Future medical care claim barred for minor bitten by dog due to plaintiffs’ failure to comply with discovery rules


dog bite; beware of dog sign

By: Donald Patrick Eckler and A. Mark O’Danovich

In Phillips v. Havenar, 2024 IL App. (4th) 230204-U, the Illinois Appellate Court provided a detailed discussion of plaintiffs’ failure to comply with numerous evidentiary and discovery rulings, the most important of which was barring the testimony from a billing expert which substantially impacted the outcome of the case. 

Plaintiffs, Christopher Phillips, Individually and as Parent and Next Friend of C.J.P., a minor, and Chelsie Plummer, Individually, filed suit against defendant, Amy Havenar, concerning an incident during which C.J.P., a 4-year-old, was bitten by defendant’s dog suffering severe injuries to his face, left arm, back, and chest.  Plaintiffs alleged claims of negligence and a violation of Section 16 of the Animal Control Act (510 ILCS 5/16 (West 2020)) against the defendant.   

On July 19, 2020, C.J.P. was playing with two friends on a swing set in the defendant’s backyard. Defendant’s dog, a medium size pit-bull, was placed on a 10’ chain in the backyard. C.J.P. walked over to pet the dog when it attacked him. Dr. Bueno, one of two plastic surgeons called by plaintiffs to testify, operated on C.J.P. on the evening of the incident observing that he had extensive injuries to the skin, fat, and muscle on his left upper extremity, back, and chest. During the surgery, Dr. Bueno excised 300 sq. centimeters of non-viable subcutaneous tissue and muscle. Following a trial, a jury returned a verdict in plaintiffs’ favor on their Animal Control Act claim. The jury awarded damages totaling $172,525.80. The jury awarded C.J.P. damages totaling $75,000.00, including $35,000.00 for past pain and suffering; $15,000.00 for disfigurement; $10,000.00 for loss of a normal life; and $15,000.00 for past emotional distress. The jury awarded no damages for future pain and suffering, future loss of normal life, or future emotional distress. The jury awarded the parents damages for C.J.P.’s past necessary medical care and treatment in the amount of $87,525.80 and damages for future medical care in the amount of $10,000.00. 

The Appellate Court upheld the trial court’s decision to bar proposed testimony from two plastic surgeons. The trial court barred Dr. Bueno from testifying regarding the minor’s need for future medical care because there was no recent examination. Dr. Stams was barred from testifying live regarding the need for a future fat grafting procedure and the cost of associated medical care because plaintiffs did not disclose this information in response to 213(f) interrogatories and failed to elicit testimony on these issues during Dr. Stam’s evidence deposition.   

However, it was plaintiffs’ attempt to circumvent adverse evidentiary rulings by seeking to admit the cost of future medical care through their billing expert, Rebecca Busch, that drew the most attention by the Appellate Court.  

Plaintiffs sought to introduce testimony from Busch concerning the costs of anesthesia, fat grafting, surgical clearances, therapy, and mental health evaluations, arguing that these costs were related to a scar revision procedure Dr. Stams testified the minor could possibly undergo. Defense counsel objected to Busch testifying to the cost of this treatment because her opinion was based on an alleged phone call with Dr. Stams after discovery concluded, which constituted inadmissible hearsay, and because plaintiffs never disclosed that the minor needed future fat grafting procedures. The trial court struck Busch’s evidence deposition testimony regarding the cost of this future medical care because no medical provider testified that the minor would need such treatment. An expert’s opinion is only as valid as the bases and reasons for the opinion. Soto v. Gaytan, 313 Ill. App. 3d 137, 146 (2000). A party must lay a foundation sufficient to establish the reliability of the bases for the expert’s opinion. Petraski v. Thedos, 382 Ill. App. 3d 22, 28 (2008).   

There are many takeaways from this case. Plaintiffs’ failure to elicit testimony to support a future damages claims, submit his client to a recent medical examination, and to comply with 213(f) disclosure requirements resulted in an alarmingly low jury verdict. Plaintiffs’ failure to comply with basic discovery rules highlights Benjamin Franklin’s admonitory aphorism that “By failing to prepare, you are preparing to fail.” The case further highlights the aggressive efforts undertaken by a motivated defense counsel who seized upon every opportunity to bar or otherwise restrict plaintiffs’ unsupported future damages claims.   

For more information, please contact Donald Patrick Eckler at, A. Mark O’Danovich at, or your local FMG attorney.