Medical Malpractice Motion 1 - defendant's motion to bar damages evidence

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Defendant's Motion to Bar Evidence of Plaintiff's Damages

Pramila Kasturi, M.D., One of her attorneys, Attorneys for Defendant, McDonald Hopkins LLC, Richard N. Kessler, 640 N. LaSalle Street - Suite 590, Chicago, IL 60654, 312-280-0111, Atty. ID 6183140.

Defendant, PRAMILA KASTURI, M.D. (“Dr. Kasturi”), by her attorneys, McDONALD HOPKINS LLC, pursuant to Illinois Supreme Court Rule 219(c), moves that the Court enter an Order barring Plaintiff from submitting any evidence of damages as a sanction for failure to comply with previously issued discovery and in support thereof states as follows:

1. Plaintiff filed its complaint on February 7, 2007.

2. This case is presently set for trial on June 8, 2009.

3. On July 3, 2008, Defendant served Plaintiff with her interrogatories and document requests. A true and accurate copy of each is hereto as Exhibits A and B respectively.

4. Defendant's interrogatory 13 requested the dollar amount of patient revenues lost by Plaintiff as alleged in paragraph 22 of the Complaint.

5. Defendant's interrogatory 14 requested the identification of all damages suffered by Plaintiff.

6. Defendant's request for documents, at number 14, Defendant requested all documents relating to Plaintiff's patient revenue lost by Plaintiff as alleged in paragraph 22 of the Complaint.

7. The allegations of paragraph 22 of the Complaint are as follows:

22. As a direct and proximate result of Dr. Kasturi's breaches of the Agreement, Best Practices is suffering and will continue to suffer damage in the dilution of its referral relationships with other physicians and hospitals which has resulted in the loss of numerous patient and patient revenue. Additionally, Best Practices is being deprived of the fee revenue to which it would otherwise be entitled but for Dr. Kasturi's wrongful acts. The amount of this financial harm is not now known to Best Practices, but is ascertainable by examination of the business and medical records of Dr. Kasturi.

8. Defendant's request for production of documents, at numbers 14 and 15, requested all documents relating to and supporting damages suffered by Plaintiff Best Practices.

9. On August 29, 2008, Plaintiff served Defendant with its responses to Defendant's interrogatories and document requests, a true and accurate copy of each is attached hereto as Exhibits C and D respectively.

10. Plaintiff's responses to interrogatory 14 was circular as it referred Defendant to Plaintiff's response to Defendant's document requests. As established below, all such documents were wholly deficient.

11. Plaintiff's documents responsive to Defendant's documents requests 14 and 15 were attached to its responses.

12. The documents consisted of approximately 106 pages.

13. On October 27, 2008, Defendant's counsel Richard Kessler proceeded with the deposition of Jeffrey Kreamer, D.O., who is the sole shareholder of Plaintiff Best Practices, Inc. and who is the sole person disclosed by Plaintiff in its 213(f) disclosures who will be testifying as to Plaintiff's alleged damages. As of the date of Kreamer's deposition, the only documents that had been produced by Plaintiff in response to Defendant's interrogatories and document requests were the 106 pages referred to above and none of which disclosed any damages as testified to by Kreamer.

14. At the time of taking Kreamer's deposition, the only documents produced by Plaintiff with respect to Plaintiff's alleged damages were contained in deposition Exhibits 3 through 6, which in essence were the same documents produced by Plaintiff through its counsel on August 29, 2008.

15. In response to questions posed to Kreamer at his October 27, 2008 deposition as to each patient or revenues that Plaintiff lost as a result of any action by Dr. Kasturi, Kreamer answered no. (See Kreamer dep. tr. p. 124). See Exhibit E attached hereto.

16. At no time during Kreamer's deposition did Kreamer mention any documents in his possession or control to which he could look to determine Plaintiff's damages. Kreamer only mentioned billing records and he did not indicate that he had such records.

17. On February 9, 2009, Defendant's counsel, Richard Kessler, sent a letter to George Hoffman, one of Plaintiff's attorneys in which Kessler requested that Hoffman provide him with documents responsive to Defendant's prior requests as to Plaintiff's damages. A true and accurate copy of the February 9, 2009 letter is attached hereto asExhibit F.

18. On February 17, 2009, upon learning that Hoffman was no longer employed by Plaintiff's counsel's firm, Kessler sent a letter to Michael, one of Plaintiff's attorneys, enclosing a copy of the February 9, 2009 letter. A true and accurate copy of the February 17, 2009 letter is attached hereto as Exhibit G.

19. On February 24, 2009, Trucco sent a letter to Kessler which identified various lists of patients seen by Dr. Kasturi while she was employed by Plaintiff but did not produce any documents that related to tied to damages. A true and accurate copy of the February 24, 2009 letter is attached hereto as Exhibit H. Trucco states in his letter as follows:

The purpose of this letter is to identify which documents correspond with each particular request to affirmatively state that Best Practices does not possess documents that are responsive to a particular request.

