Brown v. Advocate Health & Hosps. Corp.

• Decision Date: 15 September 2017
• Docket Number: No. 1-16-1918,1-16-1918
• Citation: 2017 IL App (1st) 161918,88 N.E.3d 89
• Parties: Anthony BROWN, Individually and as Independent Representative of the Estate of Joyce R. Hobson, Deceased, Plaintiff-Appellee, v. ADVOCATE HEALTH AND HOSPITALS CORPORATION, d/b/a Advocate South Suburban Hospital and Advocate Medical Group; Olalekan Sowade, M.D.; Erik Swenson, M.D.; James O'Donnell, M.D.; Agop Tepeli, M.D. ; Gupta, M.D., S.C.; and Surgical Specialists, S.C., Defendants (Advocate Health and Hospitals Corporation, d/b/a Advocate South Suburban Hospital, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 161918
88 N.E.3d 89

Anthony BROWN, Individually and as Independent Representative of the Estate of Joyce R. Hobson, Deceased, Plaintiff-Appellee,
v.
ADVOCATE HEALTH AND HOSPITALS CORPORATION, d/b/a Advocate South Suburban Hospital and Advocate Medical Group; Olalekan Sowade, M.D.; Erik Swenson, M.D.; James O'Donnell, M.D.; Agop Tepeli, M.D. ; Gupta, M.D., S.C.; and Surgical Specialists, S.C., Defendants

(Advocate Health and Hospitals Corporation, d/b/a Advocate South Suburban Hospital, Defendant-Appellant).

No. 1-16-1918

Appellate Court of Illinois, First District, FIFTH DIVISION.

September 15, 2017

Garrett L. Boehm, Jr., and Tammy L. Wade, of Johnson & Bell, Ltd., of Chicago, for appellant.

Vivian Tarver-Varnado, of AMB Law Group, LLC, of Chicago, for appellee.

PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Advocate Health and Hospitals Corporation, d/b/a Advocate South Suburban Hospital (Advocate), a defendant in a medical malpractice action, violated an order of the circuit court of Cook County by refusing to produce certain insurance-related documents for in camera inspection. The circuit court held Advocate in "friendly

88 N.E.3d 91

contempt" and imposed a $100 fine, which allowed Advocate to file this interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016). As discussed herein, we (i) affirm the judgment of the circuit court directing Advocate to produce certain documents for in camera inspection and (ii) vacate the order finding Advocate in contempt and imposing a monetary penalty.

¶ 2 BACKGROUND

¶ 3 Joyce R. Hobson, after being hospitalized and undergoing multiple medical procedures at Advocate, experienced cardiopulmonary arrest and died on May 23, 2011. Anthony Brown, as the administrator of her estate, filed a medical malpractice action against Advocate and other defendants in 2013.

¶ 4 The plaintiff issued discovery requests seeking copies of Advocate's insurance policies. Advocate responded that there is no policy to produce because it is a self-insured entity. Pursuant to multiple court orders, Advocate was directed to produce its insurance policies. The circuit court also entered a protective order, which provided that any insurance documents produced by Advocate would remain strictly confidential and solely be used for purposes of this litigation.

¶ 5 The plaintiff filed a motion to compel seeking compliance with the previous court orders and for sanctions pursuant to Illinois Supreme Court Rule 219 (eff. July 1, 2002). According to the plaintiff, Advocate had produced a "few pages of a document that was 99% blank."¹ In a court order entered on June 7, 2016, Advocate was directed "to tender its full trust agreement related to the substance of the [motion to compel] and an unredacted copy of the endorsement previously tendered for in camera inspection on or before June 14, 2016."

¶ 6 During a hearing on June 14, 2016, Advocate represented that it had previously disclosed $12.5 million in coverage for the plaintiff's claim pursuant to a self-insured retention and trust. Advocate continued to refuse to produce the trust agreement or related documents and asked to be held in "friendly contempt." At the conclusion of the hearing, the circuit court directed the following statements to Advocate's counsel:

"[J]ust so I can have it clear, you now are stating in open court that you are asking me to enter a friendly contempt citation against [Advocate] for purposes of appealing my order requiring [Advocate] to produce to me, for in camera inspection, a copy of the self-insured trust agreement plus any endorsements showing who is covered, under what circumstances people are covered, if employees are covered, all the normal and customary issues that are governed by insurance documents and/or policies and/or indemnity agreements."

Advocate's counsel answered affirmatively. In a written order entered on June 14, 2016, the circuit court held Advocate in friendly contempt for failing to comply with the June 7, 2016, order for the reasons stated on the record, and imposed a $100 fine. Advocate filed this timely appeal pursuant to Rule 304(b)(5). Ill. S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016).

¶ 7 ANALYSIS

¶ 8 Advocate advances three primary contentions on appeal. It initially argues that "[i]nsurance documents are not discoverable

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in a tort action not involving insurance coverage because the insurance documents lack relevance to the claims advanced." Advocate next contends that its trust agreement is a confidential financial document rather than an insurance document, and thus the circuit court abused its discretion in ordering its production. Finally, Advocate argues that the contempt order should be vacated because its actions were not contemptuous of the circuit court's authority. We address each argument below.

