Kaytor v. Southern Illinois Hospital Services

NOTICE

2025 IL App (5th) 240416

Decision filed 10/01/25. The

text of this decision may be NO. 5-24-0416

changed or corrected prior to

the filing of a Petition for IN THE

Rehearing or the disposition of

the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________

KEVIN KAYTOR, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Jackson County.

)

v. ) No. 18-L-31

)

SOUTHERN ILLINOIS HOSPITAL SERVICES, ) Honorable

) Christy W. Solverson,

Defendant-Appellant. ) Judge presiding.

______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion.

Presiding Justice McHaney and Justice Hackett concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Kevin Kaytor, sued his former employer, the defendant, Southern Illinois

Hospital Services (SIH), alleging retaliatory discharge. A jury returned a verdict for plaintiff and

assessed damages of $291,251 for economic damages, $250,000 for emotional distress, and $3

million for punitive damages. Judgment was entered on the verdict on February 10, 2023. SIH

filed a posttrial motion that was denied on February 21, 2024. SIH filed a timely notice of appeal

challenging the jury’s verdict and the denial of its posttrial motion.

¶2 I. BACKGROUND

¶3 This case began on March 23, 2018, with the filing of Kaytor’s complaint for wrongful

termination in violation of public policy against SIH. An amended complaint, the operative

1

complaint, was filed on June 25, 2018. The amended complaint alleged, inter alia, that Kaytor was

terminated in retaliation for reporting Medicare and Medicaid fraud and abuse.

¶4 The matter was scheduled for a jury trial to begin on January 23, 2023. A pretrial order

was entered which, inter alia, established a discovery deadline for the parties and required a

pretrial memorandum from each party.

¶5 On January 12, 2023, SIH submitted its pretrial memorandum, which disclosed eight

witnesses for trial. On January 17, 2023, Kaytor filed a written objection to three of the witnesses

disclosed by SIH: James McMillan, Page Rushing, and Dave Cullum. The objection was based on

the late disclosure of these witnesses after discovery closed on December 23, 2022, one week prior

to trial. SIH’s answers to interrogatories listed McMillan, Rushing, and Cullum as persons who

might have knowledge regarding the case, but did not identify them as witnesses for trial. SIH filed

a response in opposition to Kaytor’s objection. Presumably this was one of the issues addressed

by the trial court at the final pretrial hearing noted in the record sheet; however, neither the trial

court’s order on these witnesses nor a transcript of the hearing are included in the record before

us.

¶6 The matter proceeded to jury trial as scheduled. The jury was selected on January 23, 2023,

and the first day of trial commenced on January 24, 2023. The following relevant testimony was

adduced.

¶7 Kaytor was the first witness to testify. At the time of trial, Kaytor was employed as the

administrator of the Franklin Williamson Bi-County Health Department. His educational

background included two associate’s degrees, one in respiratory therapy and one in allied health;

a bachelor’s degree in business management; a master’s degree in business administration; and an

American College of Healthcare Executive’s degree.

2

¶8 Kaytor began working for SIH in 1988, when he was 23 years old. He began as an entry-

level respiratory therapist. He testified that he worked his way up through the company into a

management position, eventually becoming the supervisor of the sleep center in Carbondale.

¶9 In 2002, SIH made the sleep center a standalone department located at St. Joseph’s

Memorial Hospital (St. Joseph’s), which consisted of two beds. At that time, Kaytor was the

manager of the sleep center. The sleep center was a diagnostic center to look at individuals having

sleep disorders, and it had a clinic to assist patients with their continuous positive airway pressure

(CPAP) equipment.

¶ 10 In 2016, at the time of Kaytor’s termination, the sleep center had grown to have seven

locations throughout southern Illinois with a total of 22 beds. Kaytor testified that he drove the

growth of the sleep center to 22 beds by his work with the community, advertising, and developing

relationships with other hospitals.

¶ 11 While Kaytor was manager of the sleep center, he reported directly to the hospital

administrator of St. Joseph’s, who reviewed his performance. He testified that overall, he

considered his performance reviews to be very good. Kaytor’s performance reviews from 2011

through 2016 were admitted into evidence and published to the jury.

¶ 12 Kaytor’s 2011 performance review had an overall performance rating of 2.92 out of 3. The

review noted under a collaboration section that Kaytor “[p]lays well with others, employees,

patients, and does very well with doctors.” Under a team leadership section, the review noted “[i]n

the department, the staff functions as a well-oiled machine.” The manager completing the review

was Scott Seaborn.

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¶ 13 Kaytor’s 2012 performance review had an overall performance rating of 2.99 out of 3. This

indicated that he “fully meets and exceeds expectations.” The comments noted that Kaytor was

very good at leading an effective team. The manager completing the review was Scott Seaborn.

¶ 14 Kaytor’s 2013 performance review had an overall rating of 2.88 out of 3. Comments

included, inter alia, that “[w]orking with and motivating his people is a strength of Kevin’s” and

that “[h]e is excellent with his staff, and once again, needs to show this engagement to the broader

population.” The manager completing the review was John Brothers; however, there were also

comments from Scott Seaborn. Kaytor testified that there was a period of transition as Seaborn

was retiring and Brothers was taking over the role.

¶ 15 Kaytor’s 2014 performance review had an overall rating of 2.0 out of 3, which “fully meets

expectations.” The manager’s comments stated, “I believe that your employees respect and

appreciate you. I agree that you are positive with staff and peers.” The manager completing the

review was John Brothers.

¶ 16 Kaytor’s 2015 performance review had an overall rating of 2.46 out of 3, which indicated

that he was somewhere between “fully meets expectations” and “outstanding.” The comments

included “I believe you have shown the 3Cs to your staff.” Kaytor testified that the 3Cs stood for

caring, commitment, and collaboration. The manager completing this review was Susan Odle.

¶ 17 Kaytor’s 2016 performance review had an overall rating of 2.56 out of 3. The review was

completed at the end of July 2016, and the manager that prepared it was Susan Odle. The review

included six performance goals. Of those six goals, Kaytor was marked as “extraordinary

performance” for five of the six goals. The review defined “extraordinary performance” as “top

3% of performance—obviously a Superstar.” The goal that was marked “not fully meeting

expectations” was related to patient surveys and their satisfaction with the sleep center. A comment

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noted, “On boarding additional physicians has gone well and shows one of your strengths, guiding

the team through the less pleasant changes that are occurring for the sleep services and preparing

them for the future.”

¶ 18 Kaytor also testified regarding an employment engagement survey that was sent by SIH

human resources to all employees. The data was presented to Kaytor as part of the survey was an

evaluation of his role as department director. His score was a 5.6 out of 6.

¶ 19 Kaytor testified Dr. Terry Brown became the medical director of the sleep center in 2003.

Kaytor testified that when a provider or treating physician ordered a sleep test, the order and office

notes would be forwarded to Dr. Brown to make a determination if the test was medically

necessary. If the ordered test was determined to be medically necessary, the test was performed at

the sleep center.

¶ 20 Kaytor testified that Dr. Brown was the medical director of the sleep center and also had

his own private practice called Sleep Medicine Associates. The practice was physically located

within St. Joseph’s and the standalone sleep center location in Marion. The sleep center and Dr.

Brown’s practice had a shared waiting room and reception area. There were no physical barriers

or demarcations to separate the sleep center from Dr. Brown’s private practice.

¶ 21 Kaytor testified he and Dr. Brown had a good working relationship in the beginning. They

worked closely together to build the sleep center. Kaytor testified that their relationship changed

when he reported his concerns of Dr. Brown not being compliant with the law.

¶ 22 There were three categories of actions that Kaytor believed were violations of the law.

First, that Dr. Brown referred hospital patients into his own private practice. Kaytor testified that

data was collected regarding when a sleep study was ordered by an outside physician and the study

was denied by Dr. Brown due to it not being medically necessary. Kaytor testified he observed

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that some of these patients were initially referred by an outside physician and had their test denied;

however, once they became patients of Dr. Brown, the test was then approved. Kaytor testified a

joint form was prepared by SIH and Sleep Medicine Associates that was given to all patients

having a sleep study that were insured by Medicare and/or Health Alliance. The form stated, “[i]in

order to be compliant with the insurance guidelines you will need to make an appointment with

Dr. Terry Brown, Sleep Specialist.”

¶ 23 Kaytor testified he observed differences in how patients insured with Medicaid received

their sleep equipment versus those insured by Medicare. A face-to-face visit with Dr. Brown was

required for Medicaid patients to receive their equipment. It took approximately 8-12 weeks after

a diagnosis of a condition for Medicaid patients to receive their equipment compared to

approximately 10 business days for Medicare patients.

¶ 24 The second category of actions that Kaytor believed to be a violation of the law was that

Dr. Brown was receiving free rent for his private practice, was using sleep center computers, and

was using SIH sleep center supplies for his private practice. Kaytor testified he believed that Dr.

Brown violated the Stark Law. Kaytor testified that while working for SIH, he was trained on the

Stark law. Based on that training, Kaytor testified his understanding of the Stark law was that it

was

“designed for fair market value for rent, so if you have a provider that has potential to

financially incentivize the hospital, financial gain for the hospital, that rent for that

physician should be the same for a physician that doesn’t have an opportunity to financially

improve the hospital, so they are charged the same amount for rent so it’s equal.”

6

Kaytor testified that Dr. Brown’s practice used the Marion sleep center facility on Tuesdays and

Thursdays and Dr. Brown or his staff used the Murphysboro sleep center location Monday through

Friday.

¶ 25 Further, Kaytor testified that Dr. Brown would use items from the sleep center’s supply

closet in his private practice and did not pay for them. Dr. Brown would use the sleep center’s

durable medical equipment and leave it for the personnel of the sleep center to clean and sanitize

after it had been used. Dr. Brown’s practice also used the computers at the sleep center locations.

Additionally, any typical office supplies needed for a medical practice, like pens and paper, were

purchased by SIH and used by Dr. Brown’s practice. Kaytor testified that Dr. Brown’s practice

using SIH supplies without paying for them violated the Anti-Kickback Statute. His understanding

was that free rent, the use of medical equipment, and supplies would be an incentive for Dr. Brown

to make referrals.

¶ 26 The final category of actions that Kaytor believed to be in violation of the law was that Dr.

Brown was using physician assistants (PAs) to interpret sleep studies, when they were unqualified

to do so, and that Dr. Brown then signed the interpretations as if he completed them and submitted

billing to Medicare. Kaytor testified that data was collected regarding when a study was performed

and needed to be interpreted, when it went to Dr. Brown to be signed off on, and when it returned

to the sleep center for a copy to be sent to the ordering provider. Kaytor created a document

showing that on 13 days between November 11, 2012, and February 8, 2013, Dr. Brown interpreted

20 or more sleep studies in one day. Kaytor testified, based upon his observations of working with

Dr. Brown, that it typically took approximately 30 minutes for Dr. Brown to interpret a sleep study.

Based off the number of studies that Dr. Brown signed off on, Kaytor believed Dr. Brown was

7

violating the False Claims Act that applied to Medicaid and Medicare patients because he was

signing off on sleep studies that had been interpreted by PAs.

