In
The
Matter
Of:
Complainants,
Respondents.
State
of Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
)
)
)
PCB
08-76
)
)
(Citizens
Enforcement
—
Noise)
)
)
)
)
NOTICE
OF
FILING
Bradley
P.
Halloran,
Hearing
Officer
Illinois
Pollution
Control Board
James
R.
Thompson
Center,
#11-500
100
W.
Randolph
Street
Chicago, IL
60601
PLEASE
TAKE
NOTICE
that
on
Novembe,
2008,
the
undersigied
filed
with
the
State
of
Illinois
Pollution
Control
Board,
Jar
R.
Thompson
Center,
100
W.
Randolph
Street,
Suite
11-500,
Chicago,
Illinois/I
60
Opyof
Respondents’
Motion
for
Extension
of
Time
and
Response
to
Motion
ô
copy
of kch
is
attached
hereto
and
served upon
you.
?,
\j
N
‘
/l
\
i1
11
Elliot
S.
Wiczer
WICZER
&
ZELMAR,
LLC
500
Skokie Boulevard,
Suite
350
Northbrook,
IL
60062
(847)
849-4800
Attrn-nuNc
CLRl4jb
DEC
0
1200
gJN
8o
18
)
)
Anne
McDonagh
&
David
Fishbaum)
1464
Linden
Avenue
)
Highland
Park,
IL
60035
)
V.
Richard
and
Amy
Michelon
1474
Linden
Avenue
Highland
Park,
IL
60035
TO:
Anne
McDonagh
and
David
Fishbaurn
1464
Linden Avenue
Highland
Park,
IL
60035
CERTIFICATE
OF
SERVICE
I,
Elliot
S.
Wiczer,
an
attorney,
on
oath
state
that
I
caused
a
copy
of
the
foregoing
Notice,
Response
and
Motion
for
Extension
of
Time
to
be
served
upon the
person(s)
named
above
by
depositing
the
same
in
the
Northbrook,
Illinois, before
5:00
p.m.
on
postage prepaid.
of November
26,
2008,
with
proper
2
State of Illinois
Pollution Control Board
James R. Thompson Center
100 W.
Randolph Street, Suite 11-500
DEC
012008
Chicago, Illinois 60601
OF
ILLINOIS
rol
Board
In
The
Matter Of:
)
)
Anne McDonagh
&
David Fishbaum)
1464
Linden
Avenue
)
Highland Park, IL 60035
)
)
Complainants,
v.
))
PCB2O
-1
)
Richard
and Amy Michelon
)
1474 Linden
Avenue
)
Highland Park, IL 60035
)
)
Respondents.
)
RESPONDENTS’
MOTION
FOR
EXTENSION OF TIME
TO
COMPLETE DISCOVERY
NOW COME the
Respondents, RICHARD and AMY MICHELON,
by
and
through their attorneys,
Wiczer
&
Zelmar, LLC, and for their Motion For Extension of
Time to Complete Discovery,
state as follows:
1.
On August 14, 2008, this
Hearing
Board
adopted the discovery schedule
agreed to
by
Claimants and Respondents. Exhibit 1.
2.
Both Claimants and Respondents issued written
discovery
and have since
answered written discovery.
3.
Respondents’ expert has been engaged and
is
currently working on
preparing a report and further testing on
the
site.
4.
The Claimants have filed a Motion to Bar suggesting that
the disclosure
of
Respondents’ expert has not been
made.
5.
The Respondents by this
motion are seeking additional time to supplement
their answers to interrogatories.
1
6.
The
Respondents will suffer no prejudice by
allowing
the
Respondents to
supplement
their interrogatories
by
providing the written
report containing the opinions
of the
expert.
7.
While Respondents’
expert has indicated that the report will be available
no
later than December 31, 2008, with
the holidays, the Respondents are seeking
that
the
expert report be
provided to the Claimants no later than
January
6,
2008.
8.
No trial date has been
set
in
this matter.
WHEREFORE,
the
Respondents, RICHARD and AMY MICHELON,
pray
this
Honorable Court enter an
order granting their Motion for Extension of
Time
to
supplement their answers to
interrogatories and for any other relief this Court
deems
just
and
fit.
Elliot S.
Wiczer
WICZER & ZELMAR, LLC
500 Skokie
Boulevard, Suite 350
Northbrook, IL 60062
(847)
849-4800
Attorney No. 37886
In their Answers to Interrogatories the Respondents specifically reserved
the right to
supplement their
intelTogatories
when
the report was
made
available by
their expert.
submitted,
2
Aug
27
08
10:2Ya
Hshbaum
—amny
p.’
&:
Mar’.
kt(o
UJc,zec
WIczER
&..
