IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DISTRICT

JOHN BOHN, )

)

Plaintiff, )

v. ) No.: 04 L 012295

)

J.E.G., INC. and TROY KELLY, )

)

Defendant. )

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR 219 SANCTIONS

NOW COMES the Plaintiff, JOHN BOHN, and in response to Defendants’ Motion for 219 Sanctions, states as follows:

I. PLAINTIFF’S DISCOVERY COMPLIANCE

Although Plaintiff admits being somewhat dilatory in complying with various discovery requests in the original action, Plaintiff eventually complied with most, if not all, relevant discovery requests and court orders concerning same. The only order with which Plaintiff never complied was the last order entered in the original case by Judge Gregory Wojkowski on June 4, 2004 which ordered Plaintiff to answer 213(f) Interrogatories by June 21, 2004. Due to time constraints and scheduling conflicts, Plaintiffs counsel was unable to timely secure the cooperation of Plaintiffs treating physicians so as to confirm their opinions and Plaintiff’s counsel did not want to assume or speculate as to what these physicians might testify to given the Plaintiff’s history of multiple accidents and injuries. Therefore, rather than seek a continuance of the August 9, 2004 trial date, Plaintiff’s counsel chose to voluntarily dismiss this case without prejudice.

It is clear from Defendants’ Motion that defense counsel has extensive information about the Plaintiffs claimed injuries and medical treatment as it relates to this case as well as his injuries and medical treatment stemming from other accidents and/or occurrences. Defense counsel is so well informed about the Plaintiff’s medical history due, in part, to Plaintiff’s compliance with various discovery requests and his willingness to execute various authorizations for privileged medical records. Although defense counsel provides an extensive summary of Plaintiff’s failure to timely comply with certain discovery requests, he fails to acknowledge all of the discovery with which the Plaintiff eventually complied (outlined as follows):

1) Provided answers to initial written discovery on February 18, 2002;

2) Plaintiff appeared for his discovery deposition on April 14, 2003 at which time Plaintiff supplemented his Exhibit A which was attached to his Answers to Interrogatories by providing additional medical providers and bills concerning recent treatment; (Said Exhibit A is attached hereto as Exhibit “1”);

3) Plaintiff filed supplemental answers to interrogatories and production requests on September 3, 2003;

4) Plaintiff submitted himself for an independent medical exam performed by Defendants’ retained medical expert on September 16, 2003;

5) Plaintiff provided signed authorizations to defense counsel so that he could obtain Plaintiff’s psychological records from Grand Prairie Services as well as from the Social Security Administration (See letter dated September 2, 2003 which is attached hereto as Exhibit “2”);

6) Plaintiff’s counsel has always maintained his willingness to produce the Plaintiff for a second deposition so that defense counsel could depose the Plaintiff concerning any additional medical treatment which he was not aware of at the time of Plaintiffs initial deposition;

7) Plaintiff’s counsel provided defense counsel with information concerning the Plaintiff’s previous lawsuit in 1996 including the deposition transcript from said lawsuit;

8) Plaintiff’s counsel sent a letter to defense counsel on March 18, 2004 enclosing those medical records and bills which Plaintiff intends on claiming in this matter (a copy of said letter is attached hereto as Exhibit “3”);

9) Plaintiff’s counsel again supplemented previous discovery responses and attempted to clarify which records and bills Plaintiff was intending on claiming in this lawsuit by a letter sent to defense counsel on May 25, 2004 which was in compliance with the court’s order of May 11, 2004 (a copy of said letter is attached hereto as Exhibit “4”).

Plaintiff has provided defense counsel with the names and addresses of each and every medical care provider from whom he sought treatment as well as the bills for said treatment. Plaintiff also provided defense counsel with signed authorizations so that he could obtain his entire Social Security file as well as certain psychological records to which he could have objected. As previously indicated, Plaintiff has always been willing to appear for a second deposition so that defense counsel could properly question him concerning any and all records which he did not have at the time of the initial deposition. Although the Plaintiff may not have recalled certain events and/or injuries when he filed his answers to interrogatories despite such events and/or occurrences being discovered by defense counsel through medical records and the like, this does not prove that the Plaintiff was lying or intentionally trying to conceal discoverable information. In fact, based upon records produced by Plaintiffs counsel, defense counsel is now armed with significant impeachment evidence.

II. DEFENDANTS’ REFERENCED CASE LAW IS

DISTINGUISHABLE AND/OR INAPPLICABLE

Of the six cases cited by the Defendants in their motion, only one deals with the court’s ability in a re-filed action to enforce sanction orders entered in the original action. However, even this one case is distinguishable from the instant case. In Smith v. Pace, 323 lll.App.3d 1067 (1st Dist. 2001), the plaintiff claimed in the original action that he could not work since the date of the accident but yet he failed to provide the requested information concerning the name of his employer and the amount of his salary at the time of the occurrence and/or the amount of income that he claimed to have lost. Furthermore, although the plaintiff in Smith provided the names of his treating physicians, he failed to provided the dates of such treatment, the bills for said treatment and/or any of the medical reports. Due to plaintiff’s continued failure to provide any such information, the trial court in Smith actually entered an order barring him from calling any witnesses at trial after which time the plaintiff filed an emergency motion to voluntarily dismiss the case. Upon refiling the lawsuit, the defendant in Smith then moved to enforce the sanction orders which were previously entered in the original action. The Smith court stated that Illinois Supreme Court Rule 219 does not require the court to reimpose the sanctions that were entered against a party in the earlier case but rather the misconduct of a party in the original action and any sanction entered against him are merely facts to be considered by the court in the re-filed action when it determines what witnesses and evidence will be permitted.

Unlike in Smith, the Plaintiff in the instant case eventually provided the defense all of the medical records and bills which Plaintiff was intending on claiming and further provided signed authorizations so that defense counsel could obtain additional social security records and psychological records. Furthermore, it is clear that the plaintiff in Smith voluntarily dismissed his case so as to simply avoid the sanction order which was entered only two days prior to his seeking a voluntary dismissal. Although there were certain orders entered in the instant case that indicated the Plaintiff would be barred if he failed to comply with the court’s order, the Plaintiff eventually complied with all such orders and there was never an order entered that actually sanctioned the Plaintiff in any form for his failure to comply with previous court orders.

The defense in the instant case is no longer prejudiced by Plaintiff’s failure to timely comply with certain discovery requests as the defense now has been provided all of the claimed medical records and bills pertaining to this matter as well as been provided with all other records and documents concerning the Plaintiff’s other claimed injuries. In fashioning a sanction, the court must weigh the competing interest of the offending party’s right to maintain a lawsuit against the need to accomplish the objectives of discovery and promote the unimpeded flow of litigation. Smith v. Pace, 323 lll.App.3d 1067 (1st Dist. 2001). Now that the Plaintiff has provided the defense with all requested information in the form of medical records, medical bills, deposition testimony, social security records and even an independent medical exam, the Defendants should no longer be prejudiced by the Plaintiff’s right to now maintain his lawsuit.

Ill. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests this court to deny the Defendants’ Motion to Dismiss as well as to deny any other sanctions sought by the Defendants. In the alternative, Plaintiff would agree to an order being entered which would limit the Plaintiff’s claims to those medical records and bills which were previously disclosed through discovery and which were provided to defense counsel through subpoenas and executed authorizations as Plaintiff even suggested in his letter to defense counsel on May 25, 2004.

Respectfully Submitted,

Counsel for Plaintiff