                             2017 IL App (2d) 160456
                                  No. 2-16-0456
                           Opinion filed October 4, 2017
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

JUDITH CALDWELL, Individually and as   ) Appeal from the Circuit Court
Special Administrator of the Estate of ) of Lake County.
Jeannette M. DeLuca,                   )
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 14-L-145
                                       )
ADVOCATE CONDELL MEDICAL               )
CENTER,                                ) Honorable
                                       ) Diane E. Winter,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Zenoff concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff, Judith Caldwell, individually and as special administrator of the estate of

Jeannette M. DeLuca, appeals from the trial court’s order entering a jury verdict in favor of

defendant, Advocate Condell Medical Center (Condell). On appeal, Caldwell argues that several

errors occurred below in this medical-malpractice action: (1) the trial court erred in allowing

two expert witnesses to testify that DeLuca, Caldwell’s mother, had both sets of her dentures in

her mouth when she choked on food and died following surgery at Condell; (2) the trial court

erred in allowing the evidence deposition of one of Condell’s nurses into evidence; (3) the trial

court erred in sustaining Condell’s objection on the ground of attorney-client privilege during
2017 IL App (2d) 160456


that deposition; (4) Condell’s counsel violated the Petrillo doctrine (Petrillo v. Syntex

Laboratories, Inc., 148 Ill. App. 3d 581 (1986)) when she conducted an ex parte meeting with

one of Condell’s former employees; and (5) the trial court erred in refusing to grant Caldwell a

“missing witness” jury instruction. For the following reasons, we affirm.

¶2                                    I. BACKGROUND

¶3     The record reflects that on March 5, 2014, Caldwell filed a medical-malpractice action

against Condell after 92-year-old DeLuca choked on food and died while receiving medical care

from Condell on April 23, 2013. Specifically, Caldwell claimed that Condell, through its agents,

failed to adequately monitor DeLuca postoperatively, allowed her to eat without ensuring that

her dentures were in her mouth, and failed to ensure that she was recovered from surgery

sufficiently to consume food.

¶4                                  A. Pretrial Proceedings

¶5     Before trial, Caldwell’s counsel sent a notice to Condell for the discovery deposition of

Kathleen Likosar, a nurse manager at Condell. The notice was dated October 20, 2014, and in it,

counsel asked Condell’s counsel to produce Likosar for her deposition on October 30, 2014.

Caldwell’s counsel later sent an amended notice for Likosar’s deposition on December 9, 2014.

Likosar’s deposition occurred on December 9, 2014. During that deposition, Condell’s counsel

objected on the ground of attorney-client privilege to Caldwell’s questioning of Likosar about

conversations between Likosar and Condell’s counsel.

¶6     About 30 to 45 days before trial, Condell’s counsel contacted Caldwell’s counsel to

inform him that Likosar was retiring and moving to Arizona and that they would need to set up

an evidence deposition. On February 9, 2016, Condell’s counsel emailed Caldwell’s counsel

about setting up Likosar’s evidence deposition for February 12, 2016. Caldwell’s counsel agreed



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2017 IL App (2d) 160456


to that date, and the videotaped evidence deposition occurred on February 12, 2016. At that

deposition, Caldwell’s counsel complained that he never received a notice of the evidence

deposition, but he admitted that he agreed to come to the deposition after being notified via

telephone. Caldwell’s counsel also argued that he never received notice that the deposition was

going to be videotaped. Counsel repeated his objection before he cross-examined Likosar, and

he said that the deposition was “being taken without notice as required by supreme court rule.”

As in the discovery deposition, when Caldwell’s counsel questioned Likosar about the substance

of conversations between Condell’s counsel and Likosar, Condell’s counsel objected on the

ground of attorney-client privilege. Caldwell’s counsel did not take issue with that objection and

instead responded merely by saying, “okay,” “all right,” and “that’s fine.” Caldwell’s counsel

also never sought a ruling on the privilege objection.

¶7     Before trial began, Caldwell moved to bar Likosar’s evidence deposition. Caldwell

argued that her counsel had received improper notice of the evidence deposition and no notice of

Condell’s intention to videotape that deposition. Caldwell also objected to Condell’s assertion of

the attorney-client privilege for any conversations between Condell’s counsel and Likosar.

Caldwell argued that Likosar was not a member of Condell’s “control group” and that the

communications between Likosar and Condell’s counsel that occurred immediately prior to her

evidence deposition were not protected by the attorney-client privilege, because Likosar’s

employment with Condell had ceased before then.

¶8     In response, Condell’s counsel agreed to forgo use of the videotape. In resolving the

remainder of Caldwell’s notice objections, the court reviewed the email exchanges between the

parties. On February 9, 2016, Condell’s counsel sent Caldwell’s counsel an email saying, “I

want to set Likosar’s evidence dep for my case for Friday, 2/12/16 at 10 a.m. at Condell. I think



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2017 IL App (2d) 160456


you said that works for you . . . can you confirm?” Caldwell’s counsel responded that the date

“work[ed] for Likosar.”

¶9     With regard to the objections based upon the attorney-client privilege, Condell argued

that Likosar was an agent of Condell and a nurse who was insured under Condell’s self-insured

trust, both at the time of her care of DeLuca and when she gave her discovery deposition. Also,

Likosar established these facts in an affidavit. Finally, Condell argued that, when Likosar gave

her discovery deposition, the allegations in Caldwell’s complaint had placed Likosar’s care of

DeLuca at issue.

¶ 10   The trial court found that, absent any case law to the contrary, and Caldwell had

submitted none, Likosar’s retirement between her discovery and evidence depositions did not

determine her status for the purpose of the attorney-client privilege. Therefore, the trial court

denied Caldwell’s motion to bar Likosar’s evidence deposition on the lack-of-privilege ground,

as well as the lack-of-notice ground.

¶ 11   Caldwell then moved to bar the opinions of Condell’s experts, Dr. Rachael Oosterbaan

and nurse Faye Kopplin, that DeLuca had both sets of dentures in her mouth when she ate

breakfast on April 23, 2013. At Oosterbaan’s discovery deposition she testified that, in her

opinion, DeLuca had both sets of dentures in her mouth, based upon the fact that DeLuca was a

“perfectly capable woman who would have asked for her lower dentures when she started

eating” and that she was a “cognitively intact woman.”          When asked whether she was

speculating that both sets of dentures were in DeLuca’s mouth when she ate breakfast,

Oosterbaan said that, based upon the evidence, it was safe to say that the lower dentures were in

place. This opinion was based specifically upon her interpretation of the facts in the depositions

and in DeLuca’s medical chart.