¶ 27 Regarding how Kaytor learned of the aforementioned actions, he testified that, in 2013,

Ann Kern, the property manager for SIH in the financial administration department, contacted him

because she was looking into the fair market value of the Marion sleep center. Kern needed

information on how Dr. Brown’s private practice used the sleep center location. Kaytor assigned

Donna Draper, the lead sleep technologist at the Marion facility, to assist Kern. Through this

process, Kaytor learned that Dr. Brown was using the office space two days a week but was only

paying rent for one day a week.

¶ 28 After this information was provided to Kern, Kaytor thought Dr. Brown reacted badly.

Kaytor stated Dr. Brown started writing Draper out of a job through the orders he made for his

patients. Prior to the report, Draper was the lead sleep technologist and she assisted patients in the

CPAP Solutions Clinic at the Marion sleep center. After the report, Dr. Brown’s orders required a

registered respiratory therapist (RRT) to see the patients in the clinic. Draper did not have these

credentials, so she was unable to assist patients in the clinic. Kaytor testified that Draper had other

certifications that trained her on how to help patients with their CPAP equipment. Kaytor testified

that he and Draper had a phone conversation with Dr. Brown on February 26, 2024, regarding the

change in his orders. Kaytor testified:

“In the phone conversation me and Donna had with Dr. Brown after we learned that he was

writing these orders for RRT, he told Donna he was retaliating against her, she would not

have a job, and if she didn’t know how to spell retaliation, ask him, and Kevin is not a good

speller, so it was really bizarre.”

8

After this conversation, Kaytor testified he and Draper reported to Susan Odle on February 28,

2014, that Dr. Brown was changing his orders to retaliate against Draper. Kaytor testified Odle’s

response “basically said [Dr. Brown’s] in the position he can do whatever he wants to do.”

¶ 29 Following the report, Kaytor received an e-mail from Dr. Brown. On April 1, 2014, Dr.

Brown sent an e-mail to Amanda Winter, and Kaytor was included as a carbon copy. The subject

of the e-mail was “bullying.” The e-mail from Dr. Brown stated,

“Kevin said you guys were bullying Donna. So I guess the pressure is working. I told him

it was the other way around, that Prima Donna was bullying you all. I have another idea

we can think about, short of the nuclear option. We could all go down to complain to the

head HR office. Both of you, Sarah, and me. You would need to remember all the things

Donna has done—or at least the more salient ones.”

The same day he received the e-mail, Kaytor forwarded it to Susan Odle—his supervisor; Shelly

Pierce—vice president of corporate quality management; April Holmes—director of corporate

compliance; John Brothers—administrator; and Kelly Stevens—human resources (HR) manager

for St. Joseph’s. Kaytor testified nothing changed regarding the retaliation after the email was sent

to his superiors. He was told that “Dr. Brown is a physician and he can do whatever he wants to

do.”

¶ 30 After reporting the aforementioned concerns to his superiors, Kaytor’s annual evaluation

for the review period of May 9, 2014, through July 31, 2014, had the following comments under

the category of development goals: “I believe you need to work at repairing the relationship that

you previously established. Continue to ‘patch’ and restore your previous relationship with the

medical director.” Kaytor testified the message he received from administration after reporting his

concerns was that “Dr. Brown can do whatever he wants to do.”

9

¶ 31 Kaytor’s 2015 evaluation, completed by Odle, noted, “Improvement is needed in areas of

collaboration, especially with the medical director, and reducing the discord the staff experienced

as a result of this.” Kaytor testified that, at this time, Odle had taken no action to repair the

retaliatory relationship.

¶ 32 Kaytor testified regarding reports made to the compliance department in 2016. On January

13, 2016, Kaytor e-mailed April Holmes, the director of corporate compliance, regarding his

concerns about fraud with the ordering of split studies. Kaytor said Dr. Brown’s behavior

continued after this report.

¶ 33 Kaytor testified regarding a department staff meeting he conducted on February 10, 2016.

He stated a staff member mentioned that Dr. Brown had written Draper out of the CPAP clinic.

Dr. Brown responded that Kaytor took Draper out of the CPAP clinic, and Kaytor disputed Dr.

Brown’s response. Kaytor described Dr. Brown’s response to the disagreement as having a beet-

red face and raised fists. Kaytor was fearful that Dr. Brown was going to hit him. The meeting

ended. Kaytor testified he reported the incident to Odle and Stevens and made a formal written

complaint to SIH on February 15, 2016.

¶ 34 On October 17, 2016, Kaytor e-mailed Rex Budde, the chief executive officer (CEO) of

SIH, regarding the issues he had previously reported to Odle and Holmes. Kaytor testified that

Budde had called him after two other employees of the sleep center went to see him on October

12, 2016. Kaytor followed the conversation with an e-mail of October 17, 2016. Kaytor testified

that Budde met with him to discuss the e-mail and following that e-mail, Budde requested

additional information from Kaytor. On October 24, 2016, Kaytor e-mailed the requested

information about denials of sleep studies; Odle was included in this e-mail, as Budde had included

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her in his e-mail requesting additional information. Kaytor testified he had no further contact with

Budde.

¶ 35 On November 3, 2016, Odle e-mailed Kaytor and instructed him to prepare a level II

discipline or “write up” for four employees for their conduct during a staff meeting in October.

The e-mail recounted the disagreements that staff had with Dr. Brown. Odle wrote this conduct

was insubordination. Kaytor testified he disciplined the employees as instructed by the deadline

given.

¶ 36 On November 22, 2016, Kaytor was called to a meeting at the corporate conference room

in the legal area. Kaytor met with Odle, Emily Reiman, an auditor for the compliance department,

and Pam Henderson, the vice president of HR for SIH. Kaytor testified that Reiman stated that all

of the concerns Kaytor reported regarding Dr. Brown had no standing, and, other than needing to

place a lock on the supply closet, everything Dr. Brown was doing was fine. Reiman also told

Kaytor she had audited the CPAP clinic in 2015, and the clinic was not in compliance because

there were handwritten stars under the place where the physician would sign. Next, Odle asked

Reiman to leave the room, and Odle told Kaytor he was being terminated. Kaytor testified that

Odle terminated him because she said he did not show leadership. Kaytor testified that, before this,

Odle had no concerns with his job performance.

¶ 37 After his termination from SIH, Kaytor was able to find an as-needed night position at Red

Bud Memorial Hospital in Red Bud, Illinois, as a night sleep technologist. He worked in this role

for three months. At the same time, Kaytor worked in Evansville, Indiana as an as-needed night

sleep technologist. Kaytor’s commute to Evansville was a two-hour drive one way. Next, Kaytor

obtained full-time employment in Vincennes, Indiana as a night sleep technologist. He was

employed in this position from March or April 2017, through July 2017. He worked three 12-hour

11

shifts. Vincennes, Indiana was a two to three hour commute. Kaytor testified that the hospital

allowed him to sleep in a recliner in one of the bedrooms during the day. He would shower in the

maintenance area of the hospital and then work his night shift. Kaytor testified it felt depressing to

be working as an entry-level sleep technologist again. Prior to his termination, the last time he

worked as a sleep technologist had been in 2002.

¶ 38 In July 2017, Kaytor obtained a position at Franklin Williamson Bi-County Health

Department (Bi-County). He testified the salary was less at Bi-County, as were the benefits. Kaytor

reviewed his W-2s and paystubs to calculate what he thought his economic loss was as a result of

his termination from SIH. This calculation included estimating what he thought salary increases at

SIH would have been based off his historical increases. Kaytor believed his lost wages from SIH

totaled $269,135. The value of his lost vacation time was $89,675. The loss of matching 401k

contributions was $32,681. The cost of increased health insurance premiums for Kaytor was

$19,616. Based on the foregoing, Kaytor believed his total economic loss as a result of his

termination was $411,107.

¶ 39 As for emotional losses, Kaytor testified that, as a result of the termination, he was

embarrassed, ashamed, and sad. Kaytor testified he was unable to tell his children about his

termination, and they learned it from other sources. Kaytor said the experience devastated him.

Kaytor testified he would not shop locally for fear of seeing a former coworker.

¶ 40 On cross-examination, Kaytor testified he was aware of polices that SIH had related to

employment, discipline, improvement counseling, and compliance allegations. Kaytor agreed that

he made a complaint to compliance in 2013 regarding the rent issue.

12

¶ 41 Kaytor confirmed that he and Draper have been in a romantic relationship since 2011. He

agreed that Dr. Brown, as the medical director and only physician for the sleep center, could

require tests be completed by those with certain credentials.

¶ 42 Kaytor was questioned regarding a level III written warning he received on September 14,

2015, and the accompanying corrective action plan. The discipline and action plan involved

inappropriate pay to Draper. Kaytor received a three-day suspension with pay.

¶ 43 Kaytor was cross-examined regarding the October 2016 staff meeting that resulted in

written discipline for four staff members. Kaytor stated he did what he was told to do by his boss,

Odle.

¶ 44 Kaytor was asked about his 2015 performance evaluation and the score that he was “not

fully meeting expectations” as to patient survey scores. There was also an e-mail in July for all

managers regarding productivity. Kaytor had some concerns about meeting the goal that had been

established.

¶ 45 On cross-examination, Kaytor again discussed the meeting on November 22, 2016, with

Reiman, Odle, and Henderson. Reiman spoke first in the meeting and discussed the CPAP clinic

audit. Reiman stated there were concerns after a re-audit was conducted. Reiman noted she had

investigated Kaytor’s concerns with the clinic and found no issues. Next, Odle spoke to Kaytor

and terminated him for not showing leadership.

¶ 46 Regarding damages, Kaytor repeated that he felt like being fired from SIH for reporting

wrongdoing was like a death. He stated being fired was the worst thing that has happened in his

life and it still haunts him. Kaytor was asked if any other part of his life caused him stress or

emotional or physical distress. Kaytor testified he had been through a fight with cancer after being

fired and, at the time of trial, was cancer-free. He acknowledged the cancer caused stress, but felt

13

it was different to be fired. Kaytor testified he did not see a medical provider or mental health

provider for anything related to his termination.

¶ 47 On redirect examination, Kaytor testified he received the level III warning for scheduling

employees to work seven days in a row. He also testified that when Draper was promoted to lead

technologist, she was one of the two people who applied for the position. Additionally, HR was

aware that Kaytor and Draper were in a romantic relationship.

¶ 48 Sammie Prest testified for the plaintiff. Prest testified that she is currently a registered

respiratory therapist (RRT) working at Pinckneyville Community Hospital. Prest formerly worked

for SIH in the sleep lab. She started working for SIH in 2010, and she resigned effective January

1, 2018.

¶ 49 When she started at SIH, she was a registered polysomnography tech (RSPGT), which is

also known as a sleep technician. Kaytor was her boss when she worked at SIH. Prest gave her

opinion about Kaytor as a boss. She felt he was a normal, everyday boss that was not perfect, but

was good to her. Prest did not think Kaytor favored any of the sleep center employees.

