author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN WIELGOS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3688
    Opinion filed October 18, 1989.

      Edward M. Gensom and Marc W. Martin, both of Genson, Steinbeck & Gillespie, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Stephen Wielgos, was charged by information with delivery of more than 30 grams of a controlled substance, i.e., cocaine. (Ill. Rev. Stat. 1983, ch. 56x/2, par. 1401(a)(2).) A jury convicted defendant, and the trial court sentenced him to six years’ imprisonment. Defendant appeals.

Eric Bjankini, a Northeast Metropolitan Enforcement Group undercover narcotics agent, in the summer of 1985, testified for the State. Working undercover as “Steve Hilton,” Bjankini met with Edward Ruschinski on June 12, 1985, to discuss the purchase of cocaine. Ruschinski told Bjankini that he had access to cocaine. Three days later, Bjankini and Ruschinski again discussed the purchase of narcotics. Bjankini told Ruschinski that if he wanted to negotiate any transactions he could contact Bjankini via his pager. A week later, Ruschinski contacted Bjankini and asked if he was still interested in purchasing narcotics. Bjankini responded that he was, that he was always looking for a new supplier and that he would be willing to purchase whatever Ruschinski could get for him. Ruschinski told Bjankini that “he had a possibility of getting multiple ounces of cocaine” but did not name his source. Bjankini told Ruschinski to call him and let him know how much he could get and the price. Ruschinski contacted Bjankini a week later and told him that it looked like “we” would be able to get four ounces of cocaine around the 4th of July for $8,600.

Ruschinski contacted Bjankini on July 3 and informed him that he could get him four ounces of cocaine that day for $8,600. Bjankini picked Ruschinski up later that day and drove to the area of 70th and Harlem. During the drive, Bjankini and Ruschinski spoke about the impending transaction, about the fact that they would both benefit financially therefrom, about the fact that future transactions would be mutually beneficial, that “this could be a lucrative business” and that they “could have a long[,] permanent partnership.” Ruschinski directed Bjankini to 6128 West 80th Place in Burbank, Illinois, and they were admitted by defendant into his home. Bjankini introduced himself to defendant as “Steve Hilton” and informed him that he was interested in purchasing four ounces of cocaine. Defendant told Bjankini that he did not have the cocaine at that time, that Bjankini should return in half an hour and that there was a possibility that he would have it at that time. While in his home, neither Bjankini nor Ruschinski threatened defendant.

After leaving defendant’s home, Bjankini had Ruschinski count the $8,600. Upon returning, defendant informed Bjankini that his “connect” or supplier had nine ounces of cocaine but could not drop off the amount defendant had ordered because the supplier was at the Taste of Chicago festival. Bjankini told defendant that he was always interested in a new supplier, that he would still like to purchase more cocaine, that, if the cocaine came later that evening, Ruschinski could take possession and that he would get it from him. After defendant told Bjankini that he would try to get the cocaine on Friday, Bjankini left and Ruschinski stayed with defendant.

Ruschinski informed Bjankini on July 5 that defendant was having trouble getting the cocaine. Bjankini told Ruschinski to give defendant his pager number so that Bjankini could talk to him directly. Thereafter, Bjankini was paged with the code he had given Ruschinski for defendant. Bjankini called defendant, and defendant told him that he would be going over to his “connect’s” house about 3:30 p.m. to get the okay to pick up the cocaine. Bjankini called defendant later and told him that he would be at his house at 3:45 to pick up the cocaine. Bjankini then called Ruschinski and told him he would meet him at 79th and Mobile at 3:30. Defendant paged Bjankini at 3:45 to tell him that he was on his way to pick up the cocaine.

After meeting Ruschinski, Bjankini had him count the $8,600 to be paid defendant for the cocaine. Upon arriving at defendant’s home, defendant led them into the kitchen, and Bjankini observed a scale, some plastic “baggies” and a mound of white powder on a plate on the kitchen table. Defendant told Bjankini that “it was quality coke,” and that “the weight was exact.” He also asked Bjankini if he wanted to “zero out the scale,” which meant to set the weight on the scale before weighing at no weight. Bjankini weighed the cocaine and informed defendant that it was correct. Ruschinski then advised defendant that he had counted the money and that it was in Bjankini’s car. Bjankini took the cocaine, walked out to his car and gave a prearranged arrest signal. He and the team of agents surveilling the scene placed defendant and Ruschinski under arrest.

Defendant testified in his own behalf. In the summer of 1985, defendant was unemployed and was living with his mother. At that time, he had known Ruschinski for almost three years as a friend. Defendant had known Tony Creagh all of his life. Defendant denied ever having used, delivered or sold cocaine before June 1985. At that time, Ruschinski began telephoning defendant and asking for Creagh’s phone number because he wanted to buy some cocaine from him. Defendant told Ruschinski that he did not “want to have any part of it.” Between June and July 3, Ruschinski called defendant about 25 times and visited him about seven times. In one day during that period, Ruschinski called defendant five times. Ruschinski wanted defendant “to get a hold of [Creagh] for the purchase of cocaine.” Defendant did not put Ruschinski in touch with Creagh nor did he agree to do anything with Ruschinski.

When Bjankini and Ruschinski came to his home on July 3, Bjankini asked defendant if the four ounces of cocaine were there. He also told defendant that he could make large amounts of money. Defendant responded that he did not have the cocaine and did not want any part in dealing with Bjankini and Ruschinski. Ruschinski, who was very upset, told defendant he thought the “arrangements were going to be worked out that day with Steve.” Ruschinski also shook defendant by the shoulders and told him “that Steve had warned him and told him that it better be there that day.” Ruschinski also told defendant “that Steve carried a gun at times.” In response to defendant’s statements, Bjankini asked defendant what was going on and said he “thought it was going to be here today.” Bjankini also asked defendant whether he had gotten hold of Creagh. Defendant responded that he had not. Ruschinski again told defendant “that he meant business” and “[t]hat he wanted these four ounces of cocaine.”