ZEUvI.AR,
LLC
Suite
350
ATTORNEYS
AT
LAW
500
Skokie
Boulevard
Northhrook.
Illinois
60062
BERNARD
WICZER
Telephone
(847)849.4800
MICHAEL
A.
ZELMAR
Facsimile
(847)
205-9444
EUJOTSWK2ER
TRESSA
A.
PANKOVITS
www.wiczerzelmar.com
JOHANNAN
K.
HEBL*
August
14,
2008
Anne
McDonagh
David
Fishbaum
1464
Linden
Avenue
Highland
Park.
IL
60035
Re:
MeD
onagh
&
Fishbaum
v.
Michelon
k
u€ce
Dear
Ms.
McDonagh
and
Mr.
Fishbaum:
-
o
c1LP
/)3-2
Pursuant
to
Mr.
Halloran’s
Order
I
am
proposing
the
following
discovery
schedule:
S
1.
Written
discovery
to
be
propounded
on
or
before
h
rrst,
2008;
2.
Expert
diclosures
to
be
completed
by
October
15,
2008;
and
3.
All
depositions
to
be
completed
by
November
30,
2008.
In
addition,
based
on
the
State
of
Illinois
testing
standards,
measurements
by
our
clients’
expert
are
required
to
be
taken
from
your
property.
Please
let
me
know if
you
have
any
objection
to
our
expert
entering
on
to
your
property
for
the
limited
purpose
of
taking
the
required
measurements.
If
you
have
no
objection
to
the
foregoing,
please
sign
a
copy
of
this
letter
acknowledging
your
agreementthat
I
will
submit
this
letter
as
part
of
our
discovery
plan.
Thank
you.
-r-w-
p
i
ft5
eU(S
?oi.t\b
be-
e
(o
e\jeL
Y1’.
*0
ôtU’
-Ec’-
ot
IJ
RSW:hr
S
j)
c
AGREED
State
of Illinois
REcEIvE
Pollution Control
Board
CLERKIs
OFF,GED
100
W.
JamesRandolph
R. Thompson
Street, Suite
Center
11-500
DEC
vi
008
Chicago,
Illinois
60601
rOlIUt
STATE
OF
Controi
/LLINOIS
Soard
In The
Matter Of:
)
)
Arnie
McDonagh &
David
Fishbaum)
1464
Linden
Avenue
)
Highland
Park, IL 60035
)
)
Complainants,
)
. 7
v.
)
PCB2O
)
Richard
and Amy Michelon
)
1474
Linden
Avenue
)
Highland
Park,
IL
60035
)
)
Respondents.
)
RESPONDENTS’
RESPONSE
TO
CLAIMANTS’
MOTION TO BAR
EXPERT
DISCLOSURE
NOW COME the
Respondents,
RICHARD and
AMY MICHELON
(“Respondents”),
by and through their
attorneys,
Wiczer
&
Zelmar,
LLC,
and
for
their
Response to Claimants’,
ANNE
MCDONAGH and
DAVID
FISHBAUM,
Motion to Bar
Expert Disclosure,
state as follows:
1.
On or about August
14, 2008,
the parties
exchanged a discovery
schedule
in
the form of correspondence
drafted
by counsel for the
Respondents.
Exhibit 1 hereto.
2.
The parties
agreed
to the discovery
schedule set forth
therein and the
hearing officer adopted
the
schedule.
3.
Tn accordance
with the parties
Agreement,
the parties propounded
written
discovery
on or before
September
5, 2008.
4.
In accordance with the parties
agreement,
the
Claimants and the
Respondents timely answered
all written discovery.
5.
Contained in the
Respondents
Answers to Interrogatories, in fact, is the
name, address of Stuart Bagley, respondent’s
expert.
The Respondents provided a CV
of
Mr. Bagley as document bates number
70. A copy
of the Respondent’s
Answer
is
attached hereto as Exhibit B. Thus,
Respondents have
timely disclosed their expert as
required
by
the August 14, 2008,
discovery schedule.
6.
In
addition
the Respondents
reserved the right
to
supplement the
disclosure
by
producing
the written report
that was
not yet available when the disclosure
was
made.
7.
The rules of discovery are
designed to gamer compliance with discovery
nile orders and not to punish dilatory
parties. Blakey
v. Gilbane
Building
Corp., 303
Ill.App.3d 872 708 N.E.2d 1187, 1191
(
4
th
Dist. 1999).
8.
The Respondents
here have hardly
been dilatory. In fact in contravention
of
Supreme Court Rule 201(k) the
Claimants have
failed to attempt to garner compliance
by the Respondents in accordance with the
aforesaid nile. The Claimants
do
not suggest
that
they have fulfilled the requirements
of Supreme Court Rule 201(k)
and
therefore
their
Motion
to
Bar
is
premature.