¶ 50 Prest also testified about her experience working with Dr. Brown. At first, she did not have

any problems or issues working with Dr. Brown. She said at the end of her employment with SIH,

she recalled it being hostile. She thought Dr. Brown was unfair in meetings. She also recalled being

called off of work because studies were being denied. She felt Dr. Brown was working against the

sleep center.

¶ 51 Prest and another coworker, Lori Williams, met with CEO Budde to express their concerns.

Prest stated she felt Kaytor’s hands were tied, and he was doing everything he could and that Odle

already knew of the problems, so she wanted to report them to Budde.

14

¶ 52 Prest did not recall the October 2016 staff meeting or whether she was disciplined. Prest

agreed that she was not terminated after she spoke to Budde.

¶ 53 Heather Harris testified on behalf of the plaintiff. Harris testified that she was currently

employed as a medical secretary for Prairie Cardiovascular in Carbondale, Illinois. Prior to

working at Prairie Cardiovascular, Harris worked for almost 10 years at SIH as a scheduler in the

sleep center. She started working in this role in June of 2015. She took calls from provider’s

offices, which were referring patients to the sleep center, and then scheduled the appointment.

Kaytor was her manager.

¶ 54 Harris described Kaytor as a hands-on manager. She described him as a fair and

understanding person. Harris stated anytime she had an issue, Kaytor would attempt resolve it. If

he could not, he would direct her to someone else who could help. Harris worked during the day

shift, so she did not interact with many coworkers. Harris did work with Draper, and she described

her as a happy person who enjoyed helping patients. She felt they worked well together. Harris

also worked with Dr. Brown. She stated she felt intimidated by him. He sometimes made her feel

like she was not smart enough for the job.

¶ 55 As the scheduler, Harris would see all of the orders that came to the sleep center. This

information would be presented to Dr. Brown, who would then determine if the study was

necessary. If the order was denied, Harris would notify the patient and/or the ordering provider.

Harris noticed that some denials would have a follow-up appointment with Dr. Brown and then a

study would be ordered and approved. She testified that, in 2015, she did not see many denials,

but denials started increasing in the fall of 2016.

¶ 56 Harris testified regarding staff meetings. She said staff meetings were mandatory. She

recalled what she described as a “pretty rough” staff meeting about denials. Harris stated she called

15

Dr. Brown a liar in the meeting because she was aggravated and knew the information he was

presenting was false. Harris believed the information about the number of denials Dr. Brown was

presenting was inaccurate. Harris received a written write-up as a result of this staff meeting. She

voluntarily resigned after Kaytor’s termination.

¶ 57 Rex Budde was called as a witness by the plaintiff. Budde testified that, prior to his

retirement on December 31, 2022, he served as the president and CEO of SIH. Budde testified

regarding SIH’s compliance program. A compliance program handbook was provided to each SIH

employee and provided that each member of SIH’s workforce was obligated to be familiar with

the applicable laws and regulations and comply with those. The board of trustees for SIH had a

compliance committee, and SIH had a compliance department.

¶ 58 Budde reviewed an e-mail that was sent to him by Kaytor regarding a meeting. It refreshed

his recollection that a meeting had occurred; however, Budde testified he did not remember the

details of the meeting with Kaytor. The e-mail relayed the concerns that Kaytor had regarding the

sleep center and Dr. Brown.

¶ 59 Budde acknowledged that Kaytor’s supervisor, Odle, became aware of Kaytor’s

communications with Budde because Odle was copied on the e-mails. Budde did not recall any

specific conversations with Odle on this topic.

¶ 60 Budde testified his practice would be to involve the compliance department if concerns

were reported to him. He was provided an e-mail in which the sleep study rates were declining,

and Budde indicated the decrease could be Dr. Brown “responding to tougher regulations, but I

don’t completely trust him either.” Other than one e-mail from Holmes that commented “it doesn’t

look bad or something to that effect,” Budde did not receive a report or determination regarding

whether the issues Kaytor raised rose to the level of fraud or abuse.

16

¶ 61 Budde testified he did not participate in the process of terminating Kaytor and did not know

anything about why Kaytor was fired.

¶ 62 Budde acknowledged that healthcare organizations are required to comply with Medicare

and Medicaid. Violations of Medicare and Medicaid regulations could result in the organization

returning fees that had been paid for services that were billed or performed in violation of those

regulations. Violations could also result in the healthcare organization being suspended from

participating in the programs which would be detrimental to the organization. Budde estimated

that 42% to 45% of SIH’s income was from Medicare patients. It would also be detrimental to

Budde, who received bonuses based on revenue in addition to his salary. Tax documents were

introduced into evidence that showed Budde was the highest paid employee of the organization in

2020 with a salary of $1,051,964.

¶ 63 On cross-examination, Budde testified that SIH was a not-for-profit corporation that does

a significant amount of charitable work. He indicated SIH loses money from that charitable work.

On redirect examination, Budde acknowledged that SIH was required to treat indigent patients

under federal law. Additionally, tax documents indicated that in 2020 SIH had $46 million in

excess revenue, so SIH did not lose money every year. Additionally, in 2020, SIH made $10

million in interest on investments.

¶ 64 Budde testified that he handled the hiring and firing of individuals who reported directly

to him. Otherwise, those issues would be handled by the SIH human resources department.

¶ 65 Lori Williams was called as a witness for the plaintiff. Williams is a registered respiratory

therapist who was formerly employed by SIH conducting sleep studies. She worked with Kaytor

as her boss. She testified that she thought he was a good boss who was kind and listened to

everyone’s input.

17

¶ 66 Williams also worked with Dr. Brown. She testified that in the beginning of her

employment, it was fine working with Dr. Brown, but it became volatile. She stated Dr. Brown

was degrading towards sleep technologists. She only observed Kaytor and Dr. Brown together

during meetings, which were generally positive until the end.

¶ 67 Williams testified regarding a statement she heard Dr. Brown make while he was in a

patient room. She explained that at the very beginning of every sleep study, video and audio

recording equipment is turned on. The sleep technologist can then see and hear what is happening

in the patient room at his or her workstation. Williams testified that, through this equipment, she

heard Dr. Brown speaking to Judy Elmore, an employee of the CPAP clinic. “He said that he pretty

much wanted to take Kevin [Kaytor] down for retaliation, evil retaliation would be his exact

words.”

¶ 68 Williams recalled at a staff meeting that Dr. Brown told all the employees they needed to

find different jobs because the jobs they had would be coming to an end. She stated she felt very

degraded. She recalled responding to those statements in the meeting, but not exactly what she

said. She reported Dr. Brown’s statements to Odle and Budde. Williams resigned from her position

at the sleep center in 2017.

¶ 69 Next, plaintiff called Jody Kennedy as a witness. Kennedy formerly worked as a registered

sleep technologist at SIH with Kaytor as her boss. She testified that Kaytor was a good boss and

one of the best bosses she has ever had.

¶ 70 She also worked with Dr. Brown. Kennedy stated that, at first, working with Dr. Brown

was good and she felt like she could talk to him about anything. She felt this changed after a staff

meeting where Dr. Brown became angry with Kaytor. She described Dr. Brown as being angry

and making a fist as he stood up. She felt scared of him at that moment. Kennedy filed a report

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with the hospital regarding this incident. The report was introduced into evidence. In the report,

Dr. Brown was named as the practitioner being reported. The description of the incident in the

written report was “It was a very hostile environment and I didn’t feel safe. Dr. Brown attacked

Donna Draper and Kevin Kaytor for not being competent. I feel unsafe to work around Dr. Brown.”

¶ 71 Donna Draper was called as a witness by the defendant. Draper first worked for SIH as a

sleep technician for less than one year in 2000. She returned to working as a sleep technician at

SIH in September 2006. Draper worked 12-hour overnight shifts, monitoring patients undergoing

sleep studies. At this time, Kaytor was the director of the sleep center, and Dr. Brown was the

medical director of the sleep center.

¶ 72 Draper testified she took courses regarding sleep medicine and received certifications

following exams. She was a registered sleep polysomnography technologist (RPGST), a registered

sleep technologist (RST), and a certified clinical sleep educator (CSE).

¶ 73 Draper received a promotion and became the CPAP Solutions Clinic specialist on day shift.

The CPAP Solutions Clinic assisted patients with their CPAP equipment.

¶ 74 The next promotion Draper received was in 2011, when she became one of two lead sleep

technologists. Eventually, as a lead sleep technologist, Draper would have morning meetings with

the other technicians regarding any feedback from the medical director and review sleep study

information from the prior week. Draper was also in charge of all of the lab technicians and would

be on call for any issues that may arise or if anyone needed to call her to miss work due to an

illness. Draper also conducted sleep studies for patients and assisted patients with their CPAP

equipment.

¶ 75 As the lead sleep technologist, Draper worked closely with Dr. Brown. She went to Dr.

Brown with any medical questions she had, and he interpreted the sleep studies she performed.

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Draper stated she and Dr. Brown got along very well. Dr. Brown told Draper several times that

she was his favorite technician, complimented her, and took her to lunch a couple of times. Her

relationship with Dr. Brown changed in February 2014.

¶ 76 Draper explained in the fall of 2013, she was asked to meet with Beth Ann Kern, the

property manager for financial administration. Kern met with Draper at the Marion sleep center

location. Draper showed Kern around the entire office. Kern asked Draper regarding Dr. Brown’s

private practice, including how many days a week Dr. Brown was at the facility, what rooms he

used, and what computers, equipment and supplies he used. Draper told Kern that Dr. Brown used

the office two days a week for his private practice and showed Kern the rooms and equipment he

used.

¶ 77 Draper testified that, after this meeting, her relationship with Dr. Brown changed. Dr.

Brown began writing orders that patients at the CPAP clinic in Marion had to see an RRT, a

certification that she did not have. For the seven years prior to this, Draper had been seeing patients

at the CPAP clinic in Marion and the orders did not require an RRT. She told Kaytor about this,

and Kaytor spoke to Odle. Draper also spoke to Dr. Brown regarding this issue during a telephone

conversation. Draper testified Dr. Brown told her that he was not going to write any orders for her

to see patients at the clinic. He also said, “this is called retaliation and if you can’t spell it you can

ask Kevin how to spell it for you.” Draper and Kaytor met with Odle regarding Dr. Brown’s

statements. Draper recalled Odle said she would look into this issue.

¶ 78 Draper testified that Dr. Brown stopped sending her e-mails with feedback to pass onto the

technologists in their meetings. Dr. Brown stopped answering phone calls from Draper. She also

said Dr. Brown would call her names like “fat a***” and “b***.” Draper stated that Dr. Brown’s

20

staff also treated her poorly and called her names. After Kaytor was terminated, Draper was in a

control room, and Dr. Brown came behind her and said, “You are next, fat a***.”

¶ 79 Draper had a second meeting with Kern later in 2013. Draper told Kern she was nervous

about meeting with her again due to the retaliation. They again went over what Dr. Brown was

using in his private practice. Kern told Draper that Dr. Brown was only paying rent to use the

office one day a week instead of two, and SIH will owe millions of dollars to the government

because of this.

