the defendant to create a computer program to find the medical records, and then would require at least 15 minutes for an insurance analyst to look through each one of the records in order to answer the plaintiff’s interrogatories. Absent some preliminary showing of materiality and relevancy, we believe that the facts here are similar to those in Bua and Mead, and that the time, money and effort required in order to comply would be oppressive. The trial court, therefore, abused its discretion in ordering the defendant to comply with plaintiffs’ discovery and in entering a sanction of default for defendant’s failure to comply.

Inasmuch as we have held that the trial court erroneously ordered the defendant to comply with plaintiffs’ discovery and erroneously entered a sanction of default, we need not and do not address defendant’s claim that the discovery requested by plaintiffs was privileged under the Illinois Code of Civil Procedure and the Illinois Insurance Code.

Accordingly, for all of the foregoing reasons, we reverse the trial court’s default judgment and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

EGAN, P.J., and LaPORTA, J., concur.

       Specifically, these interrogatories requested:
      (a) the total number of claims for medical payments processed through the Des Plaines office;
      (b) the number of claims processed through the Des Plaines office where an independent medical examination was conducted;
      (c) through (e) the number of claims in which an independent medical examination was conducted and the full amount of the claim or the available benefits were paid, no benefits were paid, or partial benefits were paid;
      (f) the claims where an independent examination was conducted, the number of lawsuits filed against the defendant for recovery of medical benefits;
      (g) the name, address and telephone number of all doctors used by the Des Plaines office to conduct the independent medical examinations;
      (l) the minimum education, training and experience required of those conducting the independent medical examinations;
      (m) and (n) whether independent medical examinations are routinely conducted on all claims for medical expenses and, if so, at what time after the claim was submitted was the examination undertaken;
      (o) if independent medical examinations are not routinely conducted, the name, address, telephone number, employer, department, occupation and job title of those responsible for determining which claims require an independent medical examination;
      (p) if it is determined that an independent medical examination is required, how long after the claim is submitted is the exam conducted;
      (q) the minimum dollar value of a claim that will have an independent medical examination conducted; and
      (r) the maximum dollar value of a claim for benefits that will not have an independent medical examination conducted.

      At this hearing, the parties agreed that the term “independent medical examination” included an examination simply of the claimant’s records by INSPE.

      Despite plaintiffs’ claim that Katsma’s statements were inadmissible because they were not made at an evidentiary hearing, we note that plaintiffs never objected to Katsma’s statements. Accordingly, we find that plaintiffs cannot now object to Katsma’s testimony as being considered as evidence.


source: Caselaw Access Project

license: Public Domain

text:
    JULIA DIXSON, Adm’r of the Estate of Sherwood Dixson, Deceased, Plaintiff-Appellant, v. UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—2857
    Opinion filed November 1, 1989.

      Ialongo & Meyer, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (William C. Anderson III, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff brought a medical malpractice action in the circuit court of Cook County against the defendant, the University of Chicago Hospitals and Clinics, alleging that the defendant was negligent and that its negligence proximately caused the death of plaintiff’s husband. Following a trial before a jury, a verdict was rendered in favor of defendant. The trial judge then denied plaintiffs motion for a new trial. Plaintiff now appeals the jury’s verdict to this court.

On March 28, 1977, the deceased, Sherwood Dixson, asked his wife, the plaintiff here, to take him to the emergency room at the University of Chicago Hospitals and Clinics (University hospital) because he was experiencing “strange feelings” and was having hallucinations. The doctors at the University hospital found nothing physically wrong with Dixson and recommended that he have a psychiatric evaluation. Dixson agreed and checked himself into the psychiatric ward of the University hospital.

The next day, Dixson became agitated and was told to go to the isolation area. Dixson refused to go, so the nurses summoned security guards. Dixson then began voluntarily walking toward the isolation area, but became violent when he reached the door to isolation. Consequently, the security guards restrained Dixson, and a nurse gave him a shot containing five milligrams of Haldol, a tranquilizer. Shortly thereafter, Dixson appeared to experience cardiac arrest. A University hospital doctor telephoned plaintiff and told her that Dixson was in the cardiac care unit. The doctor told plaintiff to bring her family over immediately. When plaintiff arrived, the doctors asked her to sign a waiver so they could do a bypass on Dixson. Approximately 30 minutes later, however, plaintiff was informed that Dixson had died.

The cause of Dixson’s death was initially listed as unknown pending further investigation. An autopsy was performed and tests for alcohol, barbiturates or tranquilizers, including Haldol, were negative. The medical examiner concluded that Dixson had died from “sickle cell crisis” and listed sickle cell crisis as the cause of death on Dixson’s death certificate. Thereafter, on November 30, 1978, plaintiff, as administrator of Sherwood Dixson’s estate, filed suit against the University hospital alleging medical malpractice and contending that the administration of Haldol caused Dixson’s death. Plaintiff’s complaint was subsequently amended four times.

Plaintiff’s case finally went to trial in the circuit court of Cook County on January 22, 1988. Before the jury selection process began, defense counsel presented a motion to bar the testimony of Dr. Heller, one of plaintiff’s experts, pursuant to Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220). Defense counsel claimed that the trial court should bar Dr. Heller’s testimony because he had not been revealed as an expert witness until January 15, 1988, one week before the case went to trial. In response, plaintiff claimed that she planned to call Dr. Heller to rebut the anticipated testimony of defendant’s expert witness, who would assert that Dixson had died of sickle cell trait, and that she was unaware defendant was going to use that defense until December 29, 1987, when she deposed defendant’s expert; therefore, her delay in disclosing Dr. Heller should be excused. However, the trial judge granted defendant’s motion, ruling that plaintiff had known for at least 10 years that the defendant would claim that Dixson died from sickle cell crisis and not from the injection of Haldol, inasmuch as sickle cell was listed as the cause of death on Dixson’s death certificate. Accordingly, the trial court held there was no new information which would justify plaintiff’s late disclosure.

The parties then proceeded to jury selection. The trial court briefly described the case and asked the jury venire whether they objected to a case such as the present one, a civil suit for money damages; whether they would be able and willing to sign a verdict for the plaintiff in the amount they thought fair if the plaintiff proved her case; and whether they would be able to sign a verdict for the defendant if plaintiff did not prove her case, even if she proved that her husband was injured. The trial court then asked the individual prospective jurors the following questions: have you or any member of your immediate family or a close friend ever been in any kind of an accident where anyone was hurt or claimed to be hurt and, if so, would you hold it against the parties here; have you or any member of your immediate family ever had any medical training and, if so, what kind, for how long, and was the training at a hospital; have you or any members of your immediate family or close friends ever worked or do they currently work for any hospital, clinic, mental health care facility or medical care provider; have you or any members of your immediate family or close friends worked as a security guard or do they currently work as a security guard and, if so, was it at a hospital; do you currently or have you had in the past any business association with any hospital, clinic, mental health care facility or medical care provider; and have you or any members of your family or close friends ever had any unsatisfactory experience with any doctor, hospital, clinic or health care provider.