9.
In
addition, as
a mitigating factor,
the Claimants and Respondents have
engaged in settlement discussions and as
of the date of the
filing of this
response,
continue
to
engage
in
such
discussions.
10.
Furthermore, even though
the Respondents have
fully
complied with
the
disclosure
requirement
of the discovery
scheduling letter, it should be noted that no
2
hearing
date has
been set and a supplement
to the discovery
disclosure of the
Respondents’ expert would not be untimely.
In addition, the Respondents have
filed a
motion
for
an extension of time to complete
any discovery, including depositions
and
supplement to
January
15,
2008.
11.
Thus, having
no
trial date
set there
is
no prejudice to
the
Claimants
by the
Hearing Board
allowing
for an extension
of
time
to answer and/or supplement discovery.
12.
However, there would be extreme
prejudice
to the Respondents if the
Hearing
Board
would not permit Respondents
to
provide the report of their expert.
13.
Thus,
based on the
foregoing, the Claimants’
motion should be denied.
WHEREFORE, the
Respondents,
RICHARD and AMY MICHELON,
pray this Honorable Court enter an order denying
the Motion to Bar and
for
any other
relief this Court deems just and fit.
Elliot
S.
Wiczer
WICZER
& ZELMAR, LLC
500 Skokie Boulevard, Suite 350
Northbrook, IL
60062
(847)
849-4800
Attorney No. 37886
submitted,
of Their Attorneys
3
Aug
21
U iU2a
Hsfloaum
1-amny
p_I
n:
ftr.
t(ot
UJczec
WICZER
& ZELMAR,
LLC
ATToRNEYs
AT
LAW
BERNARD
WI(2ER
MICHAEL
A.
ZELMAR
EUJOTS.
WK2ER
TRESSA
A.
PANKOVITS
JOHANNAH
I.
HEBL’
Suite
350
500
Skokie
Boulevard
Northl,rook.
Illinois
006Z
Telephone
(847)
849-4800
Facsimile
(847)
205-9444
www.wiczerzelrnar.com
Arnie
McDonagh
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
August
14,
2008
schedule:
VJ
S’€
OU0
Pursuant
to Mr.
Halloran’s
Order
I am
proposmg
the
foflowmg
discovery
—
/
1.
Written
discovery
to
be propounded
on or
before
Aigtt
2008;
2.
Expert
diclosures
to
be
completed
by
October
15, 2008;
and
I
All
depositions
to be
completed
by
November
30, 2008.
AGREED:
Re:
McDonagh
&
Fishbaum
v.
Michelon
Dear Ms.
McDonagh
and
Mr. Fishbaum:
In
addition,
based
on
the
State of
Illinois
testing
standards,
measurements
by
our
clients’
expert
are
required
to be taken
from
your
property.
Please
let
inc
know
if
you
have
any
objection
to
our
expert
entering
on to
your
property
for
the
limited
purpose
of
taking
the
required
measurements.
If you
have
no
objection
to
the
foregoing,
please
sign
a
copy of
this
letter
acknowledgirig
your
agreement-that
I will
submit
this letter
as
part of
our
discovery
plan.
Thaik you.
ee
o
)edà’
40
5
ÔtLC
1&S
y
yours,
O
hot.\iczerm
ESW:hr
n
5i!*
CSk-LLJz;tJ
.‘ S
Jrvi
State
of Illinois
Pollution
Control
Board
James
R. Thompson
Center
100
W.
Randolph
Street,
Suite 11-500
Chicago,
Illinois
60601
In The
Matter
Of:
)
)
Anne McDonagh
&
David Fishbaum)
1464 Linden Avenue
)
Highland Park, IL 60035
)
)
Complainants,
)
v.
)
PCB 08-76
)
(Citizens
Enforcement — Noise)
Richard and
Amy Michelon
)
1474 Linden Avenue
)
HighlandPark,IL 60035
)
)
Respondents.
)
RESPONDENTS’ ANSWERS
TO INTERROGATORIES
NOW
COME the Respondents,
RICHARD
MICHELON and AMY MICHELON
(“Respondents”),
by
and through
their attorneys,
Wiczer
&
Zelmar, LLC,
and for their
Answers
to
the
Complainants, ANNE
MCDONAGH and DAVID
FISHBAUM
(“Complainants”) Jnterrogatories and pursuant
to Supreme Court Rule 213
state
as
follows:
I.
GENERAL RESPONSES
AND OBJECTIONS
1.
