Klesowitch v. Smith ( 2016 )

FOURTH DIVISION
March 17, 2016
2016 IL App (1st) 150414
No. 1-15-0414
MIGUEL KLESOWITCH, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 L 7190
)
CHIQUITA SMITH, ) Honorable
) Irwin J. Solganick,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Ellis and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Miguel Klesowitch, filed a complaint against defendant, Chiquita Smith, to
recover damages for injuries he allegedly suffered as a result of defendant’s negligence. The
trial court granted summary judgment in favor of plaintiff on the issue of defendant’s negligence
only, leaving consideration of whether any of plaintiff’s conduct was a proximate cause of his
injuries and the amount of damages for trial. The parties engaged in discovery. Plaintiff
supplemented his discovery responses on the eve of trial. At trial before a jury, the court
admitted certain medical bills into evidence. Portions of those bills had been written off by the
medical providers. The jury returned a verdict in favor of plaintiff for the full amount of the
medical bills admitted into evidence.
¶2 For the following reasons, we affirm in part, reverse in part, and remand with
instructions.
¶3 BACKGROUND
¶4 Plaintiff’s complaint alleged that on June 24, 2008, defendant negligently drove her
vehicle into the vehicle plaintiff was driving. Defendant drove her vehicle into an intersection
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without stopping at a stop sign and into the left side of plaintiff’s vehicle. Defendant admitted
not stopping because she did not see the stop sign. The complaint alleged plaintiff was injured
physically, by expending large sums of money for medical expenses to be cured of said physical
injuries, and by the loss of money from being unable to pursue his usual occupation. Defendant
filed an answer and affirmative defenses alleging that plaintiff was guilty of contributory
negligence.
¶5 In September 2011 plaintiff served defendant with plaintiff’s answers to interrogatories
and answers to requests to produce. Only one interrogatory is pertinent in this appeal.
Defendant asked plaintiff to state the amount of his medical bills incurred as a result of his
personal injuries. Plaintiff responded with a list of medical providers and attached a “medical
specials list.” The attached list contained the names of plaintiff’s medical providers and the total
amount of their medical bills. The amount listed for three medical providers was listed as
“unknown.” The total listed on the medical specials list was for the total of the known amounts.
¶6 In July 2014 plaintiff filed a motion for summary judgment “on the issue of liability
only.” Plaintiff’s motion asserted that at defendant’s deposition, she “set forth testimony
indicating that she was clearly at fault for the accident.” Plaintiff quoted portions of defendant’s
deposition testimony in which she stated she did not stop at the stop sign, did not see the stop
sign, did not slow down prior to impact (at approximately 30 miles per hour), and did not see
plaintiff’s vehicle. Defendant also testified that she did not think there was anything plaintiff
should have done to avoid the accident. Plaintiff argued that “the issue of liability is ripe for
summary judgment.”
¶7 In August 2014 defendant filed a response to plaintiff’s motion for summary judgment.
Defendant’s response asserted that during plaintiff’s deposition, he “set forth testimony under
oath that he was at least partially at fault for causing the accident.” Defendant quoted portions of
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plaintiff’s deposition testimony in which he stated the speed limit where he was travelling was
30 miles per hour and his vehicle was travelling between 30 and 35 miles per hour at the time of
the accident, he never saw the other car at any time prior to the collision, he did not slow down
before entering the intersection, and he did not look to see if there was oncoming traffic in the
intersection. Defendant argued summary judgment should be denied because of issues of
material fact regarding liability. Defendant argued plaintiff’s admitted actions “give rise to a
clear question of fact regarding the fault for this collision” and that, as questions of material fact
exist as to whether defendant “is completely and totally liable for the motor vehicle accident,”
summary judgment should be denied.
¶8 Plaintiff filed a reply in which he noted that both plaintiff and defendant testified that
plaintiff’s vehicle was in the intersection when they impacted. Defendant testified their two cars
impacted in the middle of the street intersecting her direction of travel and plaintiff testified his
vehicle was completely in the intersection when the collision occurred. Plaintiff argued the sole
proximate cause of the occurrence was that defendant failed to stop at the stop sign.