Plaintiff’s attorney then questioned the prospective jurors. Plaintiff’s attorney told the prospective jurors that the case involved professional negligence and that there might be some evidence against nurses and security guards. He next asked the jurors if they would have any hesitance in awarding damages if the plaintiff proved her case, even though they might have relatives or friends who were nurses or security guards. After plaintiff’s counsel had utilized this line of questioning on several prospective jurors, the trial judge instructed plaintiff’s counsel to stop telling the jurors what he thought the evidence would show and what plaintiff would ask for at the end of trial. Plaintiff’s counsel argued that he had a right to ask those questions because all the prospective jurors had revealed a connection to a hospital, nurse or security guard and, therefore, he should be allowed to determine whether that connection might affect their judgment, inasmuch as he was asking for a verdict based on the professional negligence of a nurse or security guard. The trial judge refused to allow plaintiff’s counsel to continue his line of questioning, stating that the trial court had already asked the jury venire the same questions.

Following jury selection and opening arguments, the plaintiff presented her witnesses. Wendell Lovett testified that he was employed by defendant as a security guard on March 29, 1977, and was summoned to the psychiatric ward around noon to assist the other guards with a patient, who, Lovett said, was Dixson. When Lovett arrived at the psychiatric ward, four other guards were also present. Dixson was standing near the doorway to his room and was not violent. Lovett said that Dixson started walking toward the guards and became violent, striking Earl Robertson, another guard. The guards then restrained Dixson, holding him down on the floor on his back as he continued to struggle. Lovett said he heard someone say they had a shot to give Dixson if the guards could hold him still. Lovett did not remember who gave Dixson the shot, but thought it was injected in Dixson’s hip. Lovett testified that Dixson calmed down after receiving the shot.

John Naughton and Earl Robertson, who were also security guards employed by defendant on March 29, 1977, testified next. Their testimony essentially corroborated Lovett’s testimony, except Naughton did not remember anyone giving Dixson a shot. Robertson also said that he did not see the shot being given to Dixson, and he remembered that Dixson was on his stomach as the guards restrained him, not on his back.

Plaintiff’s next witness was Dr. Michael Schaffer, the chief toxicologist at the office of the medical examiner. Dr. Schaffer testified that his job was to perform tests to determine what, if any, chemical substances are in a deceased’s body. Dr. Schaffer tested Dixson’s body for alcohol, barbiturates and tranquilizers, including Haldol. Dr. Schaffer had been told that Dixson had received an intramuscular injection of five milligrams of Haldol prior to his death. Dr. Schaffer said his tests did not reveal any Haldol in the body, but that it was unlikely that the instruments used in 1977 would detect such a small quantity of Haldol in the blood. Dr. Schaffer said, however, that it was more likely that he would have detected the Haldol if it had been given intravenously rather than intramuscularly.

Elizabeth Walz, the assistant head nurse at the University hospital, also testified. Walz said she had no independent recollection of the events of March 29, 1977, and that she had to rely on her notes from that day. According to these notes, Dixson became agitated on March 29, 1977, and was encouraged to go to the isolation area. Dixson refused to go, so the security guards were summoned. When the guards arrived, they approached Dixson and he began walking toward the isolation area. When Dixson reached the door to the isolation area, however, he became “combative” with the guards. Consequently, Dix-son was subdued and restrained on the floor by the guards. Walz noted that Dixson’s right wrist appeared fractured. Dixson was then given five milligrams of Haldol in an intramuscular injection. Walz did not remember giving the injection to Dixson, even though she admitted that the nurse who writes the notes on a patient is usually the nurse that attended to that patient, but she said that the injection would have been put in Dixson’s deltoid muscle. Walz testified that the standard of care, when giving an intramuscular injection, is to insert the needle into the muscle and then pull back on the syringe to see if there is blood in the syringe. If there is blood in the syringe, the needle must be reinserted because the needle has hit a vein. Following the shot, according to the notes, Dixson appeared to go into cardiac arrest and the cardiopulmonary team was called.

Plaintiff also called her expert witness, Dr. O’Donnell, to testify. Dr. O’Donnell testified that he was a pharmacologist, a pharmacist and a nutritionist. Dr. O’Donnell told the court that Haldol was a tranquilizer used to treat major psychotic disorders and that it was much more potent than other tranquilizers. Dr. O’Donnell also said that tranquilizers can affect the blood pressure, causing it to drop.

Dr. O’Donnell then explained that an intravenous injection is an injection given directly into a vein. A drug given through an intravenous “push,” which means the drug is put into the vein all at once, has a very rapid effect. In contrast, an intramuscular injection is an injection into the muscle tissue. Drugs given through intramuscular injections have a slower absorption rate, approximately 5 to 15 minutes before onset of the action of the drug, as opposed to the immediate onset of action for drugs injected intravenously.

Dr. O’Donnell’s opinion was that Dixson died from an intravenous injection of Haldol. He said he believed the Haldol was given intravenously, even though the note said it was given intramuscularly, and he had two theories on how that happened. Dr. O’Donnell said either the person giving the shot failed to pull back on the syringe to check for blood, or the syringe was initially put into the muscle, but it slipped and hit a vein because Dixson was struggling. Dr, O’Donnell testified that in his opinion, five milligrams of Haldol given through an intravenous push could kill a person. On cross-examination, however, Dr. O’Donnell admitted that he had not encountered any articles describing sudden death as a result of an intravenous push injection of Haldol. Dr. O’Donnell also admitted that he was aware of articles describing the intravenous injection of Haldol, but said that those articles did not state whether the Haldol was given through an intravenous push or whether it was given slowly, over a matter of minutes.

Defendant’s only witness was its expert witness, Dr. Hollister. Dr. Hollister testified that he was an M.D., board certified in internal medicine. Dr. Hollister said he had published several papers concerning Haldol and began researching the drug in 1962 or 1963. Dr. Hollister testified that in all of his research concerning Haldol, he was unaware of any reported instances where a five-milligram dose of Haldol, given in an intravenous push, caused death. In addition, Dr. Hollister said that it was highly unlikely that an injection into the deltoid muscle, the hip or the buttocks would hit a vein because those areas have no major blood vessels, and the blood vessels present would be too small to penetrate.