Defendant then told Bjankini and Ruschinski that he would contact Tony and for them to come back in half an hour. However, defendant did not call Creagh. When Bjankini and Ruschinski returned, they again told defendant that he could make thousands of dollars and asked if he “was going to set them up with Tony.” Defendant again refused. Defendant had made no arrangements prior to this meeting to supply or deliver any cocaine to Bjankini or Ruschinski and never had any intention to do so. After Bjankini left defendant’s home, Ruschinski asked defendant to take him to Creagh’s house and defendant agreed. However, Creagh was not home. Defendant had not decided to deliver any cocaine to Bjankini when he returned from Creagh’s house. He decided to do so later that evening when Ruschinski called him and told him that Steve was threatening Ruschinski and telling him that “his people were waiting for this product” and that “he was very fed up with it.” Ruschinski also told defendant that he was in a bad situation and needed defendant’s help. Thereafter, defendant called Creagh.

Upon calling Creagh, defendant told him that he knew that he dealt cocaine, that he knew someone interested in buying four ounces and that he wanted to send Bjankini and Ruschinski to his house. After telling defendant that “he didn’t want any part of anyone he didn’t know,” Creagh agreed to “do the four ounces of cocaine” directly with defendant and told him “that if [he] did this for him, *** Pie] would make a lot of money as well.” Creagh and defendant then agreed on a price of $7,500 for the cocaine. Defendant spoke with Ruschinski on the morning of July 5. Ruschinski told defendant he would bring a scale to defendant’s home because it would be needed that afternoon.

Defendant spoke with Ruschinski again in the afternoon and told him that he was scared, wanted to change his mind about doing the transaction and did not want any part in it. Ruschinski told defendant “that Steve would definitely do something” to both of them. He also told defendant to contact Bjankini via his beeper. Upon doing so, defendant told Bjankini that the transaction would take place around 4 p.m.

On cross-examination, defendant testified that he decided to take part in the transaction because he felt threatened. He was pressured very heavily by both Bjankini and Ruschinski. When he spoke with him on July 5, Ruschinski told him that Bjankini was waiting for the cocaine and that, if he did not “come through with it, certain things would be happening.”

Opinion

On appeal, defendant chiefly asserts that a new trial is required due to: (1) the State’s failure to tender, during discovery, statements which its witnesses testified defendant made during his arrest; and (2) prosecutorial misconduct during the course of his trial. However, we find no need to address those contentions of error inasmuch as we find dispositive the third error alleged, viz., the trial court’s failure to instruct the jury properly on the defense of entrapment.

Defendant tendered two instructions on the defense of entrapment. The first stated, inter alia, that it was a defense to the offense charged that defendant was entrapped, i.e., “that for the purpose of obtaining evidence against [him], he was incited or induced by a public officer and/or agent of a public officer to commit an offense.” (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.04 (2d ed. 1981).) The language of this instruction tracked the statute codifying the defense of entrapment. (Ill. Rev. Stat. 1983, ch. 38, par. 7 — 12.) The second instruction substituted the names of Bjankini and Ruschinski in the appropriate places in the first instruction. The trial court rejected defendant’s entrapment instructions and charged the jury with the State’s instruction on the defense, which omitted the “and/or agent of a public officer” language of defendant’s first instruction.

Defendant asserts that, in rejecting the tendered instructions, the trial court rejected the defense theory of vicarious entrapment and committed reversible error.

A defendant is entitled to a jury instruction on any defense which is supported by even very slight evidence. (People v. Bradshaw (1981), 100 Ill. App. 3d 45, 426 N.E.2d 345; People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017.) This rule applies to the entrapment defense. People v. Estrada (1980), 91 Ill. App. 3d 228, 234, 414 N.E.2d 512.

Applying this very liberal standard, we conclude that the evidence in this case was sufficient to warrant inclusion of the language omitted by the trial court from the entrapment instruction. .

Specifically, we find that Bjankini’s own testimony amply revealed that Bjankini, a public officer, employed Ruschinski, albeit unwittingly, as his agent for the purchase of cocaine from third parties in general and from defendant specifically. (Cf. People v. Gorski (1986), 144 Ill. App. 3d 284, 494 N.E.2d 246 (a police informant was not a police agent where he acted merely as an initial means of introduction to the defendant and did not contribute further to her arrest).) Moreover, defendant’s testimony was sufficient to have supported a jury finding that Ruschinski incited or induced defendant to deliver cocaine to Bjankini, had the jury been properly instructed.

Beyond the fact that the evidence was sufficient to reveal that Ruschinski acted as Bjankini’s agent and that Ruschinski induced or incited defendant to deliver cocaine to Bjankini, the instruction tendered by defendant was proper as a matter of law.

As noted above, section 7 — 12 of the Criminal Code of 1961 establishes that a defendant may be entrapped by an agent of a public officer or employee as well as such officer or employee. (Ill. Rev. Stat. 1983, ch. 38, par. 7 — 12.) Moreover, while no Illinois case has reviewed the propriety of a jury instruction on entrapment where, as here, the alleged agent of a public officer or employee acted unwittingly, i.e., without the knowledge that his principal was a public officer, some Federal courts have approved an entrapment defense in such cases.

In United States v. Anderton (5th Cir. 1980), 629 F.2d 1044, the defendant tendered a jury instruction defining the term “law enforcement officer,” used in a standard entrapment instruction, as including any person acting solely for or on behalf of a person actually in the employment of a Federal or State agency in the pursuit of such occupation. The trial court instructed the jury, instead, that entrapment occurred when law enforcement officers or their agents induced the commission of a crime but that a private citizen who was not a government officer or agent thereof could not commit entrapment. In reversing the defendant’s conviction based on error in the jury instruction, the Anderton court held that a person who was “an ignorant pawn of the government” could commit entrapment. Anderton, 629 F.2d at 1047.

Similarly, in United States v. Valencia (2d Cir. 1980), 645 F.2d 1158, the court held that, “[i]f a person is brought into a criminal scheme after being informed indirectly of conduct or statements *** which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly.” (Valencia, 645 F.2d at 1168.) The court also held that the third party who induces the defendant may be an unwitting agent. Valencia, 645 F.2d at 1169 n.11.

Admittedly, the majority of Federal Courts of Appeal do not recognize the defense of vicarious entrapment. (See United States v. Leroux (8th Cir. 1984), 738 F.2d 943, 947-48 (and cases cited therein).) However, we believe that the plain and unambiguous language of section 7 — 12 of the Criminal Code must be read as allowing that defense in Illinois.