¶ 80 Draper stated her relationship with Dr. Brown did not improve throughout 2013, 2014, or

2015. On June 3, 2016, a meeting was called by Odle regarding the working relationships in the

sleep center. At that meeting, Odle announced the RRT credential was no longer required to work

in the CPAP Solutions Clinic. Dr. Brown acknowledged this was his concession. On June 10,

2016, Draper was called to Odle’s office and was told she was being demoted from the lead

technologist position, which included a decrease in her pay. Draper disagreed with this and filed a

grievance. The written grievance relayed Draper’s disagreement with her demotion for poor

performance, as all of her performance evaluations indicated excellent performance and no issues

had been raised with her prior to her demotion. After filing the grievance, Draper was called to a

meeting with Odle. At this meeting, Odle told her she was no longer being demoted. In July 2016,

Odle completed a performance review for Draper, which was very favorable with many notations

of extraordinary performance. Draper is no longer employed at SIH.

¶ 81 Draper testified she and Kaytor began a romantic relationship in 2011 and discussed this

with HR for SIH. At the time they began dating, there were no polices at SIH prohibiting this.

Eventually a policy was made prohibiting dating a supervisor. When this policy took effect, Draper

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reported to Odle as her supervisor instead of Kaytor. As of trial, Draper and Kaytor were still in a

romantic relationship.

¶ 82 After Kaytor was terminated, Draper observed Kaytor and described him as being totally

devastated, sad, depressed, and withdrawn. He did not interact much and did not have a lot to say.

Kaytor did not want to go shopping anywhere locally for fear or running into someone he knew

from SIH. When they would go shopping out of town, Kaytor would comment that he could not

add anything to the shopping basket because he did not have a job. Before his termination, Kaytor

was an avid hunter. He would bow hunt for deer and turkey. After his termination, he lost all

interest in hunting. Since Kaytor found new employment, he has gone hunting once with his son,

but not like before.

¶ 83 On cross-examination, Draper acknowledged that she was not removed from her position

as a lead technologist and her salary was not reduced. She no longer works for SIH due to her time

off under the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq. (2012))

running out. Draper and Kaytor are also engaged to be married.

¶ 84 The evidence deposition of Dr. Fakhre Alam was read to the jury. Dr. Alam first met Kaytor

in 1999 when he began practicing at Memorial Hospital in Carbondale. He initially worked with

Kaytor until 2002, but did not work with Kaytor again until 2015.

¶ 85 Following Kaytor’s termination, Dr. Alam wrote a letter of reference for Kaytor to use in

his job search. Dr. Alam testified that he was trying to be as kind as possible to Kaytor and to help

him. The letter noted that Kaytor had excellent leadership qualities, and he had transformed the

sleep center into a successful business. He noted that Kaytor was well liked by his peers. The letter

also stated that Kaytor had a phenomenal knowledge of the sleep study field and he was an expert

in scoring sleep studies. Dr. Alam wholeheartedly recommended Kaytor to prospective employers.

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¶ 86 Dr. Alam hired Kaytor on a contractual basis after his termination. Kaytor scored sleep

studies remotely for Dr. Alam.

¶ 87 The evidence deposition of Dr. Suhail Istanbouly was read to the jury. Dr. Istanbouly

testified he had known Kaytor for approximately 20 years. Dr. Istanbouly is a pulmonologist, and

Kaytor would visit his office to promote the sleep center. In 2016, Dr. Istanbouly passed his

medical board exam in sleep medicine and started to meet with Kaytor more at that time. Dr.

Istanbouly was required to spend a specified number of hours weekly in the sleep center for

credentialing purposes.

¶ 88 Dr. Istanbouly had no problem with Kaytor. After Kaytor was terminated, he asked Dr.

Istanbouly to be a reference. Dr. Istanbouly was presented with a letter of reference regarding

Kaytor. Dr. Istanbouly acknowledged that it was his signature on the letter, and the contents were

true, but he did not recall if he wrote the letter of if Kaytor did.

¶ 89 The reference letter noted Kaytor was respectful towards the physicians he worked with.

He had productive and collaborative relationships with the physicians he worked with. Kaytor

worked well with his staff and led good meetings. The letter indicated Kaytor had an excellent

work ethic. Dr. Istanbouly did explain the purpose of this letter was for Kaytor to find a job, and

it was not prepared for a legal dispute. However, the information in the letter was truthful.

¶ 90 Dr. Istanbouly testified regarding an instance when he referred one of his patients for

treatment at the sleep center and Dr. Brown sent the patient a letter referring them to his private

practice. Dr. Istanbouly complained to SIH regarding this.

¶ 91 Dr. Istanbouly also testified regarding an instance where one of his patients was denied a

procedure as not medically necessary. The patient was then evaluated by Dr. Brown’s nurse

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practitioner, and the procedure was approved. Dr. Istanbouly complained to the administrator at

St. Joseph’s at the time, Odle. Dr. Istanbouly thought this happened in 2016 or early 2017.

¶ 92 Dr. Istanbouly stated he complained about a few things in the sleep lab concerning Dr.

Brown. He felt Dr. Brown was not looking out for the patients or the sleep lab and was looking

out for himself. Dr. Istanbouly complained about Dr. Brown having his private office inside the

sleep lab.

¶ 93 Dr. Istanbouly was asked regarding the relationships and general atmosphere at the sleep

clinic in 2016. He noted it was clear there was some type of disagreement between Dr. Brown and

Kaytor. There was a disparity between the medical director and the rest of the staff. Dr. Brown

was controlling things in a way that was not best for the patients. Dr. Istanbouly observed that Dr.

Brown would become angry with staff. The plaintiff then rested his case.

¶ 94 Budde was recalled as a witness as part of the defendant’s case. Budde testified that while

he was CEO, he had never terminated anyone or disciplined anyone for making a report to

compliance or to him.

¶ 95 Emily Reiman was called as a witness for the defense. Reiman had been employed for SIH

for 13 years. At the time of trial, she was employed as part of the compliance department as the

internal auditor for SIH. As the internal auditor, she reviewed internal policies for the corporation

and validated financial expenditures throughout the corporation. She also performed investigations

for the compliance department. There are many ways that concerns can be reported to compliance,

including a phoneline that allows for anonymous reports.

¶ 96 Reiman was involved in an audit of the sleep center in 2015. The audit began with two

concerns that were brought to the compliance department regarding the types of patients that were

being referred to the CPAP Solutions Clinic. Her audit was to review the physician orders and the

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accuracy of the orders and to make sure there was proper documentation for the patients visiting

the CPAP unit. Prior to the audit, a 16-day scope was selected and 30 random patients were

selected. The audit revealed that prepopulated orders were being faxed from the sleep center to a

primary care physician with all the information completed except for a large asterisk indicated

where the physician should sign. This was not allowed, as it could be considered a self-referral. If

this was not corrected, it could cause legal problems for SIH. Reiman provided her audit report to

Odle.

¶ 97 In 2016, Reimen performed a re-audit of the sleep center to determine if the issue had been

corrected. The re-audit was performed one week prior to the termination meeting with Kaytor. The

re-audit revealed that a prepopulated order template was still being sent to primary care physicians.

Reiman met with Odle and Kayto on November 22, 2016, regarding the findings of her re-audit.

Reiman testified Kaytor seemed distracted during the meeting and did not have any questions for

her. Kaytor indicated they would try and do better.

¶ 98 On cross-examination, Reiman testified that, in addition to the re-audit, the meeting was

also to discuss complaints made about Dr. Brown through the compliance helpline. Reiman was

presented with an agenda for the November 22, 2016, meeting with Kaytor. Initially, Reiman

testified she created the agenda; however, the formatting information of the agenda indicated that

it was created by Odle. Reiman went to a meeting called by Odle, with an agenda prepared by

Odle. At the beginning of the meeting, Reiman told Kaytor every allegation brought forth had to

be investigated with due diligence.

¶ 99 The agenda prepared by Odle provided:

“Update on preliminary findings related to Dr. Brown and the Sleep Center

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Issues are unfounded at this time. One incidental finding or [sic] computer usage.

This was identified and has been worked on with a resolution.

Investigation by Compliance department on issues related to CPAP Solutions Clinic

reviewed included:

—Medical Director is not approving orders for the patients seen in the Clinic.

Discussion: Orders from Dr. Brown included a one-time only. Additional visits

were ordered by a physician other than Dr. Brown.

—Staff are soliciting direct referrals to the clinic from non-treating physician.

Discussion—Prepopulated orders are being faxed to a physician who is not the

treating physician for a signature.

—The CPAP solution clinic is being over utilized.

Discussion—In 2013 there was a marked decline in the number of orders signed by

Dr. Brown and the number of orders written by other physicians increased.”

¶ 100 Reiman acknowledged that other physicians besides Dr. Brown could make orders for a

patient to be seen at the clinic. She was also aware of Draper’s complaints of retaliation in 2013,

which were made around the same time that Dr. Brown’s orders decreased. She agreed that if Dr.

Brown’s orders decreased, it was possible that more orders from Dr. Alam and Dr. Istanbouly, as

well as other physicians, would be received to help patients with their CPAP equipment.

¶ 101 Regarding the prepopulated form, Reiman acknowledged that an outside physician could

have called the secretary of the clinic and requested their patient be seen. The secretary is not

responsible for medical records. An order was then faxed to the physician’s office.

¶ 102 When the re-audit was performed, Reiman used the same methodology of pulling random

patient’s medical records. After the meeting, Reiman destroyed the forms because they had patient

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information. Reiman did not make any notes in order to find the information she used later. At the

time of the re-audit, the forms had been changed, and a different template was being used. A

sharpie mark indicating where to sign was still present. Reiman never prepared a report regarding

her findings from investigating the issues raised regarding Dr. Brown and the sleep center.

¶ 103 At the time of the November 22, 2016, meeting, Reiman was aware that Dr. Brown was

very possessive about the patients that were going to the sleep center. Dr. Brown was not happy

that two other physicians were being credentialed to interpret studies at the sleep center, so his

revenue would decrease.

¶ 104 After Reiman completed the 2015 audit, she recommended that SIH have a professional

consulting firm conduct an audit, as she was new to the position and wanted someone more familiar

with sleep medical to conduct an audit. SIH hired Premier to conduct an audit. The Premier audit

was done in September 2016 and only found issues with the CPAP clinic that were areas for which

the medical director, Dr. Brown, was responsible.

¶ 105 On redirect examination, Reiman testified that, at the time of the November 22, 2016,

meeting, she knew that Kaytor might be terminated. However, Reiman did not have a role in the

decision that terminated Kaytor.

¶ 106 On recross-examination, Reiman acknowledged that the local coverage determination

allowed someone other than a physician to create a detailed written order that is then signed by the

physician. This is required before billing health insurance.

¶ 107 The next witness called by the defense was April Holmes. 1 Holmes had been the director

of the compliance department for SIH since 2004. She also served as a compliance officer and

previously as an internal auditor. As the director of compliance, Holmes oversaw the compliance

1

April Holmes married and, at the time of trial, had changed her name to April Peters. For

consistency, she will be referred to as Holmes throughout this disposition.