Dr. Hollister then said that he had reviewed the records in this case, including the autopsy report, and concluded that Dixson died from sickle cell trait. Dr. Hollister felt that the medical examiner’s conclusions were essentially correct, but he believed that Dixson’s death was associated with sickle cell trait, rather than sickle cell crisis, which is the more severe form of the disorder. Dr. Hollister also said that he was initially uncertain as to how Dixson’s death occurred, because it was so sudden. Dr. Hollister stated, however, that he then read an article concerning the sudden death of young, black military personnel following exertion, due to sickle cell trait, and he also read numerous case histories of similar instances, and he concluded that Dixson’s death occurred in the same manner.

Following this testimony, the case went before the jury. The jury returned a general verdict in favor of University hospital, and also, in a special interrogatory, the jury said that they did not find Haldol to be the cause of Dixson’s death. The trial court then entered judgment on the jury's verdict and denied plaintiff’s post-trial motion, which had included a motion for a new trial. Plaintiff, as noted earlier, then filed this appeal.

The first issue that plaintiff raises on appeal is that the trial court abused its discretion and committed reversible error in limiting plaintiff’s voir dire of the prospective jurors. Plaintiff contends that there was an area of potential prejudice on the part of the jurors which the trial court did not adequately explore. In support of her argument, plaintiff notes that one potential juror here was excused for cause after plaintiff’s counsel asked her whether she could be fair despite the fact that her cousin was a nurse and her brother was a security guard. The juror told plaintiff’s counsel that she was not certain she could be fair, even though she had already told the trial judge that her family connections would not affect her decision in this case.

The defendant argues that the trial court properly limited plaintiff’s questions during voir dire. Defendant alleges that plaintiff’s questions were repetitive and were impermissible attempts to indoctrinate the jury. Defendant also notes that the trial court provided the parties with a list of questions it planned to ask the prospective jurors, accepted questions submitted by plaintiff’s counsel, and allowed the parties to question the jurors themselves. Accordingly, defendant maintains that the voir dire questioning in this case thoroughly disclosed all facts necessary to determine juror qualifications and to expose any prejudice.

The purpose of voir dire is to assure the selection of an impartial jury, free from bias or prejudice. (Kingston v. Turner (1987), 115 Ill. 2d 445, 464, 505 N.E.2d 320, 328.) The trial judge has the primary responsibility for initiating and conducting voir dire, and the scope and extent of voir dire are within his sound discretion. (Kingston, 115 Ill. 2d at 464, 505 N.E.2d at 329; see also 107 Ill. 2d R. 234.) Upon review, an abuse of discretion will be found only if the trial judge’s conduct prevented the selection of an impartial jury. (Kingston, 115 Ill. 2d at 465, 505 N.E.2d at 329.) A juror, however, need not be completely ignorant of the facts and issues involved in a case, and it is sufficient if the juror can put aside his opinion and return a verdict based on the evidence presented. Kingston, 115 Ill. 2d at 467, 505 N.E.2d at 330.

In Kingston, the Illinois Supreme Court held that the trial court did not err in refusing to reopen voir dire in a dramshop case even though it was discovered that the fathers of two jurors were connected with other dramshops. (Kingston, 115 Ill. 2d at 452-53, 505 N.E.2d at 323.) The Kingston court found that the failure to disclose the fact that the jurors’ fathers were connected with the dramshop business was due to the failure of plaintiff’s attorney to adequately question the jurors. (Kingston, 115 Ill. 2d at 465, 505 N.E.2d at 329.) Further, the court stated that merely because the jurors’ fathers were associated with dramshops did not indicate bias, nor did the jurors’ failure to volunteer that information call into question their motives, because neither juror was personally associated with a tavern. (Kingston, 115 Ill. 2d at 466-67, 505 N.E.2d at 330.) Finally, the court noted that the two jurors had said they could be fair and would consider only the evidence presented at trial. Kingston, 115 Ill. 2d at 467, 505 N.E.2d at 330.

Defendant cites Kingston in support of its argument that the trial court properly limited plaintiff’s voir dire questioning here. Defendant analogizes this case to Kingston, stating that merely because the jurors here were acquainted with or related to nurses and security guards did not indicate bias, especially since the jurors said they could be fair and would consider only the evidence presented at trial. Plaintiff, however, distinguishes Kingston based on the fact that it was the plaintiff’s attorney in Kingston who failed to adequately question the jurors, while the plaintiff’s attorney here wanted to question the jurors more extensively.

Upon reviewing the arguments of the parties, we find that the trial court did not abuse its discretion in limiting plaintiffs questions during voir dire. Here, the questions asked of the prospective jurors revealed all connections with nurses, hospitals and security guards, unlike the situation in Kingston, where the dramshop connections were not revealed. As in Kingston, however, all the jurors said that they could be fair and would consider only the evidence presented. Further, all the jurors here heard the plaintiff question the juror who admitted she might be biased, and also saw that she was excused for that bias. In addition, the juror who was excused for cause also revealed that her brother had been in an automobile accident and had sued the City of Chicago, and her mother had sued a nursing home for not taking proper care of the juror’s grandfather, factors which also presumably contributed to her bias. Finally, the record reveals that the trial court had already asked the jury the questions later asked by plaintiff’s counsel. Hence, we conclude the trial court’s conduct here did not prevent the selection of an impartial jury.

Plaintiff next argues that the trial court committed reversible error when it barred the testimony of Dr. Heller. Plaintiff claims that she did not violate Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220), which governs timely and good-faith disclosure of expert "witnesses, because Heller’s testimony was disclosed within 90 days after it became known and there was no pretrial discovery date set in this case. Further, plaintiff contends that she was unaware of defendant’s theory that sickle cell disease caused Dixson’s death until she took Dr. Hollister’s deposition on December 29, 1987, and that she promptly disclosed Heller as a rebuttal witness 15 days later.

In response, defendant contends that the trial court properly barred Dr. Heller’s testimony. Defendant points out that the death certificate here, issued on June 23, 1977, listed sickle cell crisis as the cause of Dixson’s death. Also, defendant states that plaintiff deposed the doctor who performed the autopsy on Dixson, apparently assuming defendant would call him to testify, but decided an expert witness was not needed to rebut that doctor’s finding that Dixson died from sickle cell crisis. Defendant also notes that plaintiff did not even name an expert witness until October 7, 1987, when she disclosed Dr. O’Donnell, and she still listed Dr. O’Donnell as her sole expert witness on January 8, 1988, even though defendant had disclosed Dr. Hollister as its expert on October 26, 1987. Accordingly, defendant claims that plaintiff’s disclosure of Dr. Heller on January 15, 1988, was not in compliance with Rule 220 and, therefore, disqualification of Dr. Heller as a witness was the proper sanction.