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¶ 12   At Kopplin’s discovery deposition, she testified that, in her opinion, DeLuca’s lower

dentures more likely than not stayed in her mouth while she was at Condell. Her opinion was

based upon several factors, including that DeLuca was alert and oriented, had managed her own

dentures for over 40 years, and would have asked for her dentures if they were missing; further,

if she had asked for her dentures, that information would have been noted in her medical chart.

Kopplin also noted that DeLuca’s chart created a timeline of what transpired with her upper and

lower dentures. The upper dentures were removed for DeLuca’s surgery and reinserted in the

recovery area, or “Post-Anesthesia Care Unit” (PACU). There was no indication in the chart that

DeLuca’s lower dentures were ever removed. Kopplin opined that, based upon her experience

with elderly patients, the first thing that they request when they wake up from anesthesia is their

dentures.   In addition to reviewing DeLuca’s medical records, Kopplin had also reviewed the

deposition testimony of all the witnesses in this case. Kopplin opined, to a reasonable degree of

medical certainty, that DeLuca’s lower and upper dentures were in her mouth when she ate her

breakfast on April 23, 2013.

¶ 13   The trial court denied Caldwell’s request to exclude Oosterbaan’s and Kopplin’s

opinions.

¶ 14                                  B. Trial Proceedings

¶ 15   At trial, Caldwell testified that, on April 22, 2013, she arrived home around 5 p.m. and

found DeLuca sitting in a chair with a bump on her head and a very red eye. DeLuca said that

she could not see out of that eye, because she had hit her head. Caldwell called DeLuca’s

ophthalmologist, who directed them to the emergency room.

¶ 16   Caldwell and her husband took DeLuca to Condell, where she was seen in the emergency

room. When they arrived, they were told that DeLuca should see Dr. Michael Savitt at his



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2017 IL App (2d) 160456


office. Savitt examined DeLuca and determined that surgery was necessary on DeLuca’s eye.

Caldwell took DeLuca back to Condell, arriving around 10:30 p.m. that night. DeLuca was

admitted to floor 2-West at Condell. Prior to her admission, the last food DeLuca had consumed

was at noon that day.   Caldwell testified that DeLuca was very “vain” about her dentures and

that she never wanted Caldwell to see her without her dentures in her mouth. Caldwell said that,

even when she went into surgery, DeLuca would not take her dentures out before she was

wheeled away from Caldwell. DeLuca was able to take care of her dentures by herself, and she

never ate without her dentures in her mouth.

¶ 17   Caldwell said that Shannon Lunkenheimer checked DeLuca in on 2-West. Caldwell

stayed with DeLuca until she was wheeled out of her room and taken to surgery. At that time,

DeLuca had both her upper and lower dentures in her mouth. Caldwell testified that she had no

idea if DeLuca’s dentures were in place during surgery, when DeLuca returned to 2-West

following surgery, or when DeLuca was eating her breakfast the next morning.

¶ 18   Lunkenheimer testified that she was a registered nurse working at Condell on 2-West, the

medical/surgical unit, at around 10 p.m. on April 22, 2013. She interviewed DeLuca that

evening as a new admission to the floor. Lunkenheimer asked DeLuca about her dentures, and

DeLuca told her that she had upper dentures and a lower partial plate. Lunkenheimer did not

remove DeLuca’s dentures when DeLuca left 2-West and was transported to the operating room.

¶ 19   Lunkenheimer said that, if DeLuca’s dentures had been removed, they would have been

placed at her bedside in a cup with her name on it. Lunkenheimer had cared for elderly patients

who had dentures and she realized the importance of tracking their dentures. In her experience,

most patients were very aware when their dentures were not in their mouths.




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¶ 20   Bella Patseyevsky testified that she was a registered nurse who worked at Condell in the

operating room, as a circulating nurse preparing cases for surgery. As a circulating nurse, she

interviews patients before surgery and brings them into the surgical suite. When the procedure is

completed, Patseyevsky brings the patient to the recovery room.

¶ 21   On April 22, 2013, Patseyevsky was working as the circulating nurse, on a 3 p.m. to

11:30 p.m. shift. She remembered DeLuca because of the emergency nature of the surgery. As

part of her routine, she interviews the patient and asks him or her about personal effects,

including dentures.   Patseyevsky asked DeLuca about her dentures because she knew that

DeLuca was undergoing general anesthesia. When a patient’s dentures are removed before an

endotracheal tube is placed in the mouth, the dentures are placed in a cup with the patient’s name

on the cup. The dentures are then kept on a counter in the operating room.

¶ 22   Patseyevsky testified that DeLuca removed only her upper dentures and handed them to

Patseyevsky, who then placed them in a cup. The cup would have been placed on DeLuca’s cart

during her trip from the preoperative area to the operating room. When she was transferred from

the cart to the operating table, the cup would have been placed on a shelf in the operating room.

¶ 23   DeLuca was in the operating room from 10:45 p.m. until 12:06 a.m. After surgery,

Patseyevsky moved DeLuca from the operating room to the PACU. Generally, Patseyevsky

takes a cup containing dentures from the shelf in the operating room and places it back on the

patient’s cart following surgery. In DeLuca’s chart, Patseyevsky noted that her upper dentures

were “endorsed to recovery room nurse.” She made no entry regarding the lower dentures, and

she would have endorsed both dentures if she had removed the lower ones. In her experience,

while upper dentures always come out prior to surgery, there are occasions when a lower partial




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2017 IL App (2d) 160456


plate remains in the patient’s mouth. If a lower partial plate is not removable, it stays in the

patient’s mouth during surgery.

¶ 24   Kim Kraus testified that she was the nurse who covered DeLuca in the recovery room

following surgery. She took over DeLuca’s nursing care at 12:06 a.m. on April 23, 2013. She

assessed DeLuca at 12:36 a.m. and initially noted that DeLuca was sleepy but responded to her

and was “arousable.” Before she sent DeLuca back to her hospital room, she wrote in her chart,

“final comments, upper dentures in mouth.” According to Kraus, this meant that she either

placed the upper dentures in DeLuca’s mouth or gave the dentures to DeLuca to insert herself. If

DeLuca had lower dentures that were not in her mouth, but were in a cup, Kraus would have

documented that fact. If both lower and upper dentures had been in the cup, Kraus would have

placed both of them in DeLuca’s mouth. The fact that she documented that the upper dentures

were in DeLuca’s mouth told Kraus that DeLuca was alert and able to place dentures securely in

her mouth. According to Kraus, at 12:42 a.m., DeLuca met the criteria for discharge from the

PACU and she was then returned to the medical/surgical unit, at which point either Kraus or the

assistant working with her handed DeLuca over to the medical/surgical floor nurse.

