Jenkins v. Dominick's Finer Foods, Inc.

                                                  SECOND
DIVISION
                                                  June 10, 19976
                                                                           










No. 1-96-2788

HOWARD JENKINS,

          Plaintiff-Appellant,

     v.

DOMINICK'S FINER FOODS, INC.,

          Defendant-Appellee.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County.



Honorable
Shelvin Louis Hall,
Judge Presiding.


     JUSTICE TULLY delivered the opinion of the court:
     Plaintiff, Howard Jenkins, brought this action in the circuit court of Cook
County against defendant, Dominick's Finer Foods, Inc. (hereinafter Dominick's),
seeking damages for injuries to his foot sustained after stepping on one or two nails
on defendant's premises.  Following a jury trial, the circuit court entered judgment
for defendant and against plaintiff based upon the jury's verdict.  Plaintiff filed a
motion for new trial which the circuit court denied.  It is from that order that
plaintiff appeals to this court pursuant to Supreme Court Rule 301 (155 Ill. 2d R.
301).
                            FACTUAL BACKGROUND
     In October 1988, plaintiff was employed by A.N. Webber as an over-the-road
truck driver.  On October 3, 1988, plaintiff was assigned to deliver a load of dog food
to Dominick's in Northlake, Illinois.  Plaintiff arrived at Dominick's at 7 a.m., but
was not able to unload his truck until 1 p.m.  According to plaintiff, by the time he
was able to unload his truck, damaged wooden pallets and other debris were on the
ground overflowing from a 55-gallon garbage receptacle in the dock area.  As plaintiff
was walking around the trailer area preparing to unload his truck, he stepped on
some shrink wrap that was covering a damaged pallet with one or two nails
protruding from it.  Plaintiff claims that one or two of the nails penetrated his shoe
and punctured his right foot.  Plaintiff allegedly reported the incident to a forklift
operator and suggested that they clean up the area before someone gets injured. 
However, plaintiff did not report his injury to any other Dominick's employees.  X.L.
Feazell, a Dominick's employee, testified at his deposition that he learned of
plaintiff's injury through his co-worker, O.C. Walton.  Feazell testified that he
recalled seeing an injured man sitting on a stack of pallets examining his foot.  
     On October 13, 1988, plaintiff developed flu-like symptoms and was
hospitalized for six days in Tennessee, in order to receive intravenous antibiotics.  Dr.
Larry Scarborough diagnosed plaintiff with cellulitis in his lower right leg.  Dr.
Scarborough also found a recent puncture wound on the bottom of plaintiff's right
foot.  He testified that, since the puncture wound was in close proximity to the
infection, it is assumed that the infection could have come from that wound. 
However, Dr. Scarborough also testified on cross-examination that plaintiff's hospital
chart contained a notation by nurse Evelyn Jacobs referencing a statement made by
plaintiff that his foot had been sore with an open wound for years.  
     In addition, plaintiff testified at his deposition that, while he was hospitalized
in Tennessee, he took photographs of his leg which showed redness extending from
his ankle to his thigh.  At trial, he also testified that someone else had taken
photographs of the bottom of his foot during that same hospital stay.  
     One day after his release from the hospital in Tennessee, plaintiff was again
hospitalized for two or three days in South Carolina where he received the same
treatment.  In November 1988, plaintiff saw his family physician, Dr. Philip
Zumwalt.  Dr. Zumwalt testified that plaintiff complained of injuries to his right leg
and foot and described to him an incident where he had stepped on two nails.  
     The following year, plaintiff was hospitalized twice after bumping his right leg
and developing a fever.   He was again placed on intravenous and oral antibiotics. 
Plaintiff continued to have periods of swelling during the next two years and
continued taking medication.  
     In a separate cause of action, plaintiff filed a worker's compensation suit
against his employer, A.N. Webber.  A.N. Webber retained a physician, Dr. Joseph
McConaughy, to examine plaintiff for purposes of the litigation.  In addition to