In her reply brief, plaintiff again argues that her disclosure of Dr. Heller was in compliance with Rule 220. Plaintiff claims that Dr. Hollister’s testimony was not known to her until his December 1987 deposition, and that she could not have anticipated his testimony because Dr. Hollister concluded that Dixson died from sickle cell trait, while the death certificate listed the cause of death as sickle cell crisis.

The purpose of Supreme Court Rule 220 is to promote timely and good-faith disclosure of expert witnesses. (Jarmon v. Jinks (1987), 165 Ill. App. 3d 855, 863, 520 N.E.2d 783, 787.) Rule 220 provides, in pertinent part:

“Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:
“(i) ascertain the identity of such witnesses, and (ii) obtain from them the opinions upon which they may be requested to testify.
In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. *** Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (107 Ill. 2d R. 220(b)(1).)

The imposition of sanctions for a party’s noncompliance with Rule 220 is in the trial court’s discretion, and the trial court’s ruling should not be disturbed on appeal absent an abuse of discretion. Jarmon, 165 Ill. App. 3d at 863, 520 N.E.2d at 787.

In Jarmon, the plaintiff was injured when the car she was driving collided with a car driven by the defendant. (Jarmon, 165 Ill. App. 3d 855, 520 N.E.2d 783.) Plaintiff filed a complaint against the defendant and, at her deposition in May 1983, claimed she suffered a hip injury as a result of the accident. (Jarmon, 165 Ill. App. 3d 855, 520 N.E.2d 783.) The trial commenced on October 7, 1986. The next day, defendant informed plaintiff that he had an expert witness who would rebut her claim that her hip injury resulted from the accident between them. (Jarmon, 165 Ill. App. 3d at 862, 520 N.E.2d at 787.) The trial court barred the testimony of defendant’s expert, and defendant appealed, claiming that he did not learn of the expert’s testimony until the day of trial. (Jarmon, 165 Ill. App. 3d at 862, 520 N.E.2d at 787.) This court held that the expert’s testimony was properly barred, finding that defendant’s conduct did not indicate good faith, defendant had been aware of plaintiff’s claim since May 1983 and never retained an expert, and the disqualification of defendant’s expert was not unduly prejudicial to the defendant. Jarmon, 165 Ill. App. 3d at 863, 520 N.E.2d at 788.

Likewise, in Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 519 N.E.2d 1069, this court held that the trial court properly barred the testimony of the plaintiff’s expert, even though the trial court had not yet set a trial date when it barred the testimony. In that case, this court found no abuse of discretion, stating “that during the first eight years of litigation plaintiffs failed to consult or disclose any expert who would opine that [the defendant] was negligent.” Castro, 166 Ill. App. 3d at 485, 519 N.E.2d at 1072-73.

We find this case to be similar to Jarmon and Castro and find no error in the trial court’s decision barring Dr. Heller’s testimony. Here, as defendant noted and the trial court found, plaintiff knew for at least 10 years that defendant would claim that the cause of Dixson’s death was due to sickle cell disease. We also find that plaintiff’s delay in producing Dr. Heller was not excused merely because Dr. Hollister found the cause of Dixson’s death to be sickle cell trait rather than sickle cell crisis, since plaintiff was, at minimum, aware that defendant would contend that Dixson died from some manifestation of sickle cell disease, and not from the administration of Haldol. Further, as in Castro, plaintiff did not even retain an expert until nine years after her complaint was filed. Consequently, she cannot now claim that she exhibited good-faith compliance with Rule 220. Finally, we find that the plaintiff was not unduly prejudiced by the disqualification of Dr. Heller, since she was able to present the testimony of Dr. O’Donnell, who challenged defendant’s claim that Dixson died from sickle cell trait and told the court that he believed Dixson had died from the negligent administration of Haldol.

Plaintiff’s final issue on appeal is that the trial court should have granted her motion for a new trial because the court stated, in denying her motion, “[h]ad this court been a juror, it probably would not have signed a verdict for defendant, but that is why we have juries decide these cases.” Plaintiff claims that the trial court erroneously used a “manifest weight of the evidence” standard in evaluating her motion for a new trial. Plaintiff contends that the proper standard was the “preponderance of the evidence” and that the trial court would have granted her a new trial had it applied that standard.

Defendant responds that there was no evidence in the record that the trial court believed the preponderance of the evidence favored the plaintiff. Defendant also argues that plaintiff cannot now challenge the trial court’s use of the manifest weight of the evidence standard, since plaintiff’s post-trial motion requested a new trial and stated that the jury’s verdict was against the manifest weight of the evidence. Finally, defendant contends that the manifest weight of the evidence standard is, in fact, the proper standard to apply in reviewing a motion for a new trial; thus, there was no error here.

In Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 511 N.E.2d 798, the plaintiff there also claimed that the trial court erroneously applied the manifest weight standard to his motion for a new trial, rather than the preponderance of the evidence standard. This court, in order to clarify the confusion on this issue, held that the proper standard of review in evaluating a jury’s verdict pursuant to a motion for a new trial is the manifest weight of the evidence standard. (Tedrowe, 158 Ill. App. 3d at 443, 511 N.E.2d at 802.) The test, then, is whether a contrary verdict is clearly evident. Tedrowe, 158 Ill. App. 3d at 444, 511 N.E.2d at 802.

Applying the manifest weight of the evidence standard to the jury’s verdict here, we hold that the trial court properly denied plaintiff’s post-trial motion. Although the testimony here was conflicting, there was sufficient evidence for the jury to conclude that Dixson died from sickle cell disease, rather than from the injection of Haldol. We cannot say, based on the evidence presented, that a verdict for plaintiff was clearly evident.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE RIZZI JUSTICE McNAMARA,

text:
    PATRICIA WIDLOWSKI, Plaintiff-Appellant, v. DURKEE FOODS, Division of SCM Corporation, Defendant-Appellee (Larry Wells, Defendant).
    First District (3rd Division)
    No. 1—86—2321
    Opinion filed November 1, 1989.
    McNAMARA, J., dissenting.

