Discovery Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury Verdict
Florez v. Northshore Univ. Healthsystem, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560
The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child’s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child’s alleged brain injury sustained at birth.
Plaintiff alleged the defendant failed to diagnose and treat the child’s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff’s counsel argued throughout the case and at trial that the child’s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child’s condition with no causal connection to the birth treatment.
Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist’s report, the defendant’s experts found that the plaintiff’s autism diagnosis supported their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.
Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff’s motion to strike and found the defendant’s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.
However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage “tactical gamesmanship” because the plaintiff filed his expert’s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.
Though the plaintiff’s experts opined that the defendant’s negligence led to oxygen deprivation and plaintiff’s injuries and cognitive deficits, the defendant’s experts opined that plaintiff’s injuries were chronic. For example, the defendant’s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.
Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant’s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.
Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff’s future medical needs, school requirements, and employment prospects.
Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.