Cisarik v. Palos Community Hosp.

• Decision Date: 26 September 1991
• Docket Number: No. 69807,69807
• Citation: 579 N.E.2d 873,162 Ill.Dec. 59,144 Ill.2d 339
• Parties: , 162 Ill.Dec. 59 Kelly Lynn CISARIK, a Minor, by Nancy CISARIK, her Mother and Next Friend, et al., v. PALOS COMMUNITY HOSPITAL et al. (Ann Herbert, Contemnor-Appellee; Palos Community Hospital, Appellant).
• Court: Illinois Supreme Court

Page 873

579 N.E.2d 873

144 Ill.2d 339, 162 Ill.Dec. 59

Kelly Lynn CISARIK, a Minor, by Nancy CISARIK, her Mother and Next Friend, et al., v. PALOS COMMUNITY HOSPITAL et al. (Ann Herbert Contemnor-Appellee; Palos Community Hospital, Appellant).

No. 69807.

Supreme Court of Illinois.

Sept. 26, 1991.

Lunn M. Egan, Hinshaw & Culbertson, Chicago, for Palos community hosp.

Martha A. Churchill, Mid-America Legal Foundation, Chicago, for amici curiae Illinois Chamber of Commerce, Illinois Mfrs. Assoc., and Mid-America Legal Foundation.

Barry D. Goldberg, Goldberg & Goldberg, David A. Novoselsky, Chicago, for Ann Herbert.

Wildman, Harrold, Allen & Dixon, Pretzel & Stouffer, Chartered, Chicago.

Justice HEIPLE delivered the opinion of the court:

This is a medical malpractice case brought by a brain-damaged infant against a hospital and others. As part of plaintiff's case in chief, her counsel intends to produce a motion picture of plaintiff which would depict a typical day in her life. The purpose of the movie is to give the jury a grasp of the full extent of plaintiff's disabilities and handicaps.

Defense counsel asked for and obtained from the trial court a protective order giving them advance notice of the filming, the right to be present at the filming, and a copy of the finished film as well as all edited out and unused footage. The appellate court modified the protective order in some respects. 193 Ill.App.3d 41, 140 Ill.Dec. 189, 549 N.E.2d 840.

Viewed in its proper light, a so-called "Day in the Life Movie" is merely a type of demonstrative evidence. In such respect, it is comparable to a still photograph, a graph, a chart, a drawing or a model. The preparation of such evidence falls within the work product of the lawyer who is directing and overseeing its preparation.

Demonstrative evidence has no probative value in itself. It serves, rather, as a visual aid to the jury in comprehending the verbal testimony of a witness. (M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 401.2 (5th ed.1990).) Because a "Day in the Life" film is a form of motion picture it is admissible evidence on the same basis as photographs. (Amstar Corp. v. Aurora Fast Freight (1986), 141 Ill.App.3d 705, 96 Ill.Dec. 31, 490 N.E.2d 1067.) Consequently, before a "Day in the Life" film can become evidence at trial it must first pass a two-prong test. First, a foundation must be laid, by someone having personal knowledge of the filmed object, that the film is an accurate portrayal of what it purports to show. (People v. Donaldson (1962), 24 Ill.2d 315, 319, 181 N.E.2d 131.) Second, the film is only admissible if its probative value is not substantially out-weighed by the danger of unfair prejudice. Barenbrugge v. Rich (1986), 141 Ill.App.3d 1046, 96 Ill.Dec. 163, 490 N.E.2d 1368; Georgacopoulos v. University of Chicago Hospitals & Clinics (1987), 152 Ill.App.3d 596, 105 Ill.Dec. 545, 504 N.E.2d 830.

