IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

WILLIAM LEE, )

)

Plaintiff, )

)

v. ) No.: 01 L 3238

)

ROYAL TOWING SERVICE, INC. and )

AHMAD ELANAJDAWI, )

)

Defendants. )

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO S.C.R. 219 (c)(v) OR

FOR SANCTIONS UNDER S.C.R. 219(c)(ii-vii)

NOW COME the Defendants, ROYAL TOWING SERVICE, INC., a Dissolved Illinois Corporation, and AHMAD ELANAJDAWI, by and through their attorney, LAW OFFICE LOWELL D. SNORF, III, and request this Honorable Court to dismiss Plaintiff’s action, or alternatively, for discovery sanctions pursuant to S.C.R. 219 (c)(ii-vii). In support of this motion, movants state as follows:

BACKGROUND AND PROCEEDINGS TO DATE

On March 21, 2000, Defendants presented the attached emergency motion to either bar Plaintiff from testifying in this cause under S.C.R. 219(c) or compel Plaintiff to properly comply with all outstanding discovery (see Exhibit “1,” attached). To avoid sanctions requested in Defendants’ motion to bar, Plaintiff’s counsel voluntarily dismissed the action (see Exhibit “2,” attached). By Judge O’Connell’s March 21, 2000 order, Defendants were given all rights to raise matters argued in Defendant’s emergency motion to bar in any later filed suit. On March 16, 2001, Plaintiff refiled his complaint (see Exhibit “3,” attached). On May 18, 2001 and January 23, 2002, respectively, appearances were filed for ROYAL TOWING SERVICE, INC., a Dissolved Illinois Corporation, and AHMAD ELANAJDAWI. On February 21, 2002, an answer to Plaintiff’s complaint was filed (see Exhibit “4,” attached).

II.

IN VIOLATION OF S.C.R. 201(b)(1) WILLIAM LEE FAILED TO DISCLOSE TWO PRIOR LEFT SHOULDER SURGERIES PERFORMED AT LUTHERAN GENERAL HOSPITAL

ON APRIL 4, 1983 AND ON NOVEMBER 28, 1983 AND FAILED

TO DISCLOSE INJURIES SUSTAINED ON JANUARY 9, 2000

This personal injury suit arises from a September 10, 1996 accident between WILLIAM LEE and AHMAD ELANAJDAWI. WILLIAM LEE claims to have received a left shoulder injury, allegedly requiring a December 18, 1996 diagnostic subacromial arthroscopy performed by Michael Morgenstern, M.D. WILLIAM LEE claims the December 18, 1996 surgery is solely a result of the September 10, 1996 accident. However, WILLIAM LEE had two prior left shoulder surgeries performed at Lutheran General Hospital. On April 4, 1983 WILLIAM LEE had reconstructive left shoulder surgery resulting from recurring left shoulder dislocations. On November 28, 1983 WILLIAM LEE had a second surgery for the removal of the bicipital tendon staple and left shoulder suture fixation. Diagnosis of both the 1983 surgeries involved left shoulder impingement syndrome, which is the identical condition treated by Michael Morgenstern, M.D. on December 18, 1996 (see Exhibit “5,” attached). As a result of the 1982 or 1983 left shoulder injuries, WILLIAM LEE also filed a worker’s compensation claim against Coca-Cola.

1). On December 12, 1999 Defendants forwarded to Plaintiff’s counsel standard interrogatories and standard S.C.R. 214 production requests (see Group Exhibit “6,” attached). Interrogatory #12 asks:

2). On June 2, 1999 WILLIAM LEE answered interrogatories certifying under 735 ILCS 5/1-109 his answers were true and correct (see Exhibit “7,” attached). Answers to Interrogatory #12, #13, and #14 are false. WILLIAM LEE injured his left shoulder in 1983, had two surgeries in 1983, and filed a worker’s compensation case for these injuries. WILLIAM LEE also failed to disclose a January 9, 2000 accident which caused him injuries.

3). On June 2, 1999 WILLIAM LEE answered Defendants’ S.C.R. 214 production request (see Exhibit “8,” attached). Despite production request (d), WILLIAM LEE made no disclosure about the 1983 left shoulder surgeries or 1982 worker’s compensation case. WILLIAM LEE never properly disclosed the 1983 injuries, specifically in violation of S.C.R. 214 and S.C.R. 201(b)(1) (see Exhibit “7,” attached).

4). On February 18, 2000 WILLIAM LEE gave his discovery deposition. For the 1983 left shoulder injury, WILLIAM LEE said he filed a lawsuit (see Exhibit “9,” LEE deposition transcript, attached). At his February 18, 2000 deposition, WILLIAM LEE for the first time discussed his prior left shoulder injuries, despite his June 2, 1999 certification under oath that his interrogatory answers were true and accurate. At his February 18, 2000 discovery deposition, LEE said he did not read his interrogatories before they were signed. WILLIAM LEE admitted his answer to interrogatory #12 was false, and admitted he sustained personal injuries before the September 10, 1996 accident with Defendants (see Exhibit “9,” attached).

