Frulla v. Hyatt Corp.

2018 IL App (1st) 172329

118 N.E.3d 713

427 Ill.Dec. 512

Richard FRULLA, Plaintiff-Appellant,

v.HYATT CORPORATION d/b/a Hyatt Regency Chicago and Champion Exposition Services, Defendants-Appellees.

No. 1-17-2329

Appellate Court of Illinois, First District, FIRST DIVISION.

October 29, 2018

Sinson Law Group, of Chicago (Kent D. Sinson, of counsel), for appellant.

HeplerBroom, LLC, of Chicago (Robert E. Elworth, of counsel), for appellee Hyatt Corporation.

Litchfield Cavo LLP, of Chicago (James R. Branit, Alan M. Bernover, and Steven M. Brandstedt, of counsel), for other appellee.

JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Richard Frulla sued defendants Hyatt Corporation d/b/a Hyatt Regency Chicago (Hyatt) and Champion Exposition Services (Champion) (collectively, defendants) in the circuit court of Cook County to recover damages for injuries plaintiff allegedly sustained to his back. A jury returned a verdict in favor of defendants and found plaintiff 100% at fault for his injuries. The circuit court denied plaintiff's posttrial motion for a new trial. Plaintiff appeals, arguing that his motion for new trial should have been granted because the circuit court erred by (1) failing to bar defendants' expert witnesses for noncompliance with Illinois Supreme Court Rule 218(c) (eff. July 1, 2014), (2) failing to bar one of defendants' experts because he was improperly disclosed as an independent expert witness and his testimony was cumulative, (3) admitting evidence of plaintiff's prior health and injuries that were not at issue in this case, and (4) admitting evidence in violation of the collateral source rule and a motion in limine .

¶ 2 Defendants address the merits of plaintiff's arguments, but first contend that plaintiff's appeal is moot, since all of his arguments pertain to the issue of damages. Defendants argue that the jury found in favor of defendants and against plaintiff on the issue of liability because the jury found plaintiff 100% at fault for his own injuries. We conclude that all of plaintiff's arguments on appeal are moot, except one: whether the circuit court should have barred defendants' mechanical engineering expert—who offered opinions on liability—for defendants' failure to comply with Rule 218(c). For the reasons that follow, we affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff initiated this action in February 2012, and proceeded to a jury trial on his two-count first amended complaint.¹ Plaintiff alleged that on February 13, 2010, he was working at a trade show at the Hyatt Regency Hotel in Chicago. He alleged that the floor around certain booths at the trade show was covered with carpet, "which had missing floor tiles underneath that caused [p]laintiff to fall and sustain injuries." Count I alleged that Hyatt owned and operated the premises; created an unreasonably dangerous condition on the trade show floor by allowing carpet to be placed over missing floor tiles; failed to maintain the area in and around the booths; failed to inspect the floor when it knew or reasonably should have known that an inspection was necessary; failed to warn plaintiff of the missing floor tiles when it knew or should have known that it posed an unreasonably dangerous condition to plaintiff; failed to keep the premises safe; and was otherwise negligent in the ownership, maintenance, and management of the premises.

¶ 5 Count II alleged that Champion was in charge of deconstruction of the trade show booths and created an unreasonably dangerous condition on the trade show floor; negligently operated forklifts on the trade show floor; failed to ensure its employees were properly trained; failed to maintain the area in and around the booths; failed to inspect the floor when it knew or reasonably should have known that an inspection was necessary; failed to warn plaintiff of the missing floor tiles when it knew or should have known that it posed an unreasonably dangerous condition to plaintiff; failed to keep the premises safe; and was otherwise negligent in the ownership, maintenance, and management of the premises.

¶ 6 Defendants filed answers to the complaint,² the parties engaged in discovery, and the circuit court set an initial trial date of May 2, 2016. Plaintiff was originally ordered to disclose all of his retained expert witnesses by February 2, 2016. However, the parties filed a joint motion to continue the trial, which the circuit court granted, and the trial was rescheduled for October 2016. In March 2016, the circuit court ordered plaintiff to disclose all of his Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) retained expert witnesses by April 25, 2016. On May 2, 2016, plaintiff served defendants with a supplemental interrogatory answer disclosing three expert witnesses and two previously undisclosed treating physicians. In light of plaintiff's supplemental disclosures, the parties again filed a joint motion to continue the trial date, which the circuit court again granted, and the trial was rescheduled for March 3, 2017. The circuit court did not set a date for defendants to disclose any Rule 213(f)(3) witnesses.