      Leahy & Donovan, of Chicago (Tom Leahy and Stephen Phalen, of counsel), for appellant.
    Thomas J. Fleischmann, Terence E. Flynn, and Kimberley Marsh, all of Gessler, Flynn, Laswell, Fleischmann, Hughes & Socol, Ltd., of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Patricia Widlowski, brought this action to recover damages for personal injuries she received as a result of the alleged negligence of defendant Durkee Foods (Durkee) and its employee, defendant Larry Wells (Wells). The trial court granted Durkee’s section 2 — 615 motion to dismiss counts I and II of the complaint on the basis that the complaint is insufficient in law to state a cause of action. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) Plaintiff appeals. We reverse and remand.

On December 3, 1983, Durkee, a manufacturer of spice products, operated a food processing plant in Elmwood, Illinois. Wells, a Durkee employee, entered one of Durkee’s industrial tanks for the purpose of cleaning the tank. While he was in the process of cleaning the tank, Wells was overcome by nitrogen gas in the tank. Due to oxygen deprivation, Wells became delirious, reflexive and incoherent. He was taken to a hospital where he was attended by plaintiff, a nurse. While in a state of delirium, Wells bit off a portion of plaintiff’s right middle finger while she was attending him as a nurse.

When read together, counts I and II of the complaint allege that Durkee was negligent on the basis of respondeat superior and because it (1) allowed Wells to enter the tank when it knew or should have known that it was filled with nitrogen; (2) failed to equip Wells with proper protective gear before sending him into the tank; and (3) failed to advise Wells that cleaning the tank without protective gear would result in his being deprived of oxygen and become a danger to persons near him, when Durkee knew or should have known of the alleged facts.

The trial court dismissed the complaint as to Durkee on the basis that it was insufficient as a matter of law to allege a duty to the plaintiff. To support the ruling, Durkee argues that the complaint fails to establish the existence of any duty owed by Durkee to the plaintiff because public policy does not and should not require an employer to control the actions of a delirious employee being treated at a hospital. However, the ability or inability of Durkee to control Wells’ actions at the hospital is not the focal point of the duty owed by Wells or Durkee. When Wells was at the hospital, Wells and Durkee had already breached a duty of ordinary care to anyone who within reasonable foreseeability might be injured as a result of the failure to take proper precautions in the manner in which the industrial tank was being cleaned.

We therefore focus our attention on whether it was reasonably foreseeable that plaintiff might be injured if Wells and Durkee breached a duty of ordinary care in the manner in which the tank was being cleaned. If it was reasonably foreseeable, then Wells and Durkee owed plaintiff a duty of ordinary care to take proper precautions before cleaning the tank.

The salient facts are clearly set forth in the complaint. Durkee was using nitrogen gas in its food processing business. One of its food processing tanks required cleaning. When its employee, Wells, entered the tank to clean it, the tank “was filled with nitrogen gas, among other substances, and lacked a sufficient amount of oxygen to sustain an individual during the cleaning process.” Also, “Wells, while inside the above-mentioned industrial tank, was overcome by nitrogen gas and as a result, became ill and was in an oxygen deprived state of health.” As a result of the nitrogen gas and deprivation of oxygen, Wells became delirious, “agitated, reflective [sic] and incoherent,” and bit off a portion of plaintiff’s finger while she was giving him medical attention at a hospital where he had been taken for his condition.

We believe that, under the alleged facts, it was reasonably foreseeable that if Wells and Durkee breached a duty of ordinary care in the manner in which the tank was being cleaned, Wells would be overcome by inhaling the nitrogen gas and a deprivation of oxygen. We also believe that it was reasonably foreseeable that Wells would thereby become delirious, agitated, reflexive and incoherent, and a danger to himself and others with whom he made direct contact. In determining whether an injury was reasonably foreseeable to warrant a duty to the injured party, it is not essential that the defendant should have foreseen the precise hazard or exact consequences and injury resulting from the defendant’s action or inaction. Dillon v. United States Steel Corp. (1987), 159 Ill. App. 3d 186, 198, 511 N.E.2d 1349, 1357.

In addition, the fact that the direct contact between Wells and the plaintiff was made at the hospital rather than Durkee’s plant is immaterial to determine whether the injury was reasonably foreseeable. We therefore conclude that the injury to the plaintiff was reasonably foreseeable and that Durkee and Wells owed plaintiff a duty of ordinary care to take proper precautions to clean the tank.

Durkee also contends that “the complaint fails to state a cause of action sounding in negligence, and was properly dismissed.” To support its contention, Durkee states that “Wells bit plaintiff’s finger while in an unconscious and agitated state,” and that, therefore, the “standard of conduct which applies to Wells is that of a reasonable man who is in an unconscious, agitated state.” Durkee concludes that “Well’s conduct was in keeping with that of a reasonable man operating under a like disability.” However, it is plain that whether Wells was negligent is measured by his conduct in entering the tank without adequate equipment. It follows that there is no merit to Durkee’s contention. The complaint states a cause of action sounding in negligence.

Durkee next contends that “a principal cannot be held liable for the actions committed by an agent who was delirious” and “thus no duty arose.” Durkee’s contention misconceives the nature of the case. This case is based on whether Durkee and Wells were negligent in the manner in which Wells entered the tank and the manner in which the tank was being cleaned. These acts were committed, and the duty arose, before Wells became delirious. The act that Wells committed while in a delirium was not the negligence or breach of duty but rather the result of the negligence and breach of duty that had already been committed. Durkee’s contention is without merit.

Accordingly, the order dismissing counts I and II of the complaint as to Durkee is reversed. The case is remanded for further proceedings in the trial court.

Reversed and remanded.

FREEMAN, RJ., concurs.

JUSTICE McNAMARA,

dissenting:

I dissent from the majority holding, which reverses the trial court order dismissing plaintiff’s complaint. I would find that defendant owed no duty to plaintiff and that the complaint was properly dismissed.

A motion to dismiss a complaint under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) may be granted where it clearly appears that no set of facts could be proved which would entitle plaintiff to recover. (Mohrdieck v. Village of Morton Grove (1981), 94 Ill. App. 3d 1021, 419 N.E.2d 517.) Failure to allege facts from which the law will raise a duty justifies dismissal of a complaint. Anderson v. Davis Development Corp. (1968), 99 Ill. App. 2d 55, 241 N.E.2d 222.

The existence of a duty in a common law negligence action is a matter of law to be determined by the court. (Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116.) The complaint before us adequately alleges the breach of a duty which defendant owed to its employee, but the complaint fails to sufficiently allege the breach of a duty defendant owed to plaintiff.

The imposition of a duty is an exercise of judicial policy making. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) The majority ignores the well-established principle that in determining whether the law imposes a duty, foreseeability of possible harm must be considered along with the magnitude of the risk involved in defendant’s conduct; the burden of requiring defendant to guard against that risk; and the consequence of placing the burden upon defendant. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) In this case, all of the factors relevant to a court’s determination of whether a duty exists support a finding that defendant owed no duty to plaintiff as a matter of law.

