1 

2021 IL App (5th) 200010-U 

NO. 5-20-0010

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

TYREE MCKINNEY, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) St. Clair County.

 ) 

v. ) No. 18-L-429 

 ) 

DANIEL NEWGENT, ) Honorable

 ) Andrew J. Gleeson, 

Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________

JUSTICE CATES delivered the judgment of the court.

Presiding Justice Boie and Justice Moore concurred in the judgment.

 

 ORDER

¶ 1 Held: The trial court did not abuse its discretion in granting the plaintiff’s 

emergency motion to bar the testimony of the defendant’s expert witness at 

trial as a sanction for failing to comply with discovery requests and orders. 

The trial court did not err in denying the defendant’s motion for new trial 

because the jury’s verdict was supported by the manifest weight of the 

evidence. 

¶ 2 The plaintiff, Tyree McKinney, filed a complaint against the defendant, Daniel 

Newgent, for injuries the plaintiff sustained as a result of a motor vehicle accident. A jury 

found in favor of the plaintiff, and the trial court entered judgment against the defendant 

on the jury’s verdict. The defendant appeals the trial court’s judgment, asserting that the 

jury’s verdict was against the manifest weight of the evidence. The defendant also claims 

NOTICE

Decision filed 01/07/21 The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
2 

the court abused its discretion by barring the defendant’s retained expert witness from 

testifying at trial as a sanction for the defendant’s failure to comply with discovery 

requests and orders. We affirm.

¶ 3 BACKGROUND

¶ 4 On February 22, 2018, the plaintiff was sitting in traffic on I-64 when his vehicle 

was struck from behind by the defendant’s automobile. The plaintiff sustained injuries to 

his neck and back as result of the accident. On June 19, 2018, the plaintiff filed suit 

against the defendant, seeking damages for the injuries he sustained because of the 

accident.

¶ 5 On September 17, 2018, the trial court entered an agreed case management order 

that established various discovery deadlines. These deadlines included that (1) the 

plaintiff shall identify any controlled or retained witnesses by January 15, 2019; (2) the 

plaintiff shall make any controlled or retained opinion witnesses available for deposition 

by March 15, 2019; (3) the plaintiff shall serve Rule 213(f) interrogatories (see Ill. S. Ct. 

R. 213(f) (eff. Jan. 1, 2018)) on the defendant by April 15, 2019; (4) the defendant shall 

obtain an exam, disclose the expert reports, and answer the plaintiff’s Rule 213(f) 

interrogatories by July 15, 2019; and (5) the defendant’s retained opinion witnesses shall 

be made available for deposition by August 15, 2019. The case management order 

provided that all discovery would be completed by August 15, 2019. The case 

management order also set the final pretrial conference for October 15, 2019, and the trial 

for October 21, 2019.
3 

¶ 6 On October 10, 2018, the plaintiff sent the defendant his Rule 213 witness 

disclosures, identifying Dr. Scott Morrison and Dr. Kevin Rutz, the plaintiff’s treating 

physicians, and Dr. Robert Fast, the plaintiff’s chiropractor, as independent expert 

witnesses. At the time of his disclosure, the plaintiff simultaneously disclosed the 

anticipated testimony for each of these witnesses. Within this time frame, the plaintiff 

provided the defendant with information regarding the plaintiff’s medical treatment, 

copies of the plaintiff’s medical records, and blank medical authorizations. The plaintiff’s 

disclosure complied with the September 17, 2018, case management order.

¶ 7 In March 2019, the defendant sent his initial records request to the plaintiff’s 

primary care physician, Dr. Morrison, who responded by sending medical records 

pertaining to the plaintiff. On or about April 24, 2019, the defendant discovered that Dr. 

Morrison’s office had mistakenly omitted some of the plaintiff’s records, so the 

defendant’s counsel made an additional request for records from Dr. Morrison’s office. 

On May 1, 2019, the defendant also requested medical records from Tina Cloin, a 

physician’s assistant in Dr. Morrison’s office, under the mistaken belief that the plaintiff 

had received treatment from Cloin. Approximately two months later, on or about July 5, 

2019, the defendant realized he had not received any records from Cloin and followed up 

with the provider.

¶ 8 On Friday, July 12, 2019, the defendant confirmed that he had received all the 

plaintiff’s medical records, and that there were no separate medical records other than 

what had already been produced by the plaintiff. On Monday, July 15, 2019, the deadline 

for the defendant to obtain an examination of the plaintiff, disclose his expert report, and 
4 

answer the plaintiff’s Rule 213(f) interrogatories, defense counsel emailed plaintiff’s 

counsel, indicating that they had recently confirmed their receipt of all of the plaintiff’s 

medical records. Defense counsel advised plaintiff’s counsel that, “assuming we now 

have all the medical records for your client’s treatment, and for our 213 expert disclosure, 

we will probably proceed with having a records review completed by Dr. Peter Anderson. 

Once we have his opinions, we will pass them on to you.” At this time, defense counsel 

also requested the discovery deposition of Dr. Morrison. The following day, the 

defendant scheduled the discovery deposition of Dr. Morrison for August 27, 2019, more 

than five months beyond the deadline established by the case management order.

¶ 9 On July 24, 2019, the plaintiff set the video evidence deposition of Dr. Rutz for 

October 18, 2019, in anticipation of trial. Several days later, the defendant requested Dr. 

Rutz’s discovery deposition. The defendant scheduled Dr. Rutz’s discovery deposition 

for October 11, 2019, almost seven months beyond the deadline established by the case 

management order. 

¶ 10 On August 15, 2019, the date all discovery was to be completed, the defendant 

filed a motion for extension of time, requesting that the trial court extend the deadlines in 

the case management order in order to take discovery depositions of the plaintiff’s 

treating physicians, the deposition of the defendant’s retained expert, and any possible lay 

witnesses. In the motion, the defendant indicated that he had disclosed his retained expert 

witness, Dr. Anderson, but that Dr. Anderson’s report had not yet been received, nor had 

Dr. Anderson’s deposition been taken. 
5 

¶ 11 On August 19, 2019, the defendant provided his Rule 213 disclosures to the 

plaintiff. The defendant’s disclosure identified Dr. Anderson, with Illinois Southwest 

Orthopedics, Ltd., as a controlled expert witness pursuant to Rule 213(f)(3). The 

defendant asserted that Dr. Anderson was “originally disclosed via email to plaintiff’s 

counsel on 7/15/19.” The defendant’s disclosure provided that Dr. Anderson “may” 

review the plaintiff’s medical records and deposition transcripts of the parties and 

medical providers, and offer testimony on his review. The disclosure stated that Dr. 

Anderson “may” provide testimony as to (1) the plaintiff’s injuries caused by the car 

accident, (2) the medical treatment the plaintiff received, (3) the plaintiff’s diagnosis and 

prognosis, and the causes of same, and (4) the reasonableness and necessity of the 

plaintiff’s medical bills and treatment. The defendant indicated that he “expected” Dr. 

Anderson to testify regarding “those opinions and conclusions which were provided 

within his records review report which is currently pending.” Finally, the defendant 

indicated that he “anticipated” Dr. Anderson would testify that he relied on photographs 

of the damage to the parties’ vehicles in reaching his conclusions. 

¶ 12 On August 22, 2019, the plaintiff provided his supplemental discovery responses 

pursuant to Rules 213 and 214 (Ill. S. Ct. R. 213 (eff. Jan. 1, 2018); R. 214 (eff. July 1, 

2018)). The plaintiff provided the defendant with the medical records and bills from the 

plaintiff’s August 6, 2019, appointment with Dr. Rutz, at which time Dr. Rutz had 

diagnosed the plaintiff with a small annular tear and a disc protrusion. 

¶ 13 On September 20, 2019, the plaintiff filed his objection to the defendant’s motion 

for extension of time. The plaintiff argued that the defendant’s August 19, 2019, 
6 

disclosure of Dr. Anderson was untimely under the trial court’s case management order 

and failed to meet the requirements of Rule 213(f)(3). Specifically, the plaintiff argued 

that the defendant’s disclosure was insufficient because it did not include Dr. Anderson’s 

conclusions and opinions, the bases for any of Dr. Anderson’s conclusions or opinions, 

Dr. Anderson’s qualifications, and Dr. Anderson’s report. The plaintiff also argued that 

the defendant had demonstrated a lack of diligence in disclosing his controlled expert and 

in obtaining the discovery depositions of the plaintiff’s treating physicians. The plaintiff 

requested an order from the trial court denying the defendant’s request for an extension of 

time, striking the defendant’s Rule 213(f)(3) disclosure, and barring Dr. Anderson’s 

opinion testimony at trial. 

¶ 14 Also, on September 20, 2019, the defendant sent the plaintiff a supplemental 

notice of compliance with discovery, attaching Dr. Anderson’s expert report and 

opinions, dated September 17, 2019. On September 23, 2019, the defendant sent a notice 

of his intent to take Dr. Anderson’s video evidence deposition on Thursday, October 17, 

2019, at 2 p.m., four days before trial.

¶ 15 On September 30, 2019, the defendant responded to the plaintiff’s objection to the 

defendant’s motion for an extension of time, asserting the defense was not able to meet 

the August 15, 2019, deadline set by the case management order “due to circumstances 

beyond its control.” The defendant argued that despite his diligent efforts, he was unable 

to obtain the medical records of the plaintiff in a timely manner, which resulted in the 

delay in obtaining and disclosing the opinion from Dr. Anderson. The defendant also 

argued he was not able to meet the case management order deadline due to the plaintiff’s 
7 

“surprise” production of the medical records from Dr. Rutz related to the August 6, 2019, 

treatment date after the August 15, 2019, discovery deadline. 