III.

IN VIOLATION OF S.C.R. 201(b)(1) AND S.C.R. 214, WILLIAM LEE FAILED TO DISCLOSE ADDITIONAL TREATING PHYSICIANS

1). On March 30, 1999, LEE’s attorney prepared a letter to Defendant’s attorney providing WILLIAM LEE’S medical records and bills (see Exhibit “10,” attached). However, the date WILLIAM LEE was deposed (February 18, 2000), LEE’s attorney appeared at WILLIAM LEE’S deposition providing additional “specials” (see Exhibit “11,” attached). This “specials” list is directly contrary to WILLIAM LEE’S interrogatory answers (see Exhibit “7,” attached) and LEE’s attorney June 9, 1999 response to Defendants’ notice to produce (see Exhibit “8,” attached). WILLIAM LEE again testified at page 64 of his deposition that he had no medical treatments after he signed interrogatories on June 2, 1999 (see Exhibit “9,” p. 64, attached). Despite LEE’s deposition statement he had no medical treatments after June 2, 1999, on February 18, 2000 counsel for LEE for the first time presented additional medical providers never before disclosed (see Exhibit “11,” attached). The treating institutions or medical providers never before disclosed were:

a), RCI Medcost

1420 Kensington Road, Suite 334

Oakbrook, Illinois 60521-2145

b), Orthopedic Association of Chicago

676 North Clark

Chicago, Illinois 60611

c), IMMC Pathologists - Edgewater

1030 Higgins, Suite 310

Park Ridge, Illinois 60068

d), Pain & Rehabilitation Clinic

Outpatient Physical Therapy

640 North LaSalle, Suite 610

Chicago, Illinois 60610

2). Plaintiff never properly disclosed all of his medical providers, in violation of S.C.R. 201(b)(2) and S.C.R. 213(i). Plaintiff never disclosed complete medical treatments, prior injuries, prior suits, or WILLIAM LEE’S January 9, 2000 accident, which caused him severe injuries. Such conduct appears deliberate. As an additional example, on March 30, 1999 counsel directed a letter to Defendants’ counsel identifying specials, but never identifying, naming, or disclosing treaters RCI Medcost, Orthopedic Association of Chicago, IMMC Pathologists, and Pain and Rehabilitation Center (see Exhibit “11,” attached).

3). At page 85 of WILLIAM LEE’s discovery deposition, LEE’s attorney examined his own client. LEE’s attorney direct examination is included in Exhibit “9,” attached. There, LEE’s attorney elicited from his own client that his own client had not properly identified, named, or disclosed all of WILLIAM LEE’S medical providers and treaters. Such conduct is in direct violation of S.C.R. 201(b)(1) and S.C.R. 213(i).

IV.

PLAINTIFF FAILED TO PROVIDE THE SEPTEMBER 19, 1996 X-RAYS

HE TOOK FROM UPTOWN X-RAY LAB

The Plaintiff disclosed in answers to interrogatories and answers to production requests his September 19, 1996 treatment by Uptown X-Ray Lab (see Exhibits “7” and “8,” attached). The Plaintiff took out the x-rays taken at Uptown X-Ray Lab. As this was a September 10, 1996 accident, the September 19, 1996 left shoulder x-rays taken by Uptown are critical in assessing the Plaintiff’s left shoulder injury, and such films are vital evidence for Defendants’ expert. However, Uptown X-ray advised that WILLIAM LEE checked out the x-rays on September 19, 1996 (see Exhibit “12,” attached).

PLAINTIFF NEVER PROVIDED THE CORRECT ADDRESS FOR CHICAGO-

AUSTIN MEDICAL CENTER, THE PLAINTIFF’S TAX RETURNS,

OR OTHER DOCUMENTS ESTABLISHING LOST INCOME

Despite repeated requests, the Plaintiff never answered supplemental interrogatories providing WILLIAM LEE’S x-rays, tax returns, or properly disclosed treatment course at Chicago Austin Medical Center (see Exhibits “13” and “14,” attached).

VI.

PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BASED ON REPEATED AND DELIBERATE DISCOVERY RULE VIOLATIONS UNDER S.C.R. 219(c)(v)

On March 21, 2000, Defendants’ emergency motion was presented before Judge O’Connell. Prior to Plaintiff’s oral motion for voluntary non-suit, Judge O’Connell remarked the discovery violations were serious and that appropriate sanctions would be considered.

