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THIRD DIVISION

December 27, 2000

Nos. 1-99-4081 & 1-00-1361, Cons.

JUSTICE WOLFSON delivered the opinion of the court:

Two trials took place in this medical malpractice actionfiled by plaintiff Carmen Juarez. The first trial raises thequestion of a trial court's authority to act once it finds alawyer intentionally brought about a mistrial.

Judge Ronald Banks entered an order declaring a mistrial onthe second day of the first jury trial, finding plaintiff'sattorney, Jeanine L. Stevens (Stevens), repeatedly violatedevidentiary and procedural rules as well as the court's order inlimine. Judge Banks sanctioned Stevens for the mistrial byordering her to pay all attorneys' fees and costs incurred by thedefense during the trial.

Judge Maureen Durkin Roy presided over the second jurytrial, which resulted in a verdict in favor of defendantsCommonwealth Medical Associates, S.C. (Commonwealth), Alam Khan,M.D. (Dr. Khan), Todd Grendon, M.D. (Dr. Grendon), and JosephCar, M.D. (Dr. Car). Judge Durkin Roy denied plaintiff'ssubsequent motion for a new trial.

Stevens appeals the entry of sanctions against her. Thefollowing issues are raised in relation to Judge Banks' entry ofthe sanctions order: (1) whether Stevens violated the trialcourt's order in limine; (2) whether the trial court erred inimposing monetary sanctions on Stevens in the form of payment ofall opposing counsel's fees and costs accumulated during thefirst trial, and; (3) whether defendant's bill for fees and costsshould be stricken because it was inflated and failed to identifythe person or entity entitled to payment.

Plaintiff appeals Judge Durkin Roy's denial of her motionfor a new trial, and raises the following issues: (1) whether thetrial court erred in precluding plaintiff from asking potentialjurors during voir dire if they would be able to award a specificamount of money if they found in plaintiff's favor; (2) whetherthe trial court erred in precluding plaintiff from introducingevidence relating to her HMO enrollment; (3) whether the trialcourt erred in barring plaintiff from introducing any evidence oropinions relating to plaintiff's treatment prior to April 4,1994, and; (4) whether the trial court erred in allowingdefendants to withdraw two of four Rule 213(g) expert witnesses.

We reverse Judge Banks' order requiring Stevens to paysanctions, but affirm Judge Durkin Roy's denial of plaintiff'smotion for a new trial.

FACTS

Defendants were affiliated with Commonwealth and, at varioustimes, acted as plaintiff's primary care physician. Dr. Car wasplaintiff's primary care physician through July 31, 1994, when heleft Commonwealth. Dr. Khan acted as plaintiff's primary caredoctor from that time until May 18, 1996, when Dr. Grendon begantreating plaintiff.

Each of the doctors treated plaintiff several times forurological problems commonly associated with bladder infections. In 1992, while plaintiff was under Dr. Car's care, plaintiff wasreferred to Dr. Neil Friedman (Dr. Friedman), a urologist. Dr.Friedman performed a cytology (evaluation of urine for abnormalcells) in May 1992. This test showed abnormal cells werepresent. Three subsequent urine cytologies tested negative forabnormal cells.

Dr. Friedman tested plaintiff's urine again in October 1992,and found traces of blood. Though Dr. Friedman told Dr. Car hewanted to repeat urine cytology tests, do a bladder biopsy, andobtain a urine culture, Dr. Car referred plaintiff to a medicaloncologist. Bladder cancer was ruled out as a diagnosis afterseveral more cytologies showed negative results.

Plaintiff continued to have symptoms associated with bladderinfections throughout the time Dr. Car acted as her primary carephysician, but her symptoms resolved after she was givenantibiotics. Dr. Khan and Dr. Grendon also treated plaintiff forurological problems. Each time, plaintiff's symptoms resolvedafter she took antibiotics.

