Zero Tolerance for Duplicity

October 28, 2019 8:08 PM | Carson Griffis (Administrator)

 By:  Kimberly Glasford

 Depending on who’s asking, plaintiff Elena Chernyakova  claims that Dr. Vinaya Puppala either did or did not act  inappropriately during her hospital stay.  Her contrary  positions ultimately led the appellate court to dismiss her  appeal, impose sanctions against her attorneys and notify  the Attorney Registration and Disciplinary Commission (ARDC) of the court’s decision.  Chernyakova v. Puppala, 2019 IL App (1st) 173066.

Chernyakova filed an action against Dr. Puppala, as well as Northwestern Memorial Hospital and McGaw Medical Center of Northwestern University. She alleged that Dr. Puppala accessed her medical chart and posted her photo on social media without consent.  Subsequently, the circuit court entered summary judgment in favor of the Northwestern defendants. 

During trial on Chernyakova’s claims against Dr. Puppala, they entered into a “confidential” settlement agreement before a different judge.  That judge granted the parties’ request to seal the transcript of the hearing wherein the settlement terms were discussed. 

Chernyakova then appealed from the judgment in favor of the Northwestern defendants, who had since obtained information about the settlement terms. Specifically, they learned that Chernyakova had tendered Dr. Puppala a document admitting that she gave him consent to take her photo. 

At the Northwestern defendants’ request, the circuit court unsealed the settlement transcript.  While the appeal was pending, the circuit court entered an agreed order to supplement the record with the settlement transcript.  That transcript showed that in exchange for $250,000, Chernyakova agreed to write letters to various licensing bodies on Dr. Puppala’s behalf, stating that her prior allegations against him were mistaken.

In the appellate court, the Northwestern defendants moved to dismiss Chernyakova’s appeal and impose sanctions (Ill. S. Ct. R. 375 (eff. Feb 1, 1994)).  Before disposing of that motion, the court noted that the Northwestern defendants relied on certain e-mails that were outside the record and were not verified as required by Illinois Supreme Court Rule 361 (eff. Sept. 25, 2019).  The court disregarded those exhibits.

The appellate court also found that Chernyakova’s response to the motion violated Illinois Appellate Court First District Local Rule 4G (July 1, 2008).  The rule states that “in responding to a motion, the party filing the response should not include in the response a new motion or request for its own relief.”  Chernyakova’s response improperly asked the court to reconsider its earlier denial of her motion to strike the supplemental record.

The appellate court dismissed Chernyakova’s appeal and imposed sanctions under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994), which allows a reviewing court to impose sanctions for an appeal or other action taken in bad faith.  The court ordered Chernyakova’s counsel to pay $15,000 in attorney fees and costs to the Northwestern defendants.

In reaching this decision, the reviewing court clarified that the confidential nature of the settlement agreement evaporated when Chernyakova and Dr. Puppala described the settlement terms before the circuit court and the court reporter.  Additionally, while evidence of settlement negotiations is inadmissible to prove liability (Ill. R. Evid. 408(a) (eff. Sept. 25, 2019)), such evidence was nonetheless admissible to prove bad faith.  

The reviewing court acknowledged that it was ordinarily limited to considering matters contained in the record before the circuit court.  But the reviewing court’s obligation to do substantial justice and maintain confidence in the legal system required the court to consider events that occurred after summary judgment was entered in this instance.

The reviewing court found that Chernyakova agreed to state that her recollection concerning Dr. Puppala’s conduct and her lack of consent was mistaken.  “These representations diametrically contradict the factual allegations in her complaint, especially as they relate to the direct and vicarious liability claims made against [the Northwestern] defendants[.]” Chernyakova, 2019 IL App (1st) 173066, ¶ 27. Consequently, the appeal was not “reasonably well grounded in fact.” Ill. S. Ct. R. 375 (eff. Feb. 1, 1994). 

Moreover, Chernyakova’s attorneys were surely aware that her representations were inconsistent.  By urging the reviewing court to consider her appeal, counsel showed a “total lack of respect for the appellate process,” “a disregard for the truth seeking process,” and a failure “to adhere to the standards of professional conduct.”  Chernyakova, 2019 IL App (1st) 173066, ¶ 30.

Finally, the reviewing court directed the clerk of the appellate court to forward its decision to the ARDC due to the conduct of Joel Brodsky, one of Chernyakova’s attorneys.  Brodsky had attempted to prevent the court reporter from giving the Northwestern defendants a copy of the settlement transcript and, while this appeal was pending, the Illinois Supreme Court had suspended his license to practice law.

The Chernyakova decision touches on several important rules of appellate practice, including motion practice in the appellate court.  Above all, however, it serves as a warning not to mislead the appellate court.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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