March 2010 Case Notes & Comments

I love to go to Washington - if only to be near my money. ~ Bob Hope

MONTHLY QUIZ: IS A CHIROPRACTOR A PHYSICIAN? The defendant in an automobile accident case subpoenaed the plaintiff’s treating chiropractor to testify at a discovery deposition. The chiropractor demanded $550 per hour to testify. Defense counsel offered $300 per hour, but that offer was refused. After reviewing the documents, the trial court ruled that an hourly fee of $66.95 was reasonable. The chiropractor took umbrage, and filed an appeal. On appeal, the threshold issue was whether the chiropractor was a “physician” so as to be entitled to a deposition fee pursuant to Illinois Supreme Court Rule 204(c). Query: Was the chiropractor a “physician”? You be the judge.(Answer below).


CLOSING ARGUMENT – “SLICK LAWYER”: In closing argument, the defense attorney referred to the plaintiff’s attorney as a “slick lawyer trying to twist Dr. Cavalenes’ words.” Although the court found the reference was improper and was an impermissible personal attack against the integrity of plaintiff’s counsel, under the facts of this case, it was not sufficient to warrant a new trial. However, the court did site Delfield v. Coop, 8 IL.2d 293 (1956) in which name-calling was grounds for a new trial even where, as here, the other side failed to object. Wilbourn v. Cavalenes, ___ Ill.App.3d ___, (1st Dist., 1-08-3603, Feb. 19, 2010).


ADMISSIBILITY OF PHOTOGRAPHS WITHOUT EXPERT TESTIMONY: The plaintiff sued following a rear-end auto collision. Though the defendant admitted he was negligent in causing the collision, he denied that the plaintiff was injured. At trial, the plaintiff moved to exclude photographs showing minimal damage to defendant’s vehicle and no visible damages to plaintiff’s vehicle. On appeal, the plaintiff contended that it was an error to admit such photographs without the aid of an expert who could properly relate the vehicular damage (i.e. or lack thereof) to the plaintiff’s claimed injuries. Upon review of the photographs and the record of proceedings, the Appellate Court held that the trial court was within its discretion when it admitted the photographs into evidence, even without expert testimony. Ford v. Grizzle, ___Ill.App.3rd ___, (5th Dist, 5-08-0185, corrected opinion March 4, 2010).


TARGETED TENDER TO RISK-POOLING TRUST: A physician who was sued in a medical malpractice case issued a targeted tender of his defense and indemnity to a risk pooling trust, and directed that another insurer, a traditional insurance company, not defend him. The risk pooling trust filed a complaint for equitable contribution against the traditional insurer, arguing that Illinois law on targeted tenders does not apply to risk pooling trusts. The court disagreed, and held that there was an effective targeted tender. Further, the targeted tender was not negated by the doctor’s desire to keep the deactivated insurer on standby coverage in the event that the primary coverage was exhausted. The risk pooling trust was responsible for 100% of the cost of defense and indemnity. Chicago Hospital Risk Pooling Program v. Illinois State Medical Inter-Insurance Exchange, ___Ill.App.3rd___, (1st Dist., 1-07-2195, Jan. 26, 2010).


CORPORATION’S DUTY TO PRODUCE WITNESSES AT TRIAL: This case held that, while Illinois Supreme Court Rule 237(b) requires defendant corporations to produce its officers, directors, or employees as trial witnesses, the rule does not extend to persons who are “under a party’s control, such as a company doctor.” White v. Garlock Ceiling Technologies, LLC., ___Ill.App.3d___, (4th Dist., 4-09-0036, Feb. 8, 2010).


WORKERS’ COMPENSATION WAS SOLE REMEDY – ABDUCTION OF EMPLOYEE IN PARKING LOT: Plaintiff was abducted in parking lot shortly before beginning her shift. Plaintiff filed a direct lawsuit against her employer for failing to provide adequate security. The employer’s motion to dismiss was granted – workers’ compensation was the employee’s sole remedy. Larson v. Schmitt Boulder Hill, Inc., ___Ill.App3d__, (2nd Dist, No, 2-09-0244, January 22, 2010).


ANSWER TO QUIZ: Yes, the chiropractor is a physician and is entitled to be paid for his time in attending the deposition. (However, the Appellate Court also upheld the trial court’s calculation of $66.95 per hour, which was based upon the chiropractor’s W-2 income, divided by 52 weeks at 40 hours per week,” as reasonable). Montes v. Mai, ____Ill.App.3rd ____, (1st Dist. 1-08-2774., Feb. 25, 2010).