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program at SIH and reported directly to the general counsel of SIH and the board of trustees.

Holmes also shared information with the CEO regarding audits, investigations, regulations, and

government and/or insurance enforcement.

¶ 108 Holmes testified there are many ways an employee may report a compliance issue,

including by calling a telephone line, using a website, or telling any member of the compliance

department. Employees may remain anonymous when they report. SIH employees are trained in

compliance and reporting as part of the hiring process and through annual refresher training.

Various compliance policies were admitted into evidence.

¶ 109 Holmes was aware Kaytor made reports to the compliance department. Some of these

reports Kaytor asked to be kept anonymous. Holmes had all of these complaints investigated. Dr.

Brown was found to have been using the space beyond his lease and was required to pay the

difference in what space he used and what he previously paid under the lease. Compliance did not

find any documentation proving that Dr. Brown’s PAs were interpreting sleep studies. The

compliance department was made aware of allegations of bullying against Draper. Compliance

investigated them, but did not make any findings. Holmes testified this was outside the scope of a

compliance investigation and would be an HR issue.

¶ 110 Pamela Henderson was the next witness called for the defense. Henderson is the vice

president for human resources at SIH. Henderson has worked for SIH for almost 30 years. HR

provides a new hire orientation to, among other things, go through SIH’s policies and procedures

and the employee handbook. SIH’s HR department employes approximately 50 people, and each

SIH hospital has an HR employee at the facility.

¶ 111 Henderson reviewed and discussed the Improvement Counseling Policy, which contained

a progressive discipline policy. It is a four step policy. The first step is a verbal warning. The

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second step is a written warning. The third step is a final written warning; it generally comes with

probation. The fourth step is termination of the employee. Henderson stated the discipline

escalated if it was within the same category of disciplinary action. She explained job performance

would be a category.

¶ 112 Henderson testified that HR is also responsible for setting salary ranges for each position.

Each position has a minimum and maximum salary range. Employees may also receive an annual

merit increase to their salary. Employees reaching the maximum salary may receive a lump sum

bonus at the end of the year as their merit increase.

¶ 113 Henderson attended the meeting on November 22, 2016, when Kaytor was terminated. She

attended to provide guidance and support if anyone had questions regarding HR policies or

processes. Henderson recalled that Odle had a discussion with Kaytor and terminated his

employment due to job performance. Henderson did not recall the specific issues with Kaytor’s

performance but that generally “he was not performing his job as he should.” Henderson did not

recall any subject matter discussed or anyone’s reactions during this meeting.

¶ 114 Odle was the last witness called for the defense. Odle is a registered nurse who worked for

SIH from 1997 through 2000 as a home health nurse and manager. She returned to working at SIH

in 2010 as the manager of quality programs related to government regulations, including Medicare

and Medicaid. In May 2015, Odle became the administrator of St. Joseph’s.

¶ 115 Odle worked with the former administrator, Brothers, to complete Kaytor’s 2015

performance evaluation. Odle noted that Kaytor performed well in some areas and not well in

others. She testified that Kaytor did not perform as well in leadership because the relationship with

the medical director needed to be repaired and productivity needed to improve. Odle testified after

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discussing the evaluation with Kaytor, she changed her evaluation of his performance to

“exceeds,” given the challenges his department had been facing.

¶ 116 Odle testified she was made aware of the 2015 audit findings and she shared them with

Kaytor. In 2016, Odle did not request a re-audit. She was informed the re-audit still revealed a

problem with the order forms.

¶ 117 The report from the first audit was completed in November or December 2015. Odle stated

she asked Kaytor to prepare an action plan to address the issues in the audit. When one was not

prepared after several weeks, she prepared one and gave it to Kaytor. Kaytor then completed the

items on the action plan.

¶ 118 Odle testified regarding the level III written warning she gave to Kaytor in September 2015.

An action plan was created for Kaytor following this warning. Odle testified she continued to have

discussions with Kaytor at the monthly meetings regarding his leadership.

¶ 119 In March of 2016, a consultant was brought in because the team at the sleep center and

clinic had become very dysfunctional. Odle specifically mentioned the relationships between Dr.

Brown, Kaytor, and Draper.

¶ 120 Odle was at the staff meeting on October 12, 2016. She described the meeting as turning

into a shouting match. Odle testified Kaytor did nothing to stop the behavior and participated in it

as well. In the days after the meeting, Odle told Kaytor the conduct was unprofessional and not

acceptable. Odle had discussed the meeting with HR, and the recommendation was to give level

II written warnings to each individual who acted inappropriately during the meeting. Kaytor did

give the warnings to the individuals.

¶ 121 Between November 8, 2016, and November 22, 2016, Odle testified she started evaluating

Kaytor’s job description and whether he was doing what he needed to do. Odle testified that part

30

of the job description included “Job Roles,” which included managing processes effectively in

regard to patient and employee safety. Odle testified that the general work environment was

difficult and unsafe. She felt Kaytor was not doing anything to make the environment safer. She

noted Kaytor “continued to not develop his relationship with Dr. Brown even into the minimum

of what a working relationship could be.” She took issue with recordkeeping, the failure to promote

a culture of improvement, and the management of the number of staff. After completing this

review, Odle determined Kaytor could not continue in his role at SIH. She testified this was a

heavy decision. She also stated Kaytor’s reports to compliance had nothing to do with her decision

to terminate him.

¶ 122 On cross-examination, Odle acknowledged the complaints of bullying regarding Draper.

Odle was involved in an investigation and discussion with Dr. Brown regarding him being a

disruptive physician. He was notified of the complaint in writing. The letter stated, inter alia, “I

hope that you will use this opportunity to familiarize yourself with the enclosed Physician

Behavior Policy and commit to ensuring that your future actions are consistent with this policy in

the spirit of continuance performance improvement.” The defendant then rested its case. The jury

was excused, and a jury instruction conference was held.

¶ 123 Plaintiff’s Instruction 2 was based on the Illinois Pattern Jury Instructions, Civil, No.

250.01 (approved Dec. 8, 2011) (hereinafter IPI Civil No. 250.01), and stated as follows:

“RETALIATORY DISCHARGE ISSUES

The issues to be decided by you are as follows:

The plaintiff claims that he was an employee of the defendant from September 1988

until November 22, 2016.

31

The plaintiff claims that while employed by defendant he reported Medicare and

Medicaid fraud and abuse.

The plaintiff further claims that the reason stated above was a proximate cause of

his firing and of his claimed damages.

The defendant denies that the plaintiff was fired for the reason he claims.

The defendant claims that plaintiff was fired for lack of leadership in certain areas,

including personnel management.”

The following colloquy regarding the instruction occurred:

“THE COURT: No. 2 is IPI 250.01, Issues with regard to retaliatory discharge. This

appears to be straight out of the IPI. Any objection?

MS. AUSTIN [(PLAINTIFF’S ATTORNEY)]: This one we have worked together

with defendant to merge. There are some parts of this that are kind of fill in the blank and

we’ve sort of agreed to each other’s language on certain parts.

THE COURT: So the submission that will be submitted—the instruction that will

be submitted on Monday morning is agreed, is that correct, Shari [(defendant’s attorney)]?

MS. RHODE [(DEFENDANT’S ATTORNEY)]: Yes, ma’am.

THE COURT: All right. So 250.01 will be No. 2 and *** will be given by

agreement.”

¶ 124 Plaintiff’s Instruction 3 was based on the Illinois Pattern Jury Instructions, Civil, No.

250.02 (approved Dec. 8, 2011) (hereinafter IPI Civil No. 250.02), and stated as follows:

“RETALIATORY DISCHARGE BURDEN OF PROOF

The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff was an employee of the defendant;

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Second, that the plaintiff was fired from his employment with the defendant:

Third, that the plaintiff was fired because he reported Medicare and Medicaid fraud

and abuse;

Fourth, that the plaintiff sustained damages as a result of his firing; and

Fifth, that the reason stated above was a proximate cause of his firing and resulting

damages.

Defendant admits that plaintiff was an employee of defendant and that he was

discharged. If you find from your consideration of all the evidence that the third, fourth,

and fifth of the above propositions have been proven, your verdict should be for the

plaintiff. If, on the other hand, you find from your consideration of all the evidence that the

third, fourth, and fifth of these propositions has not been proven, your verdict should be for

the defendant.”

SIH objected to this instruction, and the following discussion occurred:

“THE COURT: No. 3 is 250.02, any changes to this?

MS. AUSTIN: This is the same as the previous one, we’ve agreed to some

language. We did have one—I believe you had one—

MS. RHODE: I had one objection, [Y]our Honor, the question the Court resolved.

This sets out whether the plaintiff has to prove—and it’s our proposition he has to prove

that he was discharged for the proximate cause not a proximate cause. Certainly I

understand the two that he’s alleging it’s a—

MS. AUSTIN: Your Honor—I’m sorry, I didn’t mean to interrupt you, I thought

you were done.

33

MS. RHODE: And I do have some case cites from the common law and that was

provided to the Court, I think it’s ‘the’ not ‘a,’ but other than that, we have no disagreement.

THE COURT: The IPI says this: ‘That the reasons stated in the paragraphs above

was/were a proximate cause of his or her discharge resulting in damages.’

MS. RHODE; Yes, [Y]our Honor, but the comment—the case law and common

law—because, again, the IPI instruction deals with retaliatory discharge, it’s more

statutory, but the case law has said it’s ‘the’ reason. I just want to make the record.

THE COURT: Well, the IPI, for the record, it’s 250.02, it is labeled or titled

‘Retaliatory Discharge, Burden of Proof on the Issues. One plaintiff, one defendant.’ That’s

exactly what we have here so the Court is going to follow the IPI. And ‘[N]otes on [U]se:

This instruction should be given with the issues instruction on [R]etaliatory [D]ischarge.’

So the Court is going to give the IPI. So shall I note your objection to Plaintiff’s

No. 3?

MS. RHODE: That’s fine. Thank you.

THE COURT: So it will be given over objection with regard to a cause and we’ll

put that—Well, it’s on the record, okay. So that’s No. 3.”

¶ 125 Defendant’s Instruction 6 was a non-IPI instruction. It stated, “When deciding the element

of causation, the ultimate issue is the employer’s motives in discharging the employee.” This

instruction was based on Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31. The

instruction was given without objection.

¶ 126 The next day of trial, a final jury instruction conference was held. At that time, SIH

repeated its objection to Plaintiff’s Instruction 3, based on IPI Civil No. 250.02. The objection was

again to the use of “a” proximate cause instead of “the” proximate cause.

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¶ 127 The parties gave their closing arguments, the jury was instructed, and retired to deliberate.

The jury returned a verdict for Kaytor and awarded the following damages: economic loss—

$291,251; emotional distress—$250,000; and punitive damages—$3 million. Judgment entered in

favor of Kaytor and against SIH in the amount of $3,541,251 on February 8, 2023.

¶ 128 SIH filed a posttrial motion seeking an arrest of judgment or, in the alternative, a new trial.

