Illinois Appellate Court Reverses $50.3 Million Jury Verdict in Birth Injury on Trial Error Made as to Late Discovery Disclosures

Julien Florez was born on March 22, 2009. His mother, Aimee Florez, was admitted to Evanston Hospital just after noon that day, five days after her due date. All tests and ultrasounds registered normal. After a procedure to break her water, Julien experienced a prolonged deceleration in fetal heart rate after his mother was given an epidural. Pitocin was administered by a second doctor to accelerate labor, and when Julien’s heart rate decelerated, a C-section was ordered.

Julien was delivered by C-section with an Apgar score of 1 out of 10, blue, and with an abnormally low heart rate requiring intervention due to lack of blood to the brain. Body cooling was initiated to slow or prevent additional brain damage. Within five hours of birth, Julien showed signs of seizures.

Julien, represented by his parents, Aimee and David Florez, filed a lawsuit. Julien suffered from cerebral palsy. At age 9, he exhibited global delays, significant speech and language deficit, requiring assistance eating, dressing and with hygiene as well as 24-hour supervision.

The Florezes claimed that the medical negligence of NorthShore University HealthSystem d/b/a Evanston Hospital and the treating physicians caused Julien’s injuries.

Fifty-six days before the beginning of the trial, the Florezes supplemented their answers to discovery with a copy of Julien’s psychological evaluation by Dr. Crystal Young. Dr. Young’s report included five tests; one was for autism, which Dr. Young found to be likely.

The defendants sought to file a supplemental disclosure with their experts arguing that Julien’s autism diagnosis supported a finding that his disabilities were a chronic condition, but the court denied permission, finding it untimely as they were less than 60 days from trial.

At trial, the defendants submitted expert testimony that Julien likely suffered from disabilities in utero. Following trial, a jury found in favor of the Florezes and signed their verdict for $50.3 million. The defendants appealed.

On appeal, the defendants challenged the trial court’s refusal to allow their expert’s supplemental disclosure relating to autism. The defendants acknowledged that their supplemental disclosure was filed less than 60 days from trial, but emphasized that it was in response to a supplemental disclosure filed by the plaintiffs less than 60 days from trial, meaning that the defendants had no way of timely responding to disclosure of Dr. Young’s psychological evaluation.

Illinois Supreme Court Rule 213(f), which allows and even mandates supplementing responses to written interrogatories when the information becomes known, does not specify a time limit by which they must be filed.

Illinois Supreme Court Rule 218(c) mandates that “discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will begin.” The appellate court found that the trial court had erred in barring the defendants’ supplemental responses, given that defendants were literally unable to timely respond to the plaintiffs’ permitted untimely supplemental answer.

The appellate court emphasized that the purpose of such discovery rules “is to eliminate surprise and unfairness.” The defendants’ response, filed 14 days after receiving Dr. Young’s evaluation, did not indicate an attempt to surprise the plaintiffs, and to deny them an opportunity to respond would be misconstruing the rules “to do substantial justice between or among the parties.”

The appellate court found that the trial court erred in denying the defendants’ opportunity to register a response to the plaintiff’s supplemental disclosures and therefore reversed and remanded the case for a new trial.

Julien Florez v. NorthShore University HealthSystem, et al., 2020 IL App (1st) 190465, Aug. 21, 2020.

Kreisman Law Offices has been handling birth trauma injury lawsuits, cerebral palsy injury cases, traumatic brain injury lawsuits, labor and delivery negligence lawsuits and medical negligence cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Evergreen Park, Cicero, Oak Park, Maywood, Bridgeview, Justice, Bedford Park, Norridge, Harwood Heights, Orland Park, Crestwood, Lisle, Glendale Heights, Arlington Heights, Hawthorne Woods, Barrington Hills, Hanover Park, Westchester, Tinley Park, Country Club Hills, University Park, Beecher, Crete, Lansing, Calumet City, Chicago (Washington Heights, West Lawndale, Englewood, Chatham, Calumet Heights, South Chicago, Jackson Park, Hyde Park, McKinley Park, Near West Side, West Loop, River North, Humboldt Park, Austin, Belmont Cragin, Portage Park, Ravenswood, West Ridge, Sauganash, Edison Park, Old Irving Park, Logan Square), Schiller Park, Franklin Park, Elk Grove Village, Des Plaines and Buffalo Grove, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.