Illinois Official Reports

Appellate Court

Kallal v. Lyons, 2021 IL App (4th) 200319

Appellate Court 

Caption

KRISTA KALLAL and SKYLAR KALLAL, Individually and as 

Next Friends of Their Minor Child, Brooke Kallal, PlaintiffsAppellants, v. TIMOTHY LYONS, M.D.; ILLINI MEDICAL 

ASSOCIATES, S.C.; JERSEY COMMUNITY HOSPITAL; 

ROSALEE HALLSTEAD; BEVERLY SUE HAWKINS; and 

COURTNEY STREBEL, Defendants-Appellees.

District & No. Fourth District 

No. 4-20-0319

Filed May 4, 2021

Decision Under 

Review

Appeal from the Circuit Court of Jersey County, No. 14-L-10; the 

Hon. Joshua Aaron Meyer, Judge, presiding.

Judgment Orders vacated and cause remanded.

Counsel on

Appeal

James P. Leonard, of St. Louis, Missouri, for appellants.

Melinda S. Kollross and Paul V. Esposito, of Clausen Miller P.C., of 

Chicago, and Timothy S. Richards, of Neville, Richards & Wuller, 

LLC, of Belleville, for appellees Timothy Lyons, M.D., and Illinois 

Medical Associates, S.C.

Kenneth W. Bean and Teresa Bartosiak, of Sandberg Phoenix & 

Von Gontard, P.C., of St. Louis, Missouri, for other appellees.
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Panel PRESIDING JUSTICE KNECHT delivered the judgment of the court, 

with opinion. 

Justices Cavanagh and Steigmann concurred in the judgment and 

opinion.

OPINION

¶ 1 Plaintiffs Krista, Skylar, and Brooke Kallal appeal from the circuit court’s order finding 

their counsel in contempt and assessing a daily fine based upon counsel’s refusal to direct them 

to comply with a discovery order that required each of them to submit to a blood draw for the 

purpose of Trio Whole Exome Sequencing (Trio WES) analysis. On appeal, plaintiffs argue 

we should (1) reverse the discovery order because the circuit court did not have the authority 

under Illinois Supreme Court Rule 215 (eff. Jan. 1, 2018) to order Krista and Skylar to submit 

to the blood draw and, without a sample from Krista and Skylar, the record fails to establish 

the requested testing of Brooke would be reasonably likely to lead to a medical explanation for 

her injuries and (2) vacate the contempt order because their counsel’s refusal to direct them to 

comply with the discovery order was not contemptuous. We vacate the discovery and contempt 

orders and remand for further proceedings. 

¶ 2 I. BACKGROUND

¶ 3 A. Complaint

¶ 4 Plaintiffs filed a complaint raising various claims against defendants Timothy Lyons, 

M.D.; Illini Medical Associates, S.C.; Jersey Community Hospital; Rosalee Hallstead; Beverly 

Hawkins; and Courtney Strebel, based upon, or stemming from, alleged injuries Brooke 

sustained around the time of her birth. Specifically, Brooke, by and through her biological 

parents, Krista and Skylar, asserted claims of negligence and lack of informed consent for 

alleged acts and omissions during labor and delivery, which caused her to suffer severe hypoxic 

ischemic encephalopathy, subgaleal hemorrhage, a fractured clavicle, and a right tension 

pneumothorax. In addition, Krista and Skylar, in their individual capacities, asserted claims 

under section 15 of the Rights of Married Persons Act (commonly referred to as the Family 

Expense Act (750 ILCS 65/15 (West 2012)) for their liability for current and future medical 

and family expenses incurred on behalf of Brooke due to the alleged negligent acts and 

omissions of defendants. 

¶ 5 B. Rule 215 Motion

¶ 6 Pursuant to Rule 215, defendants filed a pretrial motion to compel plaintiffs to submit to a 

blood draw for the purpose of Trio WES analysis, a type of genetic testing. In support of their 

motion, defendants attached an affidavit from a clinical geneticist. The geneticist opined—

based upon his review of Brooke’s physical characteristics, laboratory profile, impairments, 

and family history—that Brooke’s physical and mental impairments “likely have a substantial 

genetic cause.” The geneticist averred that Trio WES analysis, utilizing child and parents blood 

sampling, “is the optimal means of ascertaining whether Brooke has a genetic etiology for her 

current impairments.” The geneticist further averred that Trio WES analysis “would require
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blood draws from Brooke Kallal and both biological parents.” In forming his opinion and 

suggesting plaintiffs submit to a blood draw for the purpose of Trio WES analysis, the 

geneticist acknowledged that Brooke had previously undergone another type of genetic testing, 

chromosomal microarray, which produced normal results. The geneticist maintained that Trio 

WES analysis would still be appropriate, as it “is significantly more complete in a 

comprehensive genetic evaluation.” 

¶ 7 C. Memorandum of Law in Response to the Rule 215 Motion

¶ 8 Plaintiffs filed a memorandum of law in response to defendants’ Rule 215 motion. 

