Discovery Sanctions and Getting Medical Records Into Evidence – Illinois Case Note

In Fraser v. Jackson, 2014 IL App (2d) 130283, the Second District affirmed a $600K-plus jury verdict for the personal injury plaintiff.  The Court also upheld the trial court’s exclusion of defendant’s medical expert testimony at trial and found that the defendant failed to answer plaintiff’s request to admit medical records in good faith.

Discovery Sanctions: Rule 219 and 213 Interplay

Illinois Supreme Court Rule 213(f)(3) requires a party, upon written interrogatory to identify controlled expert witnesses and provide testimonial subjects, conclusions, opinions, qualifications and any written reports.  SCR 213(f)(3).  The rule demands strict compliance.  Rule 219 provides a trial judge with an array of sanctions options including barring testimony from a party or its expert where it fails to comply with discovery rules or orders.  SCR 219(c)(iv).  Sanctions are committed to the trial court’s discretion and the purpose of sanctions is not to punish; but to motivate discovery compliance. (¶¶ 28-29).

 The Court found that the trial court properly barred defendant’s medical expert from testifying.  The defendant violated several discovery orders and its retained expert failed to respond to a documents subpoena despite repeated requests.  The trial judge gave defendant many chances to comply with discovery and entered progressive sanctions before barring outright the defendant’s expert from testifying.

Medical Records: Evidentiary Foundation Rules

The Court also held that plaintiff laid a sufficient foundation for the admission of his medical bills in evidence.

In Illinois, the evidentiary foundation for admitting medical records can be established by a doctor’s deposition testimony or through testimony of a non-doctor employee familiar with the medical practice’s billing methods and reasonableness of the charges. (¶40).

At trial, the plaintiff offered evidence deposition testimony of several treating physicians and a medical billing specialist – all of whom testified that plaintiff’s medical treatment and bills were reasonable and commensurate with the type of injury that plaintiff suffered in the car crash.  This testimony cumulatively satisfied the foundation requirements for admitting medical bills into evidence.

 Costs and Attorneys’ Fees (Rule 219(b) and 216 interplay)

 The Court upheld the trial court’s $4,000 plus sanctions award against defendant for failing to respond in good faith to plaintiff’s request to admit that the medical bills were reasonable and necessary. 

Illinois law allows a plaintiff to utilize a Rule 216 Request to Admit to seek admissions that his medical treatment and related expenses were reasonable and necessary in view of the plaintiff’s injury. 

Rule 219(b) allows a plaintiff to recover fees and costs where he proves a requested fact that the defendant denies where the denial isn’t in good faith, based on privilege or some other permissible reason – even if the defendant doesn’t have a specific intent to obstruct the litigation process.  SCR 219(b), ((¶¶44-46).

The court found the defendant’s failure to admit the reasonableness and amount of plaintiff’s medical bills was not in good faith.  Because of the defendant’s denial, the plaintiff had to open up a case in another state (Wisc.) and subpoena a medical records agent to testify telephonically at trial.  The Court found that because defendant made plaintiff jump through so many logistical hoops to get a billing agent to testify on a mundane issue, the trial court’s fees and costs award was proper.  (¶47).


– A trial court has wide latitude to assess discovery sanctions including barring witnesses;

– A request to admit a fact that’s not subject to meaningful dispute should be admitted by the opposing side.  Otherwise, the party denying the requested fact or document will have to pay the requesting party’s fees and costs incurred in proving that fact/document.


Requests to Admit in Illinois: How and When To Respond (The 28-Day Rule)

I once read a tongue-in-cheek article that said if you’re ever served with a Request to Admit Fact (RTA), you should staple it to your forehead. (Ouch!)

That way, you won’t forget about the RTA and miss the 28-day deadline to send your sworn responses to the opposing side.  And while some recent cases may have softened Illinois’ draconian RTA rules, the hyperbolic sentiment expressed in the “staple statement” endures: a failure to timely respond to an RTA can have grave consequences for your case.  The main one being that the facts (or documents) contained in the RTA can be deemed admitted against you.

Once that happens, the party sending the RTA can move for summary judgment and win all or most of his case.

Armagan v. Pesha, 2014 IL App (1st) 121840 examines the question of when the 28-day timing requirement starts and ends and when the service of and response to an RTA is deemed complete under Illinois law.

The plaintiff deposited over 250 gold coins with the defendants who operated a rare coin shop.  Plaintiff alleged he placed the coins with the defendants temporarily with the understanding that plaintiff could always get them back.  Several months later when plaintiff asked for the coins back, defendants apparently refused and plaintiff sued for conversion, breach of bailment and other claims.

During discovery, plaintiff mailed an RTA on defendants on November 18, 2010.  Defendants filed their response with the court on December 17, 2010 (29 days later) and mailed the response to plaintiff that same day.  Plaintiff then moved to deem the RTA facts admitted on the basis that defendant missed the 28-day deadline by one day.

The trial court agreed (November 18 service is complete November 22, 2010; December 17, 2010 service is complete on December 21, 2010 – 29 days after November 22, 2010), deemed the facts admitted and entered summary judgment for plaintiff for almost $500,000.  An expensive, one-day mistake to be sure.  Defendants appealed.

Held: Trial Court reversed.  Defendants’ RTA response was timely under Illinois Supreme Court Rule 12.

The First District found that defendants timely responded to the RTA.  In doing so, the Court discussed the interplay between Supreme Court Rules 216, 12 and 11 which govern RTAs and the manner of serving documents. The key rules:

the purpose of Rule 216  is to narrow issues for trial and only requires the responding party to serve his responses within the 28-day deadline; as opposed to filing them with the court within 28 days;

– Rule 216 requires only that the RTA responses be served (by the responding party), not received (by the requesting party) within 28 days;

– failing to comply with Rule 216’s requirements can result in a judicial admission of the facts contained in the RTA;

– Under Rule 12(c), service is complete four (4) days after mailing;

– the method of service differs from proof of service;

– serving a document by U.S. mail is an acceptable method of service; 

– Rule 11 specifically allows a party to serve documents (other than complaint) by U.S. mail (“regular” mail);

¶¶ 16-20.

Application: Plaintiff mailed his RTA on November 18, 2010.  Under Rule 12, service of the RTA was complete on November 22, 2010 – four days later.  Defendants then had 28 days – through December 20, 2010 – to serve their response.  Since defendants served their RTA response by placing it in the mail on December 17, 2010, they complied with the 28-day deadline (with three days to spare). ¶ 23.

Policy concerns also motivated the Court’s reversal.  It noted that Illinois has a broad policy of cases being resolved on the merits instead of technicalities and that discovery is not designed for tactical gamesmanship or a trap for the unwary.  Accordingly, the Court would have allowed the defendants response even if it was late under Rule 183 (which governs extension of time for “good cause”).  ¶¶ 25-26.

Take-aways: A Request to Admit is the quintessential “gotcha” discovery device.  The serving party hopes you will blow the 28-day deadline and then do exactly what the plaintiff did here: try to get the facts deemed admitted against you.

This case seems to strike a fair balance between giving teeth to a discovery tool while at the same time being willing to look at the realities of litigation practice, where the exigencies of the moment practically dictate last-minute responses.

In hindsight, the defendants’ attorney probably should have hand-delivered and faxed (and e-mailed) his response instead of mailing it.  That would have saved him a lot of time and (I imagine) frantic energy trying to undo the $500,000 judgment against his client.