¶9 In September 2014 the trial court entered a written order on plaintiff’s motion for
summary judgment. The order reads, in part, as follows: “parties being present and the matter
having been fully briefed it is so ordered that plaintiff’s motion is granted as to negligence but is
reserved/remains pending as to proximate cause and damages.” Later that month defendant filed
a motion in limine and plaintiff filed three motions in limine.
¶ 10 Plaintiff’s first motion in limine sought, in part, to bar all evidence that his hospital bills
were paid for by the federal government or that his medical bills or expenses were paid or may
be paid in the future by insurance or any collateral source. Plaintiff’s second motion in limine
sought to bar any evidence of any prior or subsequent injuries to plaintiff or prior or subsequent
conditions of any parts of plaintiff’s body other than plaintiff’s left knee, including but not
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limited to plaintiff’s right knee and hip. Defendant’s expert testified in an evidence deposition,
over objection, that plaintiff had a total right hip replacement and total right knee replacement in
1998. Plaintiff argued no evidence linked those prior conditions to the injuries plaintiff allegedly
sustained as a result of the accident in 2008.
¶ 11 Plaintiff’s third motion in limine sought to bar any evidence that referred to defendant
being unable to avoid the accident, or to plaintiff failing to avoid the accident, or the accident
being unavoidable. Plaintiff argued any such evidence would be irrelevant because the issue of
liability had already been adjudicated on the merits when the trial court granted plaintiff’s
motion for summary judgment. As a result, plaintiff argued, the “negligence of either party is
not at issue. The only matters at issue are causation and damages.”
¶ 12 The trial court granted plaintiff’s first motion in limine as to collateral source payments;
granted plaintiff’s second motion in limine as to prior injuries; and denied plaintiff’s third motion
in limine as to evidence of plaintiff’s role in the accident. The trial court ruled that if the
summary judgment ruling (which had been entered by a different judge) “only went to the
negligence of the defendant, then contributory negligence can be raised before the trier of fact to
ascertain any percentage of fault of the plaintiff.”
¶ 13 Defendant’s motion in limine sought, in pertinent part, to bar all evidence as to (1)
medical bills which had not been disclosed, and (2) medical bills without competent medical
evidence as to the reasonableness and necessity of said bills. Defendant’s memorandum of law
in support of her motion in limine argued that if plaintiff intends to claim the full amount of bills
in excess of what his health insurance actually paid, “there must also be a foundation concerning
the usual and customary amount.” Defendant requested an order barring plaintiff from claiming
a bill above what was actually paid absent competent testimony as to the usual and customary
amount to establish reasonableness.
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¶ 14 Regarding defendant’s motion concerning bills without evidence of reasonableness,
defendant’s attorney asserted that the bills he received from plaintiff’s counsel do not reflect
“any specific payment,” that plaintiff testified that the bills were paid through health insurance,
and that health insurance does not always pay 100% of bills it receives. Defense counsel argued
the motion was asking to know how much insurance paid, and that any amount on a bill that
insurance did not pay—in other words the difference between what was billed and what
insurance paid—be supported by competent testimony that the unpaid amount or total bill was
reasonable, customary, and necessary. Defendant’s attorney asserted the bills he received did not
show zero balances “or any payments that have been made through insurance.” Plaintiff’s
counsel noted that plaintiff testified the bills were paid. The trial court ruled as follows:
“THE COURT: If the evidence is that the bills are paid and there are no
outstanding balances, that’s prima facie evidence that the services that were
provided were fair and reasonable and that the amounts that were billed are fair
and reasonable. It’s a rebuttable inference, but there’s an inference to that.
If there are bills that are outstanding that have not been paid and the
plaintiff is seeking to be compensated for that, then you need a medical care
provider to testify to lay a foundation for them, that the services were provided,
the amounts are fair and reasonable in the community, and they expect to be paid.
