                                  Illinois Official Reports

                                          Appellate Court



                             Calabrese v. Benitez, 2015 IL App (3d) 130827



Appellate Court              AMANDA CALABRESE, Plaintiff-Appellee, v. PABLO LOPEZ
Caption                      BENITEZ, Defendant-Appellant.


District & No.               Third District
                             Docket No. 3-13-0827


Filed                        January 16, 2015


Held                         On appeal from a verdict for plaintiff in an action for the injuries she
(Note: This syllabus         suffered when defendant reversed his car without looking back and
constitutes no part of the   struck her, a pedestrian, the verdict for plaintiff was affirmed over
opinion of the court but     defendant’s contentions that the trial court erred in allowing plaintiff
has been prepared by the     to use undisclosed X-ray films during the trial, denying defendant’s
Reporter of Decisions        request to depose plaintiff’s chiropractor and in denying his motion
for the convenience of       for a new trial based on the trial court’s bias, where defendant waived
the reader.)                 the issues and where the trial judge’s remarks cited by defendant as
                             evidence of bias did not display any favoritism, and they were made
                             after the trial, basically in an attempt to educate a young trial counsel
                             on the realities of trial practice.



Decision Under               Appeal from the Circuit Court of Will County, No. 11-L-491; the Hon.
Review                       Susan T. O’Leary, Judge, presiding.




Judgment                     Affirmed.
     Counsel on                Jamie Shimer (argued), of Fabrizio, Hanson, Peyla & Kawinski, P.C.,
     Appeal                    of Joliet, for appellant.

                               Stephen M. Brandenburg (argued), of Radogno, Cameli & Hoag, P.C.,
                               of Chicago, for appellee.



     Panel                     JUSTICE SCHMIDT delivered the judgment of the court, with
                               opinion.
                               Presiding Justice McDade and Justice Holdridge concurred in the
                               judgment and opinion.




                                                 OPINION


¶1          A Will County jury awarded plaintiff, Amanda Calabrese, $47,899, after finding that
       defendant, Pablo Lopez Benitez, negligently operated his vehicle and injured plaintiff. Prior to
       trial, the court denied defendant’s motion for leave of court to depose plaintiff’s expert
       witness. At trial, the court admitted X-ray films into evidence without objection. Defendant
       had not viewed the X-ray films and reports prior to trial. Defendant filed a posttrial motion,
       alleging only that the court erred by admitting X-ray films at trial; the court denied defendant’s
       motion.
¶2          Defendant appeals, claiming the trial court erred by: (1) allowing plaintiff to utilize X-ray
       films during trial; and (2) denying defendant’s request to depose plaintiff’s treating
       chiropractor prior to trial. Defendant also argues that he is entitled to a new trial due to the trial
       court’s bias. For the following reasons, we affirm.

¶3                                           BACKGROUND
¶4         Plaintiff filed a complaint alleging defendant caused her injuries while negligently driving
       his automobile. Prior to trial, defendant served plaintiff with written discovery, including
       interrogatories pursuant to Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) and requests for
       production pursuant to Illinois Supreme Court Rule 214 (eff. Jan. 1, 1996). Defendant’s Rule
       213(f) interrogatories included the following:
                   “5. Did any witnesses at any time prepare any notes, memoranda, summaries or
               other writings in connection with this matter? If so, (a) identify each such writing; and
               (b) pursuant to Supreme Court Rule 214, produce legible copies of all such writings.
                   ***