¶ 7 In November 2016, plaintiff filed a motion for leave to amend his Rule 213(f)(3) disclosures to add an additional expert witness. The circuit court granted plaintiff's motion over defendants' objection and ordered plaintiff to serve his supplemental disclosures by November 21, 2016. The circuit court further ordered that it would "set a [ Rule] 213(f)(3) schedule for [defendants] on [January 5, 2017]." The circuit court's order does not reflect any objection to the deadline for defendants' disclosures. Plaintiff served his supplemental disclosures December 6, 2016, two weeks after the circuit court's deadline.

¶ 8 On January 5, 2017, the circuit court ordered defendants to serve Rule 213(f)(3) disclosures by January 20, 2017. Plaintiff objected on the basis that he had not waived the requirement that discovery be completed not later than 60 days prior to trial under Rule 218(c). See Ill. S. Ct. R. 218(c). Defendants served their initial Rule 213(f)(3) disclosures on January 20, 2017, although one of the expert reports was not attached. The circuit court granted defendants leave to file the missing report as an amended disclosure on January 23, 2017. Plaintiff deposed only one of defendants' disclosed experts on the limited issue of bias. None of the parties filed a motion to alter the March 3, 2017, trial date.

¶ 9 Relevant to this appeal, plaintiff filed three pretrial motions in limine . Plaintiff's motion in limine no. 5 sought to bar all of defendants' Rule 213(f)(3) witnesses from testifying for failure to comply with Rule 218(c). He argued that the circuit court ordered defendants to make expert disclosures by January 20, 2017, which was only 42 days before the scheduled trial date, and that defendants failed to completely disclose all Rule 213(f)(3) experts until January 23, 2017. After hearing argument from the parties, the circuit court denied plaintiff's motion to bar defendants' experts from testifying.

¶ 10 Plaintiff's motion in limine no. 3³ sought to bar the testimony of Avi Bernstein, M.D., an orthopedic physician disclosed by defendants—but not by the third-party defendant Renaissance—as a Rule 213(f)(2) witness who performed two independent medical examinations (IME) of plaintiff as part of plaintiff's workers' compensation case against Renaissance. Alternatively, plaintiff sought to bar Wellington Hsu, M.D., an orthopedic surgeon disclosed by defendants as a Rule 213(f)(3) witness. Plaintiff argued that Bernstein and Hsu reviewed the same medical records and that Hsu adopted and agreed with Bernstein's opinions after he reviewed Bernstein's report and deposition. Plaintiff contended that Bernstein's and Hsu's testimony would be cumulative because they both expressed the same opinion based on the same medical records and specialized in the same area of medicine. At the hearing on the motion in limine , plaintiff only argued that Bernstein should be barred from testifying. In response, defendants argued that Bernstein had actually examined plaintiff and formed certain opinions while Hsu had not. Defendants argued that Bernstein was not a controlled expert and noted that he had to be subpoenaed to give a deposition, whereas Hsu was an expert retained by defendants. Furthermore, Hsu had reviewed more materials than Bernstein had and the fact that Hsu agreed with Bernstein's opinions did not render either Hsu's or Bernstein's testimony cumulative. After hearing argument from the parties, the circuit court denied plaintiff's motion to bar Bernstein from testifying.

¶ 11 Finally, plaintiff's motion in limine no. 6 sought to bar any reference to plaintiff's health or injuries that were not at issue in this case. He argued that none of defendants' expert witnesses offered any opinion that plaintiff's prior injuries were relevant to causation, damages, or any other issue in the case. The motion requested that the circuit court "prohibit[ ] the defendants from making any reference to plaintiff's health or injuries that occurred prior to this occurrence * * * or to any other health concerns plaintiff has had since sustaining his back injury." At the hearing on the motion in limine , defendants argued that Hsu and Thomas Grezak, a vocational rehabilitation specialist disclosed by defendants as a Rule 213(f)(3) witness, offered opinions based in part on plaintiff's monthly prescription of narcotic pain medication, and plaintiff's statement that he was "fine" and had returned to work "full-time with no restrictions" after a 2008 work injury. Defendants argued that the defense should be permitted to introduce evidence that plaintiff's "baseline" of "fine" included several narcotic pain pills per day. The circuit court denied plaintiff's motion in limine "as written." The circuit court observed that, absent any testimony that a...