With regard to medical care, insurance—insurers negotiating something
less with the medical care provider, I allow for the full amount of the bill that has
been paid.
And then again, the trier of fact will ascertain whether or not all of the
services that the plaintiff is claiming, the left knee replacement, and the defense is
saying that it was not precipitated or caused by this accident, then it will be for the
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trier of fact to determine if it was or if it wasn’t; and if they find that it was not,
then they can make whatever reductions they want to in the bills.
But the motion is denied with regard to paid bills. You know, with regard
to unpaid bill [sic], again, the motion would be granted in that a proper foundation
will need to be laid for unpaid bills.”
¶ 15 Plaintiff’s counsel indicated he would provide defendant with copies of bills that show
they are zeroed out. The record contains a printout of an e-mail dated September 25, 2014 from
plaintiff’s counsel to defense counsel purporting to have attached a copy of the unredacted
billing records. The e-mail described bills that had been paid by insurance, bills that were
written off by the hospital because the hospital committed a billing error, and states that all other
bills had been paid by Medicare and plaintiff’s supplemental insurance plan. Trial began on
September 26, 2014.
¶ 16 At trial, outside the presence of the jury and before any witness testimony, plaintiff’s
counsel indicated to the court that the day before, he e-mailed defendant’s attorney “all the
copies of all the paid medical bills.” Plaintiff’s counsel expressed his understanding that the
court had ruled that it would allow the entire amounts of the bills into the jury’s deliberations.
Defendant’s attorney disputed the assertion that all the bills were paid. Defense counsel said the
bills indicated payments Medicare made—and counsel had no objection to those amounts being
sent to the jury—but adjustments had been made to the bills and, he argued, the “balances clearly
are not paid.” Defense counsel argued that plaintiff’s e-mail indicated that there were bills that
were written off by the medical providers. Defense counsel continued: “They are referenced as
adjustments on the bill; that’s not evidence of payment of the bill, so in the absence of evidence
of payment, they would need to have testimony with respect to those remaining balances to meet
the foundational requirements.”
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¶ 17 The trial court ruled that the total amounts of the bills will go back to the jury.
Defendant’s attorney further argued that because the bills “are not owed to anyone” because the
medical provider has no expectation of receiving payment, then “plaintiff does not owe them, so
they cannot claim them.” Defense counsel argued that if the jury were to award the full amount
of the bills that would require a remittitur after trial “because there is no one that owes those
medical bills, and the plaintiff is not legally responsible to pay them.” The court again stated
that the total amounts of the bills will be admitted. The court indicated that if anything would
require the court to reduce any bills posttrial, it would be addressed with a posttrial motion. The
following question and answer occurred:
“MR. HEFFERNAN [Defendant’s attorney]: Just so I’m clear for the
record, the amounts of the bills, even the unpaid amounts, you are going to allow
in?
THE COURT: Yes, same as any others where insurance companies reach
agreements with medical care providers and they may pay something less, I don’t
know, but that will be allowed.”
¶ 18 Plaintiff testified that the total amount of the medical bills—$83,788.34—was paid and
the trial court admitted the bills into evidence and the trial continued. Also pertinent to this
appeal, the trial court instructed the jury, in part, as follows: “If you find for [plaintiff] and
against [defendant] and if you further find that [plaintiff’s] injury was proximately caused by a
combination of [defendant’s] negligence and [plaintiff’s] contributory negligence and that
[plaintiff’s] contributory negligence was 50% or less of the total proximate cause of the injury or
damage for which recovery is sought, then you should use Verdict Form B.” Verdict Form B
invited the jury to assign plaintiff a percentage of the total combined negligence of all persons
whose negligence proximately contributed to plaintiff’s injuries. A separate instruction informed
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the jurors that “if you find that the plaintiff’s contributory negligence was more than 50% of the
total proximate cause of the injury or damage for which recovery is sought, then your verdict
shall be for the defendant.”