Defense counsel argues that since "Day in the Life" films are intended "to demonstrate a parade of horribles," they should be subjected to more stringent discovery guidelines than other types of evidence, in order to afford all parties a measure of fairness. We disagree. As correctly pointed out by plaintiff's counsel at oral argument, defense counsel has the right to bring before a trial court anything that is objectionable about the film. Indeed, Illinois courts, including this court, have been willing to exclude motion pictures that are unfairly prejudicial. See, e.g., Amstar Corp. v. Aurora Fast Freight (1986), 141 Ill.App.3d 705, 96 Ill.Dec. 31, 490 N.E.2d 1067 (videotape taken properly excluded from evidence since it offered vantage point different from that of witness whose testimony was sought to be impeached); French v. City of Springfield (1976), 65 Ill.2d 74, 2 Ill.Dec. 271, 357 N.E.2d 438 (error to admit plaintiff's film of accident scene that is prejudicial where it is inaccurate and tends to support plaintiff's theory).

We believe that opposing counsel has no right to intrude into the production of this demonstrative evidence. The test of this evidence will occur when and if it is offered into evidence. That is the proper time for the trial court to deal with its admissibility.

Accordingly, we reverse both the trial court and the appellate court as to the appropriateness of the protective order. We affirm the appellate court as to the reversal of the contempt order which was entered against plaintiff's counsel for refusal to comply with the trial court's order. The cause is remanded to the circuit court of Cook County for further proceedings consistent with the views expressed herein.

Appellate court affirmed in part and reversed in part; circuit court reversed; cause remanded.

BILANDIC, J., took no part in the consideration or decision of this case.

Chief Justice MILLER, dissenting:

The majority opinion ignores the proper role of discovery in the litigation process and inexplicably denies the present defendants certain minimal pretrial safeguards traditionally afforded litigants under our well-established rules of discovery. For those reasons, I respectfully dissent.

This appeal arises from a pretrial order entered by the circuit court concerning defendants' discovery rights with respect to a day-in-the-life film that plaintiff intends to prepare for use at trial. A brief review of the history of this case will demonstrate precisely what is at issue here. Both the trial and appellate courts in the case at bar recognized the proposed day-in-the-life film as a distinct type of evidence, and each court formulated guidelines intended to ensure the defense appropriate discovery opportunities with respect to the film. The major difference between the guidelines issued by the trial court and those issued by the appellate court was that the latter did not require that defense counsel be allowed to attend the filming. By reversing the protective order in its entirety, today's decision eliminates even the appellate court's reduced set of guidelines and seemingly cuts the present proceeding loose from fundamental discovery requirements.

The trial judge aptly noted that a day-in-the-life film is "vital and valuable evidence" that may have a "serious impact" on all the parties to an action. In a written order, the trial judge provided that plaintiff give 14 days' notice to the defendants of the date, time, and place of filming; that counsel for each of the defendants be permitted to be present during filming and, furthermore, be allowed to cross-examine, at that time, anyone questioned by plaintiff's counsel during filming; and that all footage be preserved and made available upon the request of any party.

Although the appellate court did not agree with the trial judge that defense counsel should be allowed to be present during filming, the appellate court recognized the need for discovery guidelines for preparation of the proposed film. The appellate court required plaintiff to preserve and make available to defendants all of the film taken, including any footage not included in the final edited presentation. (193 Ill.App.3d 41, 45, 140 Ill.Dec. 189, 549 N.E.2d 840.) The appellate court also determined that defendants were entitled to take discovery depositions of plaintiff's authenticating witnesses and to offer as evidence any otherwise admissible film not used by plaintiff. (193 Ill.App.3d at 45, 140 Ill.Dec. 189, 549 N.E.2d 840.) The appellate court granted plaintiff the same discovery opportunities with respect to any film that defendants intended to prepare for use at trial. 193 Ill.App.3d at 45, 140 Ill.Dec. 189, 549 N.E.2d 840.

Before this court, plaintiff makes no challenge to the discovery guidelines fashioned by the appellate court and asks that the court's judgment be affirmed. Indeed, plaintiff relies extensively on the appellate court's guidelines in arguing against the additional requirement, imposed by the circuit judge, that defense counsel be allowed to be present during filming. In plaintiff's view, counsel's presence at filming is unnecessary because the appellate court's guidelines are sufficient to ensure adequate discovery opportunities for the defendants. Nonetheless, by reversing that portion of the appellate court's judgment pertaining to the protective order, the majority opinion effectively discards those guidelines as well, which simply reflect...