RICHARD MOSS,					)		Appeal from the

							)		Circuit Court of

		Plaintiff-Appellant and	)		Cook County.

		Cross-Appellee,		)

							)

	v.						)		No. 99 L 14261

							)

JENNIFER AMIRA,				)		

							)		Honorable

		Defendant-Appellee and 	)		Thomas Chiola, 

		Cross-Appellant.		)		Judge Presiding.

	PRESIDING JUSTICE REID delivered the opinion of the court:

	This case arises from a traffic accident that occurred

between the plaintiff, Richard Moss, and the defendant, Jennifer

Amira.  Following trial, a jury verdict was returned in favor of

Moss in the amount of $12,929.50 and a judgment was thereon

entered against Amira.  

	On appeal, Moss argues that: (1) the trial court erred when

it denied his motion in limine and subsequent posttrial motion to bar the testimony of expert witness Dr. Richard Moser, due to

defense counsel’s alleged violation of Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), (2) the trial court erred when it denied his motion in limine and subsequent posttrial motion to bar portions of Dr. Moser’s evidence

deposition, and (3) the jury verdict was against the manifest

weight of the evidence.  

	On cross-appeal, Amira argues that the trial court erred

when it denied her posttrial motion for a setoff.

	For the reasons that follow, we find that the trial court

erred when it denied Moss’ posttrial motion.  We reverse the decision of the trial court and remand this matter for a new

trial.

BACKGROUND

	A traffic accident occurred on December 18, 1997, when Amira

rear-ended Moss’ vehicle.  After the accident, Moss was taken to

Northwest Community Hospital where he was examined, fitted with a

collar, given a prescription, and released later that evening. 

	On June 8, 1998, Moss visited Dr. Richard Moser, a

neurological surgeon.  On February 12, 2002, the discovery

deposition of Dr. Moser was taken.  

	Thereafter, defense counsel provided, in a letter dated June

11, 2002, to plaintiff’s counsel, answers to Illinois Supreme

Court Rule 213(g) (134 Ill. 2d R. 213(g)) interrogatories, and

expressed an intention to call Dr. Moser as a defense opinion

witness.  With regard to Dr. Moser, the letter stated the

following:

		“With regard to Illinois Supreme Court Rule

213(g), Defendant discloses Dr. Richard Moser and Dr.

J. B. Mansfield as opinion witnesses in this matter.  With regards to Dr. Moser, he is expected to testify as

to both the subject matter and specific opinions and/or

conclusions set forth during his discovery deposition

taken on February 12, 2002.  The specific opinions to

be rendered by Dr. Moser (as set forth during his

discovery deposition) include, among other things, that

the cervical spondylosis with significant degenerative

disc disease was not caused by the automobile accident

at issue, that the automobile accident may have

exacerbated a preexisting condition based on the

subjective evidence provided by Plaintiff’s past

medical records/history revealed no complaints of neck

pain or radiculopathy prior to the accident (and that

he has not seen any of those prior records and does not

know anything about Plaintiff’s past history), and that

he cannot render an opinion one way or another as to

whether or not Mr. Moss needs surgery, that if an SSEP

study were to be performed and if it did show that

surgery was necessary such surgery may have possibly

been needed in the future with or without the

occurrence of the car accident at issue.  In addition,

Dr. Moser opines that he does not disagree with the

opinions of Dr. Mansfield, Dr. Cybulski, Dr. Lipov, Dr. Cerullo, and Dr. Gropper who have all indicated that

surgery is not needed.  Dr. Moser further opines that

if the accident exacerbated a pre-existing condition he

would expect complaints of neck pain and radiculopathy

within a few days of the accident.  Dr. Moser’s

qualifications include the fact that he is a board

certified neurological surgeon.  Dr. Moser’s Curriculum

Vitae was given to both parties at his discovery

deposition.  The basis of Dr. Moser’s opinions are his

examination and treatment of Richard Moss as well as

his experience as a neurological surgeon.  Dr. Moser’s

findings and opinions from his specific June 8, 1998

neurological consultation with Richard Moss are

included in Dr. Moser’s report dated June 8, 1998 which

was marked as Dr. Moser’s deposition Exhibit #2.”