¶ 16 On October 1, 2019, the trial court held a hearing on the defendant’s motion for 

extension of time, a partial transcript of which was included in the record on appeal. At 

the hearing, the defense requested an extension of the deadline to disclose the opinion of 

Dr. Anderson and sought leave to take his deposition due to “circumstances beyond our 

control.” The plaintiff requested the court deny the extension, asserting the defendant’s 

Rule 213(f)(3) disclosures were insufficient, and were late due to the defendant’s failure 

to follow up on his requests for medical records. The plaintiff indicated that he had just 

received the defendant’s expert report the previous week and had not yet served his Rule 

213 discovery or conducted a records deposition of Dr. Anderson’s custodian of records. 

¶ 17 On October 9, 2019, the trial court entered an order granting the defendant’s 

motion for an extension of time, permitting the defendant to take the evidence deposition 

of Dr. Anderson. The court, however, “reserve[d] judgment on the admissibility of Dr. 

Anderson’s deposition, subject to full compliance by defendant and defendant’s witness 

to comply with the ‘spirit of discovery.’ ” 

¶ 18 On October 10, 2019, the plaintiff submitted Rule 213(f) supplemental 

interrogatories and requests for production to the defendant regarding financial 

information related to medical-legal work performed by Dr. Anderson and his medical 

practice, Illinois Southwest Orthopedics, Ltd. The plaintiff’s supplemental interrogatories 

requested the following information for the previous five years: (1) the total number of 

persons examined by Dr. Anderson for the defendant’s attorney, law firm, and insurer; 
8 

(2) the total number of plaintiffs, parties, or persons examined by Dr. Anderson for 

defendants or insurance companies for worker compensation or civil litigation cases; 

(3) the total amount of gross expenses or payments paid to Dr. Anderson for medicallegal work, including medical examinations, medical reviews, testimony, diagnostic 

testing, report writing, or any other medical or consulting services for law firms, 

insurance companies, employers, and other defendants; (4) the total amount of gross 

expenses and payments paid for medical examinations, not including treatment, with 

regard to cases pending with plaintiff firms; and (5) the total income paid to Dr. 

Anderson by the defendant, defendant’s attorneys, and defendant’s insurance company 

for testimony, including income derived from preparation time and for record reviews. 

The plaintiff’s supplemental request for production requested copies of federal form 1099 

tax records and other documents associated with income earned for medical-legal work 

performed by Dr. Anderson and his practice, both in total and for the defendant’s law 

firm and insurers for the last five years. 

¶ 19 The following day, the plaintiff served a subpoena duces tecum upon Wanda 

Hartsoe, the custodian of records for Dr. Anderson and Illinois Southwest Orthopedics, 

Ltd., directing her to appear for a records deposition on Wednesday, October 16, 2019, at 

4 p.m., and to produce documents concerning medical-legal services performed by Dr. 

Anderson and his practice.

¶ 20 On October 11, 2019, the plaintiff filed an emergency motion for an accelerated 

Rule 213(f)(3) discovery disclosure schedule to allow the plaintiff to conduct his Rule 

213 discovery and prepare for cross-examination during the depositions scheduled for 
9 

October 16 and 17, 2019. The plaintiff requested the court order the defendant to produce 

all discovery responses in compliance with the plaintiff’s interrogatories, requests to 

produce, and subpoenas on or before Tuesday, October 15, 2019, at 5 p.m. The plaintiff 

noticed the hearing on his motion for the date of the final pretrial conference, October 15, 

2019, at 9 a.m.

¶ 21 On October 14, 2019, the defendant submitted his first supplemental Rule 213 

witness disclosures. The defendant’s supplemental disclosure was substantially similar to 

his initial disclosure, except that it added that Dr. Anderson was expected to testify 

regarding the opinions in Dr. Anderson’s record review report dated September 17, 2019, 

including that the plaintiff may have sustained a lumbar strain as a result of the motor 

vehicle accident.

¶ 22 On October 15, 2019, the trial court conducted the final pretrial conference and the 

hearing on the plaintiff’s emergency motion. At the hearing, the plaintiff requested an 

order directing the defendant to comply with the plaintiff’s supplemental Rule 213(f) 

discovery requests by 5 p.m. that day, which was less than 48 hours before the evidence 

deposition of Dr. Anderson, so that the plaintiff could cross-examine Dr. Anderson 

regarding his financial interest and bias. The trial court observed that the defendant 

should have anticipated receiving, and having to respond to, the plaintiff’s supplemental 

Rule 213 discovery regarding Dr. Anderson’s medical-legal practice after the defendant 

disclosed Dr. Anderson’s report on September 20, 2019. The trial court addressed 

defense counsel as follows: 
10

 “THE COURT: All right. So we’ve had since the 21st of September really 

to provide this info or to have some idea and definitely since the [hearing on the] 

1st of October. I made it pretty clear that that was info I was expecting. Are you 

intending to produce that by 5:00 today? 

[Defense Counsel]: We’ve been working on that. We’re getting everything 

together— 

THE COURT: So I’m going to grant their motion. All right?

[Defense Counsel]: Okay.

 * * * 

THE COURT: So let me just say for the record because, you know, my 

order was perfunctory. I got busy. This is an auto case. It was discovery issues and 

really in the Court’s perspective I shouldn’t have to deal with the week or two 

weeks before the trial date so I’m relying upon my oral record here. You know, I 

basically said in the spirit of discovery as we’ve had this discussion in terms of Dr. 

Anderson and we’ve—while I didn’t enumerate those things within that order it’s 

my expectation that frankly I let you up, you know, I’m letting the defendant do 

this deposition late pursuant to the case management order.

So I’m expecting that you need to balance that for the plaintiff so that 

they’re not prejudiced by my allowance of you to take the deposition of Dr. 

Anderson. So I just want my record to be clear as to why these things are 

proceeding in the manner that they are.

Frankly, I looked at this and I balanced the various hardships and 

prejudices of the parties. I think I’ve made it clear that in the event that I don’t feel 

that you make an appropriate tendering of information that the plaintiff needs for 

the deposition of Dr. Anderson, I’ll take up the admissibility of Dr. Anderson’s 

deposition. This is an evidence deposition. It’s the Court’s position that I can 

allow this to go forward at this particular point in time without prejudicing either 

party. I’m still intending to balance the equities, so to speak, depending on what 

occurs. Just so I’m clear I don’t want it to be—and obviously while we’ve had this 

discussion my order doesn’t necessarily say that but I knew everybody wanted me 

to get an order out right away as they should have but we had some other things 

that were going on. So my order isn’t as detailed as I would have liked it to be.

So is everybody clear on the record as to what I intend for them to do?

[Defense Counsel]: Thank you, Judge. Yes.” 
11

¶ 23 Shortly before the 5 p.m. deadline, defense counsel submitted the defendant’s 

responses to the plaintiff’s supplemental discovery. The defendant objected to almost all 

of the plaintiff’s supplemental interrogatories and requests for production as being 

ambiguous, unduly burdensome, overly broad, not reasonably limited in time and scope, 

not reasonably calculated to lead to discoverable materials, or tailored to harass the 

defense and delay the litigation process. The defendant provided some information in 

response to the plaintiff’s discovery requests, which included copies of checks sent to Dr. 

Anderson for work performed in this case, as well as a two charts, titled “IME List” and 

“Deposition Analysis,” purporting to detail Dr. Anderson’s medical-legal work for the 

previous five years. 

¶ 24 The next morning, plaintiff’s counsel emailed defense counsel, advising them that 

plaintiff’s counsel believed the defendant’s production was deficient, requesting specific 

documents, including 1099 forms, and indicating that plaintiff’s counsel was electing to 

proceed with the deposition of Hartsoe. That day, in the hours before Hartsoe’s 

deposition was to commence, defense counsel emailed plaintiff’s counsel an additional 

200 pages of discovery responses, including one 1099 form from the defendant’s law 

firm to Illinois Southwest Orthopedics for the year 2018 and copies of various checks 

paid to Dr. Anderson and Illinois Southwest Orthopedics by the defendant’s law firm 

over the last several years. 

¶ 25 The deposition of Hartsoe was conducted later that afternoon. Hartsoe 

acknowledged receiving the subpoena duces tecum and the notice of records’ deposition 

on October 11, 2019, five days earlier. In response to the subpoena, Hartsoe had mailed 
12

plaintiff’s counsel copies of Dr. Anderson’s report, the plaintiff’s medical records 

provided to Dr. Anderson, and the IME List and Deposition Analysis. During the 

deposition, Hartsoe testified the IME List and Deposition Analysis constituted complete 

lists of all the independent medical examinations (IMEs) and depositions Dr. Anderson 

had performed since 2013. Hartsoe testified that Dr. Anderson also performs record 

reviews, which are medical-legal services, but that she does not keep a running list of 

these activities and they were not included on the IME List. Hartsoe stated record reviews 

are kept on a legal sheet for billing purposes and that she could have compiled a list of 

them, but that she did not do so in response to the subpoena. Hartsoe also testified that 

the Deposition Analysis did not include any fees Dr. Anderson received for depositions 

that had been canceled or rescheduled, or any additional fees received for depositions that 

exceed an hour in length. 

¶ 26 Hartsoe stated that she logs the payments Dr. Anderson receives for IMEs, 

depositions, and record reviews on an Excel spreadsheet and makes copies of the checks 

before forwarding the checks to the central business office at Illinois Southwest 

Orthopedics. These spreadsheets would include payments for canceled or rescheduled 

depositions, and deposition overages. Hartsoe stated that all of the appointments and 

records for medical-legal services provided by Dr. Anderson are kept on Athena, a 

computer program.

