Sutton v. Overcash, 3-92-0657

• Decision Date: 02 November 1993
• Docket Number: No. 3-92-0657,3-92-0657
• Parties: , 191 Ill.Dec. 230 Linda SUTTON, Plaintiff-Appellant, Cross-Appellee, v. Larry OVERCASH, M.D., and St. Mark's Court OB/GYN Associates, S.C., a corporation, Defendants-Appellees, Cross-Appellants.
• Court: United States Appellate Court of Illinois

Page 820

623 N.E.2d 820

251 Ill.App.3d 737, 191 Ill.Dec. 230

Linda SUTTON, Plaintiff-Appellant, Cross-Appellee, v. Larry OVERCASH, M.D., and St. Mark's Court OB/GYN Associates, S.C., a corporation Defendants-Appellees, Cross-Appellants.

No. 3-92-0657.

Appellate Court of Illinois Third District.

Nov. 2, 1993.

Patricia Benassi (argued), Benassi & Benassi, Peoria, for Linda Sutton.

John A. Bernardi (argued), Pekin, for Larry Overcash.

Nile J. Williamson (argued), Peoria, for St. Marks Court OB/GYN Assoc.

Justice STOUDER delivered the opinion of the court:

The plaintiff, Linda Sutton, filed a two-count complaint against the defendants, Dr. Larry Overcash, M.D., and St. Marks Court O.B./GYN Associates, S.C. (St. Marks), alleging battery and intentional infliction of emotional distress. The jury returned a verdict in favor of defendant St. Marks on both counts and in favor of defendant Overcash on the battery count. The plaintiff was awarded $12,000 in damages on the count of intentional infliction of emotional distress against Dr. Overcash. The plaintiff appeals, claiming that irrelevant and prejudicial evidence was erroneously admitted and that certain conduct of defense counsel denied her a fair trial. St. Marks cross appeals, claiming that plaintiff's cause of action is precluded by the Workers' Compensation Act and the Illinois Human Rights Act. Dr. Overcash also cross-appeals, claiming that the evidence was insufficient as a matter of law to support a cause of action for intentional infliction of emotional distress. Because we agree with the plaintiff that she did not receive a fair trial, we reverse and remand the cause for a new trial.

I. FACTUAL BACKGROUND

The facts underlying the plaintiff's complaint involve alleged harassing acts committed by defendant Overcash when he was one of her employers. A total of 26 witnesses were called to testify in this case. For brevity's sake we summarize only the testimony of the plaintiff, her psychiatrist, and Dr. Overcash. Suffice it to say that both sides called numerous witnesses to corroborate their testimony in some manner.

The plaintiff testified that she began working for Dr. Harry Ores as a medical assistant in May 1974. Dr. Ores is a specialist in obstetrics and gynecology. According to the plaintiff, she and Dr. Ores had an excellent working relationship characterized by mutual admiration and respect. In addition to her duties as a medical assistant, the plaintiff also ran personal errands for Dr. Ores, which included purchasing food, clothes, and tickets for him, and washing his lab coats. In late 1985 or early 1986 the plaintiff also began doing extra cleaning work around the office for which Dr. Ores paid her an extra $100 per month. Additionally, Dr. Ores occasionally had plaintiff drive to Chicago to place bets on horses. Dr. Ores would give the plaintiff $50 for expenses and between $200 and $300 to bet.

During the time the plaintiff worked for Dr. Ores, other doctors sometimes worked in the same offices. In the late 1970's Dr. Robert Thompson shared office space with Dr. Ores. The plaintiff testified that she did not have any difficulty working with Dr. Thompson. Dr. Dan Nord worked in the office for six to nine months in the early 1980's. Dr. Nord was hired to do the ultrasound in the office. He worked on Thursdays only, and the plaintiff assisted him with doing sonograms. Dr. Nord trained the plaintiff in sonography while he was there, and the plaintiff assumed responsibility for doing ultrasound after he left. The plaintiff testified that she had no problems working with Dr. Nord.

The plaintiff began to increase her skills in sonography. She took an advanced training course in Scottsdale, Arizona, and also subscribed to journals and bought ultrasound books. The plaintiff testified that ultrasound is a burst of energy that travels through a media such as a bladder or tissue and produces a black and white image on a screen. The process is used to diagnose pregnancy and also possible abnormalities in fetuses. The process can also be used to predict the sex of a child. The plaintiff testified that she was 100% accurate in predicting the sex of children and that she was proud of this record. According to the plaintiff, Dr. Ores was "excited" about her sonography work.