¶ 19 The jury awarded plaintiff $83,788.84 as the reasonable expense of necessary medical
care, treatment, and services.
¶ 20 Defendant filed a posttrial motion for remittitur and a new trial. Defendant’s posttrial
motion argued that the bills admitted into evidence “indicated partial payments made by third
parties such as Medicare, but also indicated unpaid balances that were eventually written off or
adjusted to a zero balance by the medical providers.” Defendant argued the unpaid balances
represented portions of the charges that were not paid by any third-party collateral source on the
plaintiff’s behalf; instead, they were unpaid or outstanding balances that were simply written off
or abandoned by the medial provider. Defendant sought to reduce the amount of plaintiff’s
verdict to only the amounts paid by third-party collateral sources.
¶ 21 Defendant also argued plaintiff was permitted to introduce evidence of roughly $10,000
worth of physical therapy bills, the amounts of which had never been disclosed prior to trial.
Defendant argued plaintiff’s interrogatory answers state the amount of postsurgery physical
therapy bills as unknown, and plaintiff’s discovery response was never supplemented.
Defendant also argued the trial court improperly granted summary judgment in favor of plaintiff
on the issue of defendant’s negligence because doing so tainted the jury making it unlikely the
jury would find plaintiff culpable to any degree.
¶ 22 The trial court denied defendant’s posttrial motion.
¶ 23 This appeal followed.
¶ 24 ANALYSIS
¶ 25 A. Summary Judgment
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¶ 26 Defendant argues the trial court erred in granting summary judgment in favor of plaintiff
on the issue of her negligence because a genuine issue of material fact remained as to whether
plaintiff’s negligence contributed to the accident. Defendant also implies the order granting
summary judgment as to negligence alone—not liability—is a violation of section 2-1005(c) of
the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(c) (West 2012)). Defendant admits
plaintiff’s contributory negligence was not ruled on in the summary judgment order, but she
argues that the summary judgment as to her negligence prejudiced her at trial “by tainting the
jury’s perspective as to the relative degree of fault between the parties.” Plaintiff responds
defendant waived the issue by failing to include a transcript of the summary judgment hearing
and, regardless, defendant “was given great latitude at trial to argue that Plaintiff was also
negligent” and “was successful in having the jury instructed on contributory fault.” In reply,
defendant asserts the jury instruction regarding comparative fault does not cure the trial court’s
error in misapprehending the summary judgment statute. “Our review of the circuit court’s order
granting summary judgment is de novo.” Travelers Personal Insurance Co. v. Edwards, 2016 IL
App (1st) 141595, ¶ 20.
¶ 27 Defendant has failed to cite to any portions of the record demonstrating how she was
prejudiced at trial. This failure provides sufficient reason to reject plaintiff’s argument she was
prejudiced by the trial court’s order. Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013)
requires that the party’s appellate arguments contain citations to the pages of the record on which
the party relied, and the failure to provide relevant citations to the record is a violation of Rule
341(h)(7) which results in waiver. Gomez v. The Finishing Co., 369 Ill. App. 3d 711, 723
(2006). Defendant’s argument the trial court’s summary judgment order erroneously prejudiced
her at trial is waived. Even if this court were to address the issue, defendant’s argument would
fail.
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¶ 28 The summary judgment order did not prevent defendant from arguing plaintiff’s
contributory negligence at trial. Other than a perceived taint on the jury’s view of the parties’
relative fault, defendant has pointed to nothing to demonstrate she was precluded from arguing
that plaintiff was contributorily negligent. Indeed, the trial court instructed the jury that it could
apportion a percentage of the fault for his injuries to plaintiff himself. Defendant asserts the trial
court that granted the partial summary judgment did not construe the pleadings strictly against
the movant as required. We find that argument presumes the summary judgment foreclosed—or
at least handicapped—defendant’s ability to argue plaintiff’s contributory negligence at trial, a
claim we reject.