	On January 31, 2003, Moss’ attorney sent an additional 

disclosure to defense counsel which revealed that Dr. Cerullo

would opine that Moss needed surgery.  In particular, the letter

stated:

		“Essentially, Dr. Cerullo, on the basis of

additional tests and treatment, has determined that Mr.

Moss is suffering from cervical radiculopathy and has

recommended surgery involving a cervical discectomy and fusion at C5-6.”

	In a letter addressed to plaintiff’s counsel, dated April 3,

2003, defense counsel supplemented Amira’s Rule 213 answers, with

the disclosure that Dr. Moser and Dr. Mansfield would testify

that the auto accident, at issue in this matter, did not cause

Moss to need surgery.  The exact contents of the letter follow:

		“Please be advised that Defendant’s Rule 213(g)

disclosures (now considered to be Rule 213(f)(3)

disclosures) are the same as those previously set forth

in this matter.  The only additional opinion expected

to be offered by both Dr. Moser and Dr. Mansfield would

be that any future surgery needed or performed on

Plaintiff is not casually related to the accident at

issue in this lawsuit.  This opinion is added based on

Plaintiff’s supplemental opinion that surgery will be

needed in the future.  Of course, both Dr. Moser and

Dr. Mansfield opine that no such surgery is even

needed.

		I still await your providing to me dates on which

you will present Mr. Moss’ ex-wife and daughters for

discovery depositions.  I do not even have their full

names, addresses, etc.  If you still plan on calling

these individuals as witnesses please provide me dates in the very near future.  Thank you.”

	In a letter dated April 23, 2003, defense counsel sent Dr.

Moser a notice of his evidence deposition and enclosed copies of

his discovery deposition transcript and Amira’s answers to

Illinois Supreme Court Rule 213 interrogatories.  The April 23

letter was also sent to Moss’ counsel.  The exact contents of the

letter follow:

		“My firm represents the Defendant in the above-

captioned lawsuit.  Please find enclosed a Notice of

Evidence Deposition for May 12, 2003.	

		For your convenience, I am enclosing a

copy of your discovery deposition transcript

and Defendant’s Answers to 213

Interrogatories wherein I disclose your

expected opinions in this matter.  The check

for your evidence deposition will be

forwarded under separate cover.”

	On May 12, 2003, Dr. Moser’s evidence deposition was taken.

Prior to trial, Moss filed a motion in limine to bar Dr. Moser’s testimony contending that defense counsel’s April 23, 2003,

letter to Dr. Moser constituted a Petrillo violation.  Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986).  The trial court denied the motion, finding that defense counsel’s actions did not rise to the level of a Petrillo violation.  Additionally, the trial court refused to allow plaintiff’s

counsel to make an objection to certain testimony contained in

Dr. Moser’s evidence deposition where no objection was made at

the time that the deposition was taken.  

	The trial on the matter commenced on May 21, 2003.  The only

issue at trial was the extent of Moss’ damages.  At the

conclusion of trial, the jury returned a verdict in favor of Moss

in the amount of $12,929.50.

	Prior to trial, Amira’s insurance company, Liberty Mutual,

made payments for Moss’ medical bills in the amount of $9,511.40. 

On June 16, 2003, Amira filed a motion to set off the judgment by

the amount of those prior payments, which would result in a net

judgment of $3,418.10.  

	On July 14, 2003, Moss filed a posttrial motion pursuant to

section 2-1202 of the Illinois Code of Civil Procedure for the

entry of an order setting aside the jury’s verdict as to damages

and ordering a new trial on damages only.  735 ILCS 5/2-1202

(West 2002).  In the motion, Moss raised the issues of: (1)

whether the trial court erred when it failed to bar Dr. Moser’s

testimony, (2) whether the trial court erred in limiting

objections to Dr. Moser’s evidence deposition, and (3) whether

the jury’s verdict as to damages was against the manifest weight of the evidence.

