Beiermann v. Edwards

• Decision Date: 30 January 1990
• Docket Number: No. 2-89-0284,2-89-0284
• Citation: 193 Ill.App.3d 968,140 Ill.Dec. 702,550 N.E.2d 587
• Parties: , 140 Ill.Dec. 702 William C. BEIERMANN, Plaintiff, v. Walter EDWARDS, Defendant (The People of the State of Illinois ex rel. Department of Agriculture, Intervenor-Appellant, v. Walter Edwards, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 587

550 N.E.2d 587

193 Ill.App.3d 968, 140 Ill.Dec. 702

William C. BEIERMANN, Plaintiff, v. Walter EDWARDS, Defendant (The People of the State of Illinois ex rel. Department of Agriculture Intervenor-Appellant, v. Walter Edwards Defendant-Appellee).

No. 2-89-0284.

Appellate Court of Illinois Second District.

Jan. 30, 1990.

Rehearing Denied March 12, 1990.

Neil F. Hartigan, Atty. Gen., Peter V. Bustamante (argued), Richard W. Merrill, Jr., Asst. Atty. Gen., Gen. Law Div., Richard F. Linden (argued), Asst. Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago, for appellant.

Thomas R. Weiler (argued), O'Reilly, Cunningham, Norton & Mancini, Wheaton, for appellee.

Presiding Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, William Beiermann, filed a complaint, seeking damages for personal injuries and lost wages sustained following an accident between defendant Walter Edwards and defendant Anjum Khan. Plaintiff's employer, the State of Illinois (State), filed a complaint in intervention pursuant to section 5(b) of the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.5(b)). Subsequently, Beiermann abandoned his personal injury action, allowing the State to substitute as plaintiff in intervention. One of the defendants, Khan, settled at trial. The jury rendered a verdict in favor of the remaining defendant, Walter Edwards, and the trial court entered judgment upon that verdict.

On appeal, the State argues that: (1) the trial court erred in refusing to bar the testimony of Debra Harrington, an occurrence witness, as a sanction for defense counsel's misconduct; (2) the trial court erred in not excluding the testimony of Dr. Roger Traycoff for defendant's failure to disclose this witness as an expert pursuant to Supreme Court Rule 220(b)(1); (3) the trial court erred in requiring the State, as an intervenor, to pursue, as its measure of damages, those damages which the original plaintiff, William Beiermann, would have been able to collect from defendant; and (4) the trial court erred in determining that there was sufficient evidence to submit to the jury Illinois Pattern Jury Instructions, Civil, No. 3.01 (2d ed. 1971) (hereinafter IPI Civil 2d No. 3.01), dealing with impeachment by prior inconsistent conduct.

On October 5, 1983, William Beiermann, an inspector for the Department of Agriculture, had just finished inspecting and calibrating the gas pumps at a Citgo gas station located on Route 20 in Roselle when the cars driven by the defendants collided at the entrance to the station. At the time of the collision Beiermann was standing inside the gas station completing paper work. Following the collision, defendant Edwards' automobile struck the gas station building. According to Beiermann's testimony at trial, he was leaning against the wall of the building when Edwards' automobile struck it. Beiermann stated that he felt like he had been whacked in the back with a ball bat and that the impact knocked him face forward to the ground. Subsequently, he left the station building and began directing traffic away from the gas station. Beiermann did not complain to Debra Harrington, the station manager, or to the police or paramedics on the scene that he was hurt or injured.

Thereafter, Beiermann drove to his motel room in Joliet. It was Beiermann's testimony that the pain in his back became intense when he arrived at the motel. When he could no longer bear the pain, he went to the motel desk, asked for the name of the nearest doctor, and then proceeded to the doctor's office. According to Beiermann, the physician, Dr. Green, gave Beiermann some pain medication and recommended that Beiermann go to the hospital in Joliet. During Dr. Green's testimony, the doctor denied telling Beiermann that he should go to the hospital and further testified that after examining Beiermann, he concluded that Beiermann could return to work the next day.

Beiermann stated that the following morning he was stiff and sore in the lower back when he awoke and that the pain was spreading. Beiermann testified that he decided to return home to Springfield so he could go to the local hospital. Before returning to Springfield, he drove back to the Citgo station in Roselle to verify addresses and phone numbers gathered the preceding day. While at the station, Beiermann told manager Debra Harrington that he had hurt his back.