Request No. 14: The documents produced by Dr. Katsuri and/or Med Claims Stat are the only documents in Best Practices' possession that are responsive to this request.

20. As stated in Trucco's letter of February 24, 2009, on or about February 25, 2009, Plaintiff served Defendant with its Second Supplemental Answers to Defendant's Interrogatories. This was the first time that Plaintiff specified its damages in response to interrogatory 14. Further, this was the first time that Plaintiff referred to any documents that purported to support the damages claimed. A true and accurate copy of the Second Supplemental Response is attached hereto as Exhibit I. In response to interrogatory 14, Plaintiff disclosed for the very first time how it arrived at its damage calculations. Further, Plaintiff disclosed for the first time that the damages are merely summarized and do not include the underlying supporting documents.

21. On February 27, 2009 Kessler sent Trucco a letter in which he again pointed out the deficiencies of the responses and documents. A true and accurate copy of the February 27, 2009 letter is attached hereto as Exhibit J.

22. As a consequence of the revelation of Plaintiff's damages, Kreamer's deposition was scheduled and taken on April for the purpose of questioning on the newly revealed information as to damages. The deposition proceeded on April 29, 2009.

23. On April 28, 2009, the day before Kreamer's deposition, Trucco sent Kessler Plaintiff's Third Supplemental Answers to Defendant's First Set of Interrogatories as well as yet additional documents purporting to support Plaintiff's damages calculations. A true and accurate copy of the Third Supplemental Answers and Trucco's letter of April 28, 2009 are attached hereto as Exhibits K and L respectively.

24. In Trucco's letter of April 28, 2009, Trucco disclosed for the first time that Plaintiff has “voluminous” documents that are responsive to Defendant's First Set of Interrogatories and First Request for Production of Documents.

25. During the course of Kreamer's second deposition, Kreamer testified with regard to the supporting documents as follows:

MR. KESSLER: Okay. I'm going to want to see that, the information behind the summaries. Which is what I presume you're referring to in your letter.

A And we can make that available to you and you can come and go through it.

MR. KESSLER: Q How voluminous is it?

A Very.

Q So if you were to pull the information that supports the data on this summary report, how long do you think it would take you to do?

A I don't know.

Q A week, five hours, two hours?

A I don't know. It's a lot of data to go through.

26. The information to which Kreamer refers has been in Plaintiff's possession since Dr. Kasturi left the Plaintiff's employ in September, 2006 as the documents referred to as “daily close sheets”, per Kreamer, reflect daily activity of charges and receipts, who performed the services and the hospital where the services were performed.

27. Plaintiff's theory of damages is tied to the daily close sheet from which the summary of their purported damages is derived.

28. Plaintiff, in prior discovery responses and correspondence, up until April 28, 2009, had represented that no further documents existed other that what had been previously produced or that none existed.

29. The daily close sheets are clearly responsive to Defendant's initial discovery requests and were not disclosed until six weeks prior the trial date currently scheduled for June 8, 2009.

30. The Court may impose sanctions upon any party who unreasonably fails to comply with supreme court rules governing discovery or any court order entered pursuant to those rules. So long as there is sanctionable conduct, even without having violated a court order, a party who fails to comply with the supreme court rules regarding discovery may be subject to sanctions as severe as the dismissal of the cause of action. Redelmann v. K.A. Steel Chemicals, Inc., 311 Ill. App. 3d 971, 977 (1st Dist. 2007).

31. Plaintiff's actions in failing to disclose the existence of responsive documents upon which their damage calculations are premised is highly irregular and wholly improper and justify the imposition of sanctions in the nature of an Order barring Plaintiff from submitting any evidence as to damages which is derived from, premised upon or that relate to the daily close sheets.

WHEREFORE, Defendant, Pramila Kasturi, M.D. moves that the Court find that Plaintiff's conduct in failing to previously disclose the existence of the daily close sheets is a violation of the Illinois Supreme Court Rules on discovery and that such action is sanctionable and as a sanction, Plaintiff is barred Plaintiff from submitting any evidence as to damages which is derived from, premised upon or that relate to the daily close sheets. In the alternative, Dr. Kasturi moves that the trial date of June 8, 2009 be stricken and continued for no less than 120 days to allow her counsel to view the voluminous documents referred to as the daily close sheets and to again depose Jeffrey Kreamer, D.O. relative to such documents

PRAMILA KASTURI, M.D.

By: <<signature>>

One of her attorneys

ATTORNEYS FOR DEFENDANT

MCDONALD HOPKINS LLC

RICHARD N. KESSLER

640 N. LaSalle Street - Suite 590

Chicago, IL 60654

312-280-0111

Atty. ID 6183140

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