FOURTH DIVISION

March 17, 2016 

2016 IL App (1st) 150414 

No. 1-15-0414 

MIGUEL KLESOWITCH, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

 v. ) No. 10 L 7190 

 ) 

CHIQUITA SMITH, ) Honorable 

 ) Irwin J. Solganick, 

Defendant-Appellant. ) Judge Presiding. 

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

Justices Ellis and Cobbs concurred in the judgment and opinion. 

OPINION

¶ 1 Plaintiff, Miguel Klesowitch, filed a complaint against defendant, Chiquita Smith, to 

recover damages for injuries he allegedly suffered as a result of defendant’s negligence. The 

trial court granted summary judgment in favor of plaintiff on the issue of defendant’s negligence 

only, leaving consideration of whether any of plaintiff’s conduct was a proximate cause of his 

injuries and the amount of damages for trial. The parties engaged in discovery. Plaintiff 

supplemented his discovery responses on the eve of trial. At trial before a jury, the court 

admitted certain medical bills into evidence. Portions of those bills had been written off by the 

medical providers. The jury returned a verdict in favor of plaintiff for the full amount of the 

medical bills admitted into evidence. 

¶ 2 For the following reasons, we affirm in part, reverse in part, and remand with 

instructions. 

¶ 3 BACKGROUND

¶ 4 Plaintiff’s complaint alleged that on June 24, 2008, defendant negligently drove her 

vehicle into the vehicle plaintiff was driving. Defendant drove her vehicle into an intersection 
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without stopping at a stop sign and into the left side of plaintiff’s vehicle. Defendant admitted 

not stopping because she did not see the stop sign. The complaint alleged plaintiff was injured 

physically, by expending large sums of money for medical expenses to be cured of said physical 

injuries, and by the loss of money from being unable to pursue his usual occupation. Defendant 

filed an answer and affirmative defenses alleging that plaintiff was guilty of contributory 

negligence.

¶ 5 In September 2011 plaintiff served defendant with plaintiff’s answers to interrogatories 

and answers to requests to produce. Only one interrogatory is pertinent in this appeal. 

Defendant asked plaintiff to state the amount of his medical bills incurred as a result of his 

personal injuries. Plaintiff responded with a list of medical providers and attached a “medical 

specials list.” The attached list contained the names of plaintiff’s medical providers and the total 

amount of their medical bills. The amount listed for three medical providers was listed as 

“unknown.” The total listed on the medical specials list was for the total of the known amounts. 

¶ 6 In July 2014 plaintiff filed a motion for summary judgment “on the issue of liability 

only.” Plaintiff’s motion asserted that at defendant’s deposition, she “set forth testimony 

indicating that she was clearly at fault for the accident.” Plaintiff quoted portions of defendant’s 

deposition testimony in which she stated she did not stop at the stop sign, did not see the stop 

sign, did not slow down prior to impact (at approximately 30 miles per hour), and did not see 

plaintiff’s vehicle. Defendant also testified that she did not think there was anything plaintiff 

should have done to avoid the accident. Plaintiff argued that “the issue of liability is ripe for 

summary judgment.”

¶ 7 In August 2014 defendant filed a response to plaintiff’s motion for summary judgment. 

Defendant’s response asserted that during plaintiff’s deposition, he “set forth testimony under 

oath that he was at least partially at fault for causing the accident.” Defendant quoted portions of 
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plaintiff’s deposition testimony in which he stated the speed limit where he was travelling was 

30 miles per hour and his vehicle was travelling between 30 and 35 miles per hour at the time of 

the accident, he never saw the other car at any time prior to the collision, he did not slow down 

before entering the intersection, and he did not look to see if there was oncoming traffic in the 

intersection. Defendant argued summary judgment should be denied because of issues of 

material fact regarding liability. Defendant argued plaintiff’s admitted actions “give rise to a 

clear question of fact regarding the fault for this collision” and that, as questions of material fact 

exist as to whether defendant “is completely and totally liable for the motor vehicle accident,” 

summary judgment should be denied. 