In January 1998, plaintiff found blood in her urine and wasreferred to Dr. Michael Young, a urologist, by Dr. Melinda Ring,another Commonwealth doctor. Dr. Young diagnosed plaintiff withbladder cancer in February 1998. Plaintiff's treatment includedremoval of her bladder and creation of a "neobladder" from tissuetaken from plaintiff's intestines.

Plaintiff filed this suit on April 14, 1998, allegingdefendants' failure to adequately diagnose and treat her bladdercancer resulted in a metastasis of the disease to surroundinglymph nodes and necessitated removal of her bladder. Because thefour-year statute of repose for medical malpractice actions (735ILCS 5/13-212 (West 1998)) prohibited any allegations ofnegligence before April 14, 1994, plaintiff's complaint did notinclude allegations that negligence occurred during Dr. Car'searly treatment of plaintiff's urological problems.

DECISION

First Trial - Mistrial and Sanctions

The trial court revisited issues surrounding the statute ofrepose several times before the first trial. Dr. Car brought aMotion for Summary Judgment in which he alleged the statute ofrepose barred plaintiff's suit against him. The trial courtdenied Dr. Car's motion and found plaintiff's allegations ofnegligence against him were confined to his treatment ofplaintiff from April 14, 1994, until he left Commonwealth on July31, 1994, and that the only conduct at issue in the case was thatwhich occurred on or after April 14, 1994.

The issue was discussed again when the court ruled on theparties' motions in limine. Defendants asked the court toprohibit plaintiff from introducing any evidence concerning hermedical treatment prior to April 1994. Defendants fearedplaintiff would imply Dr. Car was negligent for failing to referher to Dr. Friedman for more tests after the May 1992 cytologyresults were positive. Plaintiff claimed she had no intention ofalleging any negligence occurred before April 14, 1994, butneeded to be able to establish a factual chronology of hermedical treatment.

Defendants also asked the trial court to bar any evidence ofplaintiff's HMO enrollment. Plaintiff argued defendants' expertsdeposition testimony placed the blame for any negligence on Dr.Friedman for failing to follow-up on the May 1992 positivecytology results. Plaintiff asked the court to allow her tointroduce the HMO evidence to show Dr. Friedman could not haveseen her without a referral from Dr. Car.

The trial court barred plaintiff from introducing anyevidence of her HMO enrollment, but ruled she would be allowed tointroduce purely factual evidence relating to her pre-1994medical treatment. Judge Banks advised Stevens she could notintroduce any evidence of a deviation from the standard of careprior to April 14, 1994, and specifically told Stevens to avoidsuggesting that Dr. Car was negligent for failing to referplaintiff to Dr. Friedman for more testing.

Despite this warning, Stevens repeatedly implied Dr. Car wasnegligent in failing to authorize another referral to Dr.Friedman. Stevens also violated procedural and evidentiary rulesduring her opening argument and questioning of her first twowitnesses. Judge Banks declared a mistrial during Stevens'direct examination of Dr. Friedman:

"Q: [In October of 1992] the patient was referredto you for one visit, correct?

[Defense counse]: I object, your Honor.

THE COURT: Objection sustained. He was referredto the doctor period.

Q: Doctor, how many times did you see the patientin October of 1992?

***

A: *** I saw her one time October of '92.

Q: Okay.

In October of 1992 what was the reason for thereferral of the patient?

A: Chronic bladder infection.

Q: Were you authorized to do any procedures atthat time?

[Defense counsel]: I object, your honor.

THE COURT: Objection sustained.

Ask him what procedures he did.

Q: He wasn't authorized to do any, your Honor.

[Defense counsel]: I object, your Honor.

THE COURT: We will have a side-bar right now.

THE COURT: I have been very tolerant. You areviolating the rules left and right. You do itagain. I listened to your questions. You aretrying to violate the rules. You do violate therules. I'm not only going to declare a mistrial. I'm going to sanction you. You will pay all costsof litigation up to this time for the defense. This case will be transferred back to thepresiding judge. There will be a new trial.

