Kindernay v. Hillsboro Area Hosp.

• Decision Date: 15 June 2006
• Docket Number: No. 5-05-0098.,5-05-0098.
• Parties: Linda S. KINDERNAY, Plaintiff-Appellee and Cross-Appellant, v. HILLSBORO AREA HOSPITAL, an Illinois Not-for-Profit Corporation, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 866

851 N.E.2d 866

Linda S. KINDERNAY, Plaintiff-Appellee and Cross-Appellant, v. HILLSBORO AREA HOSPITAL, an Illinois Not-for-Profit Corporation, Defendant-Appellant and Cross-Appellee.

No. 5-05-0098.

Appellate Court of Illinois, Fifth District.

June 15, 2006.

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James E. Peckert, Kehart, Peckert & Booth, Decatur, for Appellant.

Bob L. Perica, Hoefert and Perica, P.C., Alton, Gail G. Renshaw, The Lakin Law Firm, Wood River, for Appellee.

Presiding Justice SPOMER delivered the opinion of the court:

The defendant, Hillsboro Area Hospital, appeals the order of the circuit court of Montgomery County that entered a judgment on a jury verdict in favor of the plaintiff, Linda S. Kindernay, for damages in the amount of $120,000 on her cause of action for negligence and awarded the plaintiff damages in the amount of $70 and attorney fees in the amount of $70 on her cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). The plaintiff cross-appeals that portion of the judgment on the jury verdict which reduced the plaintiff's damages by 20% based on the jury's finding of 20% contributory negligence on the part of the plaintiff, and she also appeals the amount of attorney fees awarded by the circuit court under the Consumer Fraud Act.

The defendant included nine issues in the statement of issues in its brief. However, the argument contained in the defendant's brief does not correspond to the defendant's statement of issues, and some issues do not appear to be supported in any section of the argument. Illinois Supreme Court Rule 341(e)(7) (188 Ill.2d R. 341(e)(7)) mandates that an appellate litigant provide "citation of the authorities and the pages of the record relied on" in support of an argument on appeal. Moreover, Rule 341(e)(7) states, "Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." 188 Ill.2d R. 341(e)(7). We have also previously held that arguments inadequately presented on appeal are waived. Eckiss v. McVaigh, 261 Ill.App.3d 778, 786, 199 Ill.Dec. 637, 634 N.E.2d 476 (1994). Accordingly, we have limited our discussion of the issues to those contained in the argument portion of the defendant's brief. The plaintiff raises two issues on cross-appeal. For the reasons set forth below, we affirm the judgment on the verdict on the plaintiff's cause of action for negligence, including the 20% reduction for the plaintiff's contributory negligence raised as an issue in the plaintiff's cross-appeal. Furthermore, we reverse the judgment on the plaintiff's cause of action under the Consumer Fraud Act, rendering the plaintiff's cross-appeal regarding the amount of attorney fees moot.

The facts necessary to our disposition of this appeal are as follows. On June 7, 2002, the plaintiff filed a complaint in the circuit court of Montgomery County, alleging that she suffered lost wages and emotional distress due to the defendant's failure to administer her drug test in accordance with the United States Department of Transportation (DOT) regulations regarding procedures for transportation workplace drug-and-alcohol testing (49 C.F.R. § 40.1 et seq. (2000)). Specifically, the complaint alleged that the defendant, acting through its employee, failed to properly instruct the plaintiff to wash her hands prior to urination, failed to properly secure the collection restroom, and failed to place a bluing agent in the toilet bowl and tank prior to the collection of urine from the plaintiff. The complaint further alleged that these omissions proximately caused the results of her drug test to be falsely positive for cannabis, which resulted in her claimed lost wages and emotional-distress damages.

After the disposition of a motion for a summary judgment on several counts of the complaint, two counts remained. Count I of the complaint alleged a breach of contract and count II alleged negligence. On the morning of the July 14, 2004, trial, the plaintiff filed a motion for leave to file, at a later date, a third amended complaint in order to replace count I (breach of contract) with a count alleging a cause of action under the Consumer Fraud Act. Over the defendant's objection, the circuit court granted the motion.

