IN THE CIRCUIT COURT OF
COUNTY DEPARTMENT, LAW
DIVISION
JOHN BOHN, )
)
Plaintiff, )
v. )
No.: 04 L 012295
)
J.E.G., INC. and
)
Defendants. )
MOTION OF DEFENDANT, TROY KELLY, TO DISMISS PURSUANT
TO
S.C.R. 219 (c)(v) OR FOR
SANCTIONS UNDER S.C.R. 219(c)(ii-vii)
AND S.C.R. 219(e)
NOW COMES the defendant, TROY KELLY,
by and through his attorney, LAW OFFICES OF LOWELL D. SNORF, III, and requests
this Honorable Court to dismiss plaintiff’s action, or alternatively, for
discovery sanctions pursuant to S.C.R. 219 (c)(ii-vii) and S.C.R. 219(e). In support of this motion, movants state as follows:
I.
BACKGROUND
AND PROCEEDINGS TO DATE
Resulting from a
On
On
(a) In
fight with police officer.
(b) Officer
grabbed his neck.
12-21-02 Car accident; Bohn complains
of low back pain and right hand pain; Bohn seen at St. James Hospital; at St.
James Hospital, Bohn complains of chronic low back pain.
As to the plaintiff’s February 18, 2002 answers to
defendant’s February 16, 2001 interrogatories,
answers to numbers 8, 9, 11, 17, 31, and 32 were either incomplete or false; plaintiff’s
complete medical bills were not produced; plaintiff failed to identify other
accidents and injuries, plaintiff failed to name all of his medical providers,
he failed to identify his driver’s license had been suspended and failed to
identify he had been placed on Social Security disability.
On
Due
to continuing discovery uncertainty, on
On
Plaintiff again did not comply. On
By
By
Prior to arbitration, there were
specific discovery orders entered in the original case. No facts have been raised justifying JOHN
BOHN’S non-compliance with court orders.
No facts have been raised explaining JOHN BOHN’S inadequate discovery
responses or his failure to update same.
No efforts were ever made to lift, modify, or amend the discovery
orders; similarly, no showing was made the orders were improper or inconsistent. Accordingly, this court should not change or
modify those discovery orders entered in the original action. Balciunas v.
Duff, 94 Ill.2d 176, 446 N.E.2d 242, 246 (1983); Thomas v.
Johnson Controls, Inc., 344 Ill.App.3d 1026, 801 N.E.2d 90, 94 (1st Dist., 2003)
[holding: absent changed circumstances or new facts, successor trial judge
should not disregard motion judge’s specific discovery orders].
On
Post-arbitration, the case was
assigned to Judge Gregory Wojkowski. On
On
II.
PLAINTIFF’S REFILED COMPLAINT SHOULD BE DISMISSED
BASED ON REPEATED AND DELIBERATE DISCOVERY RULE VIOLATIONS UNDER S.C.R. 219(c)(v)
As stated
in Smith v. P.A.C.E., 323
Ill.App.3d 1067, 753 N.E.2d 353, 359
(1st Dist., 2001):
“Supreme
Court Rule 219(e) provides in pertinent part that:
‘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.’ 166 Ill.2d R. 219(e).
This rule discourages the
abuse of voluntary dismissals by attaching adverse consequences when the
plaintiff refiles the action. ‘When a case is refiled,
the rule requires the court to consider the prior litigation in determining
what discovery will be permitted, and what witnesses and evidence may be
barred.’
Morrison v. Wagner, 191 Ill.2d 162,
167, 246 Ill.Dec. 113, 729 N.E.2d
486 (2000). The sanctions authorized under Rule 219 are intended to
combat abuses of the discovery system and to maintain the integrity of our
court system. See Scattered Corp. v.
Midwest Clearing Corp., 299 Ill.App.3d 653,
659-60, 234 Ill.Dec. 1, 702 N.E.2d
167 (1998).”
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).
As will be set forth, JOHN BOHN’S discovery conduct appears deliberate,
and the
After the January 11, 2002 and February
4, 2002 compliance orders, on February
18, 2002, JOHN BOHN answered interrogatories, certifying under 735 ILCS
5/1-109 his answers were true.
Defendant’s interrogatory number 17 asks:
17. Within 10 years of
ANSWER: Plaintiff was injured in an
automobile collision on
JOHN BOHN’S answer to interrogatory
number 17 is false. According to Robert Manoogian, M.D.’s medical
records, on
Defendant’s interrogatory number 22
asks:
22. Prior to this accident, were you suffering from any
disability or handicap? If so, please
state the nature of the disability and how this disability or handicap came
into existence.
ANSWER: No.
JOHN BOHN’S
answer to interrogatory number 22 is false.
Here, again, JOHN BOHN did not disclose his prior accidents, and he did
not disclose his 1998 Social Security application or the
Defendant’s interrogatory number 24
asks if JOHN BOHN’S license had ever been suspended. JOHN BOHN responded it was not. However, an abstract of JOHN BOHN’S driver’s license
shows his driver’s license was suspended on
Defendant’s interrogatory number 31
asks:
31. Have you suffered any personal injury or prolonged,
serious and/or chronic illness since the date of the occurrence? If so, state when you were injured and/or
ill, where and how you were injured and/or ill, describe the injuries and/or
illness suffered, and state the name and address of each physician or other
health care professional, hospital and/or clinic rendering you treatment for
each injury or chronic illness.
ANSWER: No.
JOHN BOHN’S response was “No.” JOHN BOHN’S answer to interrogatory number 31
is false. On
On
In JOHN BOHN’S
“Q.