¶ 8 Plaintiff filed a reply in which he noted that both plaintiff and defendant testified that 

plaintiff’s vehicle was in the intersection when they impacted. Defendant testified their two cars 

impacted in the middle of the street intersecting her direction of travel and plaintiff testified his 

vehicle was completely in the intersection when the collision occurred. Plaintiff argued the sole 

proximate cause of the occurrence was that defendant failed to stop at the stop sign. 

¶ 9 In September 2014 the trial court entered a written order on plaintiff’s motion for 

summary judgment. The order reads, in part, as follows: “parties being present and the matter 

having been fully briefed it is so ordered that plaintiff’s motion is granted as to negligence but is 

reserved/remains pending as to proximate cause and damages.” Later that month defendant filed 

a motion in limine and plaintiff filed three motions in limine. 

¶ 10 Plaintiff’s first motion in limine sought, in part, to bar all evidence that his hospital bills 

were paid for by the federal government or that his medical bills or expenses were paid or may 

be paid in the future by insurance or any collateral source. Plaintiff’s second motion in limine

sought to bar any evidence of any prior or subsequent injuries to plaintiff or prior or subsequent 

conditions of any parts of plaintiff’s body other than plaintiff’s left knee, including but not 
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limited to plaintiff’s right knee and hip. Defendant’s expert testified in an evidence deposition, 

over objection, that plaintiff had a total right hip replacement and total right knee replacement in 

1998. Plaintiff argued no evidence linked those prior conditions to the injuries plaintiff allegedly 

sustained as a result of the accident in 2008. 

¶ 11 Plaintiff’s third motion in limine sought to bar any evidence that referred to defendant 

being unable to avoid the accident, or to plaintiff failing to avoid the accident, or the accident 

being unavoidable. Plaintiff argued any such evidence would be irrelevant because the issue of 

liability had already been adjudicated on the merits when the trial court granted plaintiff’s 

motion for summary judgment. As a result, plaintiff argued, the “negligence of either party is 

not at issue. The only matters at issue are causation and damages.”

¶ 12 The trial court granted plaintiff’s first motion in limine as to collateral source payments; 

granted plaintiff’s second motion in limine as to prior injuries; and denied plaintiff’s third motion 

in limine as to evidence of plaintiff’s role in the accident. The trial court ruled that if the 

summary judgment ruling (which had been entered by a different judge) “only went to the 

negligence of the defendant, then contributory negligence can be raised before the trier of fact to 

ascertain any percentage of fault of the plaintiff.”

¶ 13 Defendant’s motion in limine sought, in pertinent part, to bar all evidence as to (1) 

medical bills which had not been disclosed, and (2) medical bills without competent medical 

evidence as to the reasonableness and necessity of said bills. Defendant’s memorandum of law 

in support of her motion in limine argued that if plaintiff intends to claim the full amount of bills 

in excess of what his health insurance actually paid, “there must also be a foundation concerning 

the usual and customary amount.” Defendant requested an order barring plaintiff from claiming 

a bill above what was actually paid absent competent testimony as to the usual and customary 

amount to establish reasonableness. 
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¶ 14 Regarding defendant’s motion concerning bills without evidence of reasonableness, 

defendant’s attorney asserted that the bills he received from plaintiff’s counsel do not reflect 

“any specific payment,” that plaintiff testified that the bills were paid through health insurance, 

and that health insurance does not always pay 100% of bills it receives. Defense counsel argued 

the motion was asking to know how much insurance paid, and that any amount on a bill that 

insurance did not pay—in other words the difference between what was billed and what 

insurance paid—be supported by competent testimony that the unpaid amount or total bill was 

reasonable, customary, and necessary. Defendant’s attorney asserted the bills he received did not 

show zero balances “or any payments that have been made through insurance.” Plaintiff’s 

counsel noted that plaintiff testified the bills were paid. The trial court ruled as follows: 

“THE COURT: If the evidence is that the bills are paid and there are no 

outstanding balances, that’s prima facie evidence that the services that were 

provided were fair and reasonable and that the amounts that were billed are fair 

and reasonable. It’s a rebuttable inference, but there’s an inference to that.