¶ 29 The only question remaining is whether the trial court’s order violated section 2-1005(c)
of the Code because, defendant argues, the trial court could only issue a partial summary
judgment as to liability and not just defendant’s negligence. Section 2-1005 of the Code reads,
in pertinent part, as follows:
“A summary judgment, interlocutory in character, may be rendered on the
issue of liability alone although there is a genuine issue as to the amount of
damages.
(d) Summary determination of major issues. If the court determines that
there is no genuine issue of material fact as to one or more of the major issues in
the case, but that substantial controversy exists with respect to other major issues,
or if a party moves for a summary determination of one or more, but less than all,
of the major issues in the case, and the court finds that there is no genuine issue of
material fact as to that issue or those issues, the court shall thereupon draw an
order specifying the major issue or issues that appear without substantial
controversy, and directing such further proceedings upon the remaining
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undetermined issues as are just. Upon the trial of the case, the facts so specified
shall be deemed established, and the trial shall be conducted accordingly.” 735
ILCS 5/2-1005(c), 2-1005(d) (West 2012).
¶ 30 Defendant’s duty and breach of duty were major issues in the case that can be decided as
a matter of law. See Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 397 (2000) (“While the
question of whether the City breached its duty to the plaintiffs is normally a factual one, it may
properly be resolved by this court as a legal matter when the evidence, such as in this case,
presents no genuine issue of material fact regarding that subject.”). In this case, the trial court
entered summary judgment on the issues of defendant’s duty and her breach of that duty, but not
on the issues of proximate cause or damages. The trial court was authorized to enter a judgment
on whether defendant owed plaintiff a duty and whether she breached that duty and direct further
proceedings on the issues of proximate cause and damages.
¶ 31 Defendant argues plaintiff cannot “go to the summary judgment well for liability, and
pull up a half bucket of negligence.” We find the fact that plaintiff moved for summary
judgment on the issue of liability as opposed to negligence is not determinative. The trial court
was authorized to make a determination that there was no genuine issue of material fact as to one
or more of the major issues in the case on its own or if a party moved for a summary
determination of “one or more, but less than all, of the major issues in the case.” 735 ILCS 5/2-
1005(d) (West 2012). The latter is precisely what plaintiff did here. Plaintiff moved for
summary judgment on the issue of defendant’s liability but not on the issue of damages. “A
reviewing court may affirm a circuit court’s grant of summary judgment on any basis supported
by the record.” Edwards, 2016 IL App (1st) 141595, ¶ 20. The trial court could determine there
were no genuine issues of material fact as to defendant’s duty and breach of duty (Wrobel, 318
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Ill. App. 3d at 397), and direct further proceedings upon the remaining issues. We find no error
in the trial court’s order.
¶ 32 The order granting partial summary judgment is affirmed.
¶ 33 B. Discovery Violation
¶ 34 Next, defendant argues the trial court erred by allowing the entire amount of an
“undisclosed” bill from Ingalls Memorial Hospital into evidence. When plaintiff initially
responded to defendant’s discovery request in September 2011, the response stated that the
amount of the Ingalls bill was unknown. Defendant filed a motion in limine as stated, and on the
eve of trial, plaintiff’s counsel e-mailed copies of paid bills, including the Ingalls bill, to
defendant’s attorney. Plaintiff testified to the “full amount” of the bills plaintiff sent to
defendant. On appeal, defendant argues plaintiff failed to disclose the amount of the Ingalls bill
in the due course of discovery. Specifically, defendant complains plaintiff “did not supplement
his answer to interrogatory 6(e) [regarding medical bills] until the day before jury selection was
to begin.” Defendant argues the trial court should have excluded these bills as a sanction for
plaintiff’s failure to supplement his discovery response.
¶ 35 Plaintiff responds defendant has forfeited objection to the alleged discovery violation
because defendant did not object to the allegedly late disclosure. We agree. “A court’s decision
whether to admit evidence will only be disturbed if the court abused its discretion. [Citation.] A
party must make a proper objection to preserve his or her argument that the court erred in
admitting evidence. [Citation.] A specific objection only preserves the ground specified.