Had you ever sustained a lumbar injury to your back before the
A.
No.”
However, in the case of John Bohn v. Betty Stephens, case
no. 96 L 14476, on
Q. Let me ask you before this accident, had you ever injured
your neck or your back?
A. I never injured it before. I had pulled muscles.
Q. In your neck or back, which one?
A. Both, the back.
Q. Lower back?
A. Yes.
Q. When was that, and what were you
doing?
A. One time I think it was 1993. It was 1993, I was
lifting my tools back into my truck for working on copiers. And it weighed just about 20 pounds, and I
just pulled a muscle.
Q. Were you treated by a doctor?
A. Yes, Dr. Manoogian.
Q. Any other accidents where you injured your back?
A. Car accidents.
Q. How many?
A. Two or three. They
were just bumps and bruises.
Q. What year did they take place?
A. 1993.
Q. Where did that happen?
A. One was 123rd and Kedzie in the
Q. Did you have a lawsuit for that case?
A. No.
Q. Did you see a doctor?
A. Manoogian.
Q. Did you see any other doctors for that injury?
A. No.
Q. Any other car accidents?
A. Another one in October of that year, I was rear-ended.
Q. Where did that take place?
A. 69th and Halsted in
Q. Did you see any doctors?
A. Manoogian.
Q. Anybody else?
A. That’s it.
Q. Any other car accidents?
A. There was a couple minor ones. I
have been in several accidents.
Q. Accidents where you injured your back?
A. No.
Q. For the accident in October of 1993, was there a lawsuit?
MR. FAZIOLLI: It was October of 1994.
MR. KOZEL: October of 1994?
THE WITNESS: No. No. lawsuits.
MR. FAZIOLLI: It was October 14th.
The only medical bills ever provided in
this case are attached to plaintiff’s answers to interrogatories; the answers
themselves are incomplete, inaccurate, and irreconcilable. JOHN BOHN promised to forward records once
received. This never occurred. On April 14, 2003, when JOHN BOHN was
deposed, he produced new records from Ingalls
Hospital (see Exhibit “9,” p. 116, 103); testified about treatments from
Mind-care (see Exhibit “9,” p. 107), Grand Prairie Medical Services (see
Exhibit “9,” p. 111), Pat Morin, M.D. (see Exhibit “9,” p. 111), Gaylen Bohlin, D.C. (see Exhibit
“9,” p. 113), Dr. Kondamuri (see Exhibit “9,” p.
114), Zaki Anwar, M.D. (see
Exhibit “9,” p. 125), Paul Meyer, M.D. (see Exhibit “9,” p. 127), Susan Gojkovich, M.D. (see Exhibit “9,” p. 128), and Orland
Therapy (see Exhibit “9,” p. 129). JOHN
BOHN hid his treatments, Social Security disability, and treatments from
Defendant previously presented nine compliance
motions on a variety of discovery issues.
Nine court orders have been entered, some with barring language
directing JOHN BOHN to identify his treaters and turn
over their records and bills. The only
time discovery was received was after a motion to compel was filed and an order
entered. No effort was ever made to lift
the barring orders. JOHN BOHN never
acted in good faith. He never tried to
comply with discovery and has treated this case as a game. He has disobeyed court orders, violated every
discovery rule imaginable, and wasted precious judicial resources. Defendant’s legitimate discovery requests
have been met with JOHN BOHN’S half-truths and lies.
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
(4th Dist., 1996) [affirming dismissal for serious discovery
violations]; S.C.R. 219(e). This Court
can and should dismiss JOHN BOHN’S complaint under S.C.R. 219 (c)(v).
III.
ALTERNATIVELY, THIS COURT SHOULD ENTER APPROPRIATE
SANCTIONS
FOR JOHN BOHN’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 wilful,
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.
JOHN BOHN misrepresented his
treatment background and hid information.
JOHN BOHN claims his injury relates to an exacerbation of an injury
occurring on
WHEREFORE, movant
respectfully request the Court for the following:
a), Pursuant
to S.C.R. 219(c)(ii), bar JOHN BOHN’S discovery responses in support of his
injury claim against answering defendant; and/or
b), Pursuant to S.C.R. 219(c)(iii),
bar JOHN BOHN from maintaining any injury claim against answering defendant;
and/or
c), Pursuant
to S.C.R. 219(c)(iv), bar JOHN BOHN from testifying
and/or providing any evidence and witnesses at trial; and/or
d), Pursuant
to S.C.R. 219(c)(vi), strike JOHN BOHN’S pleadings
relating to any claim for injury against answering defendant; and/or
e), Pursuant
to S.C.R. 219(c)(vii), compel JOHN BOHN 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 JOHN
BOHN’S discovery abuse.
IV.
DEFENDANT SHOULD BE AWARDED ALL EXPENSES
UNDER S.C.R. 213(e)
As an alternate or additional remedy,
defendant requests the award of all S.C.R. 219(e) expenses incurred in the defense
of the underlying case. See: Valdovinos v. Luna-Manalac Medical Center,
328 Ill.App.3d 255, 764 N.E.2d 1264, 1274
(1st Dist., 2002) [holding: defendant’s litigation costs and
expenses of $79,173.14 awarded where plaintiff’s discovery conduct found unreasonable]. Here, defendant can provide a statement of
expenses and costs relative to litigation of the underlying suit and
preparation of this motion.
WHEREFORE, movant
respectfully request the Court for the following:
a), Pursuant to S.C.R. 219(e), that TROY KELLY be awarded all costs and expenses attendant to the
underlying litigation and preparation of this motion.
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
Attorney for Troy Kelly