 If there are bills that are outstanding that have not been paid and the 

plaintiff is seeking to be compensated for that, then you need a medical care 

provider to testify to lay a foundation for them, that the services were provided, 

the amounts are fair and reasonable in the community, and they expect to be paid. 

With regard to medical care, insurance—insurers negotiating something 

less with the medical care provider, I allow for the full amount of the bill that has 

been paid. 

And then again, the trier of fact will ascertain whether or not all of the 

services that the plaintiff is claiming, the left knee replacement, and the defense is 

saying that it was not precipitated or caused by this accident, then it will be for the 
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trier of fact to determine if it was or if it wasn’t; and if they find that it was not, 

then they can make whatever reductions they want to in the bills. 

 But the motion is denied with regard to paid bills. You know, with regard 

to unpaid bill [sic], again, the motion would be granted in that a proper foundation 

will need to be laid for unpaid bills.” 

¶ 15 Plaintiff’s counsel indicated he would provide defendant with copies of bills that show 

they are zeroed out. The record contains a printout of an e-mail dated September 25, 2014 from 

plaintiff’s counsel to defense counsel purporting to have attached a copy of the unredacted 

billing records. The e-mail described bills that had been paid by insurance, bills that were 

written off by the hospital because the hospital committed a billing error, and states that all other 

bills had been paid by Medicare and plaintiff’s supplemental insurance plan. Trial began on 

September 26, 2014. 

¶ 16 At trial, outside the presence of the jury and before any witness testimony, plaintiff’s 

counsel indicated to the court that the day before, he e-mailed defendant’s attorney “all the 

copies of all the paid medical bills.” Plaintiff’s counsel expressed his understanding that the 

court had ruled that it would allow the entire amounts of the bills into the jury’s deliberations. 

Defendant’s attorney disputed the assertion that all the bills were paid. Defense counsel said the 

bills indicated payments Medicare made—and counsel had no objection to those amounts being 

sent to the jury—but adjustments had been made to the bills and, he argued, the “balances clearly 

are not paid.” Defense counsel argued that plaintiff’s e-mail indicated that there were bills that 

were written off by the medical providers. Defense counsel continued: “They are referenced as 

adjustments on the bill; that’s not evidence of payment of the bill, so in the absence of evidence 

of payment, they would need to have testimony with respect to those remaining balances to meet 

the foundational requirements.” 
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¶ 17 The trial court ruled that the total amounts of the bills will go back to the jury. 

Defendant’s attorney further argued that because the bills “are not owed to anyone” because the 

medical provider has no expectation of receiving payment, then “plaintiff does not owe them, so 

they cannot claim them.” Defense counsel argued that if the jury were to award the full amount 

of the bills that would require a remittitur after trial “because there is no one that owes those 

medical bills, and the plaintiff is not legally responsible to pay them.” The court again stated 

that the total amounts of the bills will be admitted. The court indicated that if anything would 

require the court to reduce any bills posttrial, it would be addressed with a posttrial motion. The 

following question and answer occurred: 

 “MR. HEFFERNAN [Defendant’s attorney]: Just so I’m clear for the 

record, the amounts of the bills, even the unpaid amounts, you are going to allow 

in?

THE COURT: Yes, same as any others where insurance companies reach 

agreements with medical care providers and they may pay something less, I don’t 

know, but that will be allowed.”

¶ 18 Plaintiff testified that the total amount of the medical bills—$83,788.34—was paid and 

the trial court admitted the bills into evidence and the trial continued. Also pertinent to this 

appeal, the trial court instructed the jury, in part, as follows: “If you find for [plaintiff] and 

against [defendant] and if you further find that [plaintiff’s] injury was proximately caused by a 

combination of [defendant’s] negligence and [plaintiff’s] contributory negligence and that 

[plaintiff’s] contributory negligence was 50% or less of the total proximate cause of the injury or 

damage for which recovery is sought, then you should use Verdict Form B.” Verdict Form B 

invited the jury to assign plaintiff a percentage of the total combined negligence of all persons 

whose negligence proximately contributed to plaintiff’s injuries. A separate instruction informed 
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the jurors that “if you find that the plaintiff’s contributory negligence was more than 50% of the 

total proximate cause of the injury or damage for which recovery is sought, then your verdict 

shall be for the defendant.” 