Section 7 — 12 provides, inter alia, that “[a] person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either.” (Ill. Rev. Stat. 1983, ch. 38, par. 7 — 12.) The statute does not require that the agent of the public officer or employee know the true identity of the public officer or employee. Moreover, it does not require that the agent communicate only inducements flowing directly from or originating with the officer or employee. Thus, the latter requirement, which the Federal courts impose in determining whether an entrapment defense is valid, is inapplicable in Illinois. See United States v. Pilarinos (2d Cir. 1988), 864 F.2d 253, 256 (a derivative entrapment defense is proper where the government’s inducement is directly communicated to a defendant by an unwitting middleman, not where the middleman induced to commit a crime by the government, responding to the pressure upon him, takes it upon himself to induce the defendant to participate in the crime).

Giving effect to the plain and unambiguous language of the statute has the salutary result of recognizing that entrapment does not turn on the government’s control of every detail of the discussions between its unwitting middlemen and defendants but, rather, that, once the government employs unsavory characters as such to ferret out crime, it should be fairly charged with responsibility for their actions. United States v. Anderton (5th Cir. 1980), 629 F.2d 1044, 1047; see also Note, Entrapment Through Unsuspecting Middlemen, 95 Harv. L. Rev. 1122, 1128 (1982) (restriction of entrapment defense to secondary targets induced to commit crime by middlemen operating under the firm direction of government agents undervalues government’s role in creating opportunities to engage in illegal activity that must involve other persons).

Moreover, the State offers no cogent reason for holding otherwise in this case. The State argues that the jury was properly instructed on the defense of entrapment based upon the evidence presented at trial. Specifically, it asserts that, based upon the evidence, Ruschinski was not an agent of the police but rather a friend of defendant who merely solicited him to help Ruschinski commit the crime. It concludes that, as Ruschinski was neither a public officer nor agent thereof, but, rather, defendant’s accomplice and codefendant, defendant was not entitled to the rejected instructions. Beyond the fact that our review of the evidence persuades us otherwise, we must note that neither of the cases the State cites for its latter conclusion, People v. Jarvis (1987), 158 Ill. App. 3d 415, 511 N.E.2d 813, and People v. Miller (1980), 90 Ill. App. 3d 422, 413 N.E.2d 143, in any way supports it.

The State also asserts that defendant’s alleged use of the phrase “zero out the scale” and the fact he was able to procure a large amount of extremely pure cocaine, 92%, in a short period of time reveal that he was entrapped by no one and was, instead, predisposed to commit the crime charged. We cannot agree that this evidence justified rejecting defendant’s entrapment instructions.

Defendant denied that he used the phrase “zero out the scale.” That the jury found him guilty does not require the conclusion that it also resolved this dispute against him. More importantly, we cannot agree that obtaining four ounces .of cocaine which is 92% pure in a short amount of time necessarily reveals a predisposition to commit the crime charged because, as the State implies, defendant had committed it in the past. This fact would reveal criminal predisposition only if Bjankini had explicitly sought extremely pure cocaine. In that case, obtaining 92% pure cocaine would reveal a familiarity with the criminal underworld of narcotics and narcotics peddlers and a predisposition to participate therein. But where, as here, the buyer does not stipulate the purity of the narcotics sought and it does not appear that the defendant was aware of the purity of the narcotics supplied, delivering such pure cocaine reveals nothing with respect to familiarity with that underworld and predisposition.

The State also contends that, in enacting section 7 — 12, the legislature did not intend to recognize the defense of vicarious entrapment. While this argument presents a difficult question theoretically, it does not do so practically as the State fails to cite any authority in support and to address the recognition of the defense in Federal jurisprudence. Entrapment is defined in Illinois essentially as it was in Sorrells v. United States (1932), 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210. (Ill. Ann. Stat., ch. 38, par. 7—12, Committee Comments— 1961, at 441 (Smith-Hurd 1989).) Given that fact, the recognition of vicarious entrapment as a valid defense in Federal case law, the plain and unambiguous language of section 7 — 12 and the State’s aforementioned failures, we are compelled to conclude that the defense is valid in Illinois.

For all the foregoing reasons, defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.

WHITE and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    KRESS CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Donald J. Forbes, Appellee).
    Third District (Industrial Commission Division)
    No. 3—89—0031WC
    Opinion filed October 18, 1989.

      David B. Mueller, of Cassidy & Mueller, of Peoria, for appellant.
    Arthur R. Kingery, of Strodel, Kingery & Durree Associates, of Peoria, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The petitioner, Kress Corporation (Kress), appeals from an order of the circuit court confirming the decision of the Industrial Commission (Commission) awarding compensation to Kress’ employee, Donald J. Forbes. The sole issue raised is whether the decision of the Commission was against the manifest weight of the evidence.

At the hearing before the arbitrator, Forbes testified that he had been employed since 1984 as a welder and material handler. On Friday, July 18, 1986, between 10:30 p.m. and midnight, he was getting ready to weld a large steel structure and was positioning it by the use of a crane. He felt he was losing control, and he grabbed the wrong chain on the crane, which caused the steel piece to start to come down on him. He pulled the other chain and lost even more control. The structure came over him, and he had to force it back into position. The steel structure was approximately 8 feet long and 21/a feet wide, and three-quarters of an inch thick, weighing 1,000 pounds or better. After the incident, which was not -witnessed by anyone other than Forbes, Forbes continued to work the rest of his shift.

The next day, Saturday, Forbes, had a mild backache. As he worked on his lawnmower, he noticed that the pain was starting to increase. By Sunday, the pain was so severe that it required two people to get him out of bed. The pain was in the mid-lower part of his back.

Forbes could not get in to see Dr. Mullin, his family doctor until Tuesday. At that time, the doctor examined him and treated him for a pulled muscle, giving him pain medication. Two weeks after the injury, at the employer’s request, he saw Dr. Hart, Kress’ company doctor. Dr. Hart examined Forbes and asked him what he had done to himself. Forbes told him he did not know and that the only thing he had done was to work on his lawnmower. Then Dr. Hart asked him if he had done anything at work in which he might have strained himself, and Forbes told him about losing control of the structure and how he had to push it back with all his strength. According to Forbes, that effort took a lot out of him, but he did not feel pain or hurt at the time. Dr. Hart then stated that Forbes had suffered an industrial accident and placed Forbes in the hospital where he remained for eight days. He was treated with traction and given medication for pain.

