Cisarik v. Palos Community Hosp.

• Citation: 549 N.E.2d 840,193 Ill.App.3d 41
• Decision Date: 29 December 1989
• Docket Number: No. 1-88-1139,1-88-1139
• Parties: , 140 Ill.Dec. 189 Kelly Lynn CISARIK, a minor, by, Nancy Cisarik, her mother and next friend, and Dennis Cisarik, individually, v. PALOS COMMUNITY HOSPITAL, et al. (Ann Herbert, Contemnor-Appellant).
• Court: United States Appellate Court of Illinois

Page 840

549 N.E.2d 840

193 Ill.App.3d 41, 140 Ill.Dec. 189

Kelly Lynn CISARIK, a minor, by, Nancy Cisarik, her mother and next friend, and Dennis Cisarik, individually, v. PALOS COMMUNITY HOSPITAL, et al. (Ann Herbert, Contemnor-Appellant).

No. 1-88-1139.

Appellate Court of Illinois First District, Second Division.

Dec. 29, 1989.

Barry D. Goldberg, Goldberg and Goldberg, David A. Novoselsky and Kathleen M. Krist, David A. Novoselsky & Associates, of counsel, Chicago, for appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, D. Kendall Griffith, E. Michael Kelly and Joshua G. Vincent, of counsel, for appellee Palos.

Presiding Justice BILANDIC delivered the opinion of the court:

Plaintiff, Kelly Lynn Cisarik, a minor, by her mother and next friend brought this action for damages alleging that defendants were negligent in providing certain medical services. On October 13, 1987, the attorneys for one of the defendants wrote to counsel for plaintiff:

"If you are planning to use a 'day in the life' movie at trial I would ask your agreement on certain points:

--Since I consider such movies to be akin to tests I would ask for notice when the movie is being made;

--I would ask that the opposing attorneys have the option to have an observer present;

--I would ask, at my expense, for a copy of all film shot.

If you disagree with these points, please advise and we can take the matter up with Judge Foreman on November 2, 1987."

On December 8, 1987, counsel for the plaintiff responded:

"I am planning to take a 'day in the life' film of my client and do not agree with your perspective and I do not intend to permit you or any Defendant to be present at the filming of said film. I suggest you take whatever action in that regard that you wish. You will be given a copy of the film at your expense as requested."

Thereafter, defendant moved for an order in accordance with its request. After a hearing, the trial court entered an order allowing all defendants to be present during the filming of a "day in the life" movie of Kelly. The order also provided that: (1) defendants were to be given notice of the making of the film; (2) the film was to be preserved in its entirety; and (3) the film was to be made available to all defendants.

This appeal arises from an order entered by the Circuit Court of Cook County on April 7, 1988, holding Ms. Ann Herbert, an attorney for plaintiff, in contempt. Ms. Herbert was held in contempt and fined $100 when she refused to comply with the court's order, believing that defendants had no right under Illinois law to be present during the filming.

As a preliminary matter, we note that this is a case of first impression in Illinois. Under the facts of this case, we conclude that Ms. Herbert's refusal was a good faith effort to secure an interpretation of an issue without direct precedent in this state. By subjecting herself to a contempt citation, she exercised a permissible method of testing a pre-trial order. Bicek v. Quitter (1st Dist.1976), 38 Ill.App.3d 1027, 350 N.E.2d 125.

Until relatively recent times, the use of motion pictures in the trial of personal injury cases has been the domain of the defendants. In 1935, the ABA Journal reported the use of films to expose malingering plaintiffs. ( 21 ABAJ 653 (1935) Sweet, "The Motion Picture as a Fraud Detector.") Even at this time, " * * * the most common use of motion pictures as evidence today is to refute the extent of disability claimed by plaintiffs in personal injury cases * * *. Indeed this use * * * has become so common that in almost every city telephone directory will be found advertisements of industrial motion picture photographers stating that they specialize in this type of work." 2 C. Scott, Photographic Evidence § 729 (2d ed. 1969).

"In recent years increasing evidential use has been made of what have been called 'day in the life' films and videotapes of persons whose injuries are in question in litigation." 3 C. Scott, Photographic Evidence § 1315 (2d ed. Supp.1987).

It is well established that motion pictures, when properly authenticated and relevant, are admissible into evidence. For a long time, Illinois courts have upheld the use of motion pictures to expose a malingering plaintiff. See McGoorty v. Benhart (2d Dist.1940), 305 Ill.App. 458, 27 N.E.2d 289.

"Day in the life" films were first considered in Illinois in 1986 when this court approved the use of such a film in Barenbrugge v. Rich (1st Dist.1986), 141 Ill.App.3d 1046, 96 Ill.Dec. 163, 490 N.E.2d 1368,appeal denied, 112 Ill.2d 570. Again, in 1987, the use of such films was approved in Georgacopoulos v. University of Chicago Hospitals (1st Dist.1987), 152 Ill.App.3d 596, 105 Ill.Dec. 545, 504 N.E.2d 830. These are the only reported Illinois cases on the subject.

Defendants in the case at bar do not dispute the admission of "day in the life" films. Here the issue is the extent to which the defendants can participate in plaintiff's preparation of evidence that may be used at trial.

Since a pre-trial order is involved in this appeal, in the interest of judicial economy, it may be well to consider a pre-trial order that may apply to both parties in the preparation of their respective cases. With the extensive use of video by both sides, "[w]e need--but do not have--systematic, organized discovery procedures that insure disclosure of trial videotapes far enough in advance of trial so that information can be gathered and an effective rebuttal planned." (E. Chernow, "Video in the...