Opinion
NO. 5-16-0431
09-19-2017
BOBBY ZUETLAU, Plaintiff-Appellant, v. WILLIE J. TAYLOR, JR., and LTI TRUCKING SERVICES, INC., Defendants-Appellees.
NOTICE
Decision filed 09/19/17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Richland County
13-L-16
Honorable Kimbara Harrell, Judge, presiding.
JUSTICE BARBERIS delivered the judgment of the court.
Justices Welch and Overstreet concurred in the judgment.
ORDER
¶ 1 Held: The circuit court's granting of a motion in limine barring admission of an unpaid medical bill was waived for review where no offer of proof was presented, and the court did not abuse its discretion where it barred a wage loss claim for noncompliance with pretrial discovery requests.
¶ 2 The appellant, Bobby Zuetlau (Zuetlau), seeks a new trial asserting that the circuit court erred in granting two motions in limine barring the admission of evidence of an unpaid medical bill and a claim for lost wages.
¶ 3 BACKGROUND
¶ 4 The following are general background facts taken from the record and the parties' briefs which are relevant on appeal. However, we include additional facts pertinent to each issue in the analysis. This appeal arises from a collision occurring on September 14, 2011, where a truck occupied by Zuetlau was struck by a truck owned by LTI Trucking Services, Inc., and driven by an employee, Willie J. Taylor, Jr. (defendants). The defendants admitted liability, and the matter was tried before a jury on the single issue of whether the collision caused bodily injury to Zuetlau, which resulted in over $35,000 in medical bills.
¶ 5 Prior to the trial, the defendants filed two motions in limine, both objected to by Zuetlau. First, the defendants filed a motion in limine to bar the admission of an unpaid medical bill from Barnes-Jewish West County Hospital, dated December 18, 2013, alleging that Zuetlau failed to list a witness whose testimony would satisfy the foundational requirements for admission. Specifically, Zuetlau failed to list a witness with the requisite knowledge to testify that the charges were reasonable, customary, and causally related to the incident at issue. Second, the defendants filed a motion in limine to bar the introduction of evidence of lost wages, alleging that Zuetlau had failed to comply with repeated pretrial discovery requests to produce his 2009-2013 tax returns. The defendants argued these tax returns were necessary to effectively cross-examine Zuetlau, and for the jury to accurately calculate the amount of lost wages.
¶ 6 Shortly before trial, the circuit court conducted a pretrial conference to address the defendants' motions in limine. Zuetlau argued that foundational and discovery related
matters were not an appropriate basis for a motion in limine, as the evidence was not inflammatory, irrelevant, or inadmissible. Additionally, Zuetlau argued that barring the introduction of his lost wages would be highly prejudicial, as it would unduly restrict the presentation of damages alleged in the complaint.
¶ 7 In support of the motions in limine, the defendants asserted that none of the witnesses on Zuetlau's list of witnesses had the prerequisite knowledge to satisfy the foundational requirements for admission of the unpaid medical bill. The defendants argued that obtaining Zuetlau's tax returns was necessary to effectively cross-examine him, and for the jury to properly calculate the amount of lost wages. The defendants provided a detailed account of their efforts to obtain Zuetlau's tax returns prior to trial and explained that the financial records they had received were insufficient to establish his net income.
¶ 8 Upon questioning by the circuit court, Zuetlau's counsel admitted that he did not have a witness to establish the foundational requirements for admission of the unpaid medical bill, and that he had failed to provide the requested tax returns, although he had tendered numerous financial records. After considering the arguments and the relevant case law submitted by the parties, the court granted both motions in limine. At no time following the court's order did Zuetlau make an offer of proof regarding either motion.
¶ 9 At trial, the jury determined that Zuetlau failed to prove that his purported injuries were related to the September 14, 2011, collision. Accordingly, the circuit court entered a judgment in favor of the defendants. Zuetlau filed a motion for a new trial asserting that
he was denied a fair trial when the court abused its discretion in granting the defendants' motions in limine. Zuetlau's motion was denied and this direct appeal followed.