Following his release from the hospital, Forbes contacted Dr. Hart. Kress’ hearsay objection to Forbes’ testimony about the conversation with Dr. Hart was sustained. Forbes made an offer of proof that in his conversation with Dr. Hart, Forbes told him that the pain, went from his back down to his leg and caused him to be up all night. Dr. Hart responded that he thought Forbes had a slipped disc and that Forbes should go to Methodist Hospital for a CAT scan. After the test, Dr. Hart informed Forbes that he had a slipped disc and that he would refer him to a specialist. Several days later, Dr. Hart called Forbes and told Forbes to call him back once his insurance problem (which Forbes was unaware of) was straightened out. Kress objected to the offer of proof but did not identify the basis for the objection.

Forbes testified further that he then saw Dr. Mullin, who supplied him with pain medication. About two months later, Dr. Hart called him. Again Kress’ objection to Forbes’ testimony regarding this conversation with Dr. Hart was sustained, and Forbes made another offer of proof, in which he stated that Dr. Hart informed Forbes that he was scheduling an appointment for him with Dr. Weinger, an orthopedic surgeon. Dr. Weinger operated on Forbes, after which his left leg was numb with no feeling, and he still suffered from backaches. Forbes continued under Dr. Weinger’s care until March 1987, at which time Forbes was released to go back to work with some restrictions. However, when he reported to work, he was told by the day-shift foreman that he was laid off of work. At the time of the hearing, he had not yet returned to work, although he had applied for work elsewhere.

Forbes testified that his left leg is still numb and he has quite a few backaches. He cannot do anything strenuous around the house. By the end of the day, he feels completely worn out, without the stamina he used to have.

On cross-examination, Forbes testified that although he was aware of the company policy of reporting any accidental injuries taking place during work, he did not report the injury to anyone. He also admitted having had a couple of beers with his co-workers after work, and at that time, he had no problem sitting and did not notice anything unusual about his physical condition outside of the usual tiredness and stiffening he generally felt after working his shift.

Forbes testified further that when he got up on Saturday morning, he had a backache, but inasmuch as he had had this before, he did not pay much attention to it. He denied that he associated the pain he felt with his work on the lawnmower because he was in pain prior to working on the lawnmower. He also denied telling Dr. Mullin that he first experienced the pain while he was working on his lawnmower Saturday morning. He stated that he told the doctor he did not know what he had done to cause the pain in his back. He also denied telling Dr. Mullin that the pain started on Sunday morning. He further denied telling anyone that his back problem started on July 14, 1986, after lifting a heavy object.

According to Forbes, after he got the steel structure back in position, he was exhausted and felt a strain in his back which went all the way down his back and legs but which went away after a few seconds. The first time he associated his back problems with the incident at work was when he saw Dr. Hart.

Kress then elicited the testimony from David McKinty and Gerald Simpson, co-workers of Forbes, that following work on Friday, July 18, 1986, they, Forbes, and other co-workers had a few beers together after work. Forbes appeared to have no difficulty sitting at a picnic table, although he had to climb over a cooler to sit down. Forbes made no complaints of pain or discomfort, and neither man noticed anything unusual about him.

Richard Merideth, manager of industrial engineering for Kress, testified as follows. According to Merideth, the steel structure Forbes was working on was a box beam and weighed 3,700 pounds. Based upon his experience and knowledge of the type of work Forbes was doing, Forbes would have had to lift the beam in order to push it as Forbes described, and it would have been literally impossible for a man to lift two tons of steel.

The medical records of Drs. Hart, Mullin, and Weinger were admitted into evidence, as were the evidence depositions of Drs. Hart and Mullin.

The arbitrator denied benefits, finding that Forbes had failed to prove that accidental injuries arose out of and in the course of his employment.

The Commission reversed the decision of the arbitrator and awarded benefits. The Commission found credible Forbes’ testimony that he told Dr. Hart that he did not know the cause of his discomfort and that, upon questioning by Dr. Hart, he described his activities with the lawnmower and the incident at work, at which point Dr. Hart informed him that his condition could not have been the result of his activities at home but was related to the incident at work. The Commission noted that Forbes was a relatively young man who had not previously experienced back problems. Based upon the testimony of both Forbes and Dr. Hart, the Commission found that the incident at work caused a small extrusion of disc material which gradually became larger, causing increasing symptomology, and thus, Forbes was found to have sustained accidental injuries to his lower back which arose out of and in the course of his employment.

On review, the circuit court found that the decision of the Commission was supported by the evidence and confirmed the decision. Kress now brings this appeal.

Kress contends that the Commission erred in permitting Forbes to prove his case through the use of double hearsay. In an October 27, 1986, letter to Forbes’ attorney, Dr. Hart wrote:

“He [Forbes] was seen in our office on August 8, 1986. He reported that while at work on July 20, 1986 at the Kress Corporation, he was doing some welding. He moved a sill. Then, he stated, he just could not get out of bed the next day. He entered with complaints of low back pain and pain radiating down the left leg.”

During his deposition, Dr. Hart testified as follows:

“Q. What history was given?
A. He said while working on welding some sills he just couldn’t get up and could not get out of bed the next day.
Q. And—
A. And he had some back and left leg pain.
Q. Did he provide a date?
A. He said the date of the accident was 20th of July, 1986.
Q. Doctor, do you have an opinion whether this was a work-related injury?
A. No. I just assumed it was because he was sent to me as the company physician. The man was in trouble, and I didn’t pursue it any further than that.
Q. You only know what Mr. Forbes told you?
A. Yes.”

At the hearing before the arbitrator, over Kress’ objection, Forbes testified as follows:

“He [Dr. Hart] says, do you have any idea what you were doing? And I told him about working on my lawn mower. And he says well, what did you do the last day of work. And he says, tell me what you did or anything that you might have strained yourself. I said the only thing I can remember at work was when I was working on the structure and I lost control over it and I had to push it back up with all my strength. And it took a lot out of me. But I told him, I says, I wasn’t, you know, later on after work I wasn’t feeling nothing nor was I hurt at the time I did it. *** He [Dr. Hart] told the nurse to put me in the hospital today. And this was a work industrial injury.”

Although the arbitrator let the testimony stand over Kress’ objection, the arbitrator also stated that she would take into consideration Dr. Hart’s deposition and the history given to him at the time he examined Forbes.

“Hearsay evidence is defined as ‘a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ [Citation.]” (Denny v. Burpo (1984), 124 Ill. App. 3d 73, 75.) Kress concedes that Dr. Hart is Kress’ company physician and therefore Kress’ agent, whose statements would ordinarily be received into evidence as admissions. However, Kress argues, since Forbes’ conversation with Dr. Hart is offered by Forbes to prove that the disputed accident took place, that objected testimony involves not only the statements of Dr. Hart but those of Forbes confirming the accident, which Kress maintains is double hearsay and inadmissible to prove that the accident took place.