examining plaintiff, Dr. McConaughy recommended that plaintiff be fitted for a Jobst
stocking (a custom-fit, thigh-high support stocking), have a venous Doppler
examination and take certain medications.  Dr. McConaughy also wrote prescriptions
for medication for plaintiff.  In response to defendant's interrogatory requesting the
names and addresses of all physicians who have treated or consulted plaintiff
regarding these injuries, plaintiff listed Dr. McConaughy.  Defendant chose to use Dr.
McConaughy as its expert witness.
     At the trial in the case at hand, defendant requested and, over plaintiff's
objection, the trial court tendered to the jury IPI 5.01 for plaintiff's failure to produce
the photographs of his leg and foot taken while he was hospitalized in Tennessee. 
The trial court also denied plaintiff's request to bar the testimony of defendant's
expert witness, Dr. McConaughy.  In addition, the trial court deemed inadmissible
as hearsay the statements about plaintiff made by Walton to Feazell.  Following the
jury trial, the trial court entered its judgment, based upon the jury's verdict, against
plaintiff and in favor of defendant.  
                        ISSUES PRESENTED FOR REVIEW
     On appeal, plaintiff raises the following issues:  (1) whether the trial court
erred in giving Illinois Pattern Jury Instruction (hereinafter IPI) 5.01 to the jury; (2)
whether the trial court erred in allowing defendant's medical expert to testify at trial
despite defendant's failure to disclose the expert pursuant to Supreme Court Rule
220; (3) whether the trial court erred in excluding statements made by Walton, a
now-deceased Dominick's employee, to his co-worker Feazell on the date of the
incident; and (4) whether the cumulative effect of the trial errors caused unfair
prejudice to plaintiff and resulted in an unfair trial.
                                  OPINION
     Plaintiff challenges the trial court's use of IPI 5.01 which allows the jury to
draw negative inferences from a party's failure to produce particular evidence. 
Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971).  The trial judge gave
this instruction as a result of plaintiff's failure to produce at trial the photographs
taken of his leg and foot while he was hospitalized in Tennessee.  Plaintiff argues
that the instruction was improperly given, for the photographs at issue were helpful
to his case; he further argues that the photographs were cumulative evidence and
that he could not produce them because he was unable to locate them.  The giving of
IPI 5.01 is within the sound discretion of the trial court.  Simmons v. University of
Chicago Hospital, 162 Ill. 2d 1, 7 (1994).  The trial court's determination shall not be
overturned absent a clear abuse of discretion.  Simmons, 162 Ill. 2d  at 7.  
     IPI 5.01 may be properly given where some foundation is presented on each of
the following:  (1) the evidence was under the control of the party and could have
been produced through the exercise of reasonable diligence; (2) the evidence was not
equally available to adverse party; (3) a reasonably prudent person under the same
or similar circumstances would have offered the evidence if he believed the evidence
to be in his favor; and (4) no reasonable excuse for the failure has been shown. 
Schaffner v. Chicago  & North Western Transportation Co., 129 Ill. 2d 1, 22 (1989). 
However, IPI 5.01 is not warranted where the missing evidence is merely cumulative
of the facts already established.  Tuttle v. Fruefauf Corp., 122 Ill. App. 3d 835, 843
(1984).
     In DeBow v. City of East St. Louis, 158 Ill. App. 3d 27 (1987), the plaintiff
brought a cause of action against the city and its police chief for injuries he sustained
in an attack at the city jail.  The trial judge gave IPI 5.01 to the jury in response to
the defendants' failure to produce the jail inspection log reports for the date of the
attack as well as certain photographs of the plaintiff taken by a police officer at the
time the plaintiff was injured.  The appellate court found no abuse of discretion by
the trial court in giving such an instruction.  DeBow, 158 Ill. App. 3d at 36.  The
court determined that the photographs and inspection logs were under the control of
the police department and were not equally available to the plaintiff.  Moreover, the