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                    7. Identify each treating physician or health care provider known to plaintiff,
               plaintiff’s attorney, or anyone acting on behalf of the plaintiff, who has stated an
               opinion, directly or indirectly, expressly or impliedly, favorable or unfavorable or
               neutral, regarding the conduct of any plaintiff, the cause of plaintiff’s alleged injuries
               and/or the prognosis of life expectancy of the person alleged to have been injured. State
               the opinion of each, dates of treatment and location of treatment.”
       Defendant served plaintiff with additional Rule 213 interrogatories, including:
                    “5. With regard to your injuries, state: (c) the name and address of each person
               and/or laboratory taking any x-ray, MRI and/or other radiological tests of you.”
       Defendant’s Rule 214 request for production included:
                    “4. All data as to the physical or mental condition of each Plaintiff prior and
               subsequent to the alleged occurrence ***.”
¶5         Plaintiff disclosed that Dr. Dahlager of Bolingbrook Family Chiropractic treated her.
       Plaintiff responded that she planned to call Dahlager at trial to testify regarding his treatment
       and interpretation of the various diagnostic studies. Dahlager administered diagnostic studies
       to plaintiff, including X-ray films. Plaintiff produced medical bills and health insurance forms
       in response to defendant’s Rule 214 requests.
¶6         In October of 2011, defendant subpoenaed all of plaintiff’s medical records from all of her
       disclosed treaters, including Dahlager. Dahlager did not include X-ray films in materials
       produced pursuant to the subpoena.
¶7         During her deposition, plaintiff testified that Dahlager took radiographs of her. On three
       separate occasions, following plaintiff’s deposition, defendant subpoenaed plaintiff’s records
       from Dahlager. The language of the subpoenas varied, but each: (1) included a request for “any
       and all records and reports”; and (2) specified a noninclusive list consisting of items such as
       X-ray films or other radiological reports. The coversheet accompanying each subpoena
       instructed the facility to produce records “including but not limited to charts, notes, nurses’
       notes, lab reports, correspondence and memoranda regarding the plaintiff.” The coversheet
       also instructed the facility to call defendant before duplicating any X-rays. Dahlager neither
       produced X-ray films in response to these requests nor called defendant to discuss duplication
       of X-ray films. Defendant never filed a motion to compel production of the X-ray films and
       reports.
¶8         Prior to trial, on April 17, 2013, defendant filed a motion requesting leave of the court to
       take the discovery deposition of Dahlager. The court denied defendant’s request. On October
       10, 2012, the court ordered defendant to complete depositions of all independent expert
       witnesses on or before December 10, 2012. Moreover, on January 25, 2013, the court entered
       an order stating defendant waived his right to depose plaintiff’s independent expert witnesses.
¶9         On the morning of the first day of trial, defendant filed a motion in limine to bar any
       testimony concerning X-ray films or other diagnostic imaging not previously disclosed by
       plaintiff or produced responsive to any subpoena. In response, plaintiff indicated that she did
       not attempt to obtain her X-ray films from Dahlager, but believed Dahlager would bring X-ray
       films with him to court, if any existed. Plaintiff also planned to solicit opinions about the X-ray
       films and reports. The court denied defendant’s motion.
¶ 10       Dahlager brought X-ray films with him to trial. Plaintiff elicited testimony from Dahlager
       concerning the X-ray films and reports; Dahlager used the X-ray films as substantive evidence

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       of a spinal injury. At trial, the defendant did not object to the admission of the X-ray films or
       Dahlager’s testimony. Plaintiff’s counsel moved to admit the X-rays and other exhibits:
                    “MR. CAMELI [plaintiff’s attorney]: Your Honor, with that I move
               into–admission of Exhibits 18, 19 and 20.
                    THE COURT: Any objection?
                    MS. SHIMER [defense attorney]: I have not seen them.
                    THE COURT: 18, 19, 20, the x-rays, the bills and the medical records.
                    MR. CAMELI: 18 is the medical records, 19 is the x-rays, 20 is the component of
               the bill of Dr. Dahlager.
                    MS. SHIMER: No objection to 18 and 19. I would just have an objection to 20. I
               would like to see it.”
¶ 11       The court admitted exhibit No. 20 without objection after defense counsel reviewed the
       document.
¶ 12       The jury returned a verdict in favor of plaintiff. After the trial court entered judgment,
       defendant filed a posttrial motion for a new trial, claiming that the trial court erred in allowing
       plaintiff to use the X-ray films at trial. The court denied defendant’s motion.
¶ 13       Defendant appeals.

¶ 14                                            ANALYSIS
¶ 15                            I. Testimony Concerning Undisclosed X-rays
¶ 16       Defendant argues that the trial court abused its discretion by allowing plaintiff to utilize
       X-ray films during trial. Specifically, defendant argues: (1) plaintiff violated the discovery
       rules when neither plaintiff nor plaintiff’s expert witness produced the X-ray films; and (2) the
       court should have excluded such evidence to remedy the discovery violation. Plaintiff argues
       that defendant waived the right to object to the use or admission of the X-ray films on appeal;
       defendant did not object to the introduction of the X-ray films at trial. Defendant counters that
       his motion in limine preserved the issue.
¶ 17       Failure to timely object and raise the issue in a posttrial motion results in forfeiture of the
       issue on appeal. People v. Johnson, 218 Ill. 2d 125, 138 (2005) (citing People v. Enoch, 122 Ill.
       2d 176, 186 (1988)). A motion in limine does not preserve an issue for review. Simmons v.
       Garces, 198 Ill. 2d 541, 569 (2002) (citing Brown v. Baker, 284 Ill. App. 3d 401, 406 (1996)).
       When the court denies a motion in limine, the party must make an objection at trial to preserve
       the issue on appeal. Simmons, 198 Ill. 2d at 569 (citing Brown, 284 Ill. App. 3d at 406).
¶ 18       Prior to trial, defendant presented the court with a motion in limine to bar the admission of
       X-ray films and testimony concerning any radiographs or other diagnostic imaging. Plaintiff
       responded that she did not attempt to obtain her X-ray films; Dahlager would bring X-ray films
       with him to court. The court denied defendant’s motion. During trial, defense counsel did not
       object to the admission of the X-ray films or Dahlager’s testimony concerning the radiographs.
       To the contrary, defense counsel affirmatively stated “no objection” when plaintiff moved to
       admit the X-ray films. By stating “no objection” to the admission of the radiographs, defendant
       affirmatively abandoned any objection in the motion in limine. Therefore, we find the issue
       waived.