We note that Dr. Hart’s deposition testimony is at variance with Forbes’ arbitration testimony. According to his deposition, Dr. Hart “assumed” that Forbes suffered an industrial accident, while Forbes testified that after he described both his lawnmower activity and the incident at work, it was Dr. Hart who told him the incident at work had caused his injury.

“Hearsay within hearsay, often referred to as double level or multiple hearsay, is admissible if each of two or more statements falls within an exception to the Hearsay Rule.” (E. Cleary & M. Graham, Handbook of Illinois Evidence §805, at 472 (3d ed. 1979).) Our supreme court has held that a statement made by a company doctor is admissible on the ground that the doctor was the agent of the employer, and thus, the report constituted an admission against interest. Nollau Nurseries, Inc. v. Industrial Comm’n (1965), 32 Ill. 2d 190, 192.

Further, in Shell Oil Co. v. Industrial Comm’n (1954), 2 Ill. 2d 590, the supreme court stated:

“Petitioner [employer] objects to a portion of Dr. Fritsch’s testimony as hearsay and self-serving as obtained from the claimant, wherein claimant stated that he slipped on April 11, 1950, while working for the petitioner in the course of pulling on a pipe, and injured his back. It is an exception to the hearsay rule, however, that declarations of an injured person to his treating physician as to his physical condition, and the cause thereof are admitted in evidence for the reason that it is presumed that a person will not falsify such statements to a physician from whom he expects and hopes to receive medical aid.” 2 Ill. 2d at 602.

We conclude, therefore, that Forbes’ testimony regarding his conversation with Dr. Hart was double hearsay but properly admitted and, thus, properly considered by the Commission in its determination of causation of Forbes’ condition.

Having determined that Forbes’ testimony was properly admitted, we now must determine whether the decision of the Commission was against the manifest weight of the evidence.

It is the province of the Commission to determine the facts and draw reasonable inferences from the evidence in workers’ compensation cases. In reviewing the findings of the Commission, the function of this court is limited to determining whether they are against the manifest weight of the evidence. (United Airlines, Inc. v. Industrial Comm’n (1980), 81 Ill. 2d 85, 95.) The Commission is the judge of the credibility of the witnesses and the weight to be given to their testimony. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 43.) Furthermore, the reviewing court will not substitute its judgment for that of the Commission, and it will not disregard permissible inferences drawn by the Commission merely because it might have drawn other inferences from such facts. City of Chicago v. Industrial Comm’n (1975), 60 Ill. 2d 283, 286.

While acknowledging the accuracy of the foregoing statements of law, Kress maintains that while the Commission is not bound by the arbitrator’s decision, recent decisions by this court demonstrate that the court will carefully scrutinize Commission decisions which are contrary to those of the arbitrator, especially where no new evidence is presented to the Commission, relying on Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, and Orkin Exterminating Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 753.

In Orkin Exterminating Co., this court reinstated the decision of the arbitrator that the claimant, Apponey, was not entitled to benefits. We determined that the Commission’s decision that Apponey was entitled to benefits was against the manifest weight of the evidence. Specifically, we noted:

“Proof of either unwitnessed accident alleged in this case depended upon the petitioner’s [Apponey’s] testimony regarding the accident’s circumstances and, thus, upon his credibility. His credibility was contradicted by numerous elements in the evidence. For example, on the day of the alleged July 17 accident at Carnet Grain Company in Beardstown, although the petitioner and his manager after the incident drove together from Carnet to their Galesburg office, the petitioner did not mention to the manager that he had been injured. Additionally, on August 2 when the petitioner was first medically treated for the alleged July 17 injuries, he stated in his chiropractic admission form that his condition had begun approximately two months earlier, i.e., at the beginning of June rather than in middle July as he claimed in seeking benefits. Further, he did not express to his chiropractor on August 2 a connection between his current pain and the July 17 accident and he indicated that he did not know the cause for his complaints.
The petitioner’s credibility was also challenged regarding the alleged August 6 accident at the Keeling residence. For example, when the petitioner called his manager from the Keeling job that day, after the alleged incident, he did not mention the injury which he now claims had occurred. Further, following that alleged disabling accident, the petitioner continued to work for approximately three weeks without giving any notice of the incident to the employer.” 172 Ill. App. 3d at 757.

Kress contends that the facts of the case before us closely parallel the facts in Orkin. Both involved unwitnessed “accidents.” In both cases, the claimants made no initial complaint of injury or pain, and although in the company of co-workers, made no mention of the occurrence, and nothing unusual about the claimant’s condition was noted by a co-worker in either case. Kress also relies on the testimony of Richard Merideth that it would have been literally impossible for a man to lift two tons of steel, thus contradicting Forbes’ description of the accident. Kress further relies on Dr. Hart’s testimony that Forbes' condition would have produced an immediate onset of symptoms. Finally, Kress points to Forbes’ statements to Dr. Mullin that he had been working on his lawnmower prior to the onset of the pain and to the report from the Institute of Physical Medicine and Rehabilitation, wherein Forbes reported low-back pain as of July 14, 1986, which preceded his alleged accident at work.

Despite the similarities, we find Orkin distinguishable from the case at bar. In Orkin, Apponey initially stated that his condition of leg pain started two months earlier and from an unknown cause; it was only after he had had surgery that he informed his employer that he had injured himself at work. In the present case, Forbes described both his work on the lawnmower and the incident at work in his visit to Dr. Hart, who, according to Forbes, then determined that his condition was the result of the incident at work, not his work on his lawnmower. Although Dr. Hart testified on deposition that he had no opinion as to whether Forbes’ condition was the result of an industrial accident, as we have previously stated, credibility is for the Commission to determine. (Caterpillar Tractor Co., 97 Ill. 2d at 43.) Further, Apponey was impeached by evidence that he had omitted prior employments on his job application with Orkin and had, in fact, received a worker’s compensation award for a prior back injury. No such attacks weakened Forbes’ credibility. Although Merideth testified that Forbes would have to lift and then push to maneuver the steel beam as Forbes described, Forbes testified that he only pushed the beam but that it took great effort. Again, this is a question of credibility from the Commission to resolve.