court held that a reasonably prudent person would have produced such evidence had
it been favorable to him.  Finally, the DeBow court noted that no reasonable
explanation was offered for failing to produce the evidence and that such evidence
was not merely cumulative.  DeBow, 158 Ill. App. 3d at 36.
     Like DeBow, in the present case, a sufficient foundation was laid such that the
giving of IPI 5.01 by the trial judge was proper.  First, the photographs taken of
plaintiff's leg and foot were clearly under plaintiff's control since he testified that he
took the photographs of his leg himself, that the photographs of his foot were taken
during that same hospital stay and that the photographs belonged to him.  Thus, we
find that, through reasonable diligence, he could have located them.  Moreover, since
the photographs were never produced at discovery, plaintiff cannot claim that they
were equally available to defendant.  Also, it was not an abuse of discretion for the
trial judge to determine that a reasonably prudent person in plaintiff's situation
would have produced such photographs.  According to plaintiff, these photographs
allegedly depict the swelling and inflammation to his leg that occurred within 10 days
to two weeks after he allegedly stepped on the nail or nails at Dominick's.  A
reasonably prudent person would have produced such photographs, if they were
favorable to him, for they would substantiate his credibility and display the actual
harm that resulted from the incident.  Although plaintiff argues that such evidence
was merely cumulative in light of the testimony that was given, we agree with
defendant that such photographs would have been highly relevant.  Since plaintiff
was uncertain as to whether he stepped on one or two nails, the photographs of the
bottom of his foot may have displayed such injuries.  Moreover, the photographs may
have depicted an open wound that plaintiff told Nurse Jacobs he had for years. 
Finally, plaintiff has offered no reasonable excuse for the missing photographs, other
than that he could not locate them.  In light of the foregoing, we find no abuse of
discretion by the trial court in giving the jury IPI 5.01.
     Plaintiff next argues that the trial court erred in allowing defendant's medical
expert, Dr. McConaughy, to testify at trial despite defendant's failure to disclose the
expert pursuant to former Supreme Court Rule 220.  Rule 220(b) required disclosure
of experts retained to render an opinion at trial.  (134 Ill. 2d R. 220(b)(1)).  The
purpose of Rule 220 was to "facilitate trial preparation and the evaluation of claims
by eliminating the late or surprise disclosure of experts at trial."  Tzystuck v. Chicago
Transit Authority, 124 Ill. 2d 226, 238 (1988).  Our Supreme Court, in Tzystuck,
explained this rule by stating that a physician retained to render an opinion at trial
is litigation-related, rather than treatment-related.  Tzystuck, 124 Ill. 2d  at 234. 
Although treating physicians may render opinions at trial, such opinions are formed
in the course of treating the patient and not in anticipation of trial.  Tzystuck, 124 Ill. 2d  at 234.  Thus, under Tzystuck, treating physicians are not considered experts
within the meaning of Rule 220(b)(1) since there is no surprise that a treating
physician would testify at trial.  Tzystuck, 124 Ill. 2d  at 237.
     In another Illinois Supreme Court decision, Wakeford v. Rodehouse
Restaurants, 154 Ill. 2d 543 (1992), the court explained that whether an expert
needed to be disclosed under Rule 220 depended upon his relationship to the case --
when an expert is (1) intimately involved in the underlying facts giving rise to the
litigation and (2) would reasonably be expected to form an opinion given his
involvement, then disclosure was not required.  Wakeford, 154 Ill. 2d  at 549. 
However, when the expert's involvement was slight or his opinion was unrelated to
his involvement, then disclosure under Rule 220 was required.  Wakeford, 154 Ill. 2d 
at 549.
     Finally, in Knicely v. Migala, 272 Ill. App. 3d 427 (1993), the plaintiff filed a
medical malpractice suit against the defendant, a physician.  At trial, the plaintiff
objected on Rule 220 grounds to two physicians called by the defendant as expert
witnesses.  The defendant contended that the physicians were not subject to Rule 220