I don't know what I could do, Counselor,every move you make you are in violation of therules.

You are violating more rules than any lawyerI know. I'm sorry to have to say it, but I can'ttake it. I don't care if they want a mistrial. It's all over. You present a bill for your costs. She'll pay it.

[Plaintiff's counsel]: Thank you, your Honor.

[Defense counsel]: Thank you.

THE COURT: And I know you were trying to do itonly [sic] purpose because you want a mistrial, sowe will work on that too."

Stevens contends the trial court erred in declaring amistrial. She says while the trial court's order in liminebarred evidence of plaintiff's HMO enrollment, her questionconcerning "authorization" was not a violation of that order.

This argument misconstrues the basis for the mistrial. Thetrial court did not order a mistrial because plaintiff violatedthe order in limine prohibiting evidence of plaintiff's HMOmembership. The court ordered the mistrial because it repeatedlysustained objections to Stevens' suggestions that Dr. Cardeviated from the standard of care in 1992, repeatedly sustainedobjections to improper argument during her opening statement,sustained objections during her questioning of Dr. Bormes whenshe implied there was a family history of bladder cancer despitethe trial court's order that she could not introduce thisevidence, and sustained objections when counsel again impliedthat Dr. Car violated the standard of care prior to April 1994during her direct examination of Dr. Bormes and Dr. Friedman.

The decision to grant a mistrial rests within the sounddiscretion of the trial court based upon the particularcircumstances of the case. Benuska v. Dahl, 87 Ill. App. 3d 911,913, 410 N.E.2d 249 (1980). The trial court's ruling will not bedisturbed on appellate review absent a clear abuse of discretion. Benuska, 87 Ill. App. 3d at 913. Given Stevens' repeatedviolations of the court's order in limine, as well as herviolation of procedural and evidentiary rules, we do not find thecourt's ruling to have been an abuse of discretion. But thatdoes not end the matter.

Stevens also argues the trial court erred in ordering her topay sanctions in the form of attorney's fees and costs. Weagree.

Absent an agreement between the parties or statutoryauthority, causing a mistrial does not give rise to liability forattorney fees. Freeman v. Myers, 191 Ill. App. 3d 223, 226, 547N.E.2d 586 (1989). In Freeman, as in this case, the court'sorder in limine was continually violated by the attorneyrepresenting defendant. A mistrial was ordered based on theviolations. Plaintiffs subsequently filed a motion for attorneyfees and sanctions, as well as a rule to show cause whydefendant's attorney should not be held in contempt. The trialcourt entered an order assessing attorney fees againstdefendant's attorney, but did not find him in contempt. Theappellate court reversed the award of sanctions, and said:

"This is not a case of mistaken tactics.[Defendant's attorney], an experienced trial lawyer,was repeatedly warned by the court. When reprimanded,[defendant's attorney] stated the excluded evidence wasthe theory of defendant's case. The trial court wasjustified in finding [his] violation of the court orderto be intentional. In such a situation, the court mayhave been able to fashion appropriate relief based oncontempt. However, there was no finding of contempt. Though a different remedy may have been appropriate,absent authority or agreement, the trial court's awardof attorney fees in this case cannot stand." Freeman,191 Ill. App. 3d at 228.

Here, there was no finding of contempt. Judge Banks enteredthe order authorizing sanctions at the same time he entered theorder of mistrial. Defendant's attorneys never moved forsanctions or for a finding of contempt. When plaintiff appealedthe sanctions, Judge Banks discussed his decision not to findStevens in contempt:

"I knew I had the power of law to hold [Stevens]in contempt of court. I would not do that and thereason I would not do that, I spent most of my life incriminal and I thought about it. I'll be very honestwith you. I thought about holding her in contempt ofcourt but I've always felt that when you're in directcontempt of court because of my criminal backgroundthat you should go to jail.