¶ 27 Hartsoe acknowledged that the documents she provided in response to the 

subpoena did not account for all the income Dr. Anderson earns for providing medicallegal services. Hartsoe testified that the documents she provided did not include 
13

information compiled by her predecessor, or income with regard to medical record 

reviews, IME addendums, cancelation fees, no-show fees, and overage time for 

depositions, even though those are all medical-legal services. Hartsoe also acknowledged 

that she did not produce copies of the checks received by Dr. Anderson for his medicallegal work or the electronic records from Excel or Athena logging Dr. Anderson’s 

activities and income from all of his medical-legal work, despite her ability to do so and 

request in the subpoena directing her to produce checks and electronic records. Hartsoe 

testified she did not contact the central business office at Illinois Southwest Orthopedics 

to determine if it could provide documents in compliance with the subpoena. 

¶ 28 During the deposition, plaintiff’s counsel presented Hartsoe with numerous 

documents, including checks issued by the defendant’s law firm to Dr. Anderson and 

Illinois Southwest Orthopedics for record reviews, depositions, deposition overages, IME 

cancelations or no-shows, and an IME addendum. Hartsoe conceded that these charges 

for medical-legal work were not contained on either the IME List or the Deposition 

Analysis.

¶ 29 On Thursday, October 17, 2019, the video evidence deposition of Dr. Anderson 

was taken. Dr. Anderson testified he had performed a number of medical record reviews 

at the request of the defendant’s law firm, but that he did not know how many. Dr. 

Anderson indicated that he was aware of the federal and state rules to produce financial 

information related to his medical-legal work when he was retained as an expert, and that 

he has been aware of this requirement for several years. Dr. Anderson stated that Hartsoe 

was responsible for maintaining a list demonstrating Dr. Anderson’s medical-legal work.
14

¶ 30 Although Dr. Anderson initially testified that his income for medical record 

reviews was included in the IME List that was produced to the plaintiff, Dr. Anderson 

eventually acknowledged that this information was not provided to the plaintiff. During 

cross-examination, Dr. Anderson testified as follows:

 “Q. Okay. Now, records reviews are not included on that list. Is that true? 

 A. No. Records reviews are in there. 

 Q. They are? 

A. As far as I know. 

Q. Well, we actually took Wanda’s deposition last night and she confirmed 

for us that records reviews would not be listed in that document. 

A. I thought they would be. 

***

A. Then I don’t know. I thought they were included. I thought everything 

was included in there. 

Q. Okay. Have you directed her to keep records reviews and independent 

medical examinations in that document? 

A. I thought they were all included in there. Any work I did I thought was 

included there. So this is new to me as of today. 

Q. Okay. What will you plan to do after learning this today? 

A. I am going to fix it. I think it is already being fixed. Apparently you 

guys did a deposition last night with Wanda which you brought up, too, and so I 

called the practice manager when I found out what happened; and apparently not 

all of the information was there and I don’t know why. So they are reviewing it 

right now. They have apparently a central billing office and they are reviewing it 

and putting together a new list. I thought it was all in there, but apparently I was 

wrong. 
15

Q. So was yesterday the first time that you found out that that information 

was not included? 

A. Today.” 

¶ 31 Dr. Anderson also acknowledged that the Deposition Analysis was “not totally 

complete” in that it did not include all the depositions he gave or the overage charges for 

depositions. Dr. Anderson stated that he believed that this information should have been 

included on the Deposition Analysis. Dr. Anderson also testified that the Deposition 

Analysis provided by his office indicated that he gave 33 depositions for cases with the 

defendant’s law firm, while the firm only disclosed 31 depositions to plaintiff’s counsel. 

Dr. Anderson testified that, to his knowledge, no one from the defendant’s law firm had 

contacted him or his office to obtain any of the information requested in the plaintiff’s 

discovery requests. 

¶ 32 On Monday, October 21, 2019, the day of trial, the plaintiff filed an emergency 

motion to bar the testimony of Dr. Anderson based on the defendant’s failure to comply 

with the plaintiff’s discovery requests, the subpoena duces tecum, and the trial court’s 

October 9, 2019, and October 15, 2019, orders. After reviewing the depositions of 

Hartsoe and Dr. Anderson, the trial court conducted a hearing on the plaintiff’s 

emergency motion. The plaintiff argued to the court that it should bar Dr. Anderson’s 

testimony because the defendant failed to produce the necessary financial information 

related Dr. Anderson’s medical-legal work, despite two court orders compelling him to 

do so. 
16

¶ 33 Defense counsel acknowledged at the hearing that their firm had retained Dr. 

Anderson as an expert in over 30 other cases. The defendant argued that the court should 

not bar Dr. Anderson’s testimony because (1) the law firm had provided the plaintiff with 

the checks the firm had paid to Dr. Anderson; (2) Hartsoe was unable to comply with the 

subpoena because she received it only five days before her deposition; (3) Hartsoe made 

a good-faith effort to comply with the subpoena; (4) Dr. Anderson substantially complied 

with the discovery requests, and any noncompliance was too insignificant to justify 

barring his testimony; and (5) the defendant’s disclosure of Dr. Anderson was late, and 

the related Rule 213 supplemental discovery regarding Dr. Anderson’s medical-legal 

work was conducted shortly before trial, due to the plaintiff’s August 22, 2019, 

supplemental disclosure of medical records from treatment the plaintiff received on 

August 6, 2019. 

¶ 34 The trial court rejected each of the defendant’s arguments and granted the 

plaintiff’s motion to bar Dr. Anderson’s testimony. The court concluded that the records 

and information provided by Dr. Anderson were incomplete and that he did not make a 

good-faith effort to comply with the plaintiff’s discovery requests for information 

regarding his income from medical-legal work. The court found that Dr. Anderson was 

regularly engaged in medical-legal work, so he was familiar with the production 

requirements and that the information being sought by the plaintiff should have been 

readily available. The court held that the defendant’s failure to comply with discovery 

prejudiced the plaintiff’s ability to meaningfully cross-examine Dr. Anderson on the issue 

of his potential pecuniary interest. The court rejected the defendant’s contention that he 
17

was not given sufficient time to comply with the plaintiff’s discovery requests, finding 

that at the hearing on October 1, 2019, the court had made it clear that this information 

was to be disclosed. 

¶ 35 The cause proceeded to trial later that day. The plaintiff testified that on February 

22, 2018, around 3 p.m., he was driving on I-64 and had just crossed the Stan Musial 

Bridge when traffic stopped. The plaintiff was at a complete stop when he looked in his 

rearview mirror and saw the defendant’s car “whip” around and come toward the 

plaintiff. The plaintiff grabbed the wheel and put his foot on the brake, bracing for the 

impending impact. The plaintiff testified there was a pop, and he was pushed up and 

forward, which twisted his body and forced his foot from the brake.

¶ 36 The police responded to the scene shortly after the accident. At that time, the 

plaintiff advised the police that he was not injured, and he refused an ambulance. The 

plaintiff testified that, approximately 30 to 40 minutes after the accident, he began feeling 

pain in his lower back, so he sought treatment in the emergency room at Belleville 

Memorial Hospital. The hospital staff performed an x-ray of the plaintiff’s back and gave 

him ibuprofen and a prescription for muscle relaxers. The plaintiff followed up with Dr. 

Morrison on February 26, 2018, four days after the accident. Dr. Morrison examined the 

plaintiff and diagnosed him with muscle strain and a low back sprain as a result of the 

accident. Dr. Morrison prescribed the plaintiff steroids, which the plaintiff took with 

over-the-counter pain medication.

¶ 37 The plaintiff testified he continued to experience pain in his neck and low back. 

When his pain did not subside, the plaintiff sought treatment from Dr. Fast, a 
18

chiropractor. The plaintiff testified that Dr. Fast performed a variety of treatments for the 

plaintiff’s neck and back pain, and that these treatments alleviated almost all the issues 

the plaintiff was experiencing with his neck. The plaintiff testified that while his neck 

occasionally feels “stiff,” it was no longer painful. The plaintiff continued to experience 

low back pain, so Dr. Fast recommended that the plaintiff seek treatment from Dr. Rutz, 

an orthopedic surgeon specializing in spinal surgery. 

¶ 38 On April 24, 2018, the plaintiff was seen by Loren Vandergriff, a nurse 

practitioner with Dr. Rutz’s practice, who performed a physical examination. During his 

initial visit, Vandergriff advised the plaintiff to “try to live with” the pain in his left 

lumbar region for a while to see if his condition would resolve itself with time. 

Vandergriff recommended that the plaintiff continue conservative care, including 

treatments with Dr. Fast, engaging in physical therapy, and taking anti-inflammatories. 

Vandergriff advised the plaintiff to contact Dr. Rutz’s office if his pain did not subside. 

¶ 39 Although the plaintiff’s condition had improved some, he testified that he 

continued to experience pain in his back. On April 17, 2019, approximately 13 months 

after the accident, the plaintiff returned to Dr. Rutz’s office and received an MRI of his 

lumbar spine. On August 6, 2019, Dr. Rutz met with the plaintiff to discuss the results of 

the MRI. 