¶ 25   Deanne Awit testified that she was the registered nurse who accepted DeLuca back onto

2-West in the early morning hours of April 23, 2013. Awit assessed DeLuca at 12:45 a.m. and

took care of DeLuca throughout the night. Around 3 a.m., Awit gave DeLuca medication. At 6

a.m. she performed an abdominal exam on DeLuca, and at 6:58 a.m. she checked DeLuca’s vital

signs. Awit never had any concerns regarding DeLuca’s condition.

¶ 26   Awit said that she did not recall if she saw DeLuca’s dentures on her bedside table. If

she had seen her dentures, she would have placed them in a cup. Her shift ended at 7 a.m. on

April 23, and she provided a report to the nurse beginning the next shift. She did not see



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2017 IL App (2d) 160456


breakfast being delivered to DeLuca. If she had had any concerns about DeLuca, she would not

have allowed her to eat breakfast.

¶ 27    Awit responded to a rapid-response call concerning DeLuca around 7:20 a.m.            She

responded to the call after her shift ended, because she knew DeLuca as a patient better than the

morning nurse did. She ran to DeLuca’s room with Likosar and watched Likosar remove

DeLuca’s upper dentures and perform a mouth sweep. She did not remember anything about

DeLuca’s lower partial plate. A code team then took over.

¶ 28    Helen Dockery testified that she was the patient-care technician (PCT) on duty on 2-West

between 12:45 a.m. and 6:30 a.m. on April 23, 2013. There were two PCTs on duty during her

shift and each cared for half of the patients on the floor. Dockery’s duties were to take vital

signs, assist patients as needed, and advise a nurse if a patient had a problem. Dockery recorded

nine sets of vitals for DeLuca during her shift, and she did not have any concerns about DeLuca.

During her shift, Dockery took DeLuca to the bathroom. She first had DeLuca sit at the end of

the bed to make sure that DeLuca was not dizzy and was able to walk. After DeLuca used the

bathroom, Dockery walked her back to her bed.

¶ 29    At some point during Dockery’s shift, DeLuca told Dockery that she was hungry.

Dockery obtained a menu for DeLuca, who said that she wanted pancakes. Dockery placed

DeLuca’s order at 6:30 a.m. when Condell’s kitchen opened. It usually takes 30 to 45 minutes

for food to arrive after it is ordered.

¶ 30    Dockery testified that she did not see DeLuca’s dentures on her bedside table. If they had

been there, she would have placed them in a cup. DeLuca did not ask her for help with her

dentures. When Dockery’s shift ended at 6:30 a.m., she would have reported to the next PCT

that DeLuca was postoperative and that breakfast had been ordered for her. If Dockery had had



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any concerns about DeLuca’s condition, she would not have allowed DeLuca to eat breakfast.

Dockery did not see DeLuca between 6:30 a.m. and 7 a.m.

¶ 31   Christina Riek testified that she was also working as a PCT on 2-West on April 23, 2013.

She normally worked in the intensive-care unit, but she was asked to be a “floater” on 2-West

that day. Her shift began at 6:30 a.m., and she would have received a report from staff on the

outgoing shift. Riek had two interactions with DeLuca. The secretary on the unit told Riek that

DeLuca’s breakfast tray had arrived. Riek went to DeLuca’s room and asked her the usual

questions, such as, “Do you need anything? Are you okay? Just broad questions.” She further

testified, “Nothing looked out of place or out of the ordinary. And I just continued. I went to the

next room.”

¶ 32   Riek did not recall asking DeLuca whether she needed assistance with her dentures. She

had no specific memory as to whether DeLuca had her dentures in place. When she returned for

a second visit to get DeLuca’s vital signs, DeLuca did not look right. Riek went across the hall

and asked the secretary to call for a rapid response. She was not part of the rapid-response team,

and she stayed outside DeLuca’s room at that time.

¶ 33   Likosar’s evidence deposition was read to the jury, without the use of the videotape. In

her deposition, Likosar said that she worked as a nurse for 45 years until she retired on January

5, 2016. At the time of this incident, she worked at Condell as a nurse manager on 2-West, a

floor that frequently had elderly patients.

¶ 34   Likosar was working as a nurse manager on 2-West on April 23, 2013, and she was a

member of the rapid-response team that was summoned to DeLuca’s room. When she arrived,

DeLuca was unresponsive.        She performed a mouth sweep and removed DeLuca’s upper

dentures and pieces of pancake. Likosar did not document that she removed DeLuca’s upper



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dentures, but that was a customary practice. After she took the upper dentures out, she placed

them on the bedside table. She did not recall what happened to the dentures after that point.

When a patient dies, their dentures are placed in a cup that goes with the patient to the morgue.

Likosar did not know if DeLuca had a lower plate, and she had no memory of removing a lower

plate.

¶ 35     Finally, Likosar testified that, after a patient dies, the PCT performs postmortem care,

including placing the patient’s dentures in a cup to be taken to the morgue. Likosar called the

coroner at 9:30 a.m. She did not know who attended to Likosar’s body between 8:30 a.m. and 10

a.m., when the coroner arrived.

¶ 36     Stephen Carroll testified that he was the Lake County deputy coroner who transported

DeLuca’s body from Condell to the coroner’s facility. When he arrived in DeLuca’s room, a bag

was attached to her body. The bag held a denture container. Carroll did not know if the

container had both sets of dentures in it, because he did not open it. Carroll then transported

Deluca’s body to the coroner’s office. The custom in the coroner’s office was to keep the

dentures with the body, but he could not recall if that was specifically done in this case. He did

not perform the autopsy on DeLuca.

¶ 37     Karen Krooswyk testified that she was an advance-practice nurse who reviewed this case

as an expert for Caldwell. Krooswyk described DeLuca as a very functional elderly lady who

faithfully removed her dentures at night, had no history of problems with her dentures or with

chewing or swallowing, and removed, cleaned, and replaced her dentures by herself. DeLuca did

not require nursing care at home and had been caring for her dentures for many years. Krooswyk

saw no indication that DeLuca ever ate without her dentures in place. Also, nothing in the record

suggested that DeLuca was incapable of asking for her dentures if they were missing at



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breakfast.   Elderly patients frequently requested their dentures in the hospital.         Krooswyk

admitted that anyone could choke, including someone with all their teeth in place. When asked

whether DeLuca’s lower partial plate made it out of the operating room, Krooswyk said that that

was a “mystery” and that she could not figure out what happened to it.

¶ 38   Krooswyk opined that Condell’s nurses and PCTs failed to give DeLuca liquids, failed to

assist her with her diet, failed to assess her ability to eat, failed to ensure that both dentures were

in place, and failed to monitor her while she was eating. Krooswyk acknowledged, however,

that she had not worked on a medical/surgical floor since about 1979.