The posttrial motion argued four points: (1) SIH was unduly prejudiced and deprived of a fair trial

by the use of a jury instruction which misstated the standard of causation, specifically Instruction

3 based on IPI Civil No. 250.02; (2) SIH was unduly prejudiced and deprived of a fair trial by the

exclusion of witnesses McMillan, Rushing, and Cullum; (3) Kaytor was not entitled to damages

for emotional distress; and (4) Kaytor was not entitled to punitive damages, and to the extent such

damages are available, the amount awarded was excessive. Kaytor filed a memorandum in

opposition to the posttrial motion. SIH obtained leave to file a reply in support of its posttrial

motion and requested oral argument on the motion. The matter was set for oral argument; however,

the record does not reveal if the hearing occurred, as there were several motions to continue filed

and a transcript of a hearing on the posttrial motion is not included as part of the record on appeal.

The trial court entered an order denying the posttrial motion in its entirety on February 21, 2024.

This appeal followed. Additional facts will be set forth in the analysis, if necessary.

¶ 129 II. ANALYSIS

¶ 130 On appeal, SIH argues four main issues. First, that Kaytor was not entitled to punitive

damages or, alternatively, if punitive damages were recoverable, the amount awarded was

excessive and should be remitted. Second, Kaytor was not entitled to damages for emotional

distress. Third, that SIH was unduly prejudiced and deprived of a fair trial by the giving of a jury

35

instruction that misstated the standard for causation. Finally, that SIH was unduly prejudiced by

the exclusion of three witnesses from testifying.

¶ 131 A. Punitive Damages

¶ 132 On appeal, SIH contends there were multiple errors regarding punitive damages. First, SIH

argues that the trial court erred in allowing Kaytor to seek punitive damages based on the facts of

the case. Next, SIH argues the jury’s decision to award punitive damages was erroneous. Finally,

SIH argues the jury’s award of $3 million was excessive and violated its due process rights. Before

examining each of these issues, it is necessary to discuss the various standards of review applicable

to cases with a jury trial and punitive damages.

¶ 133 Our colleagues in the Second District set forth the five steps of punitive damages in a jury

trial and the applicable standards of review in Franz v. Calaco Development Corp., 352 Ill. App.

3d 1129, 1138-40 (2004). The first step is to determine whether punitive damages are an available

remedy for the cause of action; this step is reviewed de novo. Id. at 1138. Once the trial court

determines punitive damages are an available remedy, the second step is to determine if the issue

of punitive damages should be submitted to the jury. Id. “[T]he trial court may submit the issue of

punitive damages to the jury only if the plaintiff has made out a prima facie case for such

damages.” Id. The decision to submit the question of punitive damages to the jury is a matter

reserved to the trial court and will not be reversed absent abuse of discretion. Id. Next, if the jury

finds as a matter of fact that the defendant acted willfully or maliciously, this finding is reviewed

under the manifest weight standard. Id. Then, the jury determines the amount of punitive damages

to award. Id. The jury’s award of punitive damages will not be reversed unless it is so excessive

to indicate passion, partiality, or corruption. Id. Finally, after a jury determines an award of

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punitive damages, “[t]he trial court may, in its discretion, determine whether the jury award for

punitive damages is excessive and, if so, enter a remittitur or a conditional new trial.” Id. at 1139.

¶ 134 In its brief, SIH argues that de novo review should be applied to determine whether the

facts of this case justify the imposition of punitive damages. Based on the foregoing, we disagree.

In this case, there is no allegation that the remedy of punitive damages is unavailable as a matter

of law in common law retaliatory discharge cases. Accordingly, step one of the punitive damages

analysis, which would be subject to de novo review, does not apply. Id. at 1138.

¶ 135 Turning to the second step, SIH argues that the facts of this case did not warrant submitting

the issue of punitive damages to the jury. As set forth above, if the trial court determines the

plaintiff has made a prima facie case for punitive damages and to submit the question of punitive

damages to the jury, this is reviewed for an abuse of discretion. Id. “An abuse of discretion occurs

where the trial court’s decision is arbitrary, fanciful or unreasonable [citation] or where no

reasonable person would agree with the position adopted by the trial court [citations].” People v.

Becker, 239 Ill. 2d 215, 234 (2010). Kaytor’s original complaint, filed on March 23, 2018,

contained a prayer for punitive damages, as did his amended complaint filed on June 25, 2018.

Kaytor’s amended complaint alleged, inter alia, he was terminated due to reporting suspected

Medicaid and Medicare fraud and “[t]he conduct of Defendant SIH was outrageous because it was

undertaken with evil motive and reckless disregard for Plaintiff’s rights.” A review of the common

law record and the report of proceedings, which contains only the trial transcript, reveals that SIH

did not object to submitting the issue of punitive damages to the jury. SIH did not file a motion to

strike or dismiss Kaytor’s request for punitive damages, did not object to plaintiff’s jury Instruction

8 on punitive damages, nor object to including punitive damages on the plaintiff’s verdict form.

Based on Kaytor’s allegation that SIH acted with “reckless disregard” and “evil motive” when

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terminating him, it was not an abuse of the trial court’s discretion to submit the issue of punitive

damages to the jury.

¶ 136 Next, we turn to SIH’s argument that the jury’s decision to award punitive damages was

against the manifest weight of the evidence. In order to award punitive damages, the jury was first

required to make a factual finding that SIH’s conduct was willful and wanton and proximately

caused damage to Kaytor. In this case, the jury was instructed that “willful and wanton” conduct

meant “a course of action which shows actual or deliberate intention to harm, or which, if not

intentional, shows an utter indifference or conscious disregard for a person’s rights.” The jury

returned a verdict in favor of Kaytor with an award for punitive damages; thus, the jury found that

SIH’s conduct warranted the imposition of punitive damages. SIH contends the evidence was

insufficient for the jury to find the conduct warranted the imposition of punitive damages.

¶ 137 We review the jury’s finding under the manifest weight of the evidence standard. Franz,

352 Ill. App. 3d at 1138. “A finding is against the manifest weight of the evidence only if the

opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based

on the evidence presented.” Best v. Best, 223 Ill. 2d 342, 350 (2006). When applying the manifest

weight standard, we give deference to the finder of fact—in this case, the jury—because it was in

the best position to observe the conduct and demeanor of the parties and witnesses. Id. at 350-51.

¶ 138 We have reviewed the lengthy trial testimony in this case, and recounted relevant portions

in the background above. Having considered the evidence presented, we cannot find that the

opposite conclusion was clearly evident or the finding was unreasonable, arbitrary, or not based

on the evidence. The jury was presented with testimony from Kaytor regarding his reports to his

supervisor and the compliance department regarding what he believed to be violations of Medicare

and Medicaid regulations. Other witnesses corroborated Kaytor’s testimony. Sufficient evidence

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was presented to the jury for it to find that SIH’s conduct was willful and wanton and damaged

Kaytor.

¶ 139 Next, SIH argues the award of $3 million in punitive damages was excessive and the trial

court erred when it refused to remit the award. This is reviewed under the abuse of discretion

standard. Franz, 352 Ill. App. 3d at 1139. SIH’s posttrial motion argued that in the cases of

Slovinski v. Elliot, 237 Ill. 2d 51 (2010), and Lawlor v. North American Corp. of Illinois, 2012 IL

112530, the jury’s punitive damages awards were reduced by the trial court. The same argument

was repeated, almost verbatim, in SIH’s brief before this court on this issue.

¶ 140 Slovinski involved defamation. After an employee was terminated, his former employer

made disparaging comments regarding him in a meeting with a supplier. Slovinski, 237 Ill. 2d at

54-55. The matter proceeded to a jury trial and the plaintiff was awarded $0 for lost wages, $0 for

damage to reputation, $81,600 for emotional damages, and $2 million in punitive damages. Id. at

57. The trial court reduced the punitive damage award to $1 million. Id. On appeal, the Illinois

Supreme Court reduced the punitive damage award to $81,600. Id. at 65. In doing so, the Supreme

Court found that plaintiff argued there was a premeditated scheme to defame him; however, there

was no material evidence presented to support this claim. Id.

¶ 141 Lawlor involved a claim against her former employer for intrusion on seclusion after she

separated from the employer. Intrusion on seclusion is a type of tort for the invasion of privacy,

such as some form of investigation or examination into the person’s private concerns. Lawlor,

2012 IL 112530, ¶ 33. One of the allegations was that the former employer commissioned an

investigation into plaintiff through an investigator who pretended to be the plaintiff to obtain her

private phone records. The supreme court noted this case was similar to Slovinski, in that there was

no evidence of an intentional, premeditated scheme, and there was no animus toward plaintiff by

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the investigator. Id. ¶ 62. Accordingly, the supreme court reduced the punitive damage award to

the same amount of compensatory damages awarded to plaintiff, $65,000. Id. ¶ 76.

¶ 142 SIH, in its posttrial motion and in its brief before this court, cites to Slovinski and Lawlor,

but does not argue what each of those cases ultimately relied upon; the lack of material evidence

of an intentional, premeditated scheme; or the lack of animus toward Kaytor. Further, the trial

court’s written order denying the posttrial motion was thoughtful and well-written. As to the

request for remittitur, the trial court noted the “jury’s assessment of punitive damages will be

reversed only when the manifest weight of the evidence shows that its assessment was so excessive

as to demonstrate passion, partiality, or corruption on the jury’s part.” McQueen v. Green, 2022

IL 126666, ¶ 58. The trial court noted Kaytor’s requested damages were significantly higher, by

approximately $1.8 million, than those awarded by the jury. The trial court relied upon Northern

Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 335-36 (1985), and found when the award from

the jury was reduced from the requested award, there is no indication the jury could have been

inflamed by passion, partiality, or corruption in favor of the plaintiff.

¶ 143 The trial court also conducted a common law analysis that, although not exhaustive,

includes “the nature and enormity of the wrong, the financial status of the defendant, and the

potential liability of the defendant.” Deal v. Byford, 127 Ill. 2d 192, 204 (1989). The trial court

noted, regarding the financial status of the defendant, that the punitive damage award of $3 million

was only 6% of SIH’s annual profit of $46 million. Following these considerations, the trial court

denied to remit the punitive damage award or order a conditional new trial. This decision is

reviewed for an abuse of discretion. Franz, 352 Ill. App. 3d at 1139. We cannot find that the trial

court’s denial of the motion for remittitur of the punitive damages award or the motion for a

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conditional new trial was arbitrary, fanciful, or unreasonable or that no reasonable person would

agree with the position adopted by the trial court.

¶ 144 Finally, SIH argues that the punitive damages award of $3 million violates its due process

rights under the fourteenth amendment to the United States Constitution. This is reviewed de novo.

International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456,

469 (2006).

¶ 145 The United States Supreme Court has identified three guideposts for determining whether

a punitive damage award comports with due process: “(1) the degree of reprehensibility of the

defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the

plaintiff and the punitive damages award; and (3) the difference between the punitive damages

awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State

Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418 (2003). The Court noted

“the most important indicium of the reasonableness of a punitive damages award is the degree of

reprehensibility of the defendant’s conduct.” BMW of North America, Inc. v. Gore, 517 U.S. 559,

575 (1996). To determine the reprehensibility of a defendant, we are to consider whether the harm

caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a

reckless disregard of the health or safety of others; the target of the conduct had financial

vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was

the result of intentional malice, trickery, or deceit, or mere accident. Id. at 576-77. “The existence

of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive

damages award; and the absence of all of them renders any award suspect.” Campbell, 538 U.S. at

419.