¶ 10 ANALYSIS
¶ 11 We first address the defendants' contention that Zuetlau waived appellate review of the circuit court's rulings on the exclusion of evidence. A ruling on a motion in limine is a determination addressing an admissibility of evidence issue likely to arise at trial. Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 333-34 (2000). Regardless of whether it is granted or denied, a motion in limine itself does not preserve the issue for appellate review. Sinclair v. Berlin, 325 Ill. App. 3d 458, 471 (2001). Rather, to preserve an error in an in limine exclusionary ruling, the proponent of the evidence must make an adequate offer of proof and a failure to make such an offer of proof results in a waiver of the issue on appeal. Id. "Where it is not clear what a witness would say, or what his basis would be for saying it, the offer of proof must be considerably detailed and specific." People v. Peeples, 155 Ill. 2d 422, 457 (1993). However, "an offer of proof is not required where it is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced." Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495 (2002).
¶ 12 There is an advantage to filing a pretrial motion in limine in that "it allows a party to obtain an order excluding inadmissible evidence without having to object to, and thereby to emphasize, the evidence before the jury." Department of Public Works & Buildings v. Roehrig, 45 Ill. App. 3d 189, 195 (1976). Thus, a motion in limine "enables a party to prevent his opponent beforehand from attempting to prejudice the jury by
offering evidence which the opponent knows should be excluded or stricken upon objection." Id. In reviewing a grant of a motion in limine, a court should first consider whether the rules of evidence were properly applied. Id. If the court did properly apply the rules of evidence, the reviewing court must then determine whether the court abused its discretion in granting the motion, or whether the court should have denied the motion, leaving to the moving party the procedure of objecting to the evidence when it is offered at trial. Id. at 195-96. If the rules of evidence have been correctly applied, the grant of the motion will be reversed only if the court abused its discretion. Id. at 196. A court abuses its discretion when no reasonable person would take the view adopted by the court. Ford v. Grizzle, 398 Ill. App. 3d 639, 646 (2010).
¶ 13 First, with regard to the unpaid medical bill, Zuetlau asserts that no formal offer of proof was required because the circuit court understood the character of the evidence prior to barring its admission into evidence at trial. In addition, Zuetlau, without citing authority, argues that "medical bills are without a question an element of nearly every personal injury case, and no explanation is required as to the character of the evidence."
¶ 14 The defendants maintain that the filing of a motion in limine regarding the unpaid medical bill was procedurally correct and that granting the motion was proper and well within the circuit court's discretion. However, the defendants assert that an adequate offer of proof was required to demonstrate the admissibility of the evidence by providing the requisite foundational requirements. Additionally, the defendants assert that it would be prejudicial if the inadmissible medical bill was introduced to the jury without procedural requirements being satisfied. The defendants posit that an offer of proof would have
informed the court of the intended witness's identity and whether they possessed sufficient knowledge to establish the necessary foundational requirements. Therefore, the defendants argue that Zuetlau waived appellate review where no offer of proof was made. We agree.
¶ 15 Evidence of an unpaid medical bill is not admissible unless it can be established, through the testimony of a person having knowledge of the services rendered, that the bill was reasonably based on the usual and customary charges for such services. Wills v. Foster, 229 Ill. 2d 393, 414 (2008) (citing Arthur v. Catour, 216 Ill. 2d 72, 82 (2005) ("A party seeking the admission into evidence of a bill that has not been paid can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered and the usual and customary charges for such services.")). Additionally, admission also requires evidence that the medical bill was necessarily incurred because of injuries caused by the defendant's negligence. See North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, 498-99 (1892) (plaintiff was required to show that by reason of his injuries he had necessarily incurred said bill and that the charges were reasonable).
¶ 16 Here, the circuit court excluded the unpaid medical bill based on Zuetlau's inability to identify a witness capable of establishing the foundational requirements for admission at trial. Thus, an adequate offer of proof would have informed the court as to the identity of the witness and the bases upon which that particular witness had sufficient knowledge to establish the foundational requirements. The record reflects that when asked if he had a witness ready to testify at trial, Zuetlau's counsel responded:
"Not as of right now, your honor. But the thing again is that it's not a proper motion, and that you are seeking to stop me from putting in evidence that could be put on with foundation later on in the case."
Thereafter, counsel failed to make an offer of proof to adequately identify the witness and to proffer the precise nature of the testimony that would be "put on with foundation later on in the case." As a consequence, Zuetlau never established the basis for admissibility, which is necessary to our review of the claimed error. If counsel had made an offer of proof, the court could have considered the proffered testimony, as it related to the evidentiary requirements for admission of the unpaid medical bill, and then exercised its discretion in granting or denying the motion in limine before trial. Accordingly, the record reflects that no offer of proof was made, and, therefore, review of this ruling was waived.