	On August 7, 2003, the trial court denied both Moss’ post-

trial motion and Amira’s motion for a setoff.  On September 5,

2003, Moss filed his notice of appeal.  Thereafter, on September

15, 2003, Amira filed her notice of cross-appeal.

ANALYSIS

	Moss argues that the trial court erred when it denied his

motion in limine and subsequent posttrial motion to bar Dr. Moser’s testimony due to defense counsel’s Petrillo violation.

	We apply the de novo standard of review to the trial court's denial of a motion for directed verdict as well as its denial of

a motion for judgment n.o.v.  Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002); Gathings v. Muscadin, 318 Ill. App. 3d 1091, 1093(2001).  "[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most

favorable to the opponent, so overwhelmingly favors movant that

no contrary verdict based on that evidence could ever stand."

Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). "In making this assessment, a reviewing court must not substitute

its judgment for the jury's, nor may a reviewing court reweigh

the evidence or determine the credibility of the witnesses." Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002).  The standard to be used in determining whether to

grant a new trial is whether the jury's verdict was against the

manifest weight of the evidence.  Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992).  "'A verdict is against the manifest weight of

the evidence where the opposite conclusion is clearly evident or

where the findings of the jury are unreasonable, arbitrary and

not based upon any of the evidence.'"  Maple, 151 Ill. 2d at 454, quoting Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1089 (1990).  This court will not reverse a trial court's ruling

on a motion for a new trial except in those instances where it is

affirmatively shown that the trial court clearly abused its

discretion.  Maple, 151 Ill. 2d at 455.  “In determining whether the trial court abused its discretion, the reviewing court should

consider whether the jury's verdict was supported by the evidence

and whether the losing party was denied a fair trial.”  Maple, 151 Ill. 2d at 455.  	“Under Petrillo v. Syntax Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232, defense counsel may

communicate with a plaintiff’s treating physician only by means

of formal discovery as outlined in Supreme Court Rule 201 (107 Ill. 2d R. 201).  Ex parte communications and conferences between defense counsel and a plaintiff’s treating physician are

prohibited as violative of public policy because they jeopardize

the sanctity of the confidential and fiduciary relationship

between a physician and his patient.  (Ritter v. Rush- Presbyterian-St. Luke’s Medical Center (1988), 177 Ill. App. 3d 313, 316, 532 N.E.2d 327, 329.)  Where an ex parte communication has taken place between defense counsel and a plaintiff’s

treating physician, sanctions may be imposed upon the defendant,

including reversal of the judgment in favor of the defendant and

the award of a new trial.  Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 204, 513 N.E.2d 519, 523.”  Nastasi v. United Mine Workers of America Union Hospital, 209 Ill. App. 3d 830, 838-39 (1991).

	Moss contends that the ex parte communication which occurred between defense counsel and Dr. Moser constituted a Petrillo violation.  Moss complains that defense counsel improperly sent

Dr. Moser detailed written narratives regarding his view of

medical opinions to be disclosed at trial, including purported

opinions of other treating physicians and those which defense

counsel expected Dr. Moser to give following his discovery

deposition.  Moss asserts that this contact with Dr. Moser was not of a de minimis nature.

	Moss argues that it is undisputable that the April 23, 2003,

letter constituted an ex parte communication between Dr. Moser and defense counsel.  Moss further maintains that sending copies

of these detailed narratives to Dr. Moser was far from being de minimis scheduling matters.  Instead, Moss argues that this contact was a highly improper ex parte communication which was in violation of Petrillo.

	Moss maintains that there was no possible motivation of

defense counsel in sending his narrative Rule 213 answers to Dr.

Moser other than to attempt to influence Dr. Moser’s future

testimony.  Furthermore, Moss argues that in defense counsel’s

correspondence to Dr. Moser, he attributed an opinion to Dr.

Moser, i.e., that any surgery at the present time for Moss would more probably be unrelated to the accident, which Dr. Moser had

not given at his discovery deposition.  Moss argues that by the

time that Dr. Moser gave his evidence deposition, his opinion

changed to reflect that which was in defense counsel’s

correspondence.  As such, Moss contends that defense counsel’s

contacts with Dr. Moser were prejudicial and a clear violation of Petrillo.