¶ 19 The jury awarded plaintiff $83,788.84 as the reasonable expense of necessary medical 

care, treatment, and services.

¶ 20 Defendant filed a posttrial motion for remittitur and a new trial. Defendant’s posttrial 

motion argued that the bills admitted into evidence “indicated partial payments made by third 

parties such as Medicare, but also indicated unpaid balances that were eventually written off or 

adjusted to a zero balance by the medical providers.” Defendant argued the unpaid balances 

represented portions of the charges that were not paid by any third-party collateral source on the 

plaintiff’s behalf; instead, they were unpaid or outstanding balances that were simply written off 

or abandoned by the medial provider. Defendant sought to reduce the amount of plaintiff’s 

verdict to only the amounts paid by third-party collateral sources. 

¶ 21 Defendant also argued plaintiff was permitted to introduce evidence of roughly $10,000 

worth of physical therapy bills, the amounts of which had never been disclosed prior to trial. 

Defendant argued plaintiff’s interrogatory answers state the amount of postsurgery physical 

therapy bills as unknown, and plaintiff’s discovery response was never supplemented. 

Defendant also argued the trial court improperly granted summary judgment in favor of plaintiff 

on the issue of defendant’s negligence because doing so tainted the jury making it unlikely the 

jury would find plaintiff culpable to any degree. 

¶ 22 The trial court denied defendant’s posttrial motion. 

¶ 23 This appeal followed. 

¶ 24 ANALYSIS

¶ 25 A. Summary Judgment
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¶ 26 Defendant argues the trial court erred in granting summary judgment in favor of plaintiff 

on the issue of her negligence because a genuine issue of material fact remained as to whether 

plaintiff’s negligence contributed to the accident. Defendant also implies the order granting 

summary judgment as to negligence alone—not liability—is a violation of section 2-1005(c) of 

the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(c) (West 2012)). Defendant admits 

plaintiff’s contributory negligence was not ruled on in the summary judgment order, but she 

argues that the summary judgment as to her negligence prejudiced her at trial “by tainting the 

jury’s perspective as to the relative degree of fault between the parties.” Plaintiff responds 

defendant waived the issue by failing to include a transcript of the summary judgment hearing 

and, regardless, defendant “was given great latitude at trial to argue that Plaintiff was also 

negligent” and “was successful in having the jury instructed on contributory fault.” In reply, 

defendant asserts the jury instruction regarding comparative fault does not cure the trial court’s 

error in misapprehending the summary judgment statute. “Our review of the circuit court’s order 

granting summary judgment is de novo.” Travelers Personal Insurance Co. v. Edwards, 2016 IL 

App (1st) 141595, ¶ 20. 

¶ 27 Defendant has failed to cite to any portions of the record demonstrating how she was 

prejudiced at trial. This failure provides sufficient reason to reject plaintiff’s argument she was 

prejudiced by the trial court’s order. Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) 

requires that the party’s appellate arguments contain citations to the pages of the record on which 

the party relied, and the failure to provide relevant citations to the record is a violation of Rule 

341(h)(7) which results in waiver. Gomez v. The Finishing Co., 369 Ill. App. 3d 711, 723 

(2006). Defendant’s argument the trial court’s summary judgment order erroneously prejudiced 

her at trial is waived. Even if this court were to address the issue, defendant’s argument would 

fail.
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¶ 28 The summary judgment order did not prevent defendant from arguing plaintiff’s 

contributory negligence at trial. Other than a perceived taint on the jury’s view of the parties’ 

relative fault, defendant has pointed to nothing to demonstrate she was precluded from arguing 

that plaintiff was contributorily negligent. Indeed, the trial court instructed the jury that it could 

apportion a percentage of the fault for his injuries to plaintiff himself. Defendant asserts the trial 

court that granted the partial summary judgment did not construe the pleadings strictly against 

the movant as required. We find that argument presumes the summary judgment foreclosed—or 

at least handicapped—defendant’s ability to argue plaintiff’s contributory negligence at trial, a 

claim we reject. 

