Where the plaintiff, in the court record, admits that she has agreed to disclaim the facts on which her case relies and then proceeds to file an appeal from that case’s dismissal, the court may conclude that the appeal is filed in bad faith and subject to sanctions under Supreme Court Rule 375.

The 1st District Appellate Court dismissed an appeal from a decision by Cook County Circuit Judge Jerry A. Esrig and granted a request for sanctions.

Early on June 13, 2013, Elena Chernyakova was taken by ambulance from Cuvée Chicago, a lounge in Chicago’s River North District, to an emergency room at Northwestern Memorial Hospital, where she was admitted for alcohol intoxication.

Many of the following facts are disputed. Either Chernyakova or a friend of hers contacted Vinaya Puppala, a fellow at the Multidisciplinary Pain Medicine program at McGaw Medical Center at Northwestern and told him she or Chernyakova was in the hospital.

Puppala had a record of disciplinary issues relating to interactions with patients and patients’ privacy while at the program. Puppala and Chernyakova had met several times socially as part of a group as well as meeting together alone on two prior occasions.

Puppala visited Chernyakova twice on June 13, viewing her medical chart and speaking with her physician on the first visit. Puppala alleges that Chernyakova gave him permission to do so, though she denies it. Around 3 p.m. that day Puppala visited a second time, taking photographs of her in a hospital bed and gown with an IV and a towel over her head and posting them to his Instagram and Facebook with the caption “Post-Cuvée #bottle #service #gone #bad.”

He, again, claims she gave permission for this, but she denies it. Though not named or tagged, she was recognized in the photos by multiple acquaintances.

Chernyakova filed suit against Puppala, Northwestern and McGraw, alleging invasion of privacy and intentional and negligent infliction of emotional distress, as well as direct negligence on behalf of Northwestern and McGaw.

Following hearings, the circuit court granted summary judgment in favor of Northwestern and McGaw and the case proceeded to trial against Puppala.

During trial, however, the parties reached a settlement, whereby Puppala would pay a certain amount and Chernyakova would write letters on Puppala’s behalf indicating that the allegations were mistaken and that she consented to the photos being taken and posted.

The settlement and its related hearing were entered as confidential, however, when Chernyakova appealed the dismissal of Northwestern and McGaw, they moved to unseal the hearing transcript and argued that, based on her claim therein that she gave consent, Chernyakova’s appeal was clearly frivolous and being pursued in bad faith.

The appellate court agreed. On appeal, Chernyakova argued that the settlement should not have been made public as it was “confidential,” but the appellate court explained that when the attorneys described its terms to the trial judge while the court reporter was transcribing, the counsel made them part of the public record.

Chenyakova also argued that the settlement is governed by Illinois Rule of Evidence 408 and cannot be used to prove liability or impeach, however, the appellate court found it was not categorically barred and could be used for the purpose of establishing bad faith.

Because Chernyakova was effectively seeking to keep up an appeal based on a factual claim which she has since disclaimed to, at a minimum, public licensing organizations in the state of Georgia where Puppala now works, the appellate court found her appeal frivolous and not pursued in good faith.

The appellate court, therefore, dismissed the appeal and directed defendants to file statements of reasonable attorney fees and costs for sanctions to be assessed.

Elena Chernyakova v. Vinaya Puppala M.D., et al.

2019 IL App (1st) 173066

Writing for the court: Justice Daniel J. Pierce

Concurring: Justices Mary L. Mikva and John C. Griffin

Released: Oct. 21, 2019