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¶ 146 SIH contends Kaytor’s harm was economic, rather than physical, and, thus, there was also

no disregard for the safety or health of others. SIH also argues that the alleged improper conduct

was a single act of terminating Kaytor, and there was no evidence of intentional malice, trickery,

or deceit.

¶ 147 The first guidepost, the degree of reprehensibility of the defendant’s misconduct, consists

of five factors. Gore, 517 U.S. at 576-77. As to the first and second factors, physical as opposed

to economic harm and indifference or reckless disregard for the health or safety of others, Kaytor

testified he suffered from emotional distress following his termination, and the jury found this

testimony credible and awarded him damages for emotional distress. Psychological harm—such

as anxiety, distress, and sleeplessness—is a form of injury that satisfies the first two factors of the

reprehensibility analysis. Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560,

¶ 259. As to the third factor, Kaytor was financially vulnerable. Kaytor relied upon his employment

income to support himself and lost this stability when he was terminated. Regarding the fourth

factor, a repeated pattern of behavior or an isolated incident, “we may consider the defendant’s

conduct toward the plaintiff as well as the defendant’s related conduct toward other parties.”

Blount v. Stroud, 395 Ill. App. 3d 8, 25 (2009). Based on the testimony, there was evidence that

SIH knowingly allowed retaliation against Kaytor and other employees who called attention to

what they believed to be unlawful conduct.

¶ 148 As to the fifth factor, intentional malice, while there was no direct testimony that the

termination was the result of intentional malice, trickery, or deceit, there was sufficient

circumstantial evidence presented that could lead a reasonable person to determine Odle, as an

agent of SIH, acted in a way that would support a finding of intentional malice.

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¶ 149 Turning to the second guidepost, we review the disparity, or ratio, between the amount of

compensatory damages awarded and the amount of punitive damages. Gore, 517 U.S. at 582.

SIH’s argument on this guidepost, in both its posttrial motion and appellate brief, does not set forth

how the ratio between the compensatory damages and the punitive damages in this case results in

a finding the punitive damage award was excessive. Rather, SIH contends “[a]n award here in line

with those in Slovinski and Lawlor, a ration of one-to-one with compensatory damages, is

appropriate here.”

¶ 150 Kaytor’s brief argues that the ratio in this case is reasonable and similar to other punitive

damages awards that have been affirmed. In Gore, the amount of punitive damages awarded was

500 times the amount of compensatory damages awarded by the jury. Id. In the present case, the

punitive damages award of $3 million is 5.5 times the amount of the compensatory damages award

of $541,251. This court, in Holland, affirmed the same ratio of 5.5 and found the ratio was not

excessive. Holland, 2013 IL App (5th) 110560, ¶ 260. In Mook v. Johnson, 2018 IL App 3d

170229, ¶ 31, the ratio of 5.66 was affirmed. Further, the Mook court noted “that punitive damage

awards in single-digit multipliers generally comport with due process.” Id. Under the facts of this

case and consistent with prior decisions, we cannot hold that the ratio of 5.5 between punitive

damages and compensatory damages is excessive.

¶ 151 The third Gore guidepost is the comparison between the punitive damages award and civil

penalties for analogous misconduct. Gore, 517 U.S. at 583. Kaytor’s brief noted that no directly

comparable penalties exist for retaliatory discharge in violation of public policy. In this instance,

it is useful to review punitive damages awarded in similar cases as a basis for comparison. Blount,

395 Ill. App. 3d at 30. The $3 million punitive damages award in this case is in line with the

punitive damages awarded in three other retaliatory discharge cases: $2 million in Crowley v.

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Watson, 2016 IL App (1st) 142847, ¶ 51; $3.6 million in Holland, 2013 IL App (5th) 110560,

¶ 252; and $2.8 million in Blount, 395 Ill. App. 3d 27.

¶ 152 Based upon our de novo review of this matter and the Gore factors, we find the $3 million

punitive damages award was not excessive and comports with due process.

¶ 153 B. Emotional Damages

¶ 154 In its posttrial motion, SIH asked the trial court for an order in arrest of judgment because

Kaytor was awarded damages for emotional distress without having pleaded a cause of action for

intentional infliction of emotional distress. Alternatively, SIH requested a judgment

notwithstanding the verdict (judgment n.o.v.) or a new trial. “[A]n arrest of judgment is proper

when a court rules upon the sufficiency of a plaintiff’s complaint after the entry of a judgment in

a plaintiff’s favor, and a judgment notwithstanding the verdict is designed to question the adequacy

of the proofs or other issues raised at trial.” Rhodes v. Uniroyal, Inc., 101 Ill. App. 3d 328, 331

(1981). The standard of review for the denial of a motion in arrest of judgment and for a judgment

n.o.v. are the same; de novo review applies. Id. However, the “standard for obtaining a judgment

n.o.v. is a very difficult standard to meet, and limited to extreme situations only.” (Internal

quotation marks omitted.) Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887,

¶ 45. This is because it is the province of the jury to resolve conflicts in the evidence, assess

credibility, and decide the weight to be given to testimony. Id.

¶ 155 As to the motion in arrest of judgment, SIH contends that, in order for Kaytor to have been

able to recover emotional damages, he was required to state a cause of action for intentional

infliction of emotional distress. Kaytor’s complaint did not set forth a claim for intentional

infliction of emotional distress.

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¶ 156 SIH’s brief asserts, without citation to legal authority, that “[i]ntentional infliction of

emotional distress is a cause of action ancillary to a retaliatory discharge claim, rather than an

element of damages for the discharge itself.” SIH cites to cases where plaintiffs have chosen to

state a cause of action for intentional or negligent emotional distress in addition to their claim for

retaliatory discharge; however, there is nothing that requires this. The “plaintiff is the master of

his complaint, thereby free to choose his own theory of liability so long as the evidence supports

it.” Keeley & Sons, Inc. v. Zurich American Insurance Co., 409 Ill. App. 3d 515, 524 (2011).

¶ 157 The argument that a cause of action for intentional or negligent infliction of emotional

distress is required for a plaintiff to recover for emotional damages in a claim for retaliatory

discharge has previously been decided by this court in Sloan v. Jasper County Community Unit

School District No. 1, 167 Ill. App. 3d 867, 869-70 (1988).

¶ 158 In Sloan, the plaintiff’s complaint alleged the defendant’s decision not to renew his contract

caused him to suffer not only loss of employment and income, but also “ ‘stress, pain, suffering,

embarrassment and humiliation.’ ” Id. at 869. The defendant argued, and the trial court agreed,

that the emotional distress set forth in plaintiff’s complaint was “really an element of the separate

tort of ‘intentional infliction of emotional distress’ which should have been pleaded in a separate

count.” Id. On appeal in Sloan, this court disagreed with the contention that a separate tort for

emotional damages was required for retaliatory discharge cases. “Pain, suffering, embarrassment

and humiliation are simply among the elements of damage plaintiff claims to have suffered as a

result of the retaliatory discharge ***.” Id. at 870. “[W]e know of no reason why the type of

damages available in retaliatory discharge cases should be more limited than those available in

any other tort actions.” Id. Further, there are several Illinois retaliatory discharge cases since Sloan

where a plaintiff has recovered for emotional distress without pleading a separate cause of action

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of either intentional infliction of emotional distress or negligent infliction of emotional distress.

See Davis v. City of Chicago, 2020 IL App (1st) 182551-U; Young, 2015 IL App (1st) 131887;

Reinneck v. Taco Bell Corp., 297 Ill. App. 3d 211 (1998); Kritzen v. Flender Corp., 226 Ill. App.

3d 541 (1992).

¶ 159 Based on the foregoing, there was no requirement for Kaytor’s complaint to contain a

separate cause of action for intentional infliction of emotional distress. Accordingly, the trial court

did not err in denying SIH’s motion for arrest of judgment.

¶ 160 SIH’s alternative argument regarding emotional damages was that a judgment n.o.v. should

be ordered because Kaytor did not produce evidence at trial that he was hospitalized or otherwise

treated for any emotional distress. This argument has also been previously decided by this court in

Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694, 701 (1998). In Clark, the

plaintiff brought a claim for retaliatory discharge, and she offered the only testimony regarding

her emotional distress following her discharge. Id. We held:

“The existence or nonexistence of medical testimony goes to the weight of the evidence

but does not prevent this issue from being submitted to the jury. [Citation.] Expert, or

medical, testimony is not needed to prove things that are common knowledge. Any

average, reasonable person can readily evaluate a claim of emotional distress alleged to

result from a discharge and loss of earnings.” Id.

¶ 161 In the present case, Kaytor testified regarding his former love for his job and how the

termination affected him. Draper also testified regarding her observations of Kaytor following his

termination. This evidence was sufficient for the jury to evaluate Kaytor’s claim for emotional

damages. Accordingly, the trial court did not err in denying the motion for a judgment n.o.v. or

new trial.

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¶ 162 C. Jury Instructions

¶ 163 SIH argues it is entitled to a new trial because the jury was not properly instructed on the

burden of causation. Specifically, SIH contends that Plaintiff’s Instruction 3, which was based on

IPI Civil No. 250.02, misstated the standard for causation in a retaliatory discharge case because

it stated, “was a proximate cause” rather than “the proximate cause.” A trial court’s decision to

grant or deny a jury instruction is generally reviewed for an abuse of discretion. Bailey v. Mercy

Hospital & Medical Center, 2021 IL 126748, ¶ 42. “The standard for determining an abuse of

discretion is whether, taken as a whole, the instructions are sufficiently clear so as to not mislead

and whether they fairly and correctly state the law.” Dillon v. Evanston Hospital, 199 Ill. 2d 483,

505 (2002). We review de novo the legal question of whether the instruction accurately conveyed

the applicable law. Bailey, 2021 IL 126748, ¶ 42.

¶ 164 Illinois Supreme Court Rule 239(a) requires that

“[w]henever Illinois Pattern Jury Instructions (IPI), Civil, contains an instruction

applicable in a civil case, giving due consideration to the facts and the prevailing

law, and the court determines that the jury should be instructed on the subject, the

IPI instruction shall be used, unless the court determines that it does not accurately

state the law.” Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013).

¶ 165 IPI Civil No. 250.02 provides:

“250.02 Retaliatory Discharge Burden of Proof on the Issues—One Plaintiff, One

Defendant

The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff was an employee of the defendant;

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Second, that the plaintiff was [discharged] [fired] from [his] [her] employment with

the defendant;

Third, that the plaintiff was [discharged] [fired] because [set forth in simple form

without undue emphasis or repetition the plaintiff’s claimed reason(s) for the discharge];

Fourth, that the plaintiff sustained damages as a result of [his] [her] [discharge] or

[firing];

Fifth, that the reason(s) stated in paragraph [‘Third’] above [was] [were] a

proximate cause of [his] [her] [discharge] [firing] and resulting damages.