	In Petrillo, a product liability action, defense counsel informed the trial court that he had previously met in private

with a treating physician for 1 of the 26 plaintiffs in the case. 

Upon learning of the meeting, plaintiffs' counsel moved to bar

any future ex parte communications between defense counsel and any other physician.  The trial court granted the motion and

entered an order to that effect.  Defense counsel, however,

informed the court that he did not intend to comply with the

order.  The trial court, therefore, held the attorney in direct

contempt, and the attorney appealed. 	In affirming the trial court's order, the appellate court

initially noted that ex parte conferences were not necessary to obtain information for defending a lawsuit because the discovery

methods outlined by Supreme Court Rule 201 were sufficient.  The

court determined that a review of case law from other

jurisdictions revealed that there was not a single instance in

which a court found that an ex parte conference was necessary to assist defense counsel in obtaining information that they were

unable to acquire through "regular channels of discovery."

Petrillo, 148 Ill. App. 3d at 587. 

	The Petrillo court emphasized that society places a high value on the professional duties under which a physician

operates, including the dual duties of confidentiality and loyalty.  Petrillo, 148 Ill. App. 3d at 589-92.  The court noted that certain conduct could be against public policy even in the

absence of an express constitutional or statutory prohibition

because public policy could be inferred from such sources as

statutes or constitutions.  Reasoning that there exists a strong

public policy in preserving the sanctity of the patient-physician

relationship and acknowledging the plaintiff's privacy interests,

the court determined that ex parte conferences unduly threatened society's interest in maintaining the fiduciary and confidential

nature of the relationship.  Petrillo, 148 Ill. App. 3d at 595- 96.  Accordingly, the court held that ex parte conferences between a plaintiff's physician and defendant or his counsel

should not be permitted.  Petrillo, 148 Ill. App. 3d at 596.

	In Mahan v. Louisville & Nashville R.R. Co., 203 Ill. App. 3d 748 (1990), the plaintiff alleged the trial court erred when

it allowed one of his treating physicians to give testimony

regarding certain CT scans.  The plaintiff argued that under

Petrillo, the physician should not have been allowed to testify because he and one of the defendant’s attorneys had an ex parte communication regarding the scans prior to the physician’s

deposition. 

	The ex parte communication between defendant’s attorney and plaintiff’s physician was limited to a brief discussion lasting

no more than 30 seconds prior to the physician’s deposition

during which time the defendant’s attorney merely asked the

physician if he had seen the plaintiff’s CT scans.  The doctor

indicated that he had not had time to review the scans prior to

the deposition but that he had reviewed his notes and determined

that the scans were not relevant to what he had treated the

patient for.  The attorney then apparently asked the physician

whether he would then have time to review the scans, and the

doctor indicated that it would take him about 5 or 10 minutes to

do so and that because of the time factor he would go along with

what the hospital radiologist had found regarding the results of

those scans.   

	The Mahan court held that there was no Petrillo violation.  In so ruling, the court made the following finding:

		“Plaintiff did not and could not establish that

this communication resulted in any prejudice to him or

that [the doctor’s] conduct was in any way improper. 

Plaintiff nevertheless asserts that such prejudice and

improper conduct should be implied as a matter of law

based on the fact of the ex parte communication alone.  We disagree.  Plaintiff bases his argument on Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519, but in Yates, the defendant’s attorney had had numerous meetings and communications with the patient’s

physician regarding the patient’s medical condition

while the plaintiff was still being treated by that

physician.  The communication here was de minimis, and it did not result in the disclosure of any private or

confidential information regarding the patient.” 

Mahan, 203 Ill. App. 3d at 754.

	In Nastasi, as in the present case, defense counsel had, inter alia, sent correspondence to a treating physician of the plaintiff which set forth the parties' respective positions in

the lawsuit and included copies of depositions of other

physicians in the case.  The Nastasi court held that these communications were violations of Petrillo.  Nastasi, 209 Ill. App. 3d at 839.  In making this determination, the Nastasi court stated:

		“We believe that these communications plainly

violate the rule of Petrillo and its progeny.  Although there was no evidence that plaintiff's treating

physicians actually disclosed any of plaintiff's

confidences or breached their fiduciary duty to him, such evidence was not required.  What matters is the

potential harm to the physician-patient relationship.