While Dr. Hart testified that Forbes’ condition would have produced an immediate onset of pain, he also stated immediately thereafter as follows:

“Q. In your opinion, Doctor, based upon a reasonable degree of medical certainty, could such an extrusion occur without producing immediate symptoms?
A. Of course, you have all different degrees of extrusion and — but I would have to say with the degree of extrusion that was present at the time he was operated that would cause symptoms. Now, I can’t tell you, and I have no way of telling you if at the start it was that big or whether it wasn’t, I don’t know, I can’t answer that.” (Emphasis added.)

Since Dr. Hart could not testify as to how big the extrusion was at the time of the alleged injury, the fact that Forbes had no immediate symptoms does not eliminate his accident at work as the cause of his injury.

Finally, Kress argues that both Dr. Mullin’s report and the institute report evidence that Forbes’ pain was other than work related. Dr. Mullin testified at his evidence deposition as follows:

“Q. And on July 22, 1986, when you saw Mr. Forbes, was a history taken?
A. Yes.
Q. And could you please describe for the arbitrator what that history was?
A. He complained of a low back pain, was [sic] pain radiating down the outside of the left leg to the knee. This had started the previous Sunday morning, July 20,1986.
Q. Anything else?
A. That was his chief complaint at the time.
Q. Did he provide a history to you of what his activities were prior to Sunday when the low back pain first commenced?
A. At that time, he told me he had been working on a lawnmower on Saturday.”

Forbes denied telling Dr. Mullin that the pain he felt was associated with his work on the lawnmower; he did testify that it had started prior to his working on the lawnmower and grew worse while he was working on it. He also denied that he had told him that it was Sunday morning when the pain began. Likewise, he also denied that he told the institute that his pain commenced on July 14, 1986, which was four days prior to the date on which he alleged he was injured at work. We also note that the report from the institute states “PT states he was working and was lifting heavy objects.” The Commission could properly infer from this statement that Forbes was indeed injured at work but confused the dates.

Kress argues that there is no testimony in the record to support the Commission’s finding that Forbes’ alleged accident caused “a small extrusion of disc material which gradually became larger causing increasing symptomatology in the days following the accident.” Kress acknowledges that in Union Starch & Refining Co. v. Industrial Comm’n (1967), 37 Ill. 2d 139, quoting from Plano Foundry Co. v. Industrial Comm’n (1934), 356 Ill. 186, 198-99, our supreme court stated:

“ ‘Proof of the state of the health of the employee prior to and down to the time of the injury, and the change immediately following the injury and continuing thereafter, is competent as tending to establish that the impaired condition was due to the injury. [Citation.]’ ” (37 Ill. 2d at 143.)

However, Kress argues that the change was not immediate, since Forbes did not feel pain until the next day. The term “immediate” is a relative one. In the case before us, Forbes testified that the accident occurred between 10:30 p.m. and midnight. He awoke the next day at 8 a.m. with a backache, which progressively worsened. Further, it was Dr. Hart’s testimony that it would depend on the size of the extrusion as to when the first symptoms might occur. Since Forbes had experienced no prior back problem, the Commission could reasonably draw the inference from the record that Forbes’ incident at work had caused a small extrusion which grew larger and more symptomatic.

Kress’ reliance on Lyons v. Industrial Comm’n (1983), 96 Ill. 2d 198, Johnson v. Industrial Comm’n (1982), 89 Ill. 2d 438, and Banks v. Industrial Comm’n (1985), 134 Ill. App. 3d 312, is misplaced. In Lyons, there were no witnesses to the employee’s accident, and he continued to work for some days thereafter. The Commission’s decision denying benefits was upheld by the reviewing court, which ruled that it was possible that this was a case of a loyal and dedicated employee who did suffer an accident, and who, instead of complaining, continued to work as long as he was able; however, since the Commission was the fact finder and its decision was not against the manifest weight of the evidence, it must be affirmed.

In Banks, there was evidence that the employee had injured his back in two separate work-related injuries for which he had received compensation. The reviewing court again confirmed the decision of the Commission since, based upon the evidence, the Commission could have reached a decision that the employee failed to meet his burden of proof.

Finally, in Johnson, the reviewing court set aside the award of benefits to the employee by the Commission. However, in that case, the reviewing court found against the employee’s argument that she proved an accidental injury under a theory of repetitive trauma because she had failed to prove that the condition was traceable to a definite time, place, and cause.

The cases relied on by Kress illustrate situations in which the employee’s testimony establishing causation has been impeached or his or her credibility has been effectively challenged or the decisions are the result of permissive inferences from the records. In the case before us, Forbes’ credibility has not been contradicted to the extent that the claimants in the cases relied on by Kress were. While Kress sought to contradict Forbes’ testimony by the testimony of other witnesses, the Commission, as we have repeatedly stated, is the judge of the credibility of the witnesses, and we can find no reason in this case why the Commission could not find Forbes to be a credible witness.

In the case at bar, the evidence supported more than one inference. That the claimant suffered a compensable accident is a permissible inference from the record, and, therefore, we have no basis for overruling the Commission. We conclude, therefore, that the decision of the Commission is not against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Judgment affirmed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE SCOTT

text:
    HAL WHALEN, Plaintiff-Appellant, v. CHARLES SHEAR, Defendant (Dunn & Martin, Ltd., Intervener-Appellee).
    Third District
    No. 3—88—0797
    Opinion filed September 7, 1989.
    Rehearing denied November 27, 1989.
    Andrew J. Groesch, of Horwitz, Horwitz & Associates, Ltd., of Chicago (Clifford W. Horwitz, of counsel), for appellant.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R. Wilson, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

At issue on this appeal is the validity and the amount of a discharged attorney’s lien for fees. In the circuit court of Will County, the lien was upheld and for the amount of $29,277.68. This appeal followed.

On the evening of June 23, 1986, the plaintiff, Hal Whalen, was injured when he was struck by a motor vehicle driven by the defendant, Charles R. Shear, and then hospitalized with serious injuries. After this initial one-sentence statement of facts, the record on appeal sets forth two very different versions of events. According to the plaintiff, Whalen, when he left the hospital in mid-July, he first realized, upon receipt of a letter, that while in the hospital he had retained Thomas Dunn, an attorney, to represent him in legal actions arising from his personal injuries. Whalen tried to discharge Dunn — and his law firm, Dunn and Martin — only to find out that he had signed a retainer agreement while hospitalized. Whalen testified that prior to this time, he had never heard of Thomas Dunn and that in the weeks that followed he again told Dunn that he did not want the lawyer’s services.

