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Judicial Rulings

'Day-in-the-life' film as demonstrative evidence

In a September 26 decision the Illinois Supreme Court ruled that a "day-in-the-life" movie is comparable to a still photo, a chart or a drawing. As such it is demonstrative evidence only.

In this medical malpractice case the lawyers of a child allegedly brain-damaged through negligence at birth wished to produce the film to demonstrate the extent of their client's injuries. The trial court said that the defense attorney could be present at the filming and should receive not only the finished film but all footage edited out.

The Supreme Court held that preparation of such demonstrative evidence "falls within the work product of the lawyer who is directing and overseeing the preparation." The defense attorney need not be present. At trial such evidence must pass a two-pronged test. "First, a foundation must be laid ... that the film is an accurate portrayal of what it purports to show. Second, the film is only admissible if its probative value is not substantially outweighed by the danger of unfair prejudice."

The court pointed out that "defense counsel had the right to bring before a trial court anything that is objectionable about the film," and the court concluded, "The test of this evidence will occur when and if it is offered into evidence."

Justice James D. Heiple wrote the opinion in Cisarik v Palos Community Hospital (Docket No. 69807). Justice Michael A. Bilandic, who had written the opinion of the appellate court, did not participate. Chief Justice Ben Miller, joined by Justice Charles E. Freeman, dissented. Miller wrote, "The majority's decision contravenes our policy of encouraging a broad scope of discovery." He pointed out that if evidence is only judged admissible at trial, "then it may be introduced even though the opposing party has had no opportunity to discover it." He added, "We should not now, at this late date,... revert to the kind of trial by ambush that can result when discovery rights are ignored."

More on voluntary dismissal

The Illinois Supreme Court seems to have amplified a 1989 decision limiting a plaintiff's right to voluntary dismissal. It filed its opinion on September 19, clarifying the options of the trial court judge.

At one time plaintiffs were considered to possess an absolute right to voluntary dismissal of their cases under the statutes (see Illinois Revised Statutes 1989, ch. 110, sec. 2-1009). Voluntary dismissal was intended to allow plaintiffs to correct procedural or technical errors by refiling the case, but the procedure was often used to delay decision on the merits of the case. Plaintiffs would have a suit dismissed only to renew it within a year sometimes repeating the process several times, thereby contributing to crowded court dockets.

The Illinois Supreme Court several times suggested that the legislature correct the matter by statute, but finally the court itself took action in February 1989. It ruled that a trial judge, faced with plaintiff's motion to dismiss voluntarily, could dismiss instead on a defendant's prior motion when facts in the case suggested the possiblity of a dispositive resolution (Gibellina v Handley, 127 111. 2d 122; see Illinois Issues, May 1989, page 32).

In the present medical malpractice case, the defendant had obtained several dismissals because of the plaintiff's failure to comply with discovery requirements; each time the court granted the plaintiff's motion to reinstate. In the final round of action at the trial level the defendant moved for dismissal after more delays, and the plaintiff finally moved for voluntary dismissal without prejuduce, which was granted. This would have allowed the plaintiff to refile within a year, and the defendant appealed.

The defendant seemed to argue that the trial judge was required under Gibellina to consider its motion before considering the plaintiff's voluntary dismissal motion. The Supreme Court disagreed, saying, "What appellant proposes is revision of the Gibellina rule to require determination of the defense motion rather than making the court's' authority to do so discretionary." The court emphasized the trial court's discretion to choose between the dismissal motions.

The court said the trial court did not abuse its discretion in the present malpractice case even though "this delay was another in a case replete with postponements and extensions that succeeded in freezing the litigation at the discovery stage. However, the trial court was familiar with the history of the litigation ... ." Justice William G. Clark wrote the opinion in Bochantin v Petroff (Docket No. 70374); Justices James D. Heiple and Joseph H. Cunningham did not participate.

Chief Justice Ben Miller dissented. He believed that the defendant's motion could have been dispositive and should have been considered. He said, "The case at bar illustrates well the frequent abuse of the voluntary dismissal statute and the resulting burdens that are being imposed on litigants and courts in this State. ... [T]he present plaintiffs ... were attempting to avoid an adverse ruling on the defendant's pending motion."

F. Mark Siebert

22/Novemher 1991/Illinois Issues

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