¶ 17 Although Zuetlau's claim regarding the unpaid medical bill was waived on appeal, the waiver rule is not a jurisdictional requirement or any limitation upon the jurisdiction of a reviewing court. Dillon, 199 Ill. 2d at 503. The Illinois Supreme Court has recognized that a reviewing court may override considerations of waiver that stem from the adversarial nature of our system to obtain a just result. Schutzenhofer v. Granite City Steel Co., 93 Ill. 2d 208, 211 (1982); see also In re C.R.H., 163 Ill. 2d 263, 274 (1994). "[A] party is not entitled to a new trial unless a trial court's erroneous evidentiary ruling was substantially prejudicial and affected the outcome of the trial." DiCosolo v. Janssen Phamaceuticals, Inc., 2011 IL App (1st) 093562, ¶ 40.
¶ 18 Here, we find no such prejudice. Assuming, arguendo, that Zuetlau's claim is not waived on appeal, he cannot show that the exclusion of the unpaid medical bill caused substantial prejudice and materially affected the outcome of the trial. See id. Here, the jury determined that Zuetlau failed to prove a causal relationship between his purported injuries and the collision. Without satisfactory proof of causation, it is unconvincing that evidence of additional damages from an unpaid medical bill would have materially affected the outcome of the trial.
¶ 19 Next, in regard to the exclusion of the wage loss claim, Zuetlau, again, asserts that no formal offer of proof was required because the circuit court understood the character of the evidence prior to barring the introduction of this evidence at trial. Additionally, Zuetlau argues that the court was provided "ample" evidence of the financial records to be presented, which included 1099 documents, employment contracts, detailed wage documents from his employer, the specific weeks missed following the collision, and the total amount of lost wages claimed. Moreover, he asserts that his own testimony would have provided further detail on the amount of lost wages and established the foundation for admission of these documents.
¶ 20 The defendants assert that an offer of proof was required to preserve the circuit court's ruling on review. In particular, the defendants posit that an offer of proof would have informed the court of the specifics of Zuetlau's testimony, including his reasons for failing to provide the requested tax returns and the method utilized by Zuetlau in calculating the claimed amount of lost wages. We disagree. However, we agree with the defendants where they assert that Zuetlau, by failing to provide his tax returns, hindered
their ability to effectively cross-examine him regarding his purported lost wages; therefore, exclusion of the evidence was proper and within the discretion of the court.
¶ 21 We first note that no offer of proof was required to preserve the circuit court's ruling for appellate review. In the instant case, the court determined that Zuetlau's wage loss claim was barred for noncompliance with repeated pretrial discovery requests to disclose his 2009-2013 tax returns. The court was specifically aware of the nature and character of the excluded evidence, which included lost wages for missed work due to his purported injuries and the two weeks his company truck was in the repair shop. Furthermore, the court was aware that Zuetlau's testimony would likely establish the requisite foundation for admission of the financial documents, but that the defendants would be unable to conduct a meaningful cross-examination of Zuetlau without his tax returns. The court was aware that Zuetlau had not provided the requested discovery documents, even though it was first requested in December 2013, more than two years prior to the start of trial. Additionally, the record reflects that Zuetlau's counsel refused to give an explanation for this lack of compliance, and that the defendants had exercised due diligence in attempting to obtain Zuetlau's tax returns well in advance of trial. In fact, Zuetlau would have had access to at least one tax return prepared during the time the defendants' discovery request was pending. Based on the record, it is likely that an offer of proof would not have informed the court of any additional information pertinent to the wage loss claim and to the propriety of the sanction imposed. Thus, we address the merits of this claim of error.