(Mondelli v. Checker Taxi Co., (1990) 197 Ill. App. 3d 258, 265, 554 N.E.2d 226, 272.)  That potential is

obvious here.”  Nastasi, 209 Ill. App. 3d at 839.

The Nastasi court went on to state:

		“Unlike the situation in Mahan v. Louisville & Nashville R.R. Co. (1990), 203 Ill. App. 3d 748, 561 N.E.2d 127, this case did not involve some de minimis conversation regarding incidental matters preliminary

to a deposition.  What defendant's counsel was clearly

attempting to do here is to use the medical testimony

they had obtained on behalf of their client to

influence or alter the opinions held by plaintiff's

treating physicians.”  Nastasi, 209 Ill. App. 3d at 840.

	In this case, there is no dispute that in a letter dated

April 23, 2003, defense counsel sent Dr. Moser defendant’s

answers to Rule 213 interrogatories, which was the June 11, 2002,

letter, wherein he “disclose[d] [Dr. Moser’s] expected opinions

in this matter.”  Unlike Mahan, this was not a de minimis communication regarding incidental matters preliminary to a deposition, such as scheduling.  Here, the communication that

occurred between defense counsel and Dr. Moser could be

interpreted as an attempt on the part of defense counsel to

attempt to alert Dr. Moser as to what his future testimony should

be.  This is clearly improper.

	In her brief, Amira surprisingly makes the following

statement:

		“There was nothing improper in merely providing

Dr. Moser with a copy of his deposition, counsel’s summary of the opinions expressed therein, and a supplemental disclosure expressing one of those

opinions in slightly different terms (remembering, of

course, that there is no evidence that the last of

these things was even provided to Dr. Moser).  This is nothing more than preparing a witness for his evidence

deposition.  It is not an improper attempt to influence his testimony.  Defense counsel did not need to

influence Dr. Moser’s testimony because it was already

given in a discovery deposition and, as the trial court

pointed out, defense counsel merely recounted Dr.

Moser’s previous testimony.” (Emphasis added.)

	Under Petrillo, defense counsel may communicate with a plaintiff’s treating physician only by means of formal discovery

as outlined in Supreme Court Rule 201.  Petrillo, 148 Ill. App. 3d at 591.  Defense counsel does not have the right, as Amira

suggests, to “prepare” plaintiff’s treating physician for a

deposition.  This is clearly improper.  As in Nastasi, defense counsel in this matter had improper ex parte communication with plaintiff’s treating physician.

	Here, the impact of defense counsel’s Petrillo violation cannot be overstated.  The medical testimony of four doctors was

given at trial.  It was Dr. Cerullo’s testimony that Moss needed

surgery and that it was casually related to the accident.  It was

Dr. Jacker’s testimony that Moss’ arthritic conditions were in

fact aggravated by the auto accident.  Dr. Mansfield testified

that he saw no objective evidence that surgery was needed or

related to the accident.  

	Dr. Moser testified that it was his opinion that Moss did

not need surgery.  This testimony clearly had an impact on the

jury.  As such, the Petrillo violation requires that the present judgment be vacated.  On retrial, as a sanction, the trial court

should bar Dr. Moser’s testimony.  See Nastasi, 209 Ill. App. 3d at 840.

	Because of our decision, we need not address the other issues that were raised on appeal or on cross-appeal.

CONCLUSION

	For the foregoing reasons, the decision of the trial court

is reversed as to the appellant and found to be moot as to the

cross-appellant.

	Reversed and remanded for a new trial.

	Theis, J., concur.

	Quinn, J., specially concurs.