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¶ 19                     II. Opportunity to Depose Plaintiff’s Treating Physician
¶ 20       Defendant claims that the trial court erred by denying his request to depose plaintiff’s
       treating chiropractor. Plaintiff argues that defendant waived this issue, too, by failing to
       address it in a posttrial motion. We agree.
¶ 21       If a party fails to raise an issue in its posttrial motion, the issue is waived on appeal.
       Jackson v. Seib, 372 Ill. App. 3d 1061, 1076 (2007). A posttrial motion must set forth specific
       grounds on which the court erred. Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 348
       (1980).
¶ 22       In his posttrial motion, defendant failed to argue that the trial court erred in denying his
       request to depose plaintiff’s witness. To the contrary, defendant stated that he made a strategic
       and cost-effective decision not to depose Dahlager. The only reference to the court’s denial of
       his motion in defendant’s posttrial motion is a footnote simply stating that later defendant filed
       a motion requesting leave of court to depose Dahlager, which the court denied. We find the
       issue waived.

¶ 23                                III. New Trial Based on Court’s Bias
¶ 24       Defendant argues that trial court erred when it denied his posttrial motion due to the fact
       that the trial court exhibited bias when ruling on his motion. The court, says defendant, did not
       agree with the defense strategy and ultimately based its decision on its disagreement.
       Defendant supports his position by highlighting the following statements:
                    “THE COURT: Well, let me just say the jury clearly did not make an error in this
               case. You know, this case was–I was actually rather shocked that negligence was not
               admitted when the plaintiff–when the defendant put–who had just gotten his license,
               put his vehicle in reverse and backed up without looking and struck a pedestrian in a
               crosswalk. I mean, I don’t know how clear liability could have been. So at any rate. Go
               ahead. Your [defendant’s] response.
                                                    ***
                    *** [A]ssuming that there was error in admitting that [X-ray], I think that the
               verdict would have been the same. ***
                    That’s my–you know, I try a lot of cases, and I have had some large verdicts
               recently, and sometimes when I see cases where the position that’s taken by the defense
               counsel is such that in my view reasonable people will not agree with it, you’re inviting
               a verdict, and potentially a larger verdict than you might otherwise had your position
               been more reasonable.
                    I just–frankly, I have to say in this case I don’t understand why liability was
               contested in this case. You know, I told you that. *** I mean, there was no basis that I
               could imagine that liability was not clear in this case. ***
                    What the jury did was obviously between the 12 of them. That was just my
               perception. And I, frankly, told you that I thought that that was not a wise decision to
               proceed with, you know, arguing that there was no negligence in this case because I just
               couldn’t fathom what possible–how that could not be negligent. ***
                    So to just–I mean, it was probably one of the most clear-cut cases in my hundreds
               of cases of liability. ***


                                                   -5-
                     I think that the verdict, whether or not this X-ray was shown to the jury or not, I
                 think would have been the same. That’s just my opinion.”
¶ 25        Our supreme court addressed the issue of judicial bias in Eychaner v. Gross, 202 Ill. 2d 228
       (2002). A trial judge is presumed to be impartial; the party alleging prejudice bears the burden
       to overcome the presumption. Id. at 280. “[T]he party making the charge of prejudice must
       present evidence of prejudicial trial conduct and evidence of the judge’s personal bias.” Id.
       Personal bias can stem from an extrajudicial source or from facts adduced or events occurring
       at trial. Id. Our supreme court adopted the following statement from the United States Supreme
       Court:
                 “ ‘[O]pinions formed by the judge on the basis of facts introduced or events occurring
                 in the course of the current proceedings, or of prior proceedings, do not constitute a
                 basis for a bias or partiality motion unless they display a deep-seated favoritism or
                 antagonism that would make fair judgment impossible. Thus, judicial remarks during
                 the course of a trial that are critical or disapproving of, or even hostile to, counsel, the
                 parties, or their cases, ordinarily do not support a bias or partiality challenge. They may
                 do so if they reveal an opinion that derives from an extrajudicial source; and they will
                 do so if they reveal such a high degree of favoritism or antagonism as to make fair
                 judgment impossible.’ ” (Emphases in original.) Id. at 281 (quoting Liteky v. United
                 States, 510 U.S. 540, 555 (1994)).
¶ 26        The trial court’s statements, which defendant offers as evidence of judicial bias, do not
       display a deep-seated favoritism that would make a fair judgment impossible. Furthermore,
       defendant does not offer any evidence proving that judicial bias stemmed from an outside
       source. To the contrary, the judge based her opinion on specific facts of the current proceeding.
       The judge opined that liability was clear based on the fact that defendant struck a pedestrian
       when he reversed his car without looking. Moreover, the court made such comments after trial;
       thus, the court’s statements could not have prejudiced the defense. The court’s statements
       amount to nothing more than the trial judge attempting to educate a young attorney on the
       realities of trial practice. Defendant is not entitled to a new trial.

¶ 27                                         CONCLUSION
¶ 28       For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 29       Affirmed.




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