Foreseeability is a factor in both the court’s duty determination and the jury’s proximate cause determination. (Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513; Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 398 N.E.2d 1007.) Foreseeability is not solely a matter to be determined by a jury. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250; Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) Duty, unlike proximate cause, focuses on the nature and limits of defendant’s obligation rather than on a chain of events. (Newmark v. Hartman (1982), 109 Ill. App. 3d 379, 440 N.E.2d 1059.) A court can properly dismiss a negligence cause of action where it finds no duty exists because of the absence of reasonable foreseeability, e.g., where the injury results from a freakish, bizarre or fantastic occurrence. See. Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617; Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.

In almost any factual setting, the likelihood of a nurse’s finger being bitten off by a patient is extremely slim. Research has failed to reveal any similar cases. Considering factors such as the wide spectrum of conditions patients are in when they arrive at a hospital emergency room, the professional training and broad experience of medical personnel in handling patients who are possibly in extreme pain, in shock, terrified, comatose, experiencing convulsions, or otherwise seriously disabled, and the number of times a nurse will have her hand in a patient’s mouth, there is clearly little chance of this type of injury occurring.

In addition, the imposition of a burden on defendant to reduce the risk of bite wounds suffered by medical personnel treating employees for work-related injuries would be an onerous, and a severely impractical or even impossible, burden on defendant. Defendant would be transformed into an insurer for even the remotest injuries caused by its employees. Defendant conceivably would be required to possess the amount of medical knowledge sufficient to warn medical personnel treating an employee suffering from oxygen deprivation of the danger they might face in placing their fingers near the injured employee’s teeth. To mandate that employers possess such highly specialized medical knowledge is impractical; to require nurses and doctors to defer to the medical knowledge and related warnings of a patient’s employer who manufactures spices and seasonings is absurd.

I do not believe it is desirable to extend the liability of a negligent employer to an injury so unrelated in time, place and circumstance to the negligent conduct. The limits of liability must be balanced against the societal interests involved in order to ascertain how far defendant’s duty may justly be extended. See Phipps v. McCabe (N.H. 1976), 362 A.2d 186, 187 (defendant’s duty cannot be extended to plaintiff infant where defendant’s car struck the infant’s mother, and several days later, dizzy from the accident injuries, the mother dropped the infant), citing W. Prosser, Torts, §43, at 257 (4th ed. 1971).

The majority improperly focuses on defendant’s burden of avoiding the negligence which originally caused Wells to become ill. Plaintiff reasons that there would be no increase in defendant’s burden because defendant already owes its employees the duty to take proper safety precautions when working with nitrogen. This reasoning erroneously focuses on the magnitude of defendant’s burden in reducing the risk of the injury which Wells suffered, instead of the risk of the injury which plaintiff suffered. The majority leaps beyond the employer’s reasonable standard of care and extends defendant’s duty far beyond activities which defendant has any control over, or could reasonably foresee.

The majority’s scant reasoning fails to support its holding. The majority defines an enormous spectrum of foreseeability. At one end is the well-recognized principle that defendant need not have foreseen the precise hazard or exact consequence. At the spectrum’s other end, where the majority places this case, is the newly announced, without any citation to law, notion of foreseeability that a delirious employee would be a danger to anyone “with whom he made direct contact.” (190 Ill. App. 3d at 383.) The law establishing duty has never been defined in such broad, open-ended terms. It would drastically alter the law of negligence to extend a negligent tortfeasor’s duty at all times and even under the most bizarre circumstances to “anyone with whom the victim made contact.”

Additionally, the preventive measures plaintiff urges us to impose on defendant would have far-reaching economic and social impacts. Plaintiff argues that it would be a wise policy decision to promote the safe use of hazardous industrial gases. However, the economic and social impact would go far beyond the impact which plaintiff portrays. Under such a rule, employers could be held liable for even the most bizarre occurrences which have only a fragile and tenuous relation to the employer’s negligent conduct. For example, an employer might have a duty to prevent other injuries to medical personnel treating an employee who was injured due to the employer’s negligence, such as preventing a nurse from slipping and falling when she steps in blood which dripped from an employee’s lacerations. Or, an employer might be required to prevent a physical therapist from tripping over an employee’s crutches which the employee used after breaking his leg at work. I would not be willing to impose such a burden on an employer, notwithstanding the employer’s initial negligence which resulted in the employee’s injury.

I would find that the likelihood of a treating nurse having her finger bitten off by a patient who was overcome by nitrogen fumes while working is too slim; the magnitude of the risk involved in defendant’s conduct is too small; and the consequences of placing the duty upon employers are too far-reaching to justify the imposition of a duty on the employer to protect medical personnel from the type of injury caused here by the patient-employee. For these reasons, I would hold that defendant had no duty to plaintiff under the circumstances presented here.

Having found that defendant owed no legal duty to plaintiff as a matter of law, I would not reach the issue of proximate cause. A cause of action for negligence cannot be established where no legal duty exists. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.

In regard to the theory of respondeat superior, the majority, again without citation, merely asserts that the biting itself was not negligent, but rather was “the result of the negligence and breach of duty that had already been committed.” (190 Ill. App. 3d at 384.) I disagree.

An employer is liable for an employee’s torts committed within the scope of employment. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 481 N.E.2d 840.) Biting the nurse in the emergency room was not even remotely within the scope of his employment. Moreover, an employer must have some reason to believe that the act which injured plaintiff would be done by the employee. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 481 N.E.2d 840.) I cannot see how defendant could have foreseen that its employee would bite off a nurse’s finger.

Finally, an employer has no duty to control the conduct of an employee unless the employer knows such control is necessary and has the opportunity to exercise such control. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 481 N.E.2d 840.) Defendant had no reason to believe it was necessary for it to control Wells’ conduct once he was under professional medical care at the hospital. Moreover, even if the hospital gave the employer the opportunity to exercise such control, it would seriously interfere with the hospital’s ability to provide the necessary medical treatment for its patient.

I would conclude that the trial court properly dismissed the complaint for failure to state a cause of action. As a matter of law, no set of facts would be proved which would entitle plaintiff to recover in this case. Defendant owed no duty which would provide a basis for relief to plaintiff.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE WHITE

text:
    COMPUTER SALES CORPORATION, Plaintiff-Appellant, v. ROUSONELOS FARMS, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—3162
    Opinion filed November 1, 1989.