Prior to trial, Debra Harrington was disclosed as an occurrence witness by Beiermann and by defendant Edwards. Edwards produced to Beiermann a statement Harrington had given to the police describing the accident. One week before trial counsel for defendant Edwards subpoenaed Harrington to appear for a discovery deposition. The date of the deposition, as set forth in the subpoena, was October 10, 1988. Defense counsel gave oral notice to counsel for the State that Harrington's deposition was scheduled for October 11. On October 10, Harrington appeared at defense counsel's Chicago office for her deposition.

At the hearing on the State's motion for sanctions against defendant Edwards and his counsel for improper notice of Harrington's deposition, counsel for the State related that on October 11 he received a telephone call from defense counsel's secretary informing him that Harrington's deposition had been canceled. The secretary stated that she did not know if the deposition would be rescheduled. Counsel for the State then telephoned Harrington to suggest that if she was going to talk to anyone, it would be fair to have all the parties present. Harrington informed counsel that she had already given her deposition on October 10 pursuant to a subpoena. Counsel for the State then prepared its motion for sanctions and had the motion delivered to the court and defense counsel.

At about 2:30 p.m. October 11, defense counsel phoned counsel for the State regarding some depositions to be taken later in the week. During the conversation, counsel for the State asked what happened with Harrington's deposition. Defense counsel replied that he had decided not to take it.

Shortly thereafter, defense counsel called counsel for the State to explain the mix-up in the scheduling of Harrington's deposition. It was defense counsel's explanation that his secretary had made a clerical mistake and subpoenaed Harrington for October 10 instead of October 11. Defense counsel first learned of the mistake when he received a telephone call on October 10 from his firm's Chicago office, indicating that Harrington was at that office for her deposition. According to counsel, he instructed his secretary to ask Harrington if she could return for her deposition the following date, October 11, but Harrington could not. Counsel then advised his secretary to try to contact counsel for the State while defense counsel proceeded to travel to the downtown office. When counsel arrived downtown, he learned that his secretary had been unable to reach counsel for the State due to the October 10 Columbus Day holiday.

Defense counsel explained to Harrington that he could not take her deposition since all the parties were not present. Counsel then asked if she would consent to giving him a "court-reported statement," and Harrington agreed. Defense counsel stated that Harrington's statement was substantially the same as the typewritten statement Harrington had given to the Roselle police shortly after the accident.

At the conclusion of the hearing on the motion for sanctions, the court determined that an "honest mistake" had been made and that no "evil motive" was intended by defense counsel's actions. The court advised counsel that he should have sent Harrington home and then taken her statement at home if he wanted it. The court gave counsel for the State the option of barring defense counsel's use of the statement if the State so desired. The State did not object to this sanction. Subsequently, the State called Harrington as its own witness.

At trial, Harrington testified that at the time of the accident in question she was working inside the gas station and that Beiermann was standing approximately three feet from the wall which was struck by defendant Edwards' automobile. According to Harrington, Beiermann was still standing after the impact; he had not moved at all. Harrington stated that Beiermann did not appear to be physically injured after the accident and that he did not complain that his back hurt.

In November 1986, the State requested that Beiermann see Dr. Roger Traycoff, an expert in pain management. The State referred Beiermann to Dr. Traycoff for an evaluation of Beiermann's complaints of chronic pain. The evaluation was to aid the State in the management of Beiermann's worker's compensation claim.

On October 12, 1988, defense counsel took the evidence deposition of Dr. Traycoff. Dr. Traycoff testified as to a variety of tests he performed upon Beiermann. As a result of these tests, and a complete physical examination of Beiermann, Dr. Traycoff concluded that there was some factor responsible for Beiermann's pain other than an anatomical source and that there were enough inconsistencies in Beiermann's history and physical examination to suggest a psychological component for his pain.

During Dr. Traycoff's evidence deposition, the State moved that the doctor's deposition be stricken pursuant to Supreme Court Rule 220 (107 Ill.2d R. 220) because Dr. Traycoff would qualify only as an expert witness, and defense counsel had failed to timely disclose this fact to the State. Dr. Traycoff's testimony was limited to his physical examination of Beiermann, his conclusions based on that examination, and his interpretation of tests which he performed on Beiermann.

Dr. Traycoff's testimony at his deposition revealed that he had had no contact with defendant or with defendant's attorney prior to giving his evidence deposition. Defendant only learned of Dr. Traycoff when records of Beiermann's treating physicians were...