The negligence count was tried before a jury of 12. The plaintiff called James Schnarre, manager of the defendant's laboratory, as an adverse witness in her case in chief. Mr. Schnarre testified that the defendant holds itself out as a DOT drug-test collection site. He administered the plaintiff's DOT drug test on August 8, 1997. When he administered the plaintiff's drug test, he did not have a copy of the DOT regulations in effect at that time; a copy of those regulations was admitted into evidence as plaintiff's exhibit two. Instead, he was operating pursuant to the National Institute on Drug Abuse (NIDA) procedures supplied by SmithKline Laboratories for employment drug tests generally; a copy of those procedures was admitted into evidence as plaintiff's exhibit four.

Mr. Schnarre admitted that while the DOT regulations set forth in the plaintiff's exhibit two required the administrator of the test to instruct the subject to wash her hands prior to the collection, the NIDA guidelines did not contain that requirement. Mr. Schnarre admitted that he did not instruct the plaintiff to wash her hands prior to the collection and that this procedure is in place to prevent contamination on the subject's hands from causing a false-positive test result. Mr. Schnarre also admitted that the DOT regulations state that the instructions for DOT procedures must be available at the collection site for reference by the collector and the subject of the test and that he did not have them available. In addition, Mr. Schnarre did not place a bluing agent into the toilet as instructed by the DOT regulations, because the NIDA guidelines did not contain that requirement.

Although the NIDA guidelines required Mr. Schnarre to enter the restroom prior to the plaintiff in order to shut the water supply off, it did not require him to examine the restroom to ensure there were no foreign materials present, as required by the DOT regulations. However, Mr. Schnarre testified that he was within sight of the collection restroom door at all times. Mr. Schnarre also testified that when the plaintiff contacted the defendant to obtain a repeat test after she learned of the positive test result, it was unable to comply with her request because she did not have a physician's order and hospital bylaws require a physician's order before a drug test can be given.

The plaintiff testified on her own behalf. She testified that she had taken at least five DOT drug tests prior to August of 1997 and that they had all been negative. In August of 1997, she arrived at the defendant's facility and registered at the front desk. She then went back to the laboratory and was greeted by Mr. Schnarre. Mr. Schnarre handed her two cups and told her to go ahead into the collection restroom. When the plaintiff went to enter the collection bathroom, she found the door locked. After a few moments, an unknown woman came out of the restroom. The plaintiff did not know the woman, had never seen her before, and at the time of the trial could not recall a description of the woman.

When the plaintiff walked in the bathroom after the unknown woman had exited, the plaintiff noticed a urine sample on the shelf. As they were passing each other, the plaintiff asked the lady if she was supposed to take the sample with her, and the woman said they had told her to leave it in the restroom. Mr. Schnarre did not accompany the plaintiff down the hallway to the restroom, and contrary to Mr. Schnarre's testimony, the plaintiff testified that Mr. Schnarre could not see the collection restroom directly from his desk. The plaintiff admitted that when she learned of the positive test result, she did not mention the unknown woman and that she did not mention her until she talked to an attorney in connection with her hearing before the Illinois Secretary of State to reinstate her DOT license.

The plaintiff testified that, upon entering the restroom, she put her urine into the smaller cup and set it on the shelf. In contradiction to Mr. Schnarre's testimony, the plaintiff testified that the water supply to the bathroom was on, because she washed her hands. She then poured the urine from the smaller cup to the larger cup. She washed her hands a second time, picked up what she thought was her specimen, and then exited the restroom. She handed the specimen to Mr. Schnarre, who placed the specimen into a bag. She then initialed some papers and stickers, which Mr. Schnarre placed onto the bag. She then left the defendant's facility and went back to work.

The plaintiff testified that once she learned that her drug test result was positive for cannabis, she went to talk to the superintendent of schools. After speaking to him, she felt a little better about what was going on and felt that things would work out. She then went to her physician's office to reschedule another drug test but was informed that her physician was on vacation. It was approximately two weeks later before she was able to reschedule for a new drug test. Before the results of her second test came back, she learned that her driving privileges were to be suspended by the Secretary of State. When the second test results came back, they were negative. She retained an attorney to represent her at a hearing regarding reinstatement, in which she ultimately prevailed. However, she was unable to drive during the entire 1997-1998 school year. She testified that had she driven that year, her income from driving would have been approximately $10,000.

The plaintiff then testified regarding the emotional injuries she claims resulted...