In the meantime, Dunn proceeded to represent Whalen and had settled the latter’s property damage claim for $2,250 within a month. He also obtained copies of the police reports and medical records. Dunn had an investigator take photos of Whalen’s vehicle and negotiated a forbearance with the collection lawyers for the hospital where Whalen’s injuries were treated.

Whalen testified that Dunn would not return his phone calls, that he was often out of the office, and that he had no confidence in Dunn’s ability to handle his case. Therefore, on September 2, 1987, Whalen entered into a representation agreement with Horwitz, Horwitz and Associates, Ltd, to be his attorneys. Whalen’s new attorneys advised Dunn by letter of his discharge.

Prior to his discharge, Dunn had received an oral offer to settle Whalen’s case from the insurance adjuster. The settlement offer was in the amount of $85,000. When Dunn received this offer in writing, he communicated same by letter to his former client.

As one might expect, Thomas Dunn’s recollection of his relationship with this client differs. Dunn testified as follows:

“I had an individual I represented by the name of Ronald Tomich, who had a discussion with Mr. Whalen. *** Mr. Whalen had asked Mr. Tomich if he knew a ‘good lawyer’. Mr. Tomich gave him my name. Mr. Tomich called me and asked if I would be interested in seeing Mr. Whalen. He was in the hospital. He was in intensive care. I said I would not see him, while he was in intensive care, but after he got out of ICU, when he got out, I went to see him.”

At the hospital, Whalen appeared in full command of his mental faculties. Dunn and Whalen had a 30-minute conversation regarding the accident, and Whalen signed the contingent fee contract with Dunn and Martin and certain medical authorizations. Dunn testified he met again with Whalen at the hospital before his erstwhile client’s discharge.

Also, according to the fired attorney, he met with Whalen five to seven times during the course of his employment and conferred with his client by telephone 10 to 15 times. At no time during this period did Whalen ever complain of Dunn’s services or say he did not want Dunn to be his attorney. The first hint of dissatisfaction was the discharge letter from the successor attorneys.

Upon being retained, the Horwitz law firm filed the instant lawsuit on behalf of Whalen. The claim in the suit against the defendant, Shear, was dismissed, when the action was settled on May 12, 1988, for $85,000, the exact same amount that Dunn had negotiated as a settlement some eight months previously. Thereupon, plaintiff filed a motion to adjudicate Dunn’s claim for attorney’s lien. As reported above, the circuit court of Will County upheld the validity of the lien and, based on the evidence, awarded the amount of $29,277.68.

In his argument on appeal, Whalen first urges that the attorney representation agreement/contingent fee contract entered into during his hospital convalescence was obtained through solicitation and was therefore void. There was certainly evidence in the record to support that conclusion, but evidence just as forceful and persuasive supports a different conclusion. As in other civil actions, it is for the trier of fact to determine the credibility of the witnesses and the weight of the evidence. (Rosensweig v. Karras (1950), 342 Ill. App. 204.) However, under the evidence which the trier of fact found more credible, the testimony of Attorney Dunn, there was no solicitation. Mason v. Papadopulos (1956), 12 Ill. App. 2d 140, 138 N.E. 2d 821.

Whalen’s second contention on appeal is that the trial court erred in assessing attorney fees in the amount of $29,277.68. That amount is exactly the sum of one-third of $2,250, one-third of $85,000 and the costs advanced by the Dunn and Martin law firm, $194.35. In other words, the trial court awarded fees in the exact amount called for in the contingent fee contract, which was terminated by the letter from the Horwitz law firm in September 1987. An attorney discharged from employment under a contingent fee contract is not entitled to the fee set forth in the contract, even if the discharge is without cause. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217.) That landmark case provides that an attorney discharged with or without cause under a contingent fee arrangement is only entitled to be paid on a quantum meruit basis a reasonable fee for services rendered before discharge, not contract fees. However, while a recovery under the contract is not permitted, the Rhoades court anticipated a situation, such as the one in the case at bar. Writing for the court, Justice Kluczynski noted:

“[T]he factors involved in determining a reasonable fee would justify a finding that the entire contract fee is the reasonable value of services rendered.” (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 230.)

Where, as here, the discharged attorney had procured the offer for the entire settlement, which was eventually accepted, and where it appears that the amount offered is attributable to the efforts primarily if not exclusively of the discharged attorney, then under Rhoades, the circuit court did not err in awarding fees in the amount set forth above.

For the reasons stated, and in reliance on the authorities set forth, the adjudication of lien arrived at by the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER, P.J., and HEIPLE, J., concur.


author: JUSTICE KNECHT

text:
    CURTIS BROSTRON, Plaintiff-Appellee and Cross-Appellant, v. FLOYD C. WARMANN, Defendant (Becker Brothers, Inc., et al., Movants-Appellants and Cross-Appellees).
    Third District
    No. 3—88—0835
    Opinion filed September 12, 1989.
    Rehearing denied November 27, 1989.

      Daniel L. Johns and James D. Broadway, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellants.
    James R. Carter, of Hafele, Thiemann & Associates, of Peoria, and Leonard Vines, of Vines, Jones, Ross, Kraner & Rubin, of St. Louis, Missouri, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The nonparty movants, Becker Bros., Inc. (Becker), an Illinois construction firm, and Vickie W. Kovski (Kovski), its employee, appeal from an order of discovery entered in aid of an action pending in another jurisdiction. 107 Ill. 2d R. 204(b).

The facts of that action are not in dispute: In August of 1983, the plaintiff, Curtis Brostron (Brostron), and the defendant, Floyd C. Warmann (Warmann), entered into a general partnership to develop a nursing home project in Cedar Hill, Missouri. In turn, Warmann, as managing partner, entered into a contract with Becker to construct the project. In January of 1987, the general partnership was terminated through the separate sales of the individual interests of Bros-tron and Warmann. Following the termination of the general partnership, Brostron filed an action against Warmann in the circuit court of St. Louis County, Missouri. The action alleged, inter alia, Warmann breached the partnership agreement, and its attendant fiduciary duties, in entering into the contract with Becker for a “sum grossly in excess of the actual costs of construction.” As relief, Brostron sought an accounting for an equal share of the general partnership assets, attorney fees, court costs, and punitive damages.