And I didn't think that - I would have sent her ifI had held her in contempt. I'm not saying that as athreat or anything but I decided that that was not theproper thing to do. I didn't want to send a lawyer tojail. I've never done it in my life.

The second thing is that although the ARDC mayhave felt it reached the point of a hearing for apossible censure, suspense and disbarment, I did not. I felt that the penalty that I was going to issue wouldbe sufficient as a wake-up call to Ms. Stevens.

Ms. Stevens tried on the day of the mistrial to get herown mistrial. I did not grant her a mistrial on what shewanted a mistrial on. I told her not to force a mistrial."

Defendants contend the trial court's entry of sanctions waspermissible under Supreme Court Rule 219(c). 166 Ill. 2d R.219(c). Rule 219(c) allows the court to sanction attorneys whofail to comply with discovery orders. It does not give trialcourts the authority to sanction attorneys who violate orders inlimine during trial. Though we do not condone Stevens' conduct,the trial court had no authority for its entry of sanctions inthe form of attorney fees and costs. Freeman, 191 Ill. App. 3dat 228; see also Kilpatrick v. First Church of the Nazarene, 182Ill. App. 3d 461, 470, 538 N.E.2d 136 (1989)(existing statutesand supreme court rules do not allow assessment of attorneyexpenses absent finding of contempt); In re Marriage of Spizzo,168 Ill. App. 3d 487, 493, 522 N.E.2d 808 (1988)(absent findingof contempt, orders assessing attorney fees and costs againstrespondent and her attorney must be reversed).

We understand our conclusion in this case leaves a trialcourt little room, short of a contempt finding, to deal with alawyer who purposely creates conditions for a mistrial. Whethertrial judges should be granted the power to sanction a seriouslymisbehaving trial lawyer without first entering a contemptfinding is a question this court does not have the authority todetermine.

Because we find the trial court had no authority to orderStevens to pay defendants' attorneys' fees, we need not addressher contention that the bill for fees submitted by the defenseshould be stricken.

Second Trial - Denial of Motion for a New Trial

The case was transferred to Judge Durkin Roy for a secondtrial. Judge Durkin Roy made many of the same rulings JudgeBanks made on the parties' motions in limine. She deniedplaintiff's motion requesting permission to enter evidence of HMOenrollment. She ruled factual evidence of plaintiff's medicalhistory prior to April 14, 1994, was admissible, but warnedplaintiff evidence of a deviation from the standard of care priorto 1994 would not be allowed.

Plaintiff again raised her concern defendants would attemptto show Dr. Friedman was responsible for failing to follow-up onplaintiff's May 1992 test results. Defendants again said theywould not attempt to suggest Dr. Friedman was in any waynegligent. Judge Durkin Roy told the parties they would not beallowed to suggest any negligence occurred prior to April 14,1994.

Judge Durkin Roy also denied plaintiff's request to askpotential jurors, during voir dire, whether they would be able toaward plaintiff a specific amount of money if they found in herfavor. The judge advised the parties that she generally askedpotential jurors if they would be able to award a "substantialamount" of money, and did not see any need to elaborate by naminga specific amount.

The jury returned a verdict in defendants' favor, and JudgeDurkin Roy denied plaintiff's motion for a new trial.

Plaintiff first contends the trial court erred in denyingher request to be allowed to ask potential jurors, during voirdire, whether they would be able to award $2,000,000 if theyfound in her favor.