¶ 40 Dr. Rutz testified that the plaintiff’s MRI did not reveal any specific degenerative 

changes but did show a small disc protrusion at the L4-5 level with a small tear in the 

back of the disc. Dr. Rutz testified that to a reasonable degree of medical certainty, the 

plaintiff’s lower back pain was the result of an annular tear in the L4-5 disc. Dr. Rutz 
19

stated this injury can be caused by a motor vehicle accident. Dr. Rutz testified that as a 

result of the injury, the plaintiff would be a potential candidate for spinal fusion surgery 

at some point in the future. The surgery would require the plaintiff to be off work for four 

to six months and would cost between $100,000 and $120,000. Dr. Rutz testified that he 

did not believe that the plaintiff’s symptoms were severe enough to warrant surgical 

intervention, and that he did not recommend the surgery to the plaintiff so long as he was 

able to function reasonably well. Dr. Rutz believed it was unlikely that the plaintiff’s 

condition would spontaneously improve, and Dr. Rutz recommended the plaintiff try to 

live with his condition for as long as possible. Dr. Rutz testified the plaintiff’s condition 

would have caused pain and suffering, and that it would likely continue to cause pain and 

suffering in the future. Dr. Rutz stated that the plaintiff’s injury could potentially impact 

his ability to enjoy life and his daily functioning.

¶ 41 The plaintiff testified he is a maintenance engineer and the overnight shift 

manager at River City Casino. The plaintiff is responsible for the care and upkeep of the 

facilities, including electrical, plumbing, heating, cooling, and general repairs. The 

plaintiff’s job requires a significant amount of physical activity, such as lifting, bending, 

squatting, climbing, and operating heavy machinery and tools. The plaintiff missed two 

days of work following the accident, resulting in $521.60 in lost wages. The plaintiff was 

on light duty at work following the accident and required extra assistance from his 

coworkers. The plaintiff testified that the physical demands of his job continue to 

exacerbate his pain. The plaintiff is concerned about losing his job because he has to push 

through the pain, which slows down his work performance. 
20

¶ 42 The plaintiff testified that the pain in his lower back has been persistent since the 

automobile accident. The plaintiff continues to take over-the-counter pain medication 

daily, and he uses physical therapy, heat, cold, and rest to alleviate the pain. The plaintiff 

stated the pain from his injury and his concern about aggravating his injury have limited 

his activities. The plaintiff testified he requires more help around the house, and he can 

no longer do all the things he used to do. The plaintiff had no injuries or issues with his 

neck or back prior to the motor vehicle accident. The plaintiff stated he does not want to 

have surgery, but that he will consider his options if his symptoms persist. 

¶ 43 The plaintiff asked the jury to award him $8989 for past medical expenses; 

$120,000 for future medical bills for surgery; $30,000 for pain and suffering; $60,000 for 

future pain and suffering; $30,000 for loss of normal life; $60,000 for loss of future 

normal life; $521.60 in lost earnings; and $33,904 for six months of future lost earning to 

recover from surgery, for a total of approximately $343,000 in damages. The defendant 

admitted liability for the motor vehicle accident, and only disputed the extent of the 

plaintiff’s injuries. The defendant asked the jury to limit the plaintiff’s award to $12,000.

¶ 44 The jury returned a verdict in favor the plaintiff and against the defendant in the 

amount of $129,510.60. The jury awarded the plaintiff $8989 in reasonable medical 

expenses; $521.60 in lost earnings; and $30,000 each for past pain and suffering, future 

pain and suffering, loss of normal life experienced, and loss of normal life to be 

experienced in the future. The jury did not award the plaintiff any damages for future 

medical expenses or for future lost earnings.
21

¶ 45 On November 20, 2019, the defendant filed a motion for new trial. The defendant 

argued that the trial court abused its discretion in barring Dr. Anderson’s testimony 

because Dr. Anderson complied with the plaintiff’s discovery requests in good faith, the 

plaintiff failed to request a motion to compel, and the plaintiff’s discovery requests were 

overly broad, unduly burdensome, tailored to harass, and beyond the scope outlined in 

Trower v. Jones, 121 Ill. 2d 211 (1988). The defendant also asserted that the jury’s 

verdict was against the manifest weight of the evidence. 

¶ 46 On December 10, 2019, the trial court held a hearing on the defendant’s motion 

for new trial. At the hearing, defense counsel insisted that none of the discovery delays in 

the case were attributable to the defense because it was “unable” to obtain the plaintiff’s 

medical records and was therefore not able to timely retain and depose Dr. Anderson 

within the deadlines set by the case management order. Instead, the defense insisted that 

the delays were due to the plaintiff’s violation of the case management order. The 

defendant argued the plaintiff delayed discovery by (1) failing to send his supplemental 

Rule 213(f) discovery after the defense advised plaintiff’s counsel via email in July that 

the defendant intended to retain Dr. Anderson as his expert and (2) hampering the 

defendant’s ability to secure a record review by producing additional medical records “at 

the last minute.” The defendant also argued that the plaintiff’s discovery requests 

“bordered on the obscene,” and that the court erred in sanctioning the defendant absent 

the plaintiff filing a motion to compel discovery, a ruling by the court as to the 

defendant’s written objections to the plaintiff’s discovery requests, and a court order 

specifying the discovery to be produced.
22

¶ 47 The plaintiff reiterated that the court had advised the defendant at the hearing on 

October 1, 2019, of the court’s expectation that the defendant would produce the 

financial information related to Dr. Anderson’s medical-legal work. The plaintiff argued 

that despite the trial court’s admonishment, the plaintiff filed his motion for accelerated 

discovery after filing his supplemental Rule 213(f) discovery to ensure that it was clear to 

the defendant what the plaintiff was seeking and what was expected of Dr. Anderson and 

defendant’s production. The plaintiff observed that the defendant did not object to the 

scope of the plaintiff’s discovery requests at the October 15, 2019, hearing on the 

plaintiff’s motion for accelerated discovery. The plaintiff also argued that the deposition 

testimony indicated that the defendant did not consult with Dr. Anderson’s office to 

ensure compliance with the plaintiff’s discovery requests. 

¶ 48 The trial court entered an order denying the defendant’s motion for new trial, 

rejecting the defendant’s arguments. The court found that the discovery delays were 

attributable to the defendant. Despite finding that the defendant was responsible for the 

delays in discovery, the court acknowledged that it had granted the defendant’s motion 

for extension of time, and permitted the defendant to submit his expert, provided the 

defendant produced the financial information the plaintiff needed to effectively crossexamine Dr. Anderson on his potential financial bias. The court found that the defendant 

came up short on his obligations and failed to provide the plaintiff with “even the 

minimum that [he was] requesting.” The court held that the plaintiff’s discovery requests 

were reasonable, and that Dr. Anderson did not act in good faith and failed to provide the 
23

basic information required so that the plaintiff could test Dr. Anderson’s credibility. This 

appeal follows. 

¶ 49 ANALYSIS

¶ 50 Discovery Sanction

¶ 51 On appeal, the defendant argues that he is entitled to a new trial because the trial 

court erroneously granted the plaintiff’s emergency motion and barred the testimony of 

Dr. Anderson as a sanction for failing to comply with the plaintiff’s discovery requests. 

Discovery in civil actions is governed by an orderly and comprehensive set of 

procedures. Custer v. Cerro Flow Products, Inc., 2019 IL App (5th) 190285, ¶ 25. The 

rules of discovery establish guidelines for a fair and orderly procedure whereby discovery

and full disclosure may be accomplished. Harris v. Harris, 196 Ill. App. 3d 815, 819 

(1990). 

¶ 52 Illinois Supreme Court Rule 218 allows the trial court wide latitude to manage 

cases on its docket, after considering a variety of factors set forth in the rule. See Ill. S. 

Ct. R. 218 (eff. July 1, 2014). After considering the issues raised by each unique case, the 

court is directed to enter an order that “controls the subsequent course of the action unless 

modified.” Ill. S. Ct. R. 218 (eff. July 1, 2014). Rule 218(c) specifically states:

“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the 

completion of discovery shall be chosen to ensure that discovery will be 

completed not later than 60 days before the date on which the trial court 

reasonably anticipates that trial will commence, unless otherwise agreed to by the 

parties.” Ill. S. Ct. R. 218(c) (eff. July 1, 2014). 
24

¶ 53 According to the committee comments, “[a] separate road map will chart the 

course of each case from a point within six months from the date on which the complaint 

is filed until it is tried.” Ill. S. Ct. R. 218, Committee Comments (rev. June 1, 1995). The 

goal of the rule is to “prevent the potential for discovery abuse and delay which might 

otherwise result.” Ill. S. Ct. R. 218, Committee Comments (rev. June 1, 1995). Simply 

put, the purpose behind Illinois Supreme Court Rule 218 is to allow all parties a full and 

fair opportunity to litigate their case, and prevent the very kind of “last minute,” frantic 

pleadings seen in this case.

¶ 54 Our supreme court has held that its rules are ineffective unless trial courts do not 

countenance violations and unhesitatingly enforce discovery provisions. Buehler v. 

Whalen, 70 Ill. 2d 51, 67 (1977). This court has also cautioned that “[d]iscovery is not a 

tactical game but rather a procedural tool for the ascertainment of truth for the purposes 

of promoting either a fair trial or a fair settlement.” Simpkins v. HSHS Medical Group, 

Inc., 2017 IL App (5th) 160478, ¶ 34. 

¶ 55 Illinois Supreme Court Rule 219(c) authorizes the trial court to impose just 

sanctions, including barring a witness from testifying, upon any party who unreasonably 

fails to comply with the discovery rules or any court order entered pursuant to the those 

rules. Ill. S. Ct. R. 219(c) (eff. July 1, 2002); Shimanovsky v. General Motors Corp., 181 

Ill. 2d 112, 120 (1998). Unreasonable noncompliance with a discovery rule is defined as 

a deliberate and pronounced disregard for the rule. Shelbyville Mutual Insurance Co. v. 

Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 641 (1994). Unreasonable 
25

noncompliance is determined, in part, by the importance of the information that has not 

been produced. Shelbyville Mutual Insurance Co., 262 Ill. App. 3d at 641. 

¶ 56 “A just order of sanctions under Rule 219(c) is one which, to the degree possible, 

insures both discovery and a trial on the merits.” Shimanovsky, 181 Ill. 2d at 123. The 

purpose of imposing a sanction is to coerce compliance with discovery rules, not to 

punish the noncompliant party. Shimanovsky, 181 Ill. 2d at 123. There are several factors 

that a trial court is to consider in determining what sanction, if any, to impose: (1) the 

surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or 

evidence; (3) the nature of the testimony; (4) the diligence of the adverse party in seeking 

discovery; (5) the timeliness of the adverse party’s objection to the evidence; and (6) the 

good faith of the party offering the testimony. Shimanovsky, 181 Ill. 2d at 124. No single 

factor is determinative, and the court is to consider these factors in light of the unique 

factual situation that the case presents. Shimanovsky, 181 Ill. 2d at 127. The 

determination of whether to impose sanctions pursuant to Rule 219(c) and, if so, the type 

of sanction is within the broad discretion of the trial court. Shimanovsky, 181 Ill. 2d at 

120. Absent an abuse of that discretion, this court will affirm the trial court’s 

determination. Shimanovsky, 181 Ill. 2d at 120. 

¶ 57 While the defendant acknowledges the six factors to be utilized in assessing a trial 

court’s discovery sanction, he does not analyze them on appeal. Instead, the defendant 

argues the trial court erred in barring Dr. Anderson’s testimony because (1) the defendant 

was diligent in obtaining and disclosing Dr. Anderson as a retained expert; (2) the 

plaintiff’s discovery requests were overly broad, unduly burdensome, tailored to harass, 
26

and beyond the scope outlined in Trower, 121 Ill. 2d 211; (3) the plaintiff failed to 

request a Rule 201(k) conference (see Ill. S. Ct. R. 201(k) (eff. July 1, 2014)) to settle the 

parties’ discovery dispute, failed to file a motion to compel the defendant’s compliance 

with discovery, and failed to submit additional supplemental discovery after Dr. 

Anderson’s evidence deposition; (4) Dr. Anderson responded to the plaintiff’s discovery 

requests in good faith; and (5) the plaintiff failed to establish he was prejudiced by the 

defendant’s noncompliance. To the extent possible, this court acknowledges the 

defendant’s arguments on appeal, and has made every effort to discuss the defendant’s 

claims in the context of the applicable Shimanovsky factors. As more fully set forth 

herein, after considering the defendant’s arguments, the applicable Shimanovsky factors, 

and the record on appeal, we find the factors weigh in favor of the plaintiff, and support 

the trial court’s decision to bar Dr. Anderson’s testimony at trial. 

¶ 58 We begin our analysis with the first Shimanovsky factor, the surprise to the 

adverse party. We find this factor weighs in favor of the plaintiff. Illinois Supreme Court 

Rule 213(f)(3) is very specific with regard to the kind of information that must be 

disclosed for a “controlled expert.” Once plaintiff propounded an interrogatory under the 

rule, the defendant was required to disclose the subject matter on which Dr. Anderson 

would testify, Dr. Anderson’s conclusions and opinions and the bases for those opinions, 

Dr. Anderson’s qualifications, and Dr. Anderson’s report, if one was tendered by the 

defendant. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018). 
27

¶ 59 Pursuant to the case management order, the deadline for the defendant to disclose 

his Rule 213 retained expert witness1 and opinions was July 15, 2019. The defendant 

missed this deadline. On the date of the deadline, defense counsel emailed plaintiff’s 

counsel to advise them that the defendant was not going to meet the deadline. Defense 

counsel contends that the email dated July 15, 2019, stating they would “probably 

proceed with having a records review completed by Dr. Anderson” was sufficient to meet 

the disclosure requirements of Rule 213(f). Defense counsel’s claim that this email can 

somehow meet the strict requirements of Rule 213(f)(3) is disingenuous. The defendant’s 

purported “disclosure” fails to provide any of the information required by the rule, except 

to name the controlled expert. Defendant’s failure to comply is best illustrated through 

his counsel’s own words, where he states: “Once we have his [Dr. Anderson’s] opinions 

we will pass them on to you.” Other than disclosing the name of Dr. Anderson, the email 

did not provide the plaintiff with any information, as contemplated by Illinois Supreme 

Court Rule 213(f)(3).

¶ 60 Defendant also claims that his “Rule 213 Disclosures,” sent to plaintiff on April 

19, 2019, were adequate. Again, the defendant misconstrues the nature of the rule. The 

defendant’s disclosure offered no specific conclusions, and there was not one opinion 

proffered. Instead, the disclosure indicated what Dr. Anderson “may” do in reviewing 

medical records, what he “may” do in reviewing images of plaintiff’s treatment, and what 

1

The retained expert witness is, by definition, a controlled expert witness under the rule. Ill. S. Ct. 

R. 213(f)(3) (eff. Jan. 1, 2018). 
28

he “may” do with regard to his review of depositions and medical bills. These answers 

were vague, not made in good faith, and failed to comply with Rule 213(f)(3). 

¶ 61 On October 9, 2019, over six weeks after discovery was to be closed, the circuit 

court granted the defendant’s motion for extension of time and ruled that Dr. Anderson’s 

evidence deposition could proceed. Plaintiff’s counsel served supplemental Rule 213 

discovery requests on October 10, 2019. Two days later, on October 11, 2019, the 

plaintiff filed his emergency motion for an accelerated Rule 213(f)(3) discovery schedule, 

in which the plaintiff requested an order directing the defendant to produce all discovery 

responses related to Dr. Anderson’s medical-legal work by October 15, 2019, at 5 p.m. to 

ensure that the plaintiff had adequate time to prepare for Dr. Anderson’s deposition on 

October 17, 2019.2

¶ 62 The trial court conducted a hearing on the plaintiff’s emergency motion on the 

morning of October 15, 2019. At no point prior to, or during the hearing, did the 

defendant raise any objections to the plaintiff’s supplemental 213 discovery requests. 

Instead, defense counsel advised the court that they were in the process of compiling the 

requested information. When the court indicated it was going to grant the plaintiff’s 

motion, defense counsel responded, “Okay.” When the court elaborated on its reasoning 

for granting the motion, defense counsel confirmed for the court that the defense 

understood what the court expected them to do. 

2

Had the defendant followed the September 17, 2018, case management order, this kind of 

emergency motion would not have been necessary. Pursuant to Rule 213(d), the defendant would have 

had 28 days after service to respond to these interrogatories. Ill. S. Ct. R. 213(d) (eff. Jan. 1, 2018).
29

¶ 63 Subsequent to the trial court’s rulings, the parties engaged in what can only be 

described as “last minute, disorganized” pretrial discovery of information pertaining to 

Dr. Anderson’s medical-legal work. As evidenced by the depositions of Dr. Anderson 

and Hartsoe, plaintiff’s counsel was surprised when testimony revealed that the 

information requested in the subpoena and supplemental request for production had not 

been produced. Rather than argue the issue of surprise, the defendant now asks this court 

to look at the scope of the plaintiff’s 213(f)(3) requests.

¶ 64 The defendant did not raise this issue as to the scope of the plaintiff’s discovery 

requests until he filed his motion for new trial, despite the fact that he had several 

opportunities to argue before trial that the plaintiff was not entitled to the supplemental 

discovery being sought related to Dr. Anderson. Specifically, at the hearing on October 

15, the defendant simply indicated he was working on gathering the requested materials. 

Additionally, at the hearing on October 21, when plaintiff filed his emergency motion to 

bar Dr. Anderson, defense counsel failed to voice any objections regarding the scope of 

the discovery being sought regarding Dr. Anderson’s medical-legal work. Only after the 

trial was completed did the defendant complain regarding the scope of the discovery 

being sought or its alleged burdensome nature. Considering the failure of defendant to 

produce the documents requested regarding Dr. Anderson’s financial records for his 

medical-legal work, we find the first factor, surprise, favors the plaintiff. 

¶ 65 The second and third factors, the prejudicial effect of the proffered evidence and 

the nature of the evidence, also weigh in favor of the plaintiff. We have already outlined, 

in great detail, the late disclosure of Dr. Anderson, and the fact that it was the defendant 
30

who set the video-evidence deposition of the doctor simultaneously with the expert 

witness disclosure of the doctor. This late disclosure, on the eve of trial, did not afford the 

plaintiff with a measured opportunity to obtain the financial records and avoid surprise, 

as contemplated by the case management order and the Illinois Supreme Court rules. 

Defendant’s lack of diligence in following the case management order led to a flurry of 

last-minute gamesmanship by the defendant and denied the plaintiff a fair opportunity to 

obtain information regarding Dr. Anderson’s income from his medical-legal work, which, 

potentially, affected the credibility of the witness. 

¶ 66 Generally, a party is permitted to show possible bias with evidence that the 

proponent of an expert paid for his testimony. Shaheen v. Advantage Moving & Storage, 

Inc., 369 Ill. App. 3d 535, 543-44 (2006). Similarly, a party is permitted to elicit evidence 

as to the amount of income an expert earns from testifying, that the expert usually 

testifies for one side, and that the expert testified for the same attorney in other cases. 