Respondents object to
Claimant’s intenogatoies
to the extent they call
for
information protected by
the attorney-client
privilege,
work-product immunity,
or
any
other
privilege or immunity.
Should Respondents
inadvertently provide
any information
protected
by
any such privileges or immunities,
such
disclosure
shall in no way be intended,
nor
should
it be construed, as a waiver of those
privileges
or immunities.
2.
The following
responses
are
submitted
subject to, and without in any way
waiving or intending
to
waive, the above objection,
as well
as:
(a)
the right to object to competency,
relevancy, materiality, privilege,
and
admissibility as evidence
for
any
purpose of any
of the responses
given or the
subject
matter
thereof
in any
subsequent proceeding in, or
the trial
of, this action or any action
or
proceeding;
(b)
the right to
object to other discovery
procedures involving
or
related
to
the
same subject matter as the interrogatories herein responded
to; and
(c)
the right at any time to
revise,
correct, add
to, or clarify any of the responses
set forth herein.
The following specific responses and objections
are expressly subject to, do
not
constitute a waiver
of, and
implicitly incorporate
all of the above general objections.
II.
ANSWERS TO INTERROGATORIES
1.
ANSWER:
Richard and Amy
Michelon
1474 Linden
Avenue
Highland Park,
IL 60035
Mr. and Mrs. Michelon have knowledge relating to
the air conditioning units, the
Claimants’
claims,
the work
performed
on Respondents’ air conditioning units to quiet
the units, the Zoning Board of Appeals hearing, all efforts
to
remediate the alleged
sound
emanating from the air conditioning units, generally
the allegations of Claimants’
Complaint,
Respondents’
Motion to Dismiss, and
Answer.
2.
ANSWER:
Stuart D. Bagley, MS
CIH CSP
IAQ
Services,
Inc.
11236 Harrington Street
Fishers,
11
46038-3208
2
CV
is
produced herewith.
Mr.
Bagley
has
yet
to
provide
a written
report. However,
the
Respondents
specifically
reserve
the
right
to
supplement
their
answer
to interrogatory
number
2
at
a later
date.
3.
ANSWER:
Respondents
object
to
interrogatory
number
3
as
vague
and
not
tending
to lead
to
relevant
admissible evidence.
4.
ANSWER:
To
the
extent that
there
is
information
to satisfy
interrogatory
number
4,
the
Respondents
have
provided
the
same
in
their
answer
to
Claimants’
request
for production
of
documents.
5.
ANSWER:
The
Respondents
object
to
interrogatory
number
5
as
vague
and
overbroad.
Further
answering,
the
Respondents
state
that
the
units
are
sited
plus
or
minus
13
V
2
feet
from
the
Claimants’
side
yard
setback.
The
units
are
each
approximately
5
tons.
6.
ANSWER:
The
Respondents
object
to
interrogatory
number
6
as
not
tending
to
lead
to
relevant
admissible
evidence,
vague
and
overbroad.
Notwithstanding
the
objection,
the
Respondents
state
that
they
do
not
know
how many
days
per
year
that
the
subject air
conditioners
are
turned
on,
the
unit
hours
of
operation,
their
cycle
frequency
and
duration.
The
Respondents
further state
that
they
are
not
experts
but
readily
believe
that
the
decibel
ratings
measured
at
the
units
are
65
decibels.
7.
ANSWER:
The
Respondents
object
to
interrogatory
number
7
as
said
interrogatory
calls
for
conclusions
of
law
and
therefore
said
interrogatory
cannot
be
answered
in
its
current
form.
3
8.
ANSWER:
The
Respondents
object
to
interrogatory
number
8
as
vague
and
overbroad
in
terms
of
the
word
“visits”.
Notwithstanding
said
objection,
the
Respondents
have
listened
to
the
air
conditioning
units
on
a number
of
occasions.
9.
ANSWER:
The
Respondents
have
not
occupied
the
residence
since
in
or about
May,
2007,
and
have
continuously occupied
the
residence
since
that
date.
10.
ANSWER:
The
Respondents
object
to
interrogatory
number
10
as
said
interrogatory
concludes
a fact
that
is
not
accurate.
11.
ANSWER:
The
Respondents
have
not
yet
determined
who they will
call
at
trial
but
reserve
the
right
to
supplement
interrogatory
number
11
at
a
later
date.
Respectfully
submitted,
RICHA1
MICHELON
and
AM
4I{ELON
By:’\.
\/\
Oi
‘
Their
Attorney.
\:
\[
Elliot
S.
Wiczer
WICZER
&
ZELMAR,
LLC
500
Skokie
Boulevard,
Suite
350
Northbrook,
IL
60062
(847)
849-4800
Attorney
No.
37886
4