¶ 39   Krooswyk agreed that nothing in the record established that DeLuca’s lower partial plate

was ever removed. Hospital personnel had approximately 14 contacts with DeLuca between

12:45 a.m. and 7:20 a.m. on April 23, 2013. Krooswyk agreed that DeLuca was alert and

oriented when she returned to 2-West after surgery. Also, nothing in DeLuca’s chart indicated

that she needed assistance with eating. Krooswyk admitted that someone could have watched

DeLuca chew and swallow, determine that it was safe for her to eat, and walk out of the room,

and that DeLuca still could have choked.

¶ 40   Dr. Steven Fox testified that he was a doctor of osteopathic medicine with a subspecialty

in geriatrics. He was asked to render causation opinions on behalf of Caldwell. He treats

geriatric patients, but he has no hospital affiliations. In Fox’s opinion, all of the deviations that

Krooswyk testified about could have been a proximate cause of DeLuca’s death. DeLuca died of

asphyxia due to an airway obstruction. In Fox’s opinion, if DeLuca’s dentures had been in place,

she would have been able to chew and break up her food particles. Also, he believed that

DeLuca suffered from postoperative cognitive dysfunction and was probably not fully alert or

capable of swallowing, due to the effects of general anesthesia on someone her age. However,



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he agreed that there was no objective evidence of cognitive impairment and that DeLuca’s chart

indicated that she was alert and oriented, with clear speech.

¶ 41   Kopplin testified as a nursing expert on behalf of Condell. At the time of the trial,

Kopplin worked in an internal-medicine practice, but she had worked in a hospital setting for 38

years, predominately in the PACU. In Kopplin’s opinion, the nurses and PCTs at Condell

complied with the standard of care in their treatment of DeLuca. Nurses are not required to

document if dentures remain in a patient’s mouth; they must document only when they are

removed.

¶ 42   Kopplin opined that both DeLuca’s upper dentures and her lower partial plate were in her

mouth when she was eating her breakfast on April 23, 2013. In forming this opinion, Kopplin

relied upon her experience that dentures are the first thing a patient requests upon arrival in the

PACU. Also, DeLuca was noted to be alert and oriented—a sharp elderly lady who always

managed her own dentures. In addition, Kopplin noted that there was no documentary evidence

that DeLuca’s lower partial plate was ever removed, lost, or missing. Further, there was no

evidence in DeLuca’s chart that anyone ever removed DeLuca’s lower partial plate. Kopplin

explained that some partial plates have clips and remain in a patient’s mouth for surgery.

¶ 43   In Kopplin’s opinion, DeLuca did not require supervision to eat her breakfast on April

23, 2013. There was no evidence of cognitive impairment, and she was alert and sharp. The

nurses and the PCTs were not required to stand there and watch while DeLuca ate her breakfast.

Kopplin said that, in addition to reviewing DeLuca’s medical records, she had also reviewed the

deposition testimony of all the witnesses in this case. She opined, to a reasonable degree of

medical certainty, that DeLuca’s lower partial plate and upper dentures were in her mouth when

she ate her breakfast on April 23, 2013.



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¶ 44   Oosterbaan testified that she is a doctor of internal medicine and that she was asked by

Condell to review this case. In her opinion, nothing that the nurses and the PCTs did, or did not

do, contributed to DeLuca’s death. Oosterbaan based her opinion on the evidence that DeLuca

was independent, managed her own dentures, and was cognitively intact. DeLuca requested a

menu, ordered her food, and unfortunately suffered a choking incident.

¶ 45   Oosterbaan also opined that DeLuca had both dentures in place when she choked and that

the lower partial plate remained in DeLuca’s mouth the entire time she was at Condell. She

based this opinion on the depositions and medical records in this case.             Specifically,

Lunkenheimer documented upon admission that DeLuca had upper dentures and a lower partial

plate. Patseyevsky removed only the upper dentures in the operating room, those dentures were

sent to the PACU in a cup with DeLuca’s name on it, and Kraus documented that she placed

DeLuca’s dentures back in her mouth. 1 There was no documentation in the chart establishing

that the lower partial plate was ever removed, only that it was in place when DeLuca was sent to

the operating room. In Oosterbaan’s opinion, it was more likely than not that DeLuca’s lower

partial plate remained in her mouth, because those plates are much more difficult to take out.

They have to be clipped in, and they are much more stable in the mouth, making it likely that

there was no need to take DeLuca’s lower partial plate out. When asked whether she believed

that DeLuca had any cognitive dysfunction, Oosterbaan said “absolutely not.” DeLuca was a

healthy 92-year-old woman, who, according to Caldwell, lived independently.          Oosterbaan



       1
           Actually, Patseyevsky testified that DeLuca took out her upper dentures and handed

them to her. Also, Kraus testified that her charting comment, “upper dentures in mouth,” meant

that either DeLuca put the dentures in her mouth alone or Kraus helped DeLuca put them in.



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specifically testified that she was not speculating about what happened to the dentures and that

her opinion was medical and not personal.

¶ 46   During the jury-instruction conference, Caldwell tendered Illinois Pattern Jury

Instructions, Civil, No. 5.01 (“Failure to Produce Evidence or a Witness”) (hereinafter IPI Civil

(2011) No. 5.01). Caldwell argued that Dockery testified that there were two PCTs working on

2-West during her shift and that they each cared for half of the patients on the floor. However,

Riek was the only one who had been identified as working the day shift on April 23, 2013. In

addition, Caldwell argued, Riek could not recall whether she did the postmortem care on

DeLuca’s body. The court responded that, because Riek did not remember whether she did the

postmortem care, she might have done it but forgotten. 2 Therefore, the court rejected Caldwell’s

request for IPI Civil (2011) No. 5.01, finding that a witness’s inability to remember the identity

of an individual did not entitle Caldwell to a “missing witness” instruction. Instead, the court

said, such a jury instruction is appropriate where a party fails to produce at trial a specific

witness with knowledge of an occurrence.

¶ 47   The jury returned a verdict in Condell’s favor. Caldwell filed a motion for a new trial.

At the hearing on the posttrial motion, Condell’s counsel informed the court that she had reread

Riek’s testimony and noted that Caldwell never asked Riek whether she performed the

postmortem care on DeLuca (as opposed to Caldwell’s assertion at the jury-instruction

conference that Riek testified that she could not remember whether she performed the

postmortem care on DeLuca). In denying Caldwell’s posttrial motion, the court referred to



       2
           The record reflects, however, that Riek was never asked if she performed DeLuca’s

postmortem care.