¶ 9 A discovery order issued by the circuit court is generally not appealable because it is not a final order. Norskog v. Pfiel, 197 Ill. 2d 60, 69, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001) ; Adler v. Greenfield, 2013 IL App (1st) 121066, ¶ 39, 371 Ill.Dec. 841, 990 N.E.2d 1219. It is well settled, however, that the correctness of a discovery order may be tested through contempt proceedings. Adler, 2013 IL App (1st) 121066, ¶ 39, 371 Ill.Dec. 841, 990 N.E.2d 1219 ; Payne v. Hall, 2013 IL App (1st) 113519, ¶ 10, 369 Ill.Dec. 820, 987 N.E.2d 447. Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016) provides that an "order finding a person or entity in contempt of court which imposes a monetary or other penalty" is appealable without the special finding required for appeals under Rule 304(a). In the instant case, the circuit court fined Advocate $100 for contempt to facilitate an appeal pursuant to Rule 304(b)(5).

¶ 10 The standard of review for a contempt order is abuse of discretion. Payne, 2013 IL App (1st) 113519, ¶ 10, 369 Ill.Dec. 820, 987 N.E.2d 447 ; Illinois Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 785, 332 Ill.Dec. 812, 913 N.E.2d 1102 (2009). A circuit court abuses its discretion when its ruling is arbitrary, unreasonable, fanciful, or where no reasonable person would take the view adopted by the circuit court. Payne, 2013 IL App (1st) 113519, ¶ 10, 369 Ill.Dec. 820, 987 N.E.2d 447.

¶ 11 Because Advocate is appealing a finding of contempt based on its noncompliance with a discovery order, we must necessarily review the propriety of the discovery order. See Norskog, 197 Ill. 2d at 69, 257 Ill.Dec. 899, 755 N.E.2d 1 ; Klaine v. Southern Illinois Hospital Services, 2014 IL App (5th) 130356, ¶ 9, 383 Ill.Dec. 747, 15 N.E.3d 525 ; Illinois Emcasco Insurance, 393 Ill. App. 3d at 785, 332 Ill.Dec. 812, 913 N.E.2d 1102. Discovery rulings generally are reviewed for an abuse of discretion. Klaine, 2014 IL App (5th) 130356, ¶ 10, 383 Ill.Dec. 747, 15 N.E.3d 525 ; Adler, 2013 IL App (1st) 121066, ¶ 40, 371 Ill.Dec. 841, 990 N.E.2d 1219. Although the applicability of a privilege is reviewed de novo( Klaine, 2014 IL App (5th) 130356, ¶ 10), 383 Ill.Dec. 747, 15 N.E.3d 525, Advocate has expressly represented that its objection to production is based on relevance, not on confidentiality or privilege grounds.

¶ 12 Illinois Supreme Court Rule 201 (eff. May 29, 2014) "defines the scope of discovery in civil cases and has been interpreted to allow discovery of all information that would be admissible at trial as well as information which is reasonably likely to lead to admissible evidence." Klaine, 2014 IL App (5th) 130356, ¶ 14, 383 Ill.Dec. 747, 15 N.E.3d 525. Rule 201(b)(1) provides, in part, that a party generally "may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action." Ill. S. Ct. R. 201(b)(1) (eff. May 29, 2014). Rule 401 of the Illinois Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ill. R. Evid. 401 (eff. Jan. 1, 2011). Pursuant

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to Rule 402 of the Illinois Rules of Evidence, all relevant evidence generally is admissible, and evidence that is not relevant is not admissible. Ill. R. Evid. 402 (eff. Jan. 1, 2011).

¶ 13 Advocate argues that the content of the requested insurance documents lacks relevance to the tort claims advanced by the plaintiff and thus the discovery orders compelling their production should be vacated. As discussed herein, however, we view the issue of discoverability as distinct from admissibility in the context of this case.

¶ 14 Citing Seldin v. Babendir, 325 Ill. App. 3d 1058, 259 Ill.Dec. 548, 759 N.E.2d 28 (2001), and Imparato v. Rooney, 95 Ill. App. 3d 11, 50 Ill.Dec. 512, 419 N.E.2d 620 (1981), Advocate contends that "[e]vidence that a party is insured is generally inadmissible at trial." Seldin and Imparato addressed the propriety of questioning prospective jurors regarding their interest in or connections to the insurance industry during voir dire in a personal injury action. Seldin, 325 Ill. App. 3d at 1064, 259 Ill.Dec. 548, 759 N.E.2d 28 ; Imparato, 95 Ill. App. 3d at 15, 50 Ill.Dec. 512, 419 N.E.2d 620. The courts in both cases noted that evidence informing a jury that a defendant is insured against liability is generally inadmissible. Seldin, 325 Ill. App. 3d at 1064, 259 Ill.Dec. 548, 759 N.E.2d 28 ; Imparato, 95 Ill. App. 3d at 17, 50 Ill.Dec. 512, 419 N.E.2d 620. Unlike in Seldin or Imparato, however, the instant case involves the discoverability of documents, not their ultimate admissibility at trial. See, e.g., Crnkovich v. Almeida, 261 Ill. App. 3d 997, 999, 199 Ill.Dec. 776, 634 N.E.2d 1130 (1994) (noting that "the concept of relevance is broader for discovery purposes than for purposes of the admission of evidence at trial, since it includes not only what is...