      John C. Vojta, of Schaumburg (Robert P. Sheridan, of counsel), for appellant.
    Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C., of Chicago (Steven A. Kanner and Wendy B. Kahn, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

In an action for breach of contract, the jury found in favor of plaintiff, Computer Sales Corporation, and against defendant, Rousonelos Farms, Incorporated, and awarded plaintiff damages of $81,776.14. The jury did not apportion the damage award in any way. However, plaintiff’s president testified that defendant owed plaintiff $26,845 for the computer equipment that plaintiff sold to defendant under the contract and $30,201 in interest as provided by the contract. It is assumed that the remainder of the damage award represented attorney fees and costs incurred by plaintiff in prosecuting the action for breach of contract.

Defendant filed a post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the post-trial motion. However, the trial court found that plaintiff could not recover interest at a rate higher than 9% per annum and ordered a remittitur of $15,100.50 from the interest awarded to plaintiff by the jury. The court also found that “it would be inequitable to combine the quantum meruit agreement for fees which plaintiff had with its first set of attorneys in addition to the 1/3 contingent fee agreement which plaintiff had with its second set of attorneys.” The court, therefore, ordered a remittitur of $9,550 from the amount awarded to plaintiff by the jury for attorney fees incurred in prosecuting the lawsuit.

Plaintiff has appealed the order of the trial court that he file a remittitur from the interest and attorney fees awards. Defendant has cross-appealed, contending that the award of attorney fees should be reversed in its entirety. We reverse the order of the trial court insofar as it requires plaintiff to file a remittitur from the interest and attorney fees awards.

INTEREST AWARD

The contract for the sale of the computer equipment provides in part:

“If Customer fails to pay any charges when due and payable, Customer agrees that Computer Sales will have the right to invoice and Customer will pay a late payment charge of I-V2 percent per month, but not in excess of the lawful maximum, on the past due balance.”

The interest awarded to plaintiff was calculated at the rate of 1V2% per annum on the amount due and owing from the defendant under the contract.

Defendant maintains that section 4 of the Interest Act (Ill. Rev. Stat. 1985, ch. 17, par. 6404) (hereinafter the usury statute) limits the interest that may be awarded to plaintiff under the contract. We disagree. The usury statute provides in relevant part:

“General Interest Rate. (1) In all written contracts it shall be lawful for the parties to stipulate or agree that 9% per annum, or any less sum of interest, shall be taken and paid upon every $100 of money loaned or in any manner due and owing from any person to any other person or corporation in this state, and after that rate for a greater or less sum, or for a longer or shorter time, except as herein provided.
* * *
*** It is lawful to charge, contract for, and receive any rate or amount of interest or compensation with respect to the following transactions:
(a) Any loan made to a corporation.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 17, par. 6404.)

Defendant is a corporation. As such, the usury statute does not limit the interest that defendant may contract to pay on a transaction. The usury statute applies only to “money loaned or in any manner due and owing from any person to any other person or corporation.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 17, par. 6404.) We also note that, pursuant to subsection (a) of section 4, loans made to corporations are exempt from the limitation on interest. See Northwest Federal Savings & Loan Association v. Weisberg (1981), 97 Ill. App. 3d 470, 422 N.E.2d 1101 (it is lawful to charge any rate of interest with respect to loans to corporations); Jones & Brown, Inc. v. W.E. Erickson Construction Co. (1979), 73 Ill. App. 3d 481, 391 N.E.2d 1097 (the defense of usury is not available to a corporate defendant); Verson v. Hardt (1969), 107 Ill. App. 2d 480, 246 N.E.2d 461; Simon v. South End Cleaners & Dyers, Inc. (1927), 246 Ill. App. 14.

Defendant maintains that the contract at issue involves the sale of computer equipment rather than a loan, and, therefore, is not exempt from the limitation on interest pursuant to subsection (a) of the usury statute. As stated above, the general provision of the usury statute does not apply to transactions involving corporations. Thus, it matters little whether the transaction at issue is or is not exempt from the general limitation on interest. Furthermore, it is well settled that the usury statute applies only to those contracts which in substance involve a loan of money or forbearance to collect money due (Clemens v. Crane (1908), 234 Ill. 215, 229-30, 84 N.E. 884), and there can be no usury where there is no loan or forbearance. (First National Bank v. Larkins (1983), 111 Ill. App. 3d 953, 955, 444 N.E.2d 818.) A bona fide sale is not a loan or forbearance of money and is not subject to the usury statute. (Contract Buyers League v. F & F Investment (N.D. Ill. 1969) 300 F. Supp. 210, aff’d sub nom. Baker v. F & F Investment (7th Cir. 1970), 420 F.2d 1191, cert. denied (1970), 400 U.S. 821, 27 L. Ed. 2d 49, 91 S. Ct. 40 (it has always been the understanding of the courts that the Illinois usury statute relates to loans as distinct from purchase and sale); First National Bank v. Larkins, 111 Ill. App. 3d at 955; Johnson v. Sears Roebuck & Co. (1973), 14 Ill. App. 3d 838, 850, 303 N.E.2d 627; Primley v. Shirk (1895), 60 Ill. App. 312, 314, aff’d (1896), 163 Ill. 389 (on a sale of property the parties may make such a bargain as they can agree upon).) Thus, if the transaction involves a sale rather than a loan, it is not subject to the limitation on interest. The parties to the contract could agree that defendant would pay interest at a rate higher than the maximum rate provided in the usury statute.

We conclude that the contract between the parties is not subject to the usury statute. Defendant contracted to pay interest at the rate of V-kWo per month, and plaintiff was entitled to interest as provided by the contract.

ATTORNEY FEES

Plaintiff hired the law firm of Reif & Rosenbaum to prosecute its claim for breach of contract against defendant. Reif & Rosenbaum filed a complaint on behalf of plaintiff on October 16, 1981. The law firm continued its representation of plaintiff until June 4, 1984, when the law offices of Paul W. Casbarian, Ltd., filed an appearance as attorney for plaintiff. Casbarian represented plaintiff until the conclusion of the trial proceedings.

At trial, Burton Reif of Reif & Rosenbaum testified that plaintiff was billed on an hourly basis for work performed by the law firm. Mr. Reif further testified that the law firm spent 57.6 hours in connection with the litigation and that plaintiff owed the law firm $4,825.69 in fees and costs. Also at trial, plaintiff submitted an invoice indicating the total time spent on the litigation by Casbarian, and testified that it had agreed to pay Casbarian one-third of any amount that it recovered through the litigation. The jury awarded plaintiff $24,730.14 for its attorney fees.