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Caldwell’s argument regarding IPI Civil (2011) No. 5.01 and agreed that Riek was never asked if

she performed the postmortem care on DeLuca.

¶ 48                                     II. ANALYSIS

¶ 49   On appeal, Caldwell argues that the trial court made multiple significant errors in

managing the evidence introduced at trial, which, combined, rose to the level of an abuse of

discretion. Therefore, Caldwell requests that this court reverse the trial court’s order denying her

posttrial motion and remand this case for a new trial on all issues. Specifically, Caldwell

contends that the following errors occurred: (1) the trial court erred in allowing Kopplin and

Oosterbaan to testify that DeLuca had both sets of dentures in her mouth when she choked on

food and died following surgery at Condell; (2) the trial court erred in allowing Likosar’s

evidence deposition into evidence; (3) the trial court erred in sustaining Condell’s objection to

the substance of conversations between Condell’s counsel and Likosar on the ground of attorney-

client privilege during the evidence deposition; (4) Condell’s counsel violated the Petrillo

doctrine when she conducted an ex parte meeting with Likosar; and (5) the trial court erred in

refusing to grant Caldwell a “missing witness” jury instruction.

¶ 50                             A. Condell’s Expert Witnesses

¶ 51   Caldwell first argues that the trial court erred when it denied her motion in limine to bar

Oosterbaan’s and Kopplin’s testimony that they believed that DeLuca had both sets of dentures

in her mouth when she choked on pancakes the morning after her surgery at Condell.

Specifically, she argues that the only person who took care of DeLuca when she was in distress

was Likosar. However, Likosar testified that she removed only DeLuca’s upper dentures while

attempting to clear her airway and that she never saw any lower dentures. Also, DeLuca’s lower

dentures were not in her mouth when she was autopsied. Nevertheless, Caldwell complains,



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both of Condell’s experts were allowed to testify that DeLuca’s lower dentures must have been

in her mouth when she died, because: (1) there was no charting in the file that indicated that the

lower dentures were ever removed; and (2) DeLuca would have complained if her dentures were

not in her mouth. Caldwell claims that the issue of whether the dentures were in place at the

time of DeLuca’s death is a matter of fact, and not of opinion. She also argues that Oosterbaan

admitted that her opinion was not a medical one. Instead, she said that it was based upon the

depositions and the medical records in this case.        Caldwell claims that Oosterbaan’s and

Kopplin’s opinions were based upon guess, speculation, and conjecture, without any basis in the

medical records or in the depositions of the medical professionals who took care of DeLuca.

¶ 52   “Expert testimony is admissible if the proffered expert is qualified by knowledge, skill,

experience, training, or education, and the testimony will assist the trier of fact in understanding

the evidence.” Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). The proponent must lay an adequate

foundation establishing the reliability of the information on which the expert’s opinion is based.

Fronabarger v. Burns, 385 Ill. App. 3d 560, 565 (2008). “ ‘If the basis of an expert’s opinion

includes so many varying or uncertain factors that he is required to guess or surmise to reach an

opinion, the expert’s opinion is too speculative to be reliable.’ ”         Modelski v. Navistar

International Transportation Corp., 302 Ill. App. 3d 879, 885 (1999) (quoting First Midwest

Trust Co. v. Rogers, 296 Ill. App. 3d 416, 427-28 (1998)). Once a proper foundation has been

established, the weight to be assigned to the expert’s opinion is for the jury to determine.

Fronabarger, 385 Ill. App. 3d at 565. The decision of whether to admit expert testimony is

within the sound discretion of the trial court, and the trial court’s ruling will not be reversed

absent an abuse of that discretion. Snelson, 204 Ill. 2d at 24. A trial court abuses its discretion




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where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take

the view adopted by the trial court. Taylor v. City of Cook, 2011 IL App (1st) 093085, ¶ 23.

¶ 53   After a careful review of the record, we determine that the trial court did not abuse its

discretion in denying Caldwell’s motion in limine and in allowing Oosterbaan and Kopplin to

testify as Condell’s expert witnesses. First, even if we agreed with Caldwell that whether the

dentures were in DeLuca’s mouth when she died is an issue of fact, it is well settled that an

expert’s testimony on an ultimate fact or issue does not impermissibly intrude on the fact finder’s

role, as long as all of the other requirements for the admission of the testimony are met. Jackson

v. Seib, 372 Ill. App. 3d 1061, 1071 (2007) (citing Zavala v. Powermatic, Inc., 167 Ill. 2d 542,

545 (1995)). The reason for this is that the trier of fact is not required to accept the expert’s

conclusion. Id.

¶ 54   Second, Caldwell does not challenge Oosterbaan’s or Kopplin’s qualifications to be

experts in this case. Instead, she argues that their opinions were “speculative.” However, the

record is clear that Caldwell is incorrect. At her deposition, Kopplin testified that DeLuca’s

dentures were more likely than not in her mouth when she ate breakfast, based upon the fact that

DeLuca’s medical chart created a timeline of what transpired with her upper and lower dentures.

The upper dentures were removed for DeLuca’s surgery and reinserted in the PACU. There was

no indication in the chart that DeLuca’s lower partial plate was ever removed. Kopplin also

relied on the fact that DeLuca was awake, alert, and oriented when she was given her breakfast.

Kopplin testified, based upon her experience with patients, that if DeLuca’s dentures were not in

her mouth, she would have asked for them and then that exchange would have been documented

in DeLuca’s chart. Kopplin opined, based upon her experience with elderly patients, that the

first thing that they request when they wake up from anesthesia is their dentures. It is clear, then,



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that Kopplin’s opinion was based upon the evidence that she reviewed in the record of this case,

along with her experience treating elderly patients. At trial, Kopplin offered similar bases for her

opinion. Kopplin said that, in addition to reviewing DeLuca’s medical records, she had also

reviewed the deposition testimony of all the witnesses in this case. She said that she had reached

an opinion to a reasonable degree of medical certainty that DeLuca’s lower partial plate and

upper dentures were in DeLuca’s mouth when she ate her breakfast on April 23, 2013.

Specifically, in her many years as a PACU nurse, her experience was that postoperative patients

who are transferred to the recovery room typically request their dentures before making any

other request. Her opinion was based upon the entries in DeLuca’s medical records noting that

she was alert and oriented and on testimony that DeLuca always managed her own dentures.

Kopplin saw no documentation in the medical records that DeLuca removed her lower partial

plate. Kopplin’s opinions were based upon her education, experience, and review of the medical

records and depositions.