Shaheen, 369 Ill. App. 3d at 543-44 (citing to Trower, 121 Ill. 2d at 217-19). This 

information is vital to enabling a party to effectively cross-examine an expert on his 

potential bias, partisanship, or financial interest. Trower, 121 Ill. 2d at 217.

¶ 67 On appeal, the defendant argues that the plaintiff failed to establish prejudice 

because he received sufficient information regarding Dr. Anderson’s medical-legal work 

to effectively cross-examine Dr. Anderson on his financial interest and bias. Specifically, 

the defendant argues that during Hartsoe’s deposition, the plaintiff demonstrated only a 

5% discrepancy between the medical-legal fees that Dr. Anderson’s office reported on 
31

the IME List and Deposition Analysis and that reported by the defendant’s law firm. We 

disagree.

¶ 68 First, the defendant’s argument fails to recognize that the plaintiff was only able to 

cross-examine Hartsoe on omissions in the information submitted by Dr. Anderson’s 

office based on checks and information produced by the defendant’s law firm. In effect, 

this means that the plaintiff uncovered a 5% income discrepancy in the medical-legal 

work that Dr. Anderson performed at the direction of the defendant’s law firm. It is 

entirely unknown how much unreported income Dr. Anderson earned in medical-legal 

work with other law firms and insurers. 

¶ 69 The breadth of the financial information omitted from the defendant’s disclosure 

was potentially vast. The information produced did not include fees for deposition 

“overages” and cancellation fees. More importantly, the data did not include funds earned 

for all medical record reviews performed by Dr. Anderson, which was the precise service 

provided in this case. While the defendant argues that the plaintiff did not attempt to 

impeach Dr. Anderson during the deposition about the missing information on his 

earnings from medical-legal work, the record demonstrates that Dr. Anderson indicated 

that he did not know how many times he had been retained by the defendant’s law firm 

because this information is compiled by Hartsoe. Furthermore, Dr. Anderson is a frequent 

medical witness and, during the deposition, recognized that he had an obligation to 

produce his financial information to the plaintiff, and that his production was deficient. 

¶ 70 Throughout the proceedings, the trial court emphasized that it was allowing the 

defendant to disclose the identity and opinions of his medical expert in an untimely 
32

manner only upon the condition that the plaintiff’s discovery requests were fully 

answered. The court was clear that disclosure of financial information regarding Dr. 

Anderson’s medical-legal work was vital to the plaintiff’s ability to effectively crossexamine Dr. Anderson on his financial interest and bias. The trial court’s finding that the 

defendant’s failure to comply with the plaintiff’s discovery requests prejudiced the 

plaintiff by significantly inhibiting his ability to effectively cross-examine the 

defendant’s retained expert is supported by the record. Therefore, considering the nature 

of the evidence and the prejudicial effect of the plaintiff’s inability to effectively crossexamine Dr. Anderson on his financial interest and bias, we find that the second and third 

factors favor the plaintiff. 

¶ 71 The fourth and fifth factors, the diligence of the adverse party in seeking discovery 

and the timeliness of the adverse party’s objection to the evidence, weigh slightly in favor 

of the plaintiff. Plaintiff’s counsel could, and probably should, have begun a discussion 

pursuant to our supreme court rules in order to avoid the last-minute flurry of discovery. 

See Ill. S. Ct. R. 201(k) (eff. July 1, 2014) (requiring the parties to make reasonable 

attempts to resolve their differences over discovery). Although hindsight suggests that the 

plaintiff may have avoided the depositions and hearings on the eve of trial by filing a 

motion to compel, the record does not indicate what efforts were made by the parties to 

cooperate in the enforcement of Illinois Supreme Court Rule 213(f) prior to October 1, 

2019. The defendant is equally at fault in that he did not make a good-faith attempt at 

disclosing the opinions of Dr. Anderson in July 2019, when the case management order 

required that he do so. The defendant, like the plaintiff, could have filed a motion for a 
33

continuance, but failed to do so. Had the trial court granted the motion for extension of 

time, the trial date could then have been continued to allow the parties sufficient time to 

conduct discovery. The lack of diligence, however, by both parties, placed the trial court 

in a situation where it would have been justified in denying the defendant’s motion for 

extension of time.

¶ 72 Once the trial court extended the deadlines, however, and indicated it would allow 

the testimony of Dr. Anderson, the plaintiff then filed supplemental interrogatories and 

issued a subpoena for records. Plaintiff’s counsel should have issued these interrogatories 

in July 2019, when he knew the name of defendant’s expert. Had plaintiff done so, the 

emergency motion to expedite the discovery would have been unnecessary. Nevertheless, 

the plaintiff determined during the depositions of Hartsoe and Dr. Anderson that 

defendant’s counsel had been lax in obtaining the production requested by the plaintiff. 

Once the lack of information became apparent, the plaintiff did not delay in filing his 

motion to bar Dr. Anderson’s testimony. 

¶ 73 With regard to these two factors, the defendant argues that the plaintiff violated 

the case management order by failing to timely serve his Rule 213(f) interrogatories on 

the defendant by April 15, 2019. The defendant also asserts the plaintiff was not diligent 

in seeking discovery because he waited until October 10, 2019, 11 days before the 

scheduled jury trial, to submit his supplemental Rule 213(f) interrogatories and requests 

for production. The defendant argues this action by the plaintiff caused delay in the 

orderly process of the proceedings because the defendant disclosed his expert to the 

plaintiff via email on July 15, 2019.
34

¶ 74 As already noted, Illinois Supreme Court Rule 213(f)(3) requires a party, upon 

written interrogatory, to disclose a retained expert witness’s opinions and the bases for 

those opinions. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018); see Keating v. Dominick’s Finer 

Foods, Inc., 224 Ill. App. 3d 981, 985 (1992). As a “controlled expert witness,” the 

defendant was required to disclose to the plaintiff the subject matter on which Dr. 

Anderson would testify, Dr. Anderson’s opinions and the bases for those opinions, Dr. 

Anderson’s qualifications, and Dr. Anderson’s report. See Ill. S. Ct. R. 213(f)(3) (eff. Jan. 

1, 2018). 

¶ 75 We begin with the case management order, dated September 17, 2018. The 

defendant was under an obligation to respond to the plaintiff’s 213(f) interrogatories by 

July 15, 2019, and make his retained expert available for a deposition by August 15, 

2019. Other than provide the name of Dr. Anderson, the defendant failed to provide any 

opinions from Dr. Anderson until September 20, 2019, approximately 30 days before 

trial, when a report was provided to plaintiff’s counsel. At oral argument, plaintiff’s 

counsel asserted that the plaintiff’s initial, general interrogatories were submitted to the 

defendant in August 2018, and included a request for the defendant’s witnesses under 

Rule 213(f). Defense counsel acknowledged during oral argument that the plaintiff’s 

initial interrogatories did contain at least one Rule 213(f) request. These documents are 

not contained in the record on appeal, so this court is unable to independently confirm the 

veracity of these representations. It is clear from the record, however, that the plaintiff 

submitted his supplemental Rule 213(f) interrogatories in October 2019, after the court 

granted the defendant’s motion for extension of time and allowed Dr. Anderson’s 
35

deposition to proceed. In light of the parties’ representations at oral argument and the 

lack of any evidence to the contrary in the record, however, we find the defendant’s 

assertion on appeal that the plaintiff violated the case management order by failing serve 

any Rule 213(f) interrogatories on the defendant by April 15, 2019, to be unsupported by 

the record.

¶ 76 We also reject the defendant’s assertion that the plaintiff was not diligent in 

seeking discovery because the plaintiff did not file his supplemental Rule 213(f) 

discovery regarding Dr. Anderson’s financial information until October 11, 2019, instead 

of after the defendant’s July 15, 2019, “disclosure” of Dr. Anderson as his expert. As 

already discussed, the defendant’s July 15, 2019, email advising the plaintiff that the 

defendant would “probably” retain Dr. Anderson to perform a record review was 

insufficient as a Rule 213(f)(3) disclosure. The defendant violated the case management 

order by failing to disclose the identity, opinions, and report of his Rule 213 retained 

expert witness by July 15, 2019. The defendant did not provide the plaintiff with his Rule 

213 disclosure naming Dr. Anderson as a retained expert until August 19, 2019, four days 

after the deadline for all discovery to be completed. Notably, this disclosure was also 

insufficient as it failed to provide Dr. Anderson’s opinions and the bases for those 

opinions, Dr. Anderson’s qualifications, and Dr. Anderson’s report, as required by Rule 

213(f)(3). See Ill. S. Ct. R. 213(f)(3). As previously noted, it would have been prudent for 

the plaintiff to try to resolve this dispute pursuant to Illinois Supreme Court Rule 201(k). 

Failure to resolve the issue would have alerted the trial court earlier of the dispute. The 

defendant, however, did not provide the plaintiff with his supplemental Rule 213 
36

disclosure and a copy of Dr. Anderson’s report until September 20, 2019. At that time, 

the defendant’s August 15, 2019, motion for extension of time, seeking to extend the 

discovery deadlines, was still pending. Again, the trial court could have denied the 

defendant’s motion, avoiding the last-minute discovery problems that arose.