Plaintiffs objected to defendants’ motion, asserting that the requested relief was inappropriate 

under Rule 215. With respect to Krista and Skylar, plaintiffs argued that the court had “no 

authority under Rule 215 to order them to submit to a physical examination,” as their medical 

conditions were not in controversy. Plaintiffs also noted that Krista and Skylar were pursuing 

claims on behalf of Brooke in a representative capacity. With respect to Brooke, plaintiffs 

argued that Trio WES analysis, as described by defendants and their clinical geneticist, 

required samples from both the child and the biological parents. Without the samples from the 

parents, the requested testing would be meaningless. Plaintiffs also argued that the requested 

testing went far beyond anything previously allowed in Illinois and was not justified based 

upon the clinical geneticist’s affidavit. 

¶ 9 D. Reply in Response to the Memorandum of Law

¶ 10 Defendants filed a reply to plaintiffs’ memorandum of law in response to their Rule 215 

motion. With respect to plaintiffs’ argument concerning Krista and Skylar, defendants argued: 

“The Kallals have sued defendants asserting both individual and representative claims. 

They have placed their own physical (genetic) conditions at issue in this case by 

claiming that their biological minor child was injured by negligence and denying that 

the minor’s injury could be related to a genetic defect (which the child’s own medical 

providers suspect). As Trio WES [analysis] requires parental sampling, the parents’ 

genetic composition is at issue, and the science establishing this reality is 

uncontradicted in the record before this court.” 

Defendants further argued that Krista’s and Skylar’s “medical/genetic conditions may be 

relevant to conditions of Brooke Kallal at birth and discovery of such medical/genetic 

information is necessary to prepare for trial.” With respect to plaintiffs’ argument concerning 

Brooke, defendants argued that the unopposed affidavit from their clinical geneticist 

established their right to the requested relief and noted that other courts have ordered blood 

tests for other types of genetic testing. Defendants did not respond to plaintiffs’ assertion that 

Trio WES analysis would be meaningless without the samples from the parents. 

¶ 11 E. Hearing on the Rule 215 Motion

¶ 12 The circuit court held a hearing on defendants’ Rule 215 motion. During argument, 

defendants recognized “a more novel issue is the *** parental testing.” Defendants argued the 

genetic material from Krista and Skylar was “relevant to a complete evaluation of the genetic 

makeup of Brooke, *** and the parents are parties.” In so arguing, defendants noted it was 

“uncontradicted” that “Trio WES *** analysis requires parental testing.” In response, plaintiffs 
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maintained Krista’s and Skylar’s physical conditions were not in controversy and, without 

samples from them, the requested testing on Brooke would be meaningless. In reply, 

defendants noted, “Trio WES testing the Trio comes from biological parents and the child” 

and “[t]here is WES testing as well.” After hearing from defendants and plaintiffs, the circuit 

court, indicating it considered the arguments and material presented, found “in favor of the 

defendants on this issue and will find that there is good cause and that the probative value 

outweighs any risk or potential risk to the patient and that includes not only the child but the 

two parents.” The court entered a discovery order that required Krista, Skylar, and Brooke to 

submit to a blood draw for the purpose of Trio WES analysis. 

¶ 13 F. Motion to Reconsider and Motion for Sanctions

¶ 14 Plaintiffs filed a motion to reconsider the discovery order, and defendants filed a motion 

for sanctions based upon plaintiffs’ refusal to comply with the discovery order. Following a 

hearing, the circuit court entered an order denying plaintiffs’ motion, granting defendants’ 

motion, holding plaintiffs’ counsel in contempt for refusing to direct his clients to submit to 

the ordered blood draw, and ordering plaintiffs’ counsel be fined $10 per day until the plaintiffs 

submitted to the ordered blood draw. 

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, plaintiffs argue we should (1) reverse the discovery order because the circuit 

court did not have the authority under Rule 215 to order Krista and Skylar to submit to the 

blood draw and, without a sample from Krista and Skylar, the record fails to establish the 

requested testing of Brooke would be reasonably likely to lead to a medical explanation for her 

injuries and (2) vacate the contempt order because their counsel’s refusal to direct them to 

comply with the discovery order was not contemptuous. Defendants disagree. 

¶ 18 Where an appeal is taken from an order of contempt for failure to comply with a discovery 

order, our review of the contempt order encompasses a review of the propriety of the 

underlying discovery order on which the contempt order is based. Harris v. One Hope United, 

Inc., 2015 IL 117200, ¶ 6, 28 N.E.3d 804. The underlying discovery order required Krista, 

Skylar, and Brooke to submit to a blood draw for the purpose of Trio WES analysis. The order 

was issued pursuant to Rule 215. Rule 215 provides, in relevant part, as follows: 

“In any action in which the physical or mental condition of a party or of a person in the 

party’s custody or legal control is in controversy, the court, upon notice and on motion 

made within a reasonable time before the trial, may order such party to submit to a 

physical or mental examination by a licensed professional in a discipline related to the 

physical or mental condition which is involved.” Ill. S. Ct. R. 215(a) (eff. Jan. 1, 2018). 