¶ 29 The only question remaining is whether the trial court’s order violated section 2-1005(c) 

of the Code because, defendant argues, the trial court could only issue a partial summary 

judgment as to liability and not just defendant’s negligence. Section 2-1005 of the Code reads, 

in pertinent part, as follows:

 “A summary judgment, interlocutory in character, may be rendered on the 

issue of liability alone although there is a genuine issue as to the amount of 

damages.

 (d) Summary determination of major issues. If the court determines that 

there is no genuine issue of material fact as to one or more of the major issues in 

the case, but that substantial controversy exists with respect to other major issues, 

or if a party moves for a summary determination of one or more, but less than all, 

of the major issues in the case, and the court finds that there is no genuine issue of 

material fact as to that issue or those issues, the court shall thereupon draw an 

order specifying the major issue or issues that appear without substantial 

controversy, and directing such further proceedings upon the remaining 
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undetermined issues as are just. Upon the trial of the case, the facts so specified 

shall be deemed established, and the trial shall be conducted accordingly.” 735 

ILCS 5/2-1005(c), 2-1005(d) (West 2012).

¶ 30 Defendant’s duty and breach of duty were major issues in the case that can be decided as 

a matter of law. See Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 397 (2000) (“While the 

question of whether the City breached its duty to the plaintiffs is normally a factual one, it may 

properly be resolved by this court as a legal matter when the evidence, such as in this case, 

presents no genuine issue of material fact regarding that subject.”). In this case, the trial court 

entered summary judgment on the issues of defendant’s duty and her breach of that duty, but not 

on the issues of proximate cause or damages. The trial court was authorized to enter a judgment 

on whether defendant owed plaintiff a duty and whether she breached that duty and direct further 

proceedings on the issues of proximate cause and damages. 

¶ 31 Defendant argues plaintiff cannot “go to the summary judgment well for liability, and 

pull up a half bucket of negligence.” We find the fact that plaintiff moved for summary 

judgment on the issue of liability as opposed to negligence is not determinative. The trial court 

was authorized to make a determination that there was no genuine issue of material fact as to one 

or more of the major issues in the case on its own or if a party moved for a summary 

determination of “one or more, but less than all, of the major issues in the case.” 735 ILCS 5/2-

1005(d) (West 2012). The latter is precisely what plaintiff did here. Plaintiff moved for 

summary judgment on the issue of defendant’s liability but not on the issue of damages. “A 

reviewing court may affirm a circuit court’s grant of summary judgment on any basis supported 

by the record.” Edwards, 2016 IL App (1st) 141595, ¶ 20. The trial court could determine there 

were no genuine issues of material fact as to defendant’s duty and breach of duty (Wrobel, 318 
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Ill. App. 3d at 397), and direct further proceedings upon the remaining issues. We find no error 

in the trial court’s order. 

¶ 32 The order granting partial summary judgment is affirmed.

¶ 33 B. Discovery Violation

¶ 34 Next, defendant argues the trial court erred by allowing the entire amount of an 

“undisclosed” bill from Ingalls Memorial Hospital into evidence. When plaintiff initially 

responded to defendant’s discovery request in September 2011, the response stated that the 

amount of the Ingalls bill was unknown. Defendant filed a motion in limine as stated, and on the 

eve of trial, plaintiff’s counsel e-mailed copies of paid bills, including the Ingalls bill, to 

defendant’s attorney. Plaintiff testified to the “full amount” of the bills plaintiff sent to 

defendant. On appeal, defendant argues plaintiff failed to disclose the amount of the Ingalls bill 

in the due course of discovery. Specifically, defendant complains plaintiff “did not supplement 

his answer to interrogatory 6(e) [regarding medical bills] until the day before jury selection was 

to begin.” Defendant argues the trial court should have excluded these bills as a sanction for 

plaintiff’s failure to supplement his discovery response.

¶ 35 Plaintiff responds defendant has forfeited objection to the alleged discovery violation 

because defendant did not object to the allegedly late disclosure. We agree. “A court’s decision 

whether to admit evidence will only be disturbed if the court abused its discretion. [Citation.] A 

party must make a proper objection to preserve his or her argument that the court erred in 

admitting evidence. [Citation.] A specific objection only preserves the ground specified. 