[Citation.] Objections must also be timely.” In re Estate of Doyle, 362 Ill. App. 3d 293, 302-03
(2005). “[T]he party wishing to exclude evidence has the burden to properly inform the trial
judge as to the specific nature of its objection to the proffered testimony.” Fenton v. City of
Chicago, 2013 IL App (1st) 111596, ¶ 36.
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¶ 36 Defendant asserts that when plaintiff testified to the amount of the bills, defense counsel
objected. Defendant’s attorney stated only: “I would reiterate my previous objection.”
Previously, when, on the first day of trial, plaintiff’s counsel informed the court plaintiff had e-
mailed all of the paid medical bills to defendant the night before, defendant’s attorney stated:
“Judge, that’s not true. They are not all paid, and let me just start with there are amounts
indicated that are paid which I have no objection to those going back.” Defense counsel
continued, stating he had no objection to the various amounts actually paid but there were
balances that were not paid. Specifically with regard to the Ingalls bill, defendant’s attorney
stated: “With respect to the Ingalls Hospital records, there again they are referenced Medicare
payments which, again, no objection to those amounts going to the jury. However, the
payments—there were adjustments that were made.” Defendant’s attorney represented that
plaintiff’s e-mail indicated that there were bills that were written off by these providers that are
referenced as adjustments on the bill. Defense counsel argued “that’s not evidence of payment
of the bill, so in the absence of evidence of payment, they would need to have testimony with
respect to those remaining balances to meet the foundational requirements.” The trial court ruled
that it would allow the total amounts of the bills to go back.
¶ 37 What the defense actually objected to was the jury being told the total amount of the
Ingalls bill. At no time did counsel’s colloquy with the trial court include an objection to the
timeliness of plaintiff’s supplement of his response to defendant’s discovery request. In reply to
plaintiff’s argument the issue is waived, defendant argues the trial judge never ruled on her
motion to exclude bills that were not disclosed and never specifically ruled on the exclusion of
the Ingalls bill during the trial. Defendant complains the issue was next before the trial court as
part of her motion for a new trial.
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¶ 38 Plaintiff’s counsel objected to defendant’s motion in limine as to undisclosed medical
bills on the grounds the motion was not directed to a specific piece of evidence. Plaintiff’s
counsel asked that ruling on the motion be reserved until it can be applied to a particular piece of
evidence. The trial court ruled: “Well, not knowing what evidence there might be, I guess I
would have to rule on specific things. As a general rule, I mean, it would be granted. I mean,
nobody should be surprised on either side by evidence that hasn’t been disclosed. That’s the
purpose of the Supreme Court Rules on discovery is to prevent surprise.” Because defendant
failed to obtain a ruling on her motion in limine to exclude undisclosed bills, or specifically the
Ingalls bill, the issue is waived. “[A] party waives an objection where a ruling is not requested
after the trial court fails to make one.” Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329
Ill. App. 3d 305, 313 (2002).
¶ 39 Defendant’s argument the trial court committed reversible error in admitting the Ingalls
medical bill is waived.
¶ 40 C. Admission of Medical Bills
¶ 41 Finally, defendant argues the trial court misapplied the law and abused its discretion
when it admitted into evidence “satisfied” bills without a proper foundation. “The admission of
evidence is within the sound discretion of the trial court and we will not reverse the court ‘unless
that discretion was clearly abused.’ [Citation.]” McHale v. W.D. Trucking, Inc., 2015 IL App
(1st) 132625, ¶ 28.
¶ 42 At trial, defendant objected to amounts listed on plaintiff’s medical bills as adjustments
being admitted into evidence as if those amounts were paid. Defendant’s position was that to
admit the amounts of the bills that were adjusted and not actually paid by a collateral source,
plaintiff must lay a proper foundation with testimony from a medical provider that the amounts
were reasonable and necessary. Defendant argues plaintiff failed to lay a proper foundation for
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the “satisfied” portions of the medical bills as required by Wills v. Foster, 229 Ill. 2d 393 (2008),
and the trial court erred when it allowed a “satisfied” medical bill the same evidentiary status as
a paid medical bill.