¶ 22 The judicial authority to impose sanctions for discovery violations is expressly embodied in the supreme court's discovery rules. Illinois Supreme Court Rule 219(c) provides the circuit courts with a range of options for imposing sanctions for a party's failure to comply with the discovery rules or with orders pertaining to discovery. Ill. S. Ct. R. 219(c) (eff. July 1, 2002). Our courts have stated that sanctions for discovery violations are to be entered only when noncompliance is determined to be "unreasonable." Hawkins v. Wiggins, 92 Ill. App. 3d 278, 282 (1980). In determining whether such noncompliance is unreasonable, a court should ascertain whether or not the offending party's conduct was the result of a deliberate and pronounced disregard for the rules and the court. Id.; Sanchez v. Phillips, 46 Ill. App. 3d 430, 434 (1977). The appropriateness of a particular sanction is a matter of discretion for the circuit court, whose ruling will not be reversed on appeal absent an abuse of that discretion. Cedric Spring & Associates, Inc. v. N.E.I. Corp., 81 Ill. App. 3d 1031, 1035 (1980). There are six factors that our courts have considered in determining whether an appropriate sanction has been invoked: (1) the surprise to the opposing party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness. Athans v. Williams, 327 Ill. App. 3d 700, 703 (2002). Of these factors, no single factor controls and each situation presents a unique factual scenario that bears on the propriety of a particular sanction. Smith v. P.A.C.E., 323 Ill. App. 3d 1067, 1076 (2001).
¶ 23 Here, the circuit court granted the defendants' motion in limine to bar the admission of evidence of Zuetlau's wage loss claim as a discovery sanction, as demonstrated by the court's reliance on Polk v. Cao, 279 Ill. App. 3d 101 (1996). In Polk, plaintiff brought suit against defendant for injuries purportedly received during an automobile collision. Id. at 103. Defendant admitted liability and the case proceeded to trial on the issues of whether defendant's negligence proximately caused plaintiff's purported injuries, and if so, a determination as to a reasonable amount of compensation for those injuries. Id. However, prior to trial, the court barred plaintiff's wage loss claim as a sanction for noncompliance with defendant's discovery request to produce tax returns. Id. at 105. On appeal, the court found that the circuit court did not abuse its discretion in barring plaintiff's wage loss claim after finding that he failed to use reasonable efforts to obtain his tax returns for production at trial. Id. at 107.
¶ 24 In the initial request for production filed in December 2013, the defendants requested Zuetlau to provide his 2009-2013 tax returns. Zuetlau responded by indicating that "Income Tax Returns *** are unavailable at this time. Plaintiff may supplement." The defendants then attempted to obtain Zuetlau's tax returns directly from the Internal Revenue Service (IRS) by sending an authorization form, paying a $300 fee, and sending correspondence on four separate occasions-September 17, 2015, October 6, 2015, January 15, 2016, and February 1, 2016. On February 5, 2016, more than three months before trial, the defendants requested Zuetlau's compliance with the discovery request following their failed attempts with the IRS. On February 18, 2016, the defendants filed another request for production. Zuetlau responded the next day indicating that "Income
Tax Returns *** are unavailable at this time. Plaintiff has none in his possession." Lastly, on June 21, 2016, the day of trial, the defendants' counsel offered to withdraw the motion in limine if Zuetlau's counsel obtained the records, via fax, from Zuetlau's accountant. Zuetlau's counsel refused, asserting, instead, that the defendants had sufficient financial records to cross-examine Zuetlau and that the filing of a motion in limine to bar a claim was procedurally improper.
¶ 25 We first note that Zuetlau failed to provide all requested tax returns, including at least one tax return that would have been prepared while the discovery request was pending. It is indisputable that the defendants were entitled to Zuetlau's tax returns, as these documents would have provided additional financial details, such as net income, necessary to effectively cross-examine Zuetlau, and would have assisted the jury in calculating the appropriate amount of lost wages. See Hawkins v. Potter, 44 Ill. App. 2d 314, 316 (1963) (when a party's income is at issue, the opposite party has the right to ascertain the relevant facts as they were provided to the government for tax purposes). Moreover, the defendants' initial request for the tax returns was filed more than two years before trial, and the motion in limine to bar the wage loss claim was served on Zuetlau more than one month in advance of trial. Thus, Zuetlau had ample time to comply in advance of trial. The record demonstrates that the defendants acted with due diligence to obtain the requested tax returns. However, Zuetlau acted unreasonably and in deliberate disregard of the discovery rules by failing to comply with the requested discovery, doing so without explanation. Therefore, based on the foregoing, we find that the circuit court
did not abuse its discretion where it granted the defendants' motion in limine to bar Zuetlau's wage loss claim for noncompliance with pretrial discovery requests.
¶ 26 CONCLUSION
¶ 27 Accordingly, we find that Zuetlau waived review of the circuit court's exclusion of the unpaid medical bill for failure to make an offer of proof. The court did not abuse its discretion where it granted the defendants' motion in limine to bar Zuetlau's wage loss claim for noncompliance with pretrial discovery requests.
¶ 28 Affirmed.