[Citation.] Objections must also be timely.” In re Estate of Doyle, 362 Ill. App. 3d 293, 302-03 

(2005). “[T]he party wishing to exclude evidence has the burden to properly inform the trial 

judge as to the specific nature of its objection to the proffered testimony.” Fenton v. City of 

Chicago, 2013 IL App (1st) 111596, ¶ 36.
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¶ 36 Defendant asserts that when plaintiff testified to the amount of the bills, defense counsel 

objected. Defendant’s attorney stated only: “I would reiterate my previous objection.” 

Previously, when, on the first day of trial, plaintiff’s counsel informed the court plaintiff had emailed all of the paid medical bills to defendant the night before, defendant’s attorney stated: 

“Judge, that’s not true. They are not all paid, and let me just start with there are amounts 

indicated that are paid which I have no objection to those going back.” Defense counsel 

continued, stating he had no objection to the various amounts actually paid but there were 

balances that were not paid. Specifically with regard to the Ingalls bill, defendant’s attorney 

stated: “With respect to the Ingalls Hospital records, there again they are referenced Medicare 

payments which, again, no objection to those amounts going to the jury. However, the 

payments—there were adjustments that were made.” Defendant’s attorney represented that 

plaintiff’s e-mail indicated that there were bills that were written off by these providers that are 

referenced as adjustments on the bill. Defense counsel argued “that’s not evidence of payment 

of the bill, so in the absence of evidence of payment, they would need to have testimony with 

respect to those remaining balances to meet the foundational requirements.” The trial court ruled 

that it would allow the total amounts of the bills to go back.

¶ 37 What the defense actually objected to was the jury being told the total amount of the 

Ingalls bill. At no time did counsel’s colloquy with the trial court include an objection to the 

timeliness of plaintiff’s supplement of his response to defendant’s discovery request. In reply to 

plaintiff’s argument the issue is waived, defendant argues the trial judge never ruled on her 

motion to exclude bills that were not disclosed and never specifically ruled on the exclusion of 

the Ingalls bill during the trial. Defendant complains the issue was next before the trial court as 

part of her motion for a new trial. 
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¶ 38 Plaintiff’s counsel objected to defendant’s motion in limine as to undisclosed medical 

bills on the grounds the motion was not directed to a specific piece of evidence. Plaintiff’s 

counsel asked that ruling on the motion be reserved until it can be applied to a particular piece of 

evidence. The trial court ruled: “Well, not knowing what evidence there might be, I guess I 

would have to rule on specific things. As a general rule, I mean, it would be granted. I mean, 

nobody should be surprised on either side by evidence that hasn’t been disclosed. That’s the 

purpose of the Supreme Court Rules on discovery is to prevent surprise.” Because defendant 

failed to obtain a ruling on her motion in limine to exclude undisclosed bills, or specifically the 

Ingalls bill, the issue is waived. “[A] party waives an objection where a ruling is not requested 

after the trial court fails to make one.” Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 

Ill. App. 3d 305, 313 (2002). 

¶ 39 Defendant’s argument the trial court committed reversible error in admitting the Ingalls

medical bill is waived.

¶ 40 C. Admission of Medical Bills

¶ 41 Finally, defendant argues the trial court misapplied the law and abused its discretion 

when it admitted into evidence “satisfied” bills without a proper foundation. “The admission of 

evidence is within the sound discretion of the trial court and we will not reverse the court ‘unless 

that discretion was clearly abused.’ [Citation.]” McHale v. W.D. Trucking, Inc., 2015 IL App 

(1st) 132625, ¶ 28.

¶ 42 At trial, defendant objected to amounts listed on plaintiff’s medical bills as adjustments 

being admitted into evidence as if those amounts were paid. Defendant’s position was that to 

admit the amounts of the bills that were adjusted and not actually paid by a collateral source, 

plaintiff must lay a proper foundation with testimony from a medical provider that the amounts 

were reasonable and necessary. Defendant argues plaintiff failed to lay a proper foundation for 
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the “satisfied” portions of the medical bills as required by Wills v. Foster, 229 Ill. 2d 393 (2008), 

and the trial court erred when it allowed a “satisfied” medical bill the same evidentiary status as 

a paid medical bill.