because they were treating or examining physicians who examined the plaintiff to
determine whether he was eligible for worker's compensation payments.  Although
the trial court allowed the witnesses to testify, the appellate court in Knicely
determined that the physicians' involvement in the case was slight, for neither had
provided any treatment to the plaintiff and both were unaware of the extent of the
plaintiff's injuries.  Moreover, no one would reasonably expect the physicians to form
an opinion as to the issues in the case, since they were involved strictly for worker's
compensation purposes and lacked the plaintiff's total medical history.  See Knicely,
272 Ill. App. 3d at 435-36.
     In the present case, Dr. McConaughy's involvement originated when he was
"retained" by A.N. Webber's worker's compensation carrier in connection with
plaintiff's worker's compensation action.  However, Dr. McConaughy has done more
than merely examine plaintiff.  He has in some ways treated him, by prescribing
medication and making recommendations to plaintiff.  Moreover, Dr. McConaughy's
testimony could reasonably be expected by plaintiff due to (1) Dr. McConaughy's
involvement in plaintiff's treatment and (2) plaintiff's listing him in response to
defendant's interrogatory requesting the names of the physicians who treated or
consulted plaintiff for these injuries.  For these reasons, we find that Dr.
McConaughy satisfies the relationship-to-the-case test and that his testimony was
properly allowed by the trial court.
     Plaintiff next argues that the trial court erred in excluding the statements
made by Walton to his co-worker Feazell.  The trial court found that Walton's alleged
statements about plaintiff stepping on a nail were not admissible as party admissions
because Walton did not have actual or apparent authority to make statements about
the safety of the workers.  Plaintiff contends, however, that this is immaterial since
Walton's statements do not constitute hearsay.  
     Hearsay evidence has been defined as testimony in court or written evidence
of a statement made out of court being offered to show the truth of the matter
asserted.  People v . Simms, 143 Ill. 2d 154, 173 (1991); People v. Carpenter, 28 Ill. 2d 116, 121 (1963).  Plaintiff contends that Walton's statements were not offered to
show the truth of the matter asserted, but rather to show why Feazell approached
plaintiff.  After reviewing the record, it seems obvious that this testimony was being
offered to show that plaintiff did, in fact, step on a nail at Dominick's.  Therefore, the
real issue is whether an exception to the hearsay rule is applicable.
     Plaintiff argues that Walton's statements constitute party admissions.  In order
for a statement to qualify as a party admission, the party offering the statement must
establish that (1) the declarant was an agent or employee; (2) the statement was
made about a matter over which he had actual or apparent authority; and (3) the
declarant spoke by virtue of his authority as an agent or employee.  Bafia v. City of
International Trucks, Inc., 258 Ill. App. 3d 4, 9 (1994).  In this case, Feazell testified
that Walton was a co-worker of his and, therefore, an employee of Dominick's. 
However, plaintiff offers nothing to support his contention that Walton had actual or
apparent authority as to safety issues.  Rather, plaintiff simply states that job safety
was a responsibility of all employees.  Even assuming this is true, it is hardly enough
to create actual or apparent authority in all Dominick's employees, such that all of
their statements would constitute party admissions.
     Since decisions as to the admissibility of evidence are matters within the
discretion of the trial judge (Bafia, 258 Ill. App. 3d at 10), and since plaintiff is
lacking evidence to support his contention, we conclude that such testimony was
properly deemed inadmissible by the trial court.
     Plaintiff's final contention is that the cumulative effect of the trial errors
caused him unfair prejudice and resulted in an unfair trial.  After a careful review
of the record, we cannot find that plaintiff was given an unfair trial nor that the
verdict was against the manifest weight of evidence.
     In light of the foregoing, we affirm the judgment of the circuit court.
     Affirmed.
     RAKOWSKI and McNULTY, JJ., concur.