¶ 55   Oosterbaan also stated the bases for her opinion that DeLuca’s lower partial plate was in

place when she ate breakfast on April 23, 2013, both at her deposition and at trial. At her

deposition, when asked whether she was speculating that both sets of dentures were in DeLuca’s

mouth when she ate breakfast, Oosterbaan testified that it was safe to say that the lower partial

plate was in place, based upon the evidence and the medical records. At trial, Oosterbaan

testified that it was her opinion that DeLuca’s dentures were in her mouth when she ate

breakfast.   Again, her opinion was based upon both testimony and the medical records.

Referencing DeLuca’s medical chart, Oosterbaan testified that DeLuca went to the operating

room with her upper dentures and lower partial plate in place, that Patseyevsky removed the

upper dentures before DeLuca’s surgery, packed them in a cup with DeLuca’s name on it, and



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sent the cup to the PACU. Kraus then documented that she replaced DeLuca’s upper dentures in

her mouth.

¶ 56   We recognize that Oosterbaan erred when she said that Patseyevsky removed DeLuca’s

upper dentures before surgery, because Patseyevsky testified that DeLuca removed her upper

dentures herself and handed them to her. Oosterbaan also erred when she testified that Kraus

replaced DeLuca’s upper dentures herself in the recovery room, because the record reflects that

Kraus charted only “final comments, upper dentures in mouth.” However, the issue here is not

whether Condell’s staff or DeLuca took her upper dentures out of her mouth or put them back in.

Instead, our focus is on whether DeLuca had her dentures in her mouth when she ate breakfast

and choked on April 23, 2013. Therefore, these minor errors do not persuade us that the trial

court abused its discretion in allowing Oosterbaan to testify as one of Condell’s experts.

¶ 57   Oosterbaan also testified that there was no documentation that the lower dentures were

taken out, only that they were in her mouth when she went to the operating room. Oosterbaan

specifically testified that she was not speculating about what happened to the dentures and that

her opinion was medical, and not personal.

¶ 58   It is abundantly clear that both Kopplin and Oosterbaan offered opinions that DeLuca’s

upper dentures and lower partial plate were in place when she ate her breakfast, and they both

offered several bases for those opinions. Therefore, the trial court acted within its discretion

when it allowed these experts to testify as to their opinions.

¶ 59                            B. Likosar’s Evidence Deposition

¶ 60   Next, Caldwell argues that the trial court erred in admitting Likosar’s evidence

deposition. Specifically, she argues that Likosar’s deposition should not have been admitted

because: (1) Condell failed to provide formal notice of Likosar’s evidence deposition; and (2)



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the trial court erred in sustaining Condell’s objection to certain testimony on the ground of

attorney-client privilege.

¶ 61                                1. Lack of Formal Notice

¶ 62   Caldwell contends that the videotaped evidence deposition was conducted by Condell’s

counsel without any notice, in violation of Illinois Supreme Court Rule 206(a) (eff. Feb. 16,

2011). Specifically, she states that her counsel objected to the evidence deposition on the record

before that deposition began, and reiterated that objection prior to cross-examining Likosar.

Counsel also filed a motion to bar the evidence deposition, which the trial court denied.

Caldwell claims that, since Likosar appeared voluntarily and without objection, she was not

under Condell’s control. Finally, she contends, “[t]he hospital could have easily flown her back

for live testimony, thus obviating any prejudice.       The prejudice results from allowing this

testimony via an unnoticed evidence deposition, [and] was compounded by the fact that defense

counsel instructed the witness not to answer questions on cross-examination.” Accordingly,

Caldwell argues, the trial court abused its discretion in refusing to enforce Rule 206(a), and she

must therefore be granted a new trial.

¶ 63   Rule 206(a) states, in relevant part:

               “(a) Notice of Examination; Time and Place. A party desiring to take the

       deposition of any person upon oral examination shall serve notice in writing a reasonable

       time in advance on the other parties. The notice shall state the time and place for taking

       the deposition; the name and address of each person to be examined, if known, or, if

       unknown, information sufficient to identify the deponent; and whether the deposition is

       for purposes of discovery or for use in evidence.

                       ***



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                      (2) Audio-Visual Recording to be Used. If a party serving notice of

              deposition intends to record the deponent’s testimony by use of an audio-visual

              recording device, the notice of deposition must so advise all parties to the

              deposition. If any other party intends to record the testimony of the witness by

              use of an audio-visual recording device, notice of that intent must likewise be

              served upon all other parties a reasonable time in advance. Such notices shall

              contain the name of the recording-device operator. After notice is given that a

              deposition will be recorded by an audio-visual recording device, any party may

              make a motion for relief in the form of a protective order under Rule 201. If a

              hearing is not held prior to the taking of the deposition, the recording shall be

              made subject to the court’s ruling at a later time.” Id.

¶ 64   The decision to admit testimony is within the sound discretion of the trial court. See

Kamm, 204 Ill. 2d at 24.

¶ 65   Here, Caldwell does a poor job of explaining exactly what kind of “formal notice” she

did not receive for Likosar’s evidence deposition. She admits that, approximately 30 to 45 days

before trial, Condell’s counsel informed her counsel that Likosar had retired from Condell and

was now a resident of Arizona, and the parties discussed the necessity of an evidence deposition.

Also, the record reflects that on February 9, 2016, Condell’s counsel sent Caldwell’s counsel an

email saying, “I want to set Likosar’s evidence dep for my case for Friday, 2/12/16 at 10 a.m. at

Condell. I think you said that works for you . . . can you confirm?” Caldwell’s counsel

responded that the date “work[ed] for Likosar.”        Caldwell’s counsel then appeared at the

evidence deposition on February 12, 2016. Since it is clear from the emails that Caldwell’s




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counsel was made aware of the date of the evidence deposition in writing and agreed to the

specific date, we fail to see how Condell violated Rule 206(a).

¶ 66   The only problem that Caldwell’s counsel had with Likosar’s evidence deposition is that

he was not notified that it was going to be videotaped. However, Condell’s counsel withdrew the

videotape in light of Caldwell’s objection. Since the videotape was not shown to the jury, we

find no violation of Rule 206(a)(2).

¶ 67                              B. Attorney-Client Privilege

¶ 68   Caldwell next argues that the trial court erred in denying her motion to bar Likosar’s

evidence deposition based upon the lack of attorney-client privilege between Likosar and

Condell’s counsel.    Specifically, at the evidence deposition, Condell’s counsel objected to

Caldwell’s questions about conversations between Likosar and Condell’s counsel that occurred

before that deposition. Caldwell claims that, since Likosar was no longer a Condell employee

when her deposition was taken, she was not subject to the attorney-client privilege. Also, she

claims that nurses who provide care for a patient are not part of the hospital’s “control group,”

i.e., they are not corporate decision-makers or employees who substantially influence corporate

decisions, and therefore they cannot claim the attorney-client privilege. In addition, Caldwell

argues that the insurer-insured privilege cannot apply here, because no one was critical of

Likosar’s conduct in this case. Specifically, Likosar provided no care to DeLuca before DeLuca

went into distress, the limitations period had run, and Likosar was never sued individually.