¶ 43 Defendant’s argument is based on the collateral source rule. In Illinois, the rule is both a
rule of evidence and a substantive rule of damages. Id. at 400. “As a rule of evidence, the rule
prevents the jury from learning anything about collateral income. [Citation.] For instance, the
rule prevents defendants from introducing any evidence that all or part of a plaintiff’s losses have
been covered by insurance.” Id. “As a substantive rule of damages, the rule bars a defendant
from reducing the plaintiff's compensatory award by the amount the plaintiff received from the
collateral source.” (Internal quotation marks omitted.) Id. (quoting Arthur v. Catour, 216 Ill. 2d
72, 80 (2005)). This court once followed the rule that a plaintiff cannot recover the value of free
medical services. Id. at 397 (citing Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353
(1979)). Twenty-six years later, our supreme court revisited the collateral source rule and held
that a “plaintiff was entitled to submit the full amount of her charged medical bills to the jury and
was not limited to presenting the reduced rate actually paid by her private insurer.” Id. at 402
(citing Arthur, 216 Ill. 2d 72). Arthur, however, did not reconcile itself with Peterson. Id. at
404. Our supreme court would rectify that situation in Wills.
¶ 44 To determine whether Peterson survived Arthur our supreme court had to determine what
approach Illinois uses to determine “whether, pursuant to the collateral source rule, a plaintiff
was entitled to recover his or her full billed medical expenses when the bill was later settled by a
third party for a lesser amount.” Id. Illinois follows the “reasonable-value approach” which
states that the plaintiff may seek to recover the amount originally billed by the medical provider.
Id. at 410.
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“This view is in line with sections 924 and 920A of the Restatement, and courts
often rely on these sections. As explained above, section 924 allows an injured
plaintiff to recover reasonable medical expenses (Restatement (Second) of Torts
§924, at 523 (1979)), and comment f explains that this is a recovery for value
even if there is no liability or expense to the injured person (Restatement (Second)
of Torts §924, Comment f, at 527 (1979)).” (Emphasis omitted.) Id.
¶ 45 In Illinois, “the plaintiff may place the entire billed amount into evidence, provided that
the plaintiff establishes the proper foundational requirements to show the bill’s reasonableness.”
Id. at 414 (citing Arthur, 216 Ill. 2d at 81-83). “When evidence is admitted, through testimony
or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the
bill is prima facie reasonable.” (Internal quotation marks omitted.) Arthur, 216 Ill. 2d at 82. If
the bill has not been paid, a plaintiff “can establish reasonableness by introducing the testimony
of a person having knowledge of the services rendered and the usual and customary charges for
such services. Once the witness is shown to possess the requisite knowledge, the reasonableness
requirement necessary for admission is satisfied if the witness testifies that the bills are fair and
reasonable.” (Internal quotation marks omitted.) Id. The court in Wills did not overrule or
abrogate Arthur, and under Arthur, when medical bills are discounted, a “plaintiff cannot make a
prima facie case of reasonableness based on the bill alone, because she cannot truthfully testify
that the total billed amount has been paid. Instead, she must establish the reasonable cost by
other means—just as she would have to do if the services had not yet been rendered, e.g., in the
case of required future surgery, or if the bill remained unpaid.” Id. at 83.
¶ 46 Defendant in this case is not taking the same position as the defendant in Wills. In Wills,
“[t]he position defendant took *** was not that the amounts billed were not reasonable, but that
the written-off amount was not recoverable as damages as a matter of law.” Wills, 229 Ill. 2d at
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419-20. In Wills, the plaintiff did not produce a witness to testify that the total billed amount was
reasonable, but the court found that was not necessary because the defendant in that case
stipulated to the admission of the billed amounts and did not object to the question of their
reasonableness. Id. at 419. In this case, defendant did not stipulate to the admission of the
written-off amounts and did object to the question of their reasonableness. Specifically,
defendant argued plaintiff would have to “have testimony with respect to those remaining
balances to meet the foundational requirements.” The foundational requirement for a medical
bill is that it is reasonable. See Arthur, 216 Ill. 2d at 82.