The contract for the computer equipment provides that defendant “shall pay [plaintiff] all costs and expenses, including reasonable attorney’s fees, incurred by” plaintiff in pursuing remedies at law for defendant’s breach of the contract. Thus, defendant was obligated to reimburse plaintiff for the attorney fees that plaintiff incurred for the work performed by Casbarian and Reif & Rosenbaum to the extent that the fees were reasonable.

In its post-trial motion for judgment notwithstanding the verdict or for new trial, defendant argued that the jury should not have awarded plaintiff attorney fees because the evidence at trial was insufficient to show that the fees were reasonable. The trial court reduced the attorney fees award by $9,550. However, the trial court did not reduce the fees because of the insufficiency of the evidence. Rather, the court held that it would be inequitable to require defendant to reimburse plaintiff for the attorney fees that plaintiff was obligated to pay under the contingent fee contract with Casbarian as well as for the fees that plaintiff was obligated to pay the law firm of Reif & Rosenbaum. We believe that the trial court erred in reducing the fees.

Plaintiff was represented by the law firm of Reif & Rosenbaum during the first three years of this litigation and by the law offices of Paul W. Casbarian during the next three years of litigation. Thus, plaintiff became obligated to pay attorney fees to two sets of attorneys. Pursuant to their contract, defendant was obligated to pay reasonable attorney fees incurred by plaintiff in this litigation. We do not believe that it was inherently unreasonable for plaintiff to change its attorneys during the litigation. Nor do we believe that it is inequitable to require defendant to pay attorney fees incurred by plaintiff pursuant to the contingent fee contract and the hourly fee agreement. We note that this litigation commenced in 1981, and judging by the pleadings, involved a great amount of work. Had plaintiff retained Reif & Rosenbaum during the entire litigation, the attorney fees, calculated on an hourly basis, could well have exceeded the fees incurred by plaintiff.

We also believe that the trial court’s holding unduly restricts plaintiff’s right to be represented by an attorney of its choice. We do not know the reason for the substitution of attorneys in this case. However, we believe that a party to litigation should be able to discharge one attorney and substitute another if the party is not satisfied with the legal representation provided. In the present case, to hold that plaintiff cannot recover all attorney fees that it incurred simply because plaintiff used two sets of attorneys is to say that plaintiff should have retained its first set of attorneys no matter what developments occurred in plaintiff’s relationship with the attorneys.

We are of the opinion that plaintiff is entitled to legal representation of its choice and to reimbursement from defendant of the reasonable attorney fees that plaintiff incurred. Accordingly, we find that the trial court erred in reducing the attorney fees awarded plaintiff.

Defendant maintains that the reduction in the attorney fees was proper because the evidence at trial was insufficient to show that the fees were reasonable. As a general rule, a judgment may be sustained by any argument and on any basis appearing in the record which demonstrates that the judgment is correct. (Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 451-52, 334 N.E.2d 246.) However, in the present case, the record does not contain a copy of the transcript of the trial. Thus, we cannot determine whether the evidence at trial was insufficient to show the reasonableness of the attorney fees.

CROSS-APPEAL

In its cross-appeal, defendant asserts that the attorney fees award should be stricken entirely because of the insufficiency of the evidence. As noted above, the record does not contain a copy of the transcript of the trial. It is established that on appeal, the party claiming error has the burden of establishing any irregularities, and one who seeks to reverse a decree carries the burden of showing that it is erroneous. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 241, 242 N.E.2d 237.) If the error assigned presents questions of the sufficiency of the evidence to support the verdict and judgment, then all the evidence must be preserved in the record, or it will be presumed that it was sufficient. (Flynn v. Vancil, 41 Ill. 2d at 241; Ladenheim v. McCormick (1978), 66 Ill. App. 3d 188, 192, 383 N.E.2d 751; Angel v. Angelos (1976), 35 Ill. App. 3d 905, 907, 342 N.E.2d 748.) In the present case, we cannot review the reasonableness of the attorney fees absent a record of the testimony presented at trial.

Defendant maintains that the post-trial memoranda it filed in the trial court contain extensive citations to the transcript of the trial proceedings and are an appropriate substitute for the transcript. We have reviewed the post-trial memoranda, and we are not satisfied that they contain enough evidence to permit a review of the reasonableness of the attorney fees. For example, defendant argues that the fees for time spent by Reif & Rosenbaum between 1981 and 1983 were not shown to be reasonable and should be discounted because plaintiff only introduced evidence of the total hours billed during that period. However, the memoranda do not list the number of hours spent by Reif & Rosenbaum between 1981 and 1983. It would be difficult to reduce the fees award without knowing the number of hours which should be discounted. Moreover, certain statements made in the memoranda and post-trial motion are not altogether clear. Thus, defendant states in its post-trial motion that “no expert testimony was given with regard to the reasonableness of said elements; furthermore, even if such evidence was presented, it was presented over proper objection in clear violation of Illinois Supreme Court Rule 220.” We cannot determine from this statement whether an expert actually testified regarding the attorney fees.

We conclude that the post-trial memoranda are not an adequate substitute for the transcript of the trial and that defendant has waived review of the reasonableness of the attorney fees.

Lastly, defendant contends that it is not liable for the attorney fees incurred by plaintiff pursuant to the contingent fee agreement because it was never a party to the fee agreement. We find this argument to be without merit. Defendant contracted to reimburse plaintiff for attorney fees that plaintiff incurred in this litigation. Defendant’s liability for plaintiff’s attorney fees was a term of defendant's contract with plaintiff. It was not necessary that defendant be a party to the agreement between plaintiff and Casbarian. Indeed, common sense tells us that defendant would never have agreed to the fee arrangement between plaintiff and Casbarian. Nor would defendant have agreed to a fee arrangement between plaintiff and any other attorney. To require defendant’s consent to agreements between plaintiff and its attorney would be to render the contract provision for attorney fees meaningless.

For the aforementioned reasons, we reverse the order of the trial court insofar as it requires a remittitur from the interest and attorney fees awarded to plaintiff by the jury.

Reversed.

McNAMARA and RIZZI, JJ., concur.

      The trial court apparently believed that the jury had awarded $23,531.84 to plaintiff for its attorney fees. However, given the jury verdict of $81,776.14, and the testimony that defendant owed plaintiff $26,845 under the contract and $30,201 in interest, we must assume that the actual award for attorney fees was $24,730.14.

      It is hard to determine why the trial court reduced the award by $9,550 since the reduction does not correspond to the fees that plaintiff owed Reif & Rosenbaum.

       Justice McNamara participated in this appeal prior to his assignment to the sixth division.