The trial judge has discretion in determining what questionsto pose to the jury during voir dire, including whether potentialjurors have fixed ideas about awards of specific sums of money. DeYoung v. Alpha Construction Co., 186 Ill. App. 3d 758, 764, 542N.E.2d 859 (1989). Here, the trial court asked potential jurorswhether they could award "substantial damages." We do not findthe failure of the court to allow inquiry into a specific amountwas an abuse of its discretion. Kern v. Uregas Service of WestFrankfort, Inc., 90 Ill. App. 3d 182, 201, 412 N.E.2d 1037(1980)(trial court did not abuse its discretion where attorneyswere allowed to ask jurors whether they had any prejudice against"large verdicts"). Furthermore, given that the jury returned averdict in favor of defendants, any error committed by the trialcourt on this issue was harmless. See McDonnell v. McPartlin,303 Ill. App. 3d 391, 402, 708 N.E.2d 412 (1999).

Plaintiff next contends the trial court erred in denying hermotion in limine requesting she be allowed to introduce evidenceconcerning her HMO membership. Plaintiff claims she did notintend to introduce this evidence for purposes of establishingliability, but instead intended to use it to show thecircumstances under which Dr. Car referred plaintiff to Dr.Friedman.

The admissibility of evidence is committed to the sounddiscretion of the circuit court. Caponi v. Larry's 66, 236 Ill.App. 3d 660, 674, 601 N.E.2d 1347 (1992). An evidentiary rulingwill not be reversed absent an abuse of that discretion. Poulosv. Lutheran Social Services, 312 Ill. App. 3d 731, 745, 728N.E.2d 547 (2000).

Plaintiff claims she needed to introduce evidence of HMOenrollment in order to "defend Dr. Friedman against Defendants'experts opinions that he was to blame for the delay in diagnosisof plaintiff's cancer and that he deviated from the acceptedstandard of care by failing to follow-up *** from 1992 until1998." As discussed above, the trial court ruled defendantswould not be allowed to imply Dr. Friedman was negligent in 1992. While defendants experts suggested during their depositions thatDr. Friedman, rather than Dr. Car, was at fault for failing tofollow-up on the 1992 positive cytology, the trial court barredthis testimony at trial. The jury never heard it. Plaintiffdoes not point us to any testimony in the trial transcript thatsupports her argument and after reviewing the record, we do notfind any.

Plaintiff also contends the trial court erred in prohibitingher from introducing facts and opinions that were not included inher medical chart concerning plaintiff's medical history prior toApril 14, 1994. Plaintiff specifically claims the trial courterred in ruling she could not ask Dr. Friedman about his allegedMay 1992 oral statement that a cytology test had a "false-positive" result.

The trial court's decision was based on its finding thestatute of repose barred all evidence relating to any allegationsof negligence prior to April 14, 1994. Nothing in the court'sorder prohibited plaintiff from eliciting facts relating toplaintiff's treatment prior to April 14, 1994; the trial courtsimply said plaintiff could not attempt to prove any negligenceoccurred prior to that date.

Dr. Friedman's cross-examination testimony that the May 1992cytology had a "false-positive" result was meant to explain whyhe did not diagnose plaintiff with cancer in 1992, though thecytology was positive. Dr. Friedman said after the followingthree cytologies were negative for abnormal cells, in his"clinical judgment," the May 1992 result was a "false-positive." Plaintiff was allowed to ask several follow-up questionsconcerning this testimony, and was only prohibited from askingwhat "needed to be done" for plaintiff in light of the May 1992cytology after the trial court determined the question violatedthe order in limine. We do not find any of the court's rulingson this issue to be an abuse of discretion.

Plaintiff contends Judge Durkin Roy erred in permittingdefendants to withdraw two expert witnesses without notice. Plaintiff claims she should have been given an opportunity tocross-examine the experts concerning their withdrawn opinionsthat Dr. Friedman was responsible for the delay in plaintiff'sdiagnosis. Again, because these opinions were not elicited ordiscussed at trial, there was no need to allow plaintiff tocross-examine these experts on that subject.

CONCLUSION

For the reasons discussed above, we reverse Judge Banks'award of sanctions and affirm Judge Durkin Roy's denial ofplaintiff's motion for a new trial.

Affirmed in part and reversed in part.

CERDA, and BURKE, JJ., concur.