¶ 43 Defendant’s argument is based on the collateral source rule. In Illinois, the rule is both a 

rule of evidence and a substantive rule of damages. Id. at 400. “As a rule of evidence, the rule 

prevents the jury from learning anything about collateral income. [Citation.] For instance, the 

rule prevents defendants from introducing any evidence that all or part of a plaintiff’s losses have 

been covered by insurance.” Id. “As a substantive rule of damages, the rule bars a defendant 

from reducing the plaintiff's compensatory award by the amount the plaintiff received from the 

collateral source.” (Internal quotation marks omitted.) Id. (quoting Arthur v. Catour, 216 Ill. 2d 

72, 80 (2005)). This court once followed the rule that a plaintiff cannot recover the value of free 

medical services. Id. at 397 (citing Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353 

(1979)). Twenty-six years later, our supreme court revisited the collateral source rule and held 

that a “plaintiff was entitled to submit the full amount of her charged medical bills to the jury and 

was not limited to presenting the reduced rate actually paid by her private insurer.” Id. at 402 

(citing Arthur, 216 Ill. 2d 72). Arthur, however, did not reconcile itself with Peterson. Id. at 

404. Our supreme court would rectify that situation in Wills. 

¶ 44 To determine whether Peterson survived Arthur our supreme court had to determine what 

approach Illinois uses to determine “whether, pursuant to the collateral source rule, a plaintiff 

was entitled to recover his or her full billed medical expenses when the bill was later settled by a 

third party for a lesser amount.” Id. Illinois follows the “reasonable-value approach” which 

states that the plaintiff may seek to recover the amount originally billed by the medical provider. 

Id. at 410. 
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“This view is in line with sections 924 and 920A of the Restatement, and courts 

often rely on these sections. As explained above, section 924 allows an injured 

plaintiff to recover reasonable medical expenses (Restatement (Second) of Torts 

§924, at 523 (1979)), and comment f explains that this is a recovery for value 

even if there is no liability or expense to the injured person (Restatement (Second) 

of Torts §924, Comment f, at 527 (1979)).” (Emphasis omitted.) Id. 

¶ 45 In Illinois, “the plaintiff may place the entire billed amount into evidence, provided that 

the plaintiff establishes the proper foundational requirements to show the bill’s reasonableness.” 

Id. at 414 (citing Arthur, 216 Ill. 2d at 81-83). “When evidence is admitted, through testimony 

or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the 

bill is prima facie reasonable.” (Internal quotation marks omitted.) Arthur, 216 Ill. 2d at 82. If 

the bill has not been paid, a plaintiff “can establish reasonableness by introducing the testimony 

of a person having knowledge of the services rendered and the usual and customary charges for 

such services. Once the witness is shown to possess the requisite knowledge, the reasonableness 

requirement necessary for admission is satisfied if the witness testifies that the bills are fair and 

reasonable.” (Internal quotation marks omitted.) Id. The court in Wills did not overrule or 

abrogate Arthur, and under Arthur, when medical bills are discounted, a “plaintiff cannot make a 

prima facie case of reasonableness based on the bill alone, because she cannot truthfully testify 

that the total billed amount has been paid. Instead, she must establish the reasonable cost by 

other means—just as she would have to do if the services had not yet been rendered, e.g., in the 

case of required future surgery, or if the bill remained unpaid.” Id. at 83. 

¶ 46 Defendant in this case is not taking the same position as the defendant in Wills. In Wills, 

“[t]he position defendant took *** was not that the amounts billed were not reasonable, but that 

the written-off amount was not recoverable as damages as a matter of law.” Wills, 229 Ill. 2d at 
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419-20. In Wills, the plaintiff did not produce a witness to testify that the total billed amount was

reasonable, but the court found that was not necessary because the defendant in that case 

stipulated to the admission of the billed amounts and did not object to the question of their 

reasonableness. Id. at 419. In this case, defendant did not stipulate to the admission of the 

written-off amounts and did object to the question of their reasonableness. Specifically, 

defendant argued plaintiff would have to “have testimony with respect to those remaining 

balances to meet the foundational requirements.” The foundational requirement for a medical 

bill is that it is reasonable. See Arthur, 216 Ill. 2d at 82. 