¶ 77 But on October 9, 2019, the trial court entered its order granting the defendant’s 

motion for an extension of time, allowing the defendant to take the evidence deposition 

of Dr. Anderson, but reserving judgment on the admissibility of Dr. Anderson’s 

testimony. The following day, the plaintiff submitted his supplemental Rule 213(f) 

interrogatories and requests to produce requesting information and documents relating to 

Dr. Anderson’s earnings from medical-legal work. On October 11, 2019, the plaintiff 

served Hartsoe with a subpoena duces tecum regarding Dr. Anderson’s financial 

information and scheduled Hartsoe’s deposition. That same day, the plaintiff filed an 

emergency motion for an accelerated Rule 213(f)(3) discovery schedule requesting an 

order from the court directing the defendant to produce all discovery in compliance with 

the plaintiff’s discovery requests by 5 p.m. on October 15, 2019. 

¶ 78 At the hearing on the plaintiff’s motion, the defendant lodged no complaint about 

the scope of the plaintiff’s discovery or the deadline for production. Instead, the 

defendant advised the court that he intended to comply with discovery and agreed to the 

court granting the plaintiff’s motion. The morning after receiving the defendant’s 

answers, the plaintiff advised the defendant that the plaintiff believed the discovery 

responses were deficient and requested additional information. In response, the defendant 

continued to produce additional documentation in the hours leading up to Hartsoe’s 
37

deposition. It became apparent during the deposition, however, that the defendant had not 

fully complied with discovery. The record, therefore, supports a finding that the plaintiff 

was diligent in seeking the requested discovery prior to the depositions. 

¶ 79 The defendant further argues that the plaintiff was not diligent in seeking the 

evidence because the plaintiff made no effort to obtain additional discovery from the 

defendant by filing a motion to compel or a request for supplemental discovery after Dr. 

Anderson’s deposition. The defendant argues that, in light of the defendant’s written 

objections to the plaintiff’s discovery, the plaintiff should have requested a 201(k) 

conference or filed a motion to compel discovery after Dr. Anderson’s evidence 

deposition so that the court could have ruled upon the defendant’s objections and made a 

specific production order delineating which items were discoverable. 

¶ 80 The defendant’s position on appeal ignores the compressed timeline under which 

the parties were operating, a situation largely the result of the defendant’s lack of 

diligence and the trial court’s considerable efforts to balance the parties’ competing 

interests and the equities of the case. The record is abundantly clear that the plaintiff was 

seeking information regarding Dr. Anderson’s earnings from medical-legal work for 

cross-examination. After the defendant’s initial disclosures, the plaintiff contacted the 

defendant to advise him that plaintiff’s counsel believed the defendant’s production was 

deficient. In response, the defendant disclosed additional information in the hours leading 

up to Hartsoe’s deposition. Immediately prior to the deposition of Hartsoe, plaintiff’s 

counsel reiterated that, while they may have “used as many descriptive terms for the 

documents as possible,” they were limiting their inquiry to the nature and extent of Dr. 
38

Anderson’s and Illinois Southwest Orthopedics’ medical-legal practice. It became clear 

during Hartsoe’s deposition that she had not complied with the subpoena duces tecum by 

providing the plaintiff with documents evidencing all of the income Dr. Anderson earned 

from medical-legal work, even though this information was readily available. This 

became even clearer during Dr. Anderson’s testimony, when Dr. Anderson 

acknowledged that the IME List and Deposition Analysis did not contain complete 

information as to his income for medical-legal work and that this information should 

have been provided to the plaintiff. Dr. Anderson testified that his office was working on 

collecting this information. This was the Thursday before trial was scheduled to begin the 

following Monday. 

¶ 81 As already noted, while it may have been advisable for the plaintiff to have filed a 

motion to compel, the fact remains that there was simply no real opportunity for the use 

of the timelines implemented by the trial court and the defendant cannot be heard to 

complain on the failure of the plaintiff to file a motion, where it was the defendant’s lack 

of diligence that caused the “last minute” pretrial efforts to collect discovery related to 

Dr. Anderson’s medical-legal work. And, the court had already ordered the defendant to 

comply with the plaintiff’s discovery requests and to produce the information and 

documents related to Dr. Anderson’s income from his medical-legal work so that the 

plaintiff could effectively cross-examine Dr. Anderson during the evidence deposition. 

The defendant knew that his disclosures were deficient after Hartsoe’s deposition and 

took no action to supplement his responses before Dr. Anderson’s deposition. The 

defendant took no action, despite the trial court’s admonishment that it would revisit the 
39

issue of the admissibility of Dr. Anderson’s testimony, and that it would only allow Dr. 

Anderson’s testimony to be admitted if the defendant fully complied with discovery. 

¶ 82 Finally, the defendant’s suggestion that the plaintiff could have filed a motion to 

compel after Dr. Anderson’s evidence deposition is disingenuous, as it presupposes that 

there was not only enough time to file this motion, but also to schedule and conduct a 

hearing before the trial court, after due notice to all parties. Further, this argument 

presupposes that the court would immediately enter an order, and that the defendant 

would compile the information in compliance with the court’s order, giving the plaintiff 

sufficient time to review said documents, and for the parties to then conduct a second 

evidence deposition of Dr. Anderson in the single business day remaining before trial. 

This hurried, cascade of events would have been necessary because the defendant was not 

diligent in preparing his defense in the preceding year and had failed to comply with the 

court’s discovery orders. Notably, at the hearing on the plaintiff’s motion to bar Dr. 

Anderson’s testimony, the defendant did not request that the court reschedule trial or 

present any alternative remedy or sanction to his discovery violation. Based on the 

foregoing, as to the fifth factor, we find the plaintiff was diligent in seeking the discovery 

required regarding Dr. Anderson. We also find that the plaintiff’s objection to Dr. 

Anderson’s testimony was timely. 

¶ 83 Finally, the sixth factor, the good faith of the party offering the testimony, also 

weighs in favor of the plaintiff. The trial court found that Dr. Anderson did not comply 

with the plaintiff’s discovery requests in good faith, a finding supported by the record. At 

the October 15, 2019, hearing, the trial court confirmed with defense counsel that Dr. 
40

Anderson had extensive experience testifying to his medical-legal work and was aware of 

the disclosure requirements for information regarding his income from his medical-legal 

work.3 Dr. Anderson also admitted to this knowledge during his deposition. After it 

became apparent during Hartsoe’s deposition that Dr. Anderson’s office had failed to 

disclose all the relevant information and produce all necessary documents, neither the 

defendant, nor Dr. Anderson, supplemented their responses prior to Dr. Anderson’s 

evidence deposition. Instead, knowing that the information his office provided was 

incomplete, Dr. Anderson initially attempted to mislead the plaintiff into believing that 

his office’s disclosure was complete and that the IME List he provided to the plaintiff 

included the income he received from performing medical record reviews. Only when 

confronted by plaintiff’s counsel did Dr. Anderson admit that he had learned earlier that 

day that his disclosure was deficient. 

¶ 84 Furthermore, contrary to his assertion, the defendant was not diligent in obtaining 

and disclosing Dr. Anderson as an expert witness. The defendant has repeatedly asserted 

that the late disclosure of Dr. Anderson and the production of his report was caused by 

circumstances beyond his control, including difficulties in obtaining the plaintiff’s 

medical records and the plaintiff’s late disclosure of medical treatment by Dr. Rutz. 

These attempts by the defendant to deflect the blame for his late disclosures are 

3

Although the Illinois Supreme Court rules do not require a retained expert witness to issue a 

report or maintain a list of medical-legal cases, Federal Rule of Civil Procedure 26(a)(2) requires an 

expert witness to provide, among other things, a written report and keep a list of “all other cases in which, 

during the previous 4 years, the witness testified as an expert at trial or by deposition.” Fed. R. Civ. P. 

26(a)(2) (eff. Dec. 1, 2015). As already noted, Illinois precedent requires a party to disclose information 

regarding medical-legal work performed by its retained expert. Trower, 121 Ill. 2d at 217-19; Shaheen, 

369 Ill. App. 3d at 543-44.
41

unpersuasive. While some of the delay in obtaining the plaintiff’s medical records was 

attributable to an error by one of the plaintiff’s treating physicians, the record clearly 

demonstrates that the majority of the delay was attributable to the defendant’s lack of 

diligence in requesting the plaintiff’s medical records and in following up on those 

requests. We are unwilling to accept the defendant’s arguments, especially where the 

defendant did not seek to take an evidence deposition of a records’ custodian to verify the 

accuracy of the records. Had such a deposition been taken in a timely manner, all of the 

plaintiff’s records, except for the visit with Dr. Rutz on August 6, 2019, would have been 

produced. 

¶ 85 Further, the defendant’s assertion that the plaintiff delayed Dr. Anderson’s report 

by untimely supplementing his Rule 213 and 214 discovery with additional medical 

records is without merit. The plaintiff sought additional medical treatment with Dr. Rutz 

on August 6, 2019. The plaintiff sent the defendant supplemental discovery, including the 

medical records with Dr. Rutz’s diagnosis on August 22, 2019, seven days past the 

discovery deadline. The parties, however, were required by Rule 213(i) to “seasonably 

supplement or amend any prior answer or response whenever new or additional 

information subsequently becomes known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan. 1, 

2018). The committee comments to Rule 213(i) state that “seasonably supplement” varies 

with the facts of each case but does not allow a party to fail to comply with the spirit of 

the rule by either negligent or willful noncompliance. Ill. S. Ct. R. 213(i), Committee 

Comments (rev. June 1, 1995); Smith v. Murphy, 2013 IL App (1st) 121839, ¶ 21. Thus, 

under Rule 213(i), the plaintiff was required to supplement his discovery responses and to 
42

disclose his medical treatment and diagnosis to the defendant. Nothing in the record 

suggests that the plaintiff’s August 22, 2019, disclosure was not appropriate or 

seasonable. Instead, it was the defendant’s lack of diligence that caused the untimely 

Rule 213(f) disclosure of his retained expert and opinions and the last-minute evidence 

depositions of Dr. Anderson and his custodian of records. 