Caldwell also contends that, since Likosar was not able to provide a factual basis for Condell’s

claim of attorney-client privilege, the admission of Likosar’s evidence deposition was highly

prejudicial.

¶ 69   Illinois Supreme Court Rule 201(b)(2) (eff. July 30, 2014) provides, in pertinent part:



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                  “All matters that are privileged against disclosure on the trial, including privileged

       communications between a party or his agent and the attorney for the party, are

       privileged against disclosure through any discovery procedure.” (Emphasis added.)

¶ 70    In order to determine which employees of a corporation enjoy the attorney-client

privilege when communicating with an attorney on behalf of the corporation, Illinois applies the

control-group test. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 118-19 (1982).

Under the control-group test, an employee whose advisory role to top management in a particular

area is such that a final decision would not normally be made without his or her opinion, and

whose opinion in fact forms the basis of any final decision by those with actual authority, is

properly within the control group.         Id. at 120.     However, individuals who merely supply

information to those in an advisory role are not members of the control group. Id. Only

communications between an attorney and those in the control group are protected from

disclosure. Id.

¶ 71   The attorney-client privilege is designed to promote and encourage open and frank

consultation between a client and his or her attorney. Pietro v. Marriott Senior Living Services,

Inc., 348 Ill. App. 3d 541, 551 (2004). That privilege extends to communications between an

insured and its insurer. Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560,

¶ 195. The basis for extending the privilege to an insurer is that the insured may properly

assume that the communication is made to the insurer as an agent for the dominant purpose of

transmitting it to an attorney for the protection of the interests of the insured. Id. “A nonparty

insured may assert the attorney-client privilege if the insured made the statement at issue when

‘the possibility existed that [the insured] would be made a defendant in lawsuits that might arise

as a result of the [incident].” Exline v. Exline, 277 Ill. App. 3d 10, 14 (1995). The party



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claiming the attorney-client privilege has the burden to present factual evidence establishing the

privilege. Pietro, 348 Ill. App. 3d at 551. A trial court’s determination of whether a privilege

applies is reviewed de novo. People v. McRae, 2011 IL App (2d) 090798, ¶ 25.

¶ 72   We are not persuaded by Caldwell’s arguments that the statements at issue here were not

subject to the attorney-client privilege. First, Condell did not argue to the trial court, and does

not argue on appeal, that a “control group privilege” existed between Likosar and Condell.

Second, it is very clear that Likosar was an agent of Condell and an insured under Condell’s self-

insured trust. Therefore, statements between Likosar and Condell were protected because of the

insurer-insured relationship between them. Finally, the fact that Likosar retired weeks before her

evidence deposition is completely irrelevant to her status as Condell’s agent.        Even if the

limitations period for suing Likosar personally had run by the time of her evidence deposition,

Likosar’s actions could have given rise to vicarious liability on Condell’s part.

¶ 73   For all these reasons, we find that the trial court did not err in denying Caldwell’s motion

to bar Likosar’s evidence deposition.

¶ 74                          C. Application of the Petrillo Doctrine

¶ 75   Caldwell next contends that Condell’s counsel violated the doctrine set out in Petrillo,

148 Ill. App. 3d 581, when counsel met with Likosar before Likosar’s evidence deposition, on

February 10, 2016. As support for this claim, Caldwell cites Baylaender v. Method, 230 Ill. App.

3d 610 (1992). However, Caldwell admits that she did not raise this issue until her posttrial

motion.

¶ 76   Petrillo was a landmark decision on doctor-patient privilege. In Petrillo, the minor

plaintiff filed a product-liability suit against the defendant, alleging that he was injured from

consuming one of its infant formulas. Petrillo, 148 Ill. App. 3d at 585. Against the trial court’s



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order, defense counsel attempted to have an ex parte communication with one of the plaintiff’s

treating doctors, and the trial court found counsel in contempt of court. Id. at 584. The appellate

court found that ex parte communications between a plaintiff’s treating doctor and defense

counsel are barred as a matter of public policy, because they compromise the sanctity of the

doctor-patient relationship. Id. at 588.     The court found that, in obtaining information or

evidence, defense counsel is restricted to the “regular channels of discovery including, but not

limited to, written interrogatories and depositions.” Id. at 587. Four years later, in Roberson v.

Liu, 198 Ill. App. 3d 332 (1990), the appellate court held that ex parte communications outside

of authorized discovery channels are prohibited between an attorney and a party’s treating nurse,

just as they are prohibited between an attorney and a party’s treating physician. Id. at 336.

¶ 77   In Morgan v. County of Cook, 252 Ill. App. 3d 947, 952 (1993), the appellate court

subsequently recognized an exception to the Petrillo doctrine, allowing a hospital’s attorneys to

communicate ex parte with health-care employees who were specifically alleged to be negligent

and whose negligence the plaintiff sought to impute to the hospital. In Morgan, the court held

that, if a plaintiff attempts to hold a hospital liable for the conduct of a hospital’s own treating

caregivers, “the defendant hospital is included within the physician-patient privilege and the

patient has impliedly consented to the release of his medical information to the defendant

hospital’s attorneys.” Id. at 954. The court reasoned that the “ ‘exclusion of the hospital from

the physician-patient privilege would *** effectively prevent the hospital from defending itself

by barring communication with the physician for whose conduct the hospital is allegedly

liable.’ ” Id. at 953 (quoting Ritter v. Rush-Presbyterian-St. Luke’s Medical Center, 177 Ill. App.

3d 313, 317-18 (1988)). Then, in Burger v. Lutheran General Hospital, 198 Ill. 2d 21 (2001),

our supreme court adopted the reasoning in Morgan when the plaintiff made a Petrillo objection



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to ex parte communications between a hospital’s counsel and the plaintiff’s caregivers who had

not been specifically named as defendants in the complaint, but for whose conduct the hospital

could be potentially liable. The Burger court found that, if the hospital can communicate with

the plaintiff’s caregivers about the plaintiff’s care before the commencement of a lawsuit, the

filing of a lawsuit does not affect the nature of that information or the hospital’s right or ability to

access such information about the care and treatment rendered to the plaintiff at the hospital by

its own caregivers. Id. at 58.

¶ 78    Here, we must first address Caldwell’s admission that she failed to raise a Petrillo

objection before or during trial, including before or during Likosar’s discovery or evidence

deposition. Instead, Caldwell raised this issue for the first time in her posttrial motion.