¶ 47 “The circuit court abuses its discretion when its ruling on the admissibility of evidence 

rests on an error of law.” Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, ¶ 29. The 

trial court admitted evidence of the total amount of the medical bills over defendant’s objection 

even though the bills showed substantial portions had been written off and plaintiff did not call a 

witness with the requisite knowledge to testify the total bills were fair and reasonable. We note 

that although defendant’s expert testified that the bills associated with the left knee replacement 

were reasonable and necessary, defendant’s expert testified he had seen “the list of bills.” It is 

uncertain whether defendant’s expert was referring to the list of bills stating some amounts were 

unknown or if the bills the expert saw included all of the bills at issue. Moreover, plaintiff does 

not point to testimony by defendant’s expert that the expert possessed knowledge of the usual 

and customary charges for such services (and our review of his evidence deposition reveals that 

he did not so testify). Defendant’s expert’s testimony is not sufficient to overcome the trial 

court’s error. The trial court improperly admitted the written-off or settled portions of plaintiff’s 

medical bills into evidence and the jury awarded damages based on the improperly admitted 

medical bills. We turn to the proper remedy for this error.
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¶ 48 “A remittitur is an agreement by the plaintiff to relinquish, or remit, to the defendant that 

portion of the jury’s verdict which constitutes excessive damages and to accept the sum which 

has been judicially determined to be properly recoverable damages. [Citation.]” (Internal 

quotation marks omitted.) Drakeford v. University of Chicago Hospitals, 2013 IL App (1st) 

111366, ¶ 66. In this case, the properly recoverable damages for the reasonable expense of 

necessary medical care, treatment, and services were only the paid medical bills because plaintiff 

failed to provide a proper foundation for the written-off portion of the bills. The written-off or 

settled portions of the medical bills were improperly admitted into evidence and should not have 

been considered by the jury. The trial court has a duty to correct an excessive verdict and may 

do so by ordering a remittitur of a portion of the damages, with the plaintiff’s consent. Id. ¶ 65. 

“The only alternative to a remittitur in a case where the verdict exceeds the damages properly 

proven [citations] *** is for the trial judge to order a new trial [citations]. [Citation.] A court 

does not have the authority to reduce the damages by entry of a remittitur if plaintiff objects or 

does not consent.” (Internal quotation marks omitted.) Peter J. Hartmann Co. v. Capitol Bank 

& Trust Co., 353 Ill. App. 3d 700, 711 (2004). If plaintiff does not consent to the remittitur the 

trial court is instructed to order a new trial solely on the issue of damages. See Tri-G, Inc. v. 

Burke, Bosselman & Weaver, 222 Ill. 2d 218, 254 (2006) (“Absent such consent, we order a new 

trial solely on the issue of damages.”).

¶ 49 Finally, we note that plaintiff filed a notice of cross-appeal with respect to the trial court’s 

rulings allowing the admission of certain medical bills and denying plaintiff’s motion to bar 

defendant’s expert. Plaintiff’s notice of cross-appeal states it was tendered solely in the event 

this court grants defendant any relief. Plaintiff waived any claims on cross-appeal by failing to

file a brief as appellee and cross-appellant or to raise any arguments in his appellee’s brief in 

support of any claims by plaintiff for appellate relief. 
1-15-0414 

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¶ 50 CONCLUSION

¶ 51 For the foregoing reasons, the circuit court of Cook County’s judgment is affirmed and 

the cause is remanded for entry of remittitur of the portion of the judgment for the written off or 

settled portions of the medical bills, on the condition plaintiff consents to the remittitur; in the 

absence of consent to the remittitur by plaintiff, the judgment is reversed and the cause is 

remanded for a new trial on the issue of damages only.

¶ 52 Affirmed in part, reversed in part, and remanded with instructions.