“Rule 215 is a rule of discovery, the purpose of which is to permit the discovery of facts which 

will assist the trier of fact to reach a correct determination of the issues before it.” In re 

Conservatorship of the Estate of Stevenson, 44 Ill. 2d 525, 529, 256 N.E.2d 766, 768 (1970). 

However, the rule “does not permit unlimited and indiscriminate mental and physical 

examinations of persons.” Id. Rather, it permits a circuit court to exercise its discretion to order 

such examinations only when certain requirements are met. Id. One of those requirements 

being that the physical or mental condition of a party is in controversy. 
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¶ 19 Plaintiffs argue the circuit court did not have the authority under Rule 215 to order Krista 

and Skylar to submit to a blood draw for the purpose of Trio WES analysis because they were 

not parties within the meaning of Rule 215 and because their physical conditions were not in 

controversy. In support of their argument suggesting they were not parties within the meaning 

Rule 215 and as an alternative request for relief if this court rejects their argument, plaintiffs 

contend that Krista and Skylar could avoid the ordered testing by simply withdrawing their 

claims under the Family Expense Act and seeking the appointment of a guardian to pursue 

Brooke’s claims. Plaintiffs further argue that, without a sample from Krista and Skylar, the 

record fails to establish the requested testing of Brooke would be reasonably likely to lead to 

a medical explanation for her injuries, as the testing is meaningless without samples from both 

biological parents. 

¶ 20 In response to plaintiffs’ argument suggesting Krista and Skylar were not parties within 

the meaning of Rule 215, defendants assert the argument is forfeited, as it is (1) a new argument 

raised for the first time on appeal, (2) an undeveloped argument, or (3) meritless because they 

presented claims in their individual capacities under the Family Expense Act and because they 

have a financial interest in the outcome of Brooke’s claims. With respect to plaintiffs’ claims 

Krista’s and Skylar’s physical conditions were not in controversy, defendants further argue 

Krista and Skylar placed their physical conditions at issue, since their claim under the Family 

Expense Act “is inextricably tied to the cause of Brooke’s impairments” and they “may not 

recover for genetically caused problems.” Alternatively, defendants argue their clinical 

geneticist never averred that the requested testing would be meaningless without a sample from 

Krista and Skylar. 

¶ 21 Given the arguments presented below, the circuit court was required under the plain 

language of Rule 215 to first address whether Krista and Skylar were parties whose physical 

conditions were in controversy. As defendants recognized during the hearing on their motion, 

“parental testing” was a “novel issue.” Despite the novelty of the issue, the circuit court 

provided this court with no analysis or findings as to whether Krista and Skylar were parties 

whose physical conditions were in controversy. This is particularly concerning where the case 

law relied upon by the parties in support of their respective positions on appeal stem, with one 

exception, from decisions made by federal and state trial court judges interpreting rules similar 

to Rule 215. See Fisher. v. Winding Waters Clinic, PC, No. 2:15-cv-01957-SU, 2017 WL 

574383 (D. Or. Feb. 13, 2017); Young v. United States, 311 F.R.D. 117 (D.N.J. 2015); Burt v. 

Winona Health, Civil No. 16-1085 (DWF/FLN), 2018 WL 3647230 (D. Minn. Aug. 1, 2018); 

Meyers v. Intel Corp., C.A. No. N11C-07-009 JRJ, 2015 WL 3643470 (Del. Super. Ct. June 

11, 2015); Cruz v. Superior Court, 17 Cal. Rptr. 3d 368 (Ct. App. 2004). For this court to 

address the issue without any analysis or findings by the circuit court would not serve the 

interests of justice and the development of good law. Further, without any findings or analysis 

for this court to review concerning the parental testing, we find it would be premature to 

consider the correctness of the decision to order Brooke to submit to a blood draw for the 

purpose of Trio WES analysis, which, from the record presented and case law cited, appears 

to require a blood draw from both biological parents. We conclude the discovery order was 

granted without a sufficient underpinning. A more thorough examination is necessary. We 

vacate the discovery order and remand for further proceedings. 

¶ 22 Last, plaintiffs request we vacate the contempt order because their counsel’s refusal to 

direct them to comply with discovery order was not contemptuous. Defendants, other than 
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asserting that we should affirm the contempt order, do not respond to plaintiffs’ argument. 

Where the refusal to comply with a discovery order is made in good faith to preserve an issue 

for appeal, this court may vacate a contempt order. Salvator v. Air & Liquid Systems Corp., 

2017 IL App (4th) 170173, ¶ 72, 92 N.E.3d 529. Given the record presented, we find plaintiffs’ 

counsel’s refusal to direct plaintiffs to comply with the discovery order was a good faith effort 

to test the correctness of the order on appeal. We vacate the contempt order. 

¶ 23 III. CONCLUSION

¶ 24 We vacate the discovery and contempt orders and remand for further proceedings. 

¶ 25 Orders vacated and cause remanded.