	JUSTICE QUINN, specially concurring:

	I completely concur with the majority's holding and the

reasoning behind it.  I write separately to note that the

protections provided to medical patients in Illinois by Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), are now provided to medical patients throughout the United States by

the Health Insurance Portability and Accountability Act of 1996

(HIPAA) (42 U.S.C. § 201 (2000)).  Pursuant to this Act, the

Department of Health and Human Services (HHS) adopted a "Privacy 

Rule" which regulates when "Protected Health Information" (PHI)

may be disclosed.  45 C.F.R. §§ 160, 164 (2004).

		"Except as otherwise permitted or required, 

	Protected Health Information (PHI) may not be 

	disclosed without a valid authorization, and 

	any use or disclosure must be consistent with the

authorization granted.  The Privacy Rule applies to 

	both written and oral communications.   The HIPAA 

	regulation applicable to judicial proceedings is 45 

	C.F.R. § 164.512(e)(1).  Subsections 164.512(e)(1)(i) 

	and (e)(1)(ii) define the circumstances in which a 

	healthcare provider may reveal PHI in the course of a

judicial proceeding.  Nowhere do the regulations permit

healthcare providers to discuss PHI with defense 

	attorney's because a lawsuit is pending. Nowhere do 

	any of the HIPAA regulations permit or purport to 

	permit ex parte communications.  The regulations are 

	simply silent about the issue.

		HIPAA's regulations for judicial proceedings 

	permit disclosure of PHI only under the following

conditions:

			'(i) In response to an order of a court 

		or administrative tribunal, provided that the 

		covered entity discloses only the protected 

		health information expressly authorized by such 

		order; or  

			(ii) In response to a subpoena, discovery 

		request, or other lawful process, that is not

accompanied by an order of a court or 

		administrative tribunal, if: 

			(A) The covered entity receives satisfactory

assurance, as described in paragraph (e)(1)

			(iii) of this section, from the party 

			seeking the information that reasonable 

			efforts have been made by such party to ensure

that the individual who is the subject of the 

			protected health information that has been

requested has been given notice of the request; 

			or

			(B) The covered entity receives satisfactory

assurance, as described in paragraph (e)(1)(iv) 

			of this section, from the party seeking the

			information that reasonable efforts have been 

			made by such party to secure a qualified

protective order that meets the requirements 

			of paragraph (c)(1)(v) of this section.'

		These sections may be summarized as allowing 

	disclosure only in response to: (1) a court order 

	expressly authorizing the disclosure of the requested 

	PHI, or (2) a subpoena or discovery request issued 

	pursuant to the Rules of Civil Procedure, if a qualified

protective order has been requested or a good-faith 

	effort has been made to give notice to the individual 

	and any objections have been resolved."  D. Wirtes, R.

Lamberth, J. Gomez, An Important Consequence of HIPAA:

	No More Ex Parte Communications Between Defense Attorneys 	 and Plaintiff's Treating Physicians, 27:1 Am. J. Trial Advoc., at 5-6 (2003). 

	In National Abortion Federation v. Ashcroft, No. 04 C 55 (N.D. Ill. February 6, 2004), the federal district court

considered the interplay of HIPAA and Illinois law. The court

reviewed Illinois' Code of Civil Procedure (735 ILCS 5/8-802

(West 2002)), the Medical Patients Rights Act (410 ILCS 50/3(a),

(d) (West 2002)), and the Hospital Licensing Act (210 ILCS

85/6.17(d) (West 2002)).   The district court first held,

"Illinois law concerning when nonparty patient medical records

may be disclosed by hospitals or doctors is far more restrictive [than HIPAA.]"  National Abortion Federation, slip op. at 7.   Further:

	"Because we find that Illinois law is more stringent 

	than HIPAA's disclosure requirements and that it would 

	be impossible for Northwestern to comply with both Judge

Casey's HIPAA-pursuant Order and various provisions

	of Illinois law, Illinois's nonparty patient privacy 

	laws are not preempted by HIPAA and its subsequent

regulations."  National Abortion Federation, slip op. 

	at  9-10.  

	The parameters of HIPAA will be discussed and resolved by

the courts over the years to come, and I certainly do not attempt

to do so in this concurrence.  However I do believe that

Illinois' statutes and the holding in Petrillo have provided Illinois practitioners with a strong foundation upon which to

build.