¶ 79    Generally, a failure to object contemporaneously to an alleged error results in forfeiture.

Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 8 (2007). Nevertheless, this court has the

authority to overlook a party’s forfeiture of an issue and instead address its merits. See Dillon v.

Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002). A reviewing court may consider a forfeited

argument particularly where, as here, the issue is a legal one and is fully briefed by the parties on

appeal. See Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11 (1996). For these

reasons, we will overlook Caldwell’s forfeiture of this issue.

¶ 80    It is clear that no Petrillo violation occurred when Condell’s counsel spoke to Likosar

prior to her evidence deposition. In Caldwell’s complaint, she alleged that the nurses and PCTs

on 2-West failed to monitor DeLuca postoperatively, failed to ensure that she was sufficiently

recovered from surgery to consume food, and negligently allowed her to eat without ensuring

that her dentures were in place. Likosar was the nurse manager on duty on 2-West when DeLuca

choked on her breakfast, and Likosar was the person who swept DeLuca’s mouth and attempted



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to clear her airway, albeit unsuccessfully, after she choked. Although Caldwell did not name any

nurses in her complaint, her allegations of negligence related to the nurses’ actions during

Likosar’s shift as nurse manager on 2-West. Under those circumstances, both Morgan and

Burger support the conclusion that an exception to the Petrillo doctrine applied here.

¶ 81   We are not persuaded by Caldwell’s reliance on Baylaender to support her claim that a

Petrillo violation occurred here. In Baylaender, the decedent’s estate and her husband brought a

survival and wrongful-death action against Dr. Method for his failure to correctly diagnose the

decedent’s cancer. The decedent’s subsequent treating physician, Dr. Southwick, discussed the

decedent’s case with an attorney assigned to represent him by his insurance carrier, although he

was not being sued. That same attorney was later assigned by the insurance carrier to represent

Dr. Method. The plaintiffs appealed the trial court’s denial of their motion in limine to bar Dr.

Southwick’s testimony. On appeal, the court found that ex parte discussions between a treating

physician and an attorney who ultimately represents the defendant in a medical-malpractice

action violate the principles set forth in Petrillo. Baylaender, 230 Ill. App. 3d at 625-26.

¶ 82   The unique facts in Baylaender are not like the facts in this case. In Baylaender, no

agency relationship existed between Dr. Method and Dr. Southwick, and neither physician could

be held vicariously liable for the actions of the other. As we have noted, Condell could have

been held vicariously liable for Likosar’s actions, she was the nurse manager on 2-West at the

time of DeLuca’s death, and the allegations in Caldwell’s complaint, even though Likosar was

not named personally, directly related to the nurses’ actions on 2-West before DeLuca’s death.

For all these reasons, we find that the Petrillo doctrine was not violated when Condell’s counsel

talked to Likosar before her evidence deposition.

¶ 83                               D. IPI Civil (2011) No. 5.01



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¶ 84   Finally, Caldwell argues that the trial court erred in denying her request for a “missing

witness” jury instruction. Specifically, she argues that, over her objection, Likosar was allowed

to speculate that the PCT who prepared DeLuca’s body could have removed the lower partial

plate from DeLuca’s mouth. However, Caldwell claims, no PCT was ever identified as the

individual who prepared DeLuca’s body, even though that unknown individual was under

Condell’s control. Under these circumstances, she argues, the trial court abused its discretion in

refusing to give IPI Civil (2011) No. 5.01.

¶ 85   IPI Civil (2011) No. 5.01 provides:

               “5.01 Failure To Produce Evidence or A Witness

               If a party to this case has failed [to offer evidence] [to produce a witness] within

       his power to produce, you may infer that the [evidence] [testimony of the witness] would

       be adverse to that party if you believe each of the following elements:

                   1. The [evidence] [witness] was under the control of the party and could have

       been produced by the exercise of reasonable diligence.

                   2. The [evidence] [witness] was not equally available to an adverse party.

                   3. A reasonably prudent person under the same or similar circumstances

       would have [offered the evidence] [produced the witness] if he believed [it to be] [the

       testimony would be] favorable to him.

                   4. No reasonable excuse for the failure has been shown.”

¶ 86   Whether to give IPI Civil (2011) No. 5.01 is a matter within the sound discretion of the

trial court. Dunning v. Dynegy Midwest Generation, Inc., 2015 IL App (5th) 140168, ¶ 84.

¶ 87   After a careful review of the record, we find that IPI Civil (2011) No. 5.01 was not

warranted, because Caldwell never established that there was a missing witness. First, Likosar



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testified that PCTs performed postmortem care but that she did not know which PCT provided

such care to DeLuca. Second, at the jury-instruction conference, Caldwell argued that Dockery

testified that there were two PCTs on 2-West during her shift. However, Dockery worked the

night shift, not the day shift, which was when someone provided postmortem care. Third, Riek

testified that she worked the day shift on April 23, 2013, and that she cared for DeLuca before

she choked. However, Riek was never asked whether she provided postmortem care to DeLuca.

Based upon Likosar’s and Riek’s testimony, it was reasonable for the jury to infer that Riek was

the PCT who provided DeLuca’s postmortem care and that therefore there was no missing

witness. For these reasons, the trial court did not abuse its discretion in denying Caldwell’s

request for IPI Civil (2011) No. 5.01.

¶ 88                                     III. CONCLUSION

¶ 89   In sum, the trial court did not err in allowing Oosterbaan and Kopplin to testify as expert

witnesses for Condell, when their testimony was not speculative and instead was based on the

medical records in this case, their professional experience, and the deposition testimony of other

witnesses. Also, no violation of Rule 206(a) occurred, when the record reflects that Caldwell’s

counsel agreed to the date for Likosar’s evidence deposition, and Rule 206(a)(2) was not

violated, because Condell’s counsel withdrew the videotape of that deposition before trial began,

in light of Caldwell’s objections.

¶ 90   We also reject Caldwell’s argument that the attorney-client privilege did not exist

between Likosar and Condell’s counsel, because Likosar was an agent of Condell and an insured

under Condell’s self-insured trust, and the fact that Likosar retired before her evidence

deposition was irrelevant to her status as Condell’s agent. We find no violation of the Petrillo

doctrine when Condell talked to Likosar before her evidence deposition, based upon the analyses



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and holdings in Morgan, 252 Ill. App. 3d 947, and Burger, 198 Ill. 2d 21. Finally, we hold that

the trial court did not abuse its discretion in refusing to give the jury a “missing witness”

instruction, when the testimony offered at trial did not establish that Condell failed to produce a

witness.

¶ 91   For all these reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 92    Affirmed.




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