S.C.R. 219 allows the trial court to consider a party’s misconduct in the original action and any order entered therein to determine what witnesses and evidence will be barred in the refiled action. Smith v. P.A.C.E., 323 Ill.App.3d 1067, 753 N.E.2d 353, 359 (1^st Dist., 2001). If a court finds a party’s misconduct shows a deliberate and continuing disregard for discovery rules, the court is empowered to dismiss the action. Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692 N.E.2d 286, 289 (1998); Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 1078 (1995); and S.C.R. 219(c)(v).

WILLIAM LEE answered interrogatories, certifying under 735 ILCS 5/1-109 his answers were true, without disclosing his 1982 injuries, 1983 shoulder surgeries, or his January 9, 2000 car accident causing him injuries; WILLIAM LEE failed to honestly answer Defendants’ production requests; WILLIAM LEE lied in his deposition; WILLIAM LEE failed to disclose his medical treatments after June 7, 1999; WILLIAM LEE received vital x-rays which he never returned or provided; WILLIAM LEE never produced his tax returns; WILLIAM LEE or his counsel did not attempt to correct the discovery violations prior to non-suit or seek additional time prior to non-suit to comply with S.C.R.213(i).

WILLIAM LEE has persistently violated discovery rules. He has failed to disclose his prior accidents and medical treatments. He did not disclose his January 9, 2000 accident causing him injuries. WILLIAM LEE has shown disregard for legitimate discovery objectives. His evasive answers to interrogatories, deposition questions, and requests to produce amount to a breach of discovery rules. Defendants’ standard interrogatories, S.C.R. 214 production requests, and deposition questions have been met with WILLIAM LEE’S half-truths or lies. WILLIAM LEE’S confiscating important x-rays, failing to produce tax returns, and improperly identifying his medical providers is inexcusable. Either before or at the time of non-suit, Plaintiff never bothered to provide any reasonable excuse or otherwise explain the repeated violations. This court can, and should, consider past violations, explanations, court responses, and essentially the entire history of the particular litigation before it when deciding what action to take under S.C.R. 219. Claymore v. Hayden, 278 Ill.App.3d 862, 663 N.E. 2d 755, 759 (4^th Dist., 1996) [affirming dismissal for serious discovery violations]; S.C.R. 219(e). This Court can and should dismiss WILLIAM LEE’S complaint under S.C.R. 219 (c)(v).

VII.

ALTERNATIVELY, THIS COURT SHOULD ENTER APPROPRIATE SANCTIONS FOR WILLIAM LEE’S DISCOVERY ABUSE UNDER S.C.R. 219 (c)(ii-vii)

AND S.C.R. 219(e)

As an alternative remedy to the dismissal of Plaintiff’s Complaint at Law, S.C.R. 219(c)(ii-vii) and S.C.R. 219(e) state:

(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(i) * * * *

(ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;

(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;

(iv) That a witness be barred from testifying concerning that issue;

(v) * * * *

(vi) That any portion of the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue.

(vii) That in cases where a money judgment is entered against a party subject to sanctions under this subparagraph, order the offending party to pay interest at the rate provided by law for judgments for any period of pretrial delay attributable to the offending party's conduct. In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is willful, a monetary penalty. When appropriate, the court may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules. Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of dismissal. Where a sanction is imposed under this paragraph (c), the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.

(e) Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, opinion witness fees, reproduction costs, travel expenses, postage, and phone charges.

Plaintiff has misrepresented his prior accidents and surgeries; he has withheld information on his subsequent January 9, 2000 accident; and he has confiscated critical shoulder x-rays. Plaintiff and/or his attorneys have abused the discovery process without providing any reason.

WHEREFORE, movants respectfully request the Court for the following:

a), Pursuant to S.C.R. 219(c)(ii), bar WILLIAM LEE’S discovery responses in support of his injury claim against answering Defendants; and/or

b), Pursuant to S.C.R. 219(c)(iii), bar WILLIAM LEE from maintaining any injury claim against answering Defendants; and/or

c), Pursuant to S.C.R. 219(c)(iv), bar WILLIAM LEE from testifying and/or providing any evidence and witnesses at trial; and/or

d), Pursuant to S.C.R. 219(c)(vi), strike WILLIAM LEE’S pleadings relating to any claim for injury against answering Defendants; and/or

e), Pursuant to S.C.R. 219(c)(vii), compel WILLIAM LEE or his attorneys to pay all expenses and attorney’s fees incurred, including all expenses and costs allowable under S.C.R. 219(e), as a result of WILLIAM LEE’S discovery abuse.

LAW OFFICE LOWELL D. SNORF, III Respectfully submitted,

77 West Washington Street, Suite 703

Chicago, IL 60602

Telephone: (312) 726-8961

ATT #71148 Lowell D. Snorf, III