¶ 47 “The circuit court abuses its discretion when its ruling on the admissibility of evidence
rests on an error of law.” Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, ¶ 29. The
trial court admitted evidence of the total amount of the medical bills over defendant’s objection
even though the bills showed substantial portions had been written off and plaintiff did not call a
witness with the requisite knowledge to testify the total bills were fair and reasonable. We note
that although defendant’s expert testified that the bills associated with the left knee replacement
were reasonable and necessary, defendant’s expert testified he had seen “the list of bills.” It is
uncertain whether defendant’s expert was referring to the list of bills stating some amounts were
unknown or if the bills the expert saw included all of the bills at issue. Moreover, plaintiff does
not point to testimony by defendant’s expert that the expert possessed knowledge of the usual
and customary charges for such services (and our review of his evidence deposition reveals that
he did not so testify). Defendant’s expert’s testimony is not sufficient to overcome the trial
court’s error. The trial court improperly admitted the written-off or settled portions of plaintiff’s
medical bills into evidence and the jury awarded damages based on the improperly admitted
medical bills. We turn to the proper remedy for this error.
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¶ 48 “A remittitur is an agreement by the plaintiff to relinquish, or remit, to the defendant that
portion of the jury’s verdict which constitutes excessive damages and to accept the sum which
has been judicially determined to be properly recoverable damages. [Citation.]” (Internal
quotation marks omitted.) Drakeford v. University of Chicago Hospitals, 2013 IL App (1st)
111366, ¶ 66. In this case, the properly recoverable damages for the reasonable expense of
necessary medical care, treatment, and services were only the paid medical bills because plaintiff
failed to provide a proper foundation for the written-off portion of the bills. The written-off or
settled portions of the medical bills were improperly admitted into evidence and should not have
been considered by the jury. The trial court has a duty to correct an excessive verdict and may
do so by ordering a remittitur of a portion of the damages, with the plaintiff’s consent. Id. ¶ 65.
“The only alternative to a remittitur in a case where the verdict exceeds the damages properly
proven [citations] *** is for the trial judge to order a new trial [citations]. [Citation.] A court
does not have the authority to reduce the damages by entry of a remittitur if plaintiff objects or
does not consent.” (Internal quotation marks omitted.) Peter J. Hartmann Co. v. Capitol Bank
& Trust Co., 353 Ill. App. 3d 700, 711 (2004). If plaintiff does not consent to the remittitur the
trial court is instructed to order a new trial solely on the issue of damages. See Tri-G, Inc. v.
Burke, Bosselman & Weaver, 222 Ill. 2d 218, 254 (2006) (“Absent such consent, we order a new
trial solely on the issue of damages.”).
¶ 49 Finally, we note that plaintiff filed a notice of cross-appeal with respect to the trial court’s
rulings allowing the admission of certain medical bills and denying plaintiff’s motion to bar
defendant’s expert. Plaintiff’s notice of cross-appeal states it was tendered solely in the event
this court grants defendant any relief. Plaintiff waived any claims on cross-appeal by failing to
file a brief as appellee and cross-appellant or to raise any arguments in his appellee’s brief in
support of any claims by plaintiff for appellate relief.
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¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, the circuit court of Cook County’s judgment is affirmed and
the cause is remanded for entry of remittitur of the portion of the judgment for the written off or
settled portions of the medical bills, on the condition plaintiff consents to the remittitur; in the
absence of consent to the remittitur by plaintiff, the judgment is reversed and the cause is
remanded for a new trial on the issue of damages only.
¶ 52 Affirmed in part, reversed in part, and remanded with instructions.
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