On July 28, 1988, as part of the pretrial discovery in the Missouri action, Brostron filed a petition to order discovery against Becker and its employees in the circuit court of Peoria County, Illinois. (107 Ill. 2d R. 204(b).) The circuit court allowed the petition on August 11, 1988. On August 22, 1988, pursuant to that petition, Brostron served Kovski with discovery subpoenas for both her deposition and the financial documents of Becker on the nursing home project.

On September 6, 1988, Becker and Kovski responded with a motion to quash, or otherwise limit, the discovery subpoenas. The motion set forth four alternative objections to the discovery subpoenas: (1) the discovery requests were overly broad in nature; (2) the requested financial documents and information were irrelevant to the issues in the pending action; (3) the documents would disclose confidential and private information (see Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq.); and (4) production would be unduly burdensome.

On November 21, 1988, following argument on the motion, the circuit court limited the discovery subpoenas on the basis the requested financial documents would disclose information properly protectable as a trade secret. (Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq.) Despite this limitation, the circuit court ordered discovery of financial documents and information relevant to the issues in the pending action. Lastly, the circuit court entered a protective order restricting access, reproduction, and retention of all financial documents and information so disclosed in that action.

On December 19, 1988, Becker and Kovski filed notice of appeal from that order of discovery. On December 29, 1988, Brostron filed notice of cross-appeal from the same order. He has since withdrawn the cross-appeal.

The issue on appeal is whether the circuit court abused its discretion in ordering disclosure of all documents and information on the “gross profits” earned by Becker in constructing the nursing home project.

Resolution of the issue on appeal rests with the application of the Illinois Trade Secrets Act (Act). (Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq.) The Act provides:

“ ‘Trade secret’ means information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or supplies, that:
(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 140, par. 352(d).)

Given this definition, the gross profit (i. e., “the difference between the amounts received by [Becker] and its costs and expenses [in constructing the nursing home project]”) documents and information at dispute appear to be properly protectable as trade secrets.

The protections of the Act are not absolute. The Act provides:

“In an action under this Act, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.” (Ill. Rev. Stat. 1987, ch. 140, par. 356.)

Accordingly, discovery of the disputed financial documents and information is not automatically foreclosed.

Brostron contends the issue on appeal is moot. He bases this contention on the inadvertent production of a document disclosing the purported gross profits earned by Becker in constructing the nursing home project.

In response, Becker and Kovski contend the protections of the Act were not waived through the inadvertent production of the disputed financial documents and information. (See Duplan Corp. v. Deering Milliken, Inc. (4th Cir. 1976), 540 F.2d 1215; Mendenhall v. Barber-Greene Co. (N.D. Ill. 1982), 531 F. Supp. 951; Transamerica Computer Co. v. International Business Machines Corp. (9th Cir. 1978), 573 F.2d 646.) Waiver of the protections of the Act is not at issue in this action. Indeed, the circuit court accorded due recognition to the Act in entering a protective order restricting access, reproduction, and retention of all disputed financial documents and information produced through discovery in the pending action.

The existence of an actual controversy is essential to the exercise of appellate review. “[W]here a reviewing court has notice of facts which show that only moot questions *** are involved, it will dismiss the appeal *** even though such facts do not appear in the record.” La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379, 121 N.E.2d 486, 488.

An issue becomes moot on appeal when events occur which would prevent the appellate court from granting effective relief to any party in the action. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 250, 384 N.E.2d 1309, 1311.) In this action, such an event occurred when counsel of Becker and Kovski inadvertently produced the disputed financial documents and information, at least in part, for review by counsel of Brostron. At this point, we can do nothing to erase all knowledge of the gross profits earned by Becker in constructing the nursing home project from the minds of counsel of Brostron. (See Schnepper v. American Information Technologies, Inc. (1985), 136 Ill. App. 3d 678, 483 N.E.2d 987.) We find the issue on appeal to be moot, and elect to dismiss this appeal.

Even assuming the issue on appeal is not moot, however, Becker and Kovski could not prevail in this action. In Illinois, the circuit court is vested with wide discretion in ruling on all matters of pretrial discovery. (107 Ill. 2d Rules 201 through 222; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 192, 226 N.E.2d 6, 13.) Absent a manifest abuse of discretion, the pretrial discovery rulings of the circuit court will not be interfered with on appeal. Snyder v. Lowrey (1986), 141 Ill. App. 3d 30, 32-33, 489 N.E.2d 899, 901.

The purpose of pretrial discovery is to ascertain the truth about the legal controversy to expedite its disposition in the circuit court. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 361, 221 N.E.2d 410, 417; see also Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 231-32, 443 N.E.2d 1125, 1128.) In accordance with this purpose, the circuit court may authorize pretrial discovery of “any matter relevant to the subject matter involved in the pending action.” (107 Ill. 2d R. 201(b)(1).) The concept of relevance in discovery is much broader in scope than for the admission of evidence at trial. (Bauter v. Reding (1979), 68 Ill. App. 3d 171, 175, 385 N.E.2d 886, 890.) Pretrial discovery “presupposes a range of relevance and materiality which includes not only what is admissible at the trial, but also that which leads to what is admissible at the trial.” (Krupp v. Chicago Transit Authority (1956), 8 Ill. 2d 37, 41, 132 N.E.2d 532, 535.) Even after determining the pretrial discovery request is relevant, however, the circuit court must still balance the needs of truth with the burdens of production through the entry of any protective order appropriate to the action. (See Cohn v. Board of Education of Waukegan Township High School District No. 119 (1970), 118 Ill. App. 2d 453, 457, 254 N.E.2d 803, 805.) Thus, the circuit court would have abused its discretion only in authorizing pretrial discovery of a matter irrelevant to the legal controversy in the pending action. M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 1125-26, 424 N.E.2d 1193, 1196-97.

Our review of the pretrial discovery rulings of the circuit court is limited by the failure of Becker and Kovski to include a transcript of the argument on their motion to quash, or otherwise limit, the discovery subpoenas in the record on appeal. (Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 623-24, 394 N.E.2d 527, 535; see also 107 Ill. 2d R. 323(a) (duty of appellant to “include all the evidence pertinent to the issues on appeal”).) In the absence of such a transcript, we must presume the circuit court did not abuse its discretion in ordering disclosure of all documents and information on the gross profits earned by Becker in constructing the nursing home project. See Servbest Foods, Inc. v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 678, 403 N.E.2d 1, 14.

We express no opinion as to any additional information sought as to this project or other Becker projects. Future discovery requests must be decided on their own merit.

Appeal dismissed.

LUND and SPITZ, JJ., concur.