¶ 86 Finally, we must address the defendant’s contentions that the plaintiff’s discovery 

requests were overly broad, unduly burdensome, tailored to harass, and beyond the scope 

of Trower, 121 Ill. 2d 211. These arguments are untimely. While the defendant objected 

to the plaintiff’s supplemental discovery requests in his answers thereto, he did not raise 

these issues with the trial court prior to trial, despite several opportunities to do so.4 The 

defendant’s first opportunity was at or before the October 15, 2019, hearing on the 

plaintiff’s emergency motion for an accelerated Rule 213 discovery schedule. At that 

point, the defendant had been in possession of the plaintiff’s discovery requests for five 

days and should have read the requests. The defense voiced no objection to the plaintiff’s 

discovery requests at the hearing, and instead assented to the trial court’s grant of the 

plaintiff’s motion and indicated that responses were being compiled. Nor did the 

defendant raise his objections at the October 21, 2019, hearing addressing the plaintiff’s 

4

The defendant’s objections to the plaintiff’s supplemental discovery were improper, general, 

boilerplate objections. As this court stated in Simpkins, 2017 IL App (5th) 160478, ¶ 39:

“The supreme court rules regarding discovery do not permit litigants to make objections, without 

some statement supporting them. Therefore, this habitual practice of setting out a litany of 

baseless, boilerplate objections is not merely an affront to the supreme court rules, but a perilous 

practice. Parties who offer general objections or boilerplate objections run the risk of causing 

unnecessary delay in the orderly process of discovery, needlessly increasing the costs of 

litigation, having these objections summarily denied, and preserving nothing for appeal.” 
43

motion to bar Dr. Anderson’s testimony based on his failure to comply with discovery. 

Any contention by the defendant that Dr. Anderson’s responses constituted reasonable 

compliance because the plaintiff’s discovery requests were inappropriate or abusive 

should have been raised when the trial court was considering the propriety of Dr. 

Anderson’s responses and the appropriate sanction. 

¶ 87 Instead, the defendant raised these issues with the trial court for the first time in 

his posttrial motion for a new trial. At that time, the court rejected the defendant’s 

arguments, finding the plaintiff’s discovery requests were reasonable, and that Dr. 

Anderson failed to provide the plaintiff with “even the minimum that [he was] 

requesting.” We agree with the trial court’s assessment. Here, the plaintiff’s discovery 

was seeking information and documents related to Dr. Anderson’s income from 

performing medical-legal work so that the plaintiff could cross-examine Dr. Anderson as 

to his potential financial bias. The record demonstrates that the defendant failed to 

substantially comply with the plaintiff’s supplemental 213(f) discovery requests for this 

information and, upon learning of the deficiency in his production, did not seek to 

remedy it. Furthermore, the defendant’s failure to even ask Hartsoe and Dr. Anderson for 

the documents requested by the plaintiff’s discovery is evidence of the bad-faith effort 

made by defense counsel. For the reasons stated above, we cannot say that the defendant 

acted in good faith to comply with the discovery requests and the orders of the court. 

¶ 88 Based on all of the foregoing, we find that the trial court did not abuse its 

discretion in granting the plaintiff’s emergency motion barring the introduction of Dr. 

Anderson’s testimony at trial. The trial court gave the defendant every opportunity to 
44

cure his discovery violations but, ultimately, the defendant failed to offer the discovery 

properly requested of Dr. Anderson. 

¶ 89 It is important to remember that the rules are intended to establish guidelines for a 

fair and orderly procedure for discovery. This case illustrates the pitfalls of the failure to 

abide by the rules. Here, the parties placed the trial court between the proverbial rock and 

a hard place, a situation which was easily avoidable. Defense counsel’s repeated failures 

to abide by the deadlines established in the case management order created a situation 

that resulted in an unrealistic, artificially compressed discovery schedule. The record 

suggests that defense counsel frequently waited until on or near the date of a deadline to 

begin seriously addressing an issue. As the appellate court stated in Clymore v. Hayden, 

278 Ill. App. 3d 862, 869 (1996), this conduct is unacceptable:

“[C]ourt rules and orders are not merely suggestions to be complied with if 

convenient. Instead, they constitute obligations that counsel disregard at their 

personal peril and that trial courts must enforce. This record reveals a shocking 

mindset of *** counsel that deadlines—whether imposed by court order or 

supreme court rule—are of no importance and missing them is of no consequence. 

Counsel has acted as if judicial deadlines marked the time he had to begin to think 

about his compliance. We hope that our decision here, affirming the trial court’s 

[sanction], will emphasize the fact that there are indeed consequences to ignoring 

court orders and rules.” (Emphases in original.) 

¶ 90 We would be remiss not to observe, once again, that plaintiff’s counsel could have 

also been more proactive, and that their trial strategy exacerbated the issue. There is no 

doubt that the defendant’s Rule 213 witness disclosures were insufficient, and that the 

defendant repeatedly missed established deadlines. Plaintiff’s counsel appears to have sat 

back and waited, while defense counsel floundered, never doing more than was strictly 

required, ignoring the mandate of Rule 201(k). By July 15, 2019, plaintiff’s counsel 
45

knew, through the defendant’s insufficient Rule 213 disclosure, that the defendant was 

likely intending to retain a controlled expert witness to perform a medical record review. 

On August 15, 2019, plaintiff’s counsel knew that the defendant was seeking an 

extension of the case management order deadline so that he could take the evidence 

deposition of his retained expert. Plaintiff’s counsel responded to this pleading more than 

a month later, on September 20, 2019, at which time counsel requested, for the first time, 

that Dr. Anderson be barred based on the defendant’s failure to abide by the case 

management order. Although untimely, plaintiff’s counsel also received the report with 

Dr. Anderson’s opinions on September 20, 2019, yet, plaintiff’s counsel did not seek a 

Rule 201(k) conference to resolve the parties’ differences over discovery. In sum, the 

trial court’s order granting the defendant’s motion for an extension of time and permitting 

the evidence deposition of Dr. Anderson to proceed was the court’s attempt to balance 

the equities, but eventually determined that the defendant’s lack of diligence justified the 

barring of the defendant’s expert witness.

¶ 91 Jury Award

¶ 92 Next, the defendant argues that the trial court erred in denying his motion for a 

new trial because the jury’s verdict was against the manifest weight of the evidence. The 

defendant contends the jury’s award of $129,510.60 was against the manifest weight of 

the evidence because the plaintiff sustained only $8363.94 in medical bills. The 

defendant also relied upon the testimony of Dr. Rutz, who indicated that the plaintiff’s 

symptoms were not currently severe enough to warrant surgical intervention, and it was 

difficult to predict if the plaintiff would need surgery in the future. 
46

¶ 93 It is within the province of the jury to assess the weight and credibility of the 

witnesses and to resolve conflicts in the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 

452 (1992). On a motion for new trial, the trial court weighs the evidence and will set 

aside the jury’s verdict and order a new trial only if the verdict is contrary to the manifest 

weight of the evidence. Maple, 151 Ill. 2d at 454. A jury’s 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 

presented. Maple, 151 Ill. 2d at 454. The trial court’s ruling on a motion for new trial will 

be reversed only upon a finding that the 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. 

¶ 94 In this case, the jury awarded the plaintiff $8989 for past medical expenses; 

$521.60 in lost earnings; and $30,000 each for past pain and suffering, future pain and 

suffering, loss of normal life experienced, and loss of normal life to be experienced in the 

future, for a total award of $129,510.60. The jury did not award the plaintiff any damages 

for future medical expenses or for future lost earnings. On appeal, the defendant does not 

contest any specific category of damages, and instead only asserts that the total award of 

damages is against the manifest weight of the evidence. 

¶ 95 The plaintiff presented substantial evidence of the injuries he sustained as a result 

of the motor vehicle accident. The plaintiff testified his body was twisted and pushed up 

and forward after his vehicle was struck by the defendant’s vehicle. The plaintiff began to 
47

experience pain in his neck and low back shortly after the accident. The plaintiff sought 

treatment for his injuries, and his medical records and bills were admitted into evidence. 

The plaintiff testified about the persistent pain he had experienced in the 20 months since 

the accident, despite numerous treatments. He also described the limitations that these 

injuries had placed on his life and work. The plaintiff also presented the testimony of Dr. 

Rutz, who diagnosed the plaintiff with a small annular tear and a disc protrusion. Dr. 

Rutz testified that the plaintiff’s condition was likely to continue in the future and could 

potentially impact the plaintiff’s ability to enjoy life and to function daily. Dr. Rutz 

testified that he advised the plaintiff to “live with” his symptoms for as long as he could, 

and he did not recommend surgery, so long as the plaintiff was able to function 

reasonably well. Based on this evidence, it cannot be said that the jury’s award in this 

case was against the manifest weight of the evidence. Here, in rendering its verdict, the 

jury did not award the plaintiff the full amount of damages he requested, suggesting the 

jury considered all the evidence and the parties’ respective positions as to the appropriate 

amount of damages. The defendant has offered no compelling facts or arguments 

supporting a finding that the jury’s award was against the manifest weight of the 

evidence. The trial court did not abuse its discretion in denying the defendant’s posttrial 

motion for a new trial.

¶ 96 CONCLUSION

¶ 97 Based on the foregoing, the judgment of the circuit court of St. Clair County is 

affirmed.
48

¶ 98 Affirmed.