The plaintiff testified that she first met defendant Overcash in the early 1980's when he was a medical student. Overcash worked with Dr. Ores for approximately six to ten weeks. At that time, the plaintiff had very little contact with Dr. Overcash and had no difficulty getting along with him. In early 1986 Dr. Ores informed the plaintiff that Dr. Overcash was going to be joining him in his practice. The plaintiff was happy for Dr. Ores because she knew he had been looking for a partner for a long time. The plaintiff claimed she had no negative feelings about Dr. Overcash joining the practice. Dr. Ores told the plaintiff that Dr. Overcash would be starting in the summer of 1986, and that he would be coming in as a full partner. Dr. Ores further told the plaintiff that she went with the practice and that her job was secure. Dr. Ores and Dr. Overcash formed a corporation called St. Marks Court O.B./GYN Associates, S.C., in which each was a 50% shareholder.

The plaintiff testified that when Dr. Overcash began working at the office, she did not treat him any differently than she treated Dr. Ores. However, four to six weeks after he joined the practice she began having problems with him. The plaintiff testified that, initially, Dr. Overcash would approach her daily and ask her to go have a drink with him. He wanted her to go to a happy hour with him during working hours. The plaintiff declined all of the invitations. On another occasion, the plaintiff was having lunch with Linda Whitlatch, the office manager, across the street from the office at the Ramada Inn. Dr. Overcash showed up and sat down at their table. Dr. Overcash told the two women that a friend from out of town who had a lot of problems was staying with him. Dr. Overcash's wife was out of town, and he wanted to know if the two women would come over for a cookout. They both declined, and he then asked them to stop by for a drink if they did not want to come to the cookout. They both told him that they were going home.

The plaintiff also recalled another incident in which she and Linda Whitlatch were going for a walk in downtown Peoria after work. Dr. Overcash soon began to follow them, caught up with them, and asked if they would like to join him for a drink. Both of the women declined the invitation. The plaintiff testified that these invitations made her uncomfortable, because Dr. Overcash had trouble taking "no" for an answer. The plaintiff talked to Dr. Ores about the problem, and Dr. Ores told her to ignore it. Even after the plaintiff spoke to Dr. Ores, Dr. Overcash continued to ask her out to happy hour and to dinner.

The plaintiff then recounted other things that Dr. Overcash did that made her feel uncomfortable. Dr. Overcash began to frequently touch the plaintiff with a metal tape measure that was used to measure fundal heights of pregnant women. This behavior started approximately four to six weeks after Dr. Overcash joined the practice. Previously, the only objects Dr. Overcash had touched the plaintiff with had been rubber bands. Dr. Overcash would sit in the lab area and shoot rubber bands at the plaintiff's bottom when she walked by. The contacts with the tape measure occurred daily. The plaintiff stated that she began to feel uncomfortable when she realized the touching was intentional and not accidental. Dr. Overcash would tap the plaintiff on the shoulder with the tape measure when he was talking to her, and then would run it down over her breasts. He would also run the tape measure down the middle of the back to her buttocks. Another time, when the plaintiff was bent over in the sonogram room, Dr. Overcash attempted to stick the tape measure between the upper part of her legs. The plaintiff told him, "knock it off" and asked if he had anything better to do. He replied, "no."

One time, Dr. Overcash called the plaintiff over to where he was sitting. When she asked him what he wanted, he reached out and tapped her breasts with the tape measure and ran it over them. She pushed it away, backed up, and again asked him what he wanted. He replied "nothing" and began to smirk. Eventually, the plaintiff began to cross her arms whenever Dr. Overcash wanted to speak to her. When he asked why she was doing this, she told him it was because she did not know what he was going to do. He laughed at this response. The plaintiff would also respond to the tape measure incidents with comments such as, "knock it off," "leave me alone," "grow up," and "don't you have anything better to do?" These incidents continued through the middle of 1987.

The plaintiff testified to various other aspects of Dr. Overcash's behavior. About five to six weeks after Dr. Overcash joined the practice, he was going in to an examination room to examine a pregnant patient. He came out of the room and asked the plaintiff for a rubber glove and some jelly for a pelvic exam. The plaintiff brought these items to Dr. Overcash, and, in front of the patient, he replied, "I thought you were going to make me do this exam like I used to do in the back seat of my '57 Chevy, bare-handed." Dr. Overcash then laughed, and the plaintiff was shocked.

On another occasion the plaintiff and Dr. Overcash were with a patient and her husband in an exam room. The plaintiff was moving around the room doing various things rather quickly and the patient's husband said, "Gee, you are fast," and Dr. Overcash replied, "Yeah, that's what all of her old boyfriends say about her."

The plaintiff testified that she met with Dr. Ores to tell him about the things that were going on between her and Dr. Overcash. The first of these meetings was at the Country Bee...