If you find from your consideration of all the evidence that each of these

propositions has been proven, then your verdict should be for the plaintiff. On the other

hand, if you find from your consideration of all the evidence that any of these propositions

has not been proven, then your verdict should be for the defendant.” IPI Civil No. 250.02.

¶ 166 “ ‘In Illinois, in order to establish a tort claim for retaliatory discharge, a plaintiff must

show (1) that [the plaintiff] has been discharged; (2) in retaliation for [his or her] activities; and

(3) that the discharge violates a clear mandate of public policy.’ ” Rehfield v. Diocese of Joliet,

2021 IL 125656, ¶ 27 (quoting Bajalo v. Northwestern University, 369 Ill. App. 3d 576, 580

(2006)). “Concerning the element of causation, the ultimate issue to be decided is the employer’s

motive in discharging the employee.” Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 163 (1992).

¶ 167 On appeal, SIH argues that IPI Civil No. 250.02 misstates the burden of proof regarding

causation because the use of “a” instead of “the” could allow a jury to decide a “mixed motive”

led to the discharge of the employee. SIH points to Hartlein and Thompson v. Abbott Laboratories,

193 Ill. App. 3d 188 (1990), to support its argument.

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¶ 168 In Hartlein, there was no issue regarding jury instructions for the court to consider. This

case is cited in SIH’s brief only to set forth the elements of the cause of action of retaliatory

discharge and to assert that the ultimate issue is the employer’s motive.

¶ 169 In Thompson, the plaintiff proposed non-IPI jury instructions that set forth a “mixed

motive.” Thompson’s proposed “mixed-motives instructions instructed the jury that there could

be more than one factor or cause for plaintiff’s discharge and that, if one of the factors was pursuit

of her worker’s compensation claim, plaintiff was entitled to recover.” Id. at 196. The Thompson

trial court refused to give the non-IPI “mixed motive” instructions, which was affirmed on appeal.

On appeal, the Thompson court noted that

“[a]lthough a few jurisdictions have adopted the mixed-motive theory in

determining the outcome of worker’s compensation cases, Illinois has thus far not

addressed the issue. Moreover, we need not address it here, as the evidence clearly showed

that plaintiff’s filing of her worker’s compensation claim was not a factor or motive in her

termination.” Id. at 197.

Thus, there was no evaluation of an IPI instruction in Thompson.

¶ 170 This court, in Holland, has previously evaluated whether IPI Civil No. 250.01 and IPI Civil

No. 250.02 accurately conveyed the applicable law and found they did. Holland, 2013 IL App

(5th) 110560, ¶ 151. In Holland, we found,

“the jury instructions informed the jury that [plaintiff] was required to prove that exercising

his rights under the Workers’ Compensation Act was ‘a proximate cause of his firing.’ The

instructions further defined ‘proximate cause’ as ‘a cause that, in the natural or ordinary

course of events, produced the plaintiff’s injury.’ (Emphasis added.) Accordingly, the jury

instructions correctly directed the jury to find liability only if [plaintiff] proved that he was

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fired for exercising his rights under the Workers’ Compensation Act. The instructions’

requirement that [plaintiff’s] workers’ compensation claim must have ‘produced’ his

discharge limited the jury to finding liability only if [plaintiff] proved that he was

terminated for exercising his rights under the Workers’ Compensation Act. The jury

instructions were consistent with traditional tort analysis and fairly, fully, and

comprehensively informed the jury concerning the legal principles relevant to [plaintiff’s]

burden of proof and the elements of his claim.” Id.

¶ 171 In the present matter, like in Holland, the jury was given IPI Civil No. 250.01, without

objection by SIH; IPI Civil No. 250.02; and the “short form” version of Illinois Pattern Jury

Instructions, Civil, No. 15.01 (rev. Aug. 2021) (hereinafter IPI Civil No. 15.01), without objection,

which defined proximate cause. The jury was instructed, “[w]hen I use the expression ‘proximate

cause,’ ” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s

injury.” Plaintiff’s Instruction 3, IPI Civil No. 250.02, is still an accurate statement of the law.

Moreover, Defendant’s Instruction 6, a non-IPI instruction, was given to the jury. It stated, “[w]hen

deciding the element of causation, the ultimate issue is the employer’s motives in discharging the

employee.” SIH also contends Holland stands for the proposition that a mixed motive allows for

recovery; however, based on the plain language in Holland, this is not the case. Accordingly, the

Illinois Supreme Court case of Michael, is not applicable to the Holland case. Both Holland and

Michael find that the plaintiff must prove they were discharged in retaliation for their protected

activity. Michael, 2014 IL 117376, ¶ 36; Holland, 2013 IL App (5th) 110560, ¶ 151.

¶ 172 D. Witnesses

¶ 173 In its posttrial motion, SIH requested a new trial based upon a discovery sanction that

resulted in the exclusion of three of its witnesses from testifying. The decision to grant a new trial

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based on evidentiary objections is within the trial court’s broad discretion. Bartlett Bank & Trust

Co. v. McJunkins, 147 Ill. App. 3d 52, 63 (1986). “[T]he exercise of [that discretion] will not be

disturbed absent clear abuse of that discretion.” Id. Further, the imposition of sanctions pursuant

to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) is within the discretion of the trial court.

The court’s decision in fashioning a sanction will not be disturbed, absent a clear abuse of

discretion. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 620-21 (2007).

¶ 174 SIH contends McMillan, Rushing, and Cullum would have testified to a valid and

legitimate, nondiscriminatory business reason for Kaytor’s termination. They urge that the

exclusion of these witnesses was too harsh a sanction, so a new trial is warranted. Kaytor objected

to these witnesses testifying at trial because they were disclosed as witnesses only a week prior to

trial.

¶ 175 Kaytor propounded Illinois Supreme Court Rule 213 (Jan. 1, 2018) interrogatories to SIH

in 2018. On October 4, 2018, SIH, through its counsel, responded to the interrogatories.

Interrogatory No. 3 was answered, inter alia, as follows:

“3. ‘Identify’ each person to [sic] who has personal knowledge or information

relating to Plaintiff’s claims, Defendant’s defenses, or Defendant’s affirmative defenses in

this matter, state the substance of the person’s knowledge; last known address; and last

known mobile and landline phone numbers.

ANSWER: Defendant objects to Interrogatory No. 3 on the basis that the request

to identify ‘each’ person who may have personal knowledge or information relating to

Plaintiff’s claims, Defendant’s defenses, or Defendant’s affirmative defenses is overly

broad and unduly burdensome. Without waiving its objection, Defendant states as follows:

Susan Odle—***

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Plaintiff (Kevin Kaytor)—***

Donna Draper—***

Kelly Stevens—***

Pamela Henderson—***

Emily Reiman—***

All of the foregoing individuals may be contacted through Defendant’s counsel.

James McMillan, Sleep Educator—Mr. McMillan can testify about Plaintiff’s

leadership by fear and intimidation; special treatment of Donna Draper; and the abrasive

relationship between Plaintiff and the Medical Director.

Page Rushing, Sleep Tech—Ms. Rushing can testify about Plaintiff’s leadership by

fear and intimidation; special treatment of Donna Draper; and the abrasive relationship

between Plaintiff and the Medical Director.

Terry Woodfall—***

Dave Cullum, Sleep Tech—Mr. Woodfall can testify about Plaintiff’s leadership

by fear and intimidation; special treatment of Donna Draper; and the abrasive relationship

between Plaintiff and the Medical Director.

Judy Elmore—***”

Kaytor’s Interrogatory No. 6 was propounded pursuant to Illinois Supreme Court Rule 213(f)(1)-

(3) (eff. Jan. 1, 2018) and requested the identification of all witnesses defendant may call at trial.

When SIH answered this interrogatory in October 2018, it listed the following Rule 213(f)(1)

witnesses: Susan Odle, Plaintiff, Donna Draper, Kelly Stevens, Pamela Henderson, and Emily

Reiman. The answer to Plaintiff’s Interrogatory No. 6 was not supplemented to include McMillan,

Rushing, and/or Cullum. SIH first listed McMillan, Rushing, and Cullum as witnesses on January

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12, 2023, which was 11 days prior to the start of trial and 20 days after discovery had closed

pursuant to a discovery order.

¶ 176 In determining whether the exclusion of a witness is a proper sanction for nondisclosure,

the trial court must consider (1) the surprise to the adverse party, (2) the prejudicial effect of the

witness’ testimony, (3) the nature of the testimony, (4) the diligence of the adverse party, (5) the

timeliness of the objection, and (6) the good faith of the party seeking to offer the testimony.

Nedzvekas, 374 Ill. App. 3d at 621. No single factor is dispositive, and each case presents a unique

factual situation that must be taken into consideration when determining if a particular sanction is

proper. Id.

¶ 177 Once SIH listed McMillan, Rushing, and Cullum as witnesses, Kaytor filed a written

objection. SIH filed a written response. Based upon the trial court’s order on this issue and

information provided in briefing, argument was held on Kaytor’s objection to these witnesses at

the final pretrial hearing. However, there was no transcript or by-stander’s report filed regarding

this hearing. SIH, as the appellant,

“has the burden of presenting a sufficiently complete record of the proceedings at trial to

support a claim of error [citations], and, in the absence of such a record on appeal, the

reviewing court will presume that the order entered by the trial court was in conformity

with the law and had a sufficient factual basis.” Midstate Siding & Window Co. v. Rogers,

204 Ill. 2d 314, 319 (2003).

¶ 178 In the present case, we were not provided with a record of the hearing on this issue. The

information available from the common law record reveals that McMillan, Rushing, and Cullum

were listed as individuals who may have knowledge regarding the claims. When they were

identified, they were not identified as being controlled by SIH, and no contact information was

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provided for these individuals. When this issue was presented to the trial court in SIH’s posttrial

motion, the trial court conducted a thorough analysis setting forth the reasons for the sanction and

the denial of a new trial. Based on the information provided to us by the appellant, we cannot find

that the trial court abused its discretion in excluding McMillan, Rushing, and Cullum as witnesses

at trial or in denying the motion for a new trial based on their exclusion.

¶ 179 III. CONCLUSION

¶ 180 For the foregoing reasons, we affirm the judgment in favor of Kaytor and against SIH.

¶ 181 Affirmed.

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Kaytor v. Southern Illinois Hospital Services, 2025 IL App (5th) 240416

Decision Under Review: Appeal from the Circuit Court of Jackson County, No. 18-L-31;

the Hon. Christy W. Solverson, Judge, presiding.

Attorneys Timothy J. Gearin, David G. Ott, Donald M. Flack, and Nicolas

for P. Cejas, of Armstrong Teasdale LLP, of St. Louis, Missouri, for

Appellant: appellant.

Attorneys John D. Lynn, Erin E. Austin, Mary Anne Sedey, and Jessica M.

for Scales, of Sedey Harper Westhoff, P.C., of St. Louis, Missouri,

Appellee: for appellee.

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