Baxter v. Mount Sinai Hospital Medical Center of Chicago

2026 IL App (1st) 241968-U

• Court: Appellate Court of Illinois
• Decided: February 23, 2026
• Docket: 1-24-1968
• Status: Unpublished

Opinion

2026 IL App (1st) 241968-U No. 1-24-1968 First Division February 23, 2026

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

DWIGHT BAXTER, as INDEPENDENT ) Appeal from the ADMINISTRATOR of the ESTATE of ) Circuit Court of REGINALD BAXTER, deceased, ) Cook County. ) Plaintiff-Appellant, ) ) No. 22 L 1769 v. ) ) MOUNT SINAI HOSPITAL MEDICAL ) CENTER OF CHICAGO, SINAI HEALTH ) SYSTEM d/b/a MOUNT SINAI HOSPITAL, ) Honorable THE MOUNT SINAI COMMUNITY ) Michael Otto, FOUNDATION, and WALDO HERRERA- ) Kathy Flanagan, NOVEY, M.D., ) Maura Slattery Boyle, ) Judges, Presiding. Defendants-Appellees. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith concurred in the judgment. Justice Mikva dissented. ORDER

¶1 Held: The circuit court’s order granting summary judgment in favor of defendants and its order closing discovery are both affirmed. No. 1-24-1968

¶2 This appeal stems from a medical malpractice lawsuit arising out of an intracranial

hemorrhage sustained by Reginald Baxter on September 1, 2016 while he was under the care of

the defendants-appellees Mount Sinai Hospital Medical Center of Chicago, Sinai Health System,

doing business as, Mount Sinai Hospital, The Mount Sinai Community Foundation, and Waldo

Herrera-Novey, MD. Plaintiff-appellant Dwight Baxter, as independent administrator of the estate

of Reginald, deceased, appeals from the circuit court’s order closing discovery and the circuit

court’s grant of summary judgment in favor of defendants, arguing that the circuit court abused its

discretion in closing discovery and setting this matter for trial. For the reasons that follow, we

affirm.

¶3 I. BACKGROUND

¶4 Preliminarily, we note that a report of proceedings has not been included in the record in

contravention of Illinois Supreme Court Rules 321 (eff. Oct. 1, 2021) and 323 (eff. July 1, 2017).

Rule 321 requires that the record on appeal “include any report of proceedings prepared in

accordance with Rule 323.” Ill. S. Ct. R. 321. Rule 323 provides that a report of proceedings may

be a transcript prepared by court reporting personnel or, if no verbatim transcript is available, an

appellant may file a bystander’s report or an agreed statement of facts instead. Ill. S. Ct. R. 323(c),

(d). It is plaintiff’s burden as the appellant “to present a sufficiently complete record of the

proceedings” to support his claim of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).

¶5 Although plaintiff asserts in his brief that, on December 4, 2024, an agreed statement of

facts was filed in the circuit court, no such document can be found in the record and no

supplemental record has been filed, despite plaintiff’s stated intention to do so. Although plaintiff’s

appendix to his brief includes an agreed statement of facts, we must disregard that document as

plaintiff has failed to supplement the record. See Ill. S. Ct. R 341(h)(9) (eff. Feb. Oct. 1, 2020); Ill.

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S. Ct. R. 342 (eff. Oct. 1, 2019) (Rules 341(h)(9) and 342 require an appendix containing relevant

materials from the record only); see also Jones v. Police Board of City of Chicago, 297 Ill. App.

3d 922, 930 (1998) (“attachments to briefs not otherwise before the reviewing court cannot be used

to supplement the record”). Notwithstanding this failure, plaintiff inserts into his statement of facts

alleged discussions from hearings before the court. Because there is no report of proceedings or

acceptable substitute in the record, we will not consider any portions of plaintiff’s brief setting

forth oral statements made by the parties or the circuit court judge and any doubts arising from the

incomplete record must be resolved against plaintiff. See Foutch, 99 Ill. 2d at 392.

¶6 On August 29, 2018, plaintiff filed his initial lawsuit against defendants for medical

malpractice. After the case had been pending for 31 months with no action taken, the complaint

was dismissed on March 19, 2021, for want of prosecution. Plaintiff did not seek to vacate the

dismissal.

¶7 On February 22, 2022, plaintiff refiled his complaint, alleging medical negligence against

defendants for failing to prevent Reginald from falling while a patient at the hospital, which

resulted in injuries, and included claims for medical expenses, disability, disfigurement, pain and

suffering, loss of chance of survival, and emotional trauma.

¶8 On August 3, 2022, the circuit court entered a case management order, which allowed the

parties 26 months from the filing of the complaint to complete discovery, i.e. April 2024. Relevant

here, the order required plaintiff to disclose Rule 213(f)(3) witnesses by October 16, 2023, and for

the completion of depositions of those witnesses by December 15, 2023.

¶9 On February 13, 2024, plaintiff filed a motion for extension of time on existing case

management deadlines. The motion stated that discovery had not progressed “due to competing

trial schedules.” Defendants objected to this motion, arguing that the October 16, 2023 witness

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disclosure deadline had already passed and extending the deadlines would result in the parties

being unable to complete discovery prior to the trial date.

¶ 10 On March 7, 2024, the parties appeared before Judge Michael Otto. In a written order,

Judge Otto granted plaintiff’s motion and extended the Rule 213(f)(3) witness disclosure date to

September 2, 2024.

¶ 11 On April 26, 2024, the parties appeared before Judge Kathy Flanagan for a trial setting

hearing. Judge Flanagan vacated the March 7, 2024 order, closed discovery, and set the case for

trial on September 3, 2024. Plaintiff did not file a motion to reconsider the April 26 order.

¶ 12 On August 21, 2024, defendants filed a motion for summary judgment, arguing that

plaintiff had no sworn expert testimony to render an opinion on the standard of care and causation

as is required for a medical negligence action and plaintiff had not disclosed any witness who

could do so. Plaintiff did not file a written response to the motion.

¶ 13 On September 3, 2024, Judge Maura Slattery Boyle granted summary judgment in favor

of defendants, finding that plaintiff was unable to offer testimony from a qualified witness as to

the standard of care and causation. Plaintiff did not file a motion to reconsider this order.

¶ 14 On October 1, 2024, plaintiff filed his notice of appeal.

¶ 15 II. ANALYSIS

¶ 16 On appeal, plaintiff contends that Judge Flanagan’s April 26 order was a sua sponte

discovery sanction against him for the “general failure of all parties to progress with discovery to

the satisfaction of the trial court.” According to plaintiff, the order prohibited him from meeting

his burden of proof and resulted in defendants “being gifted summary judgment despite their own

lack of diligence in proceeding with discovery.” Thus, plaintiff requests that this court vacate both

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the April 26 order and the entry of summary judgment in favor of defendants and remand to the

circuit court, allowing the parties to complete discovery.

¶ 17 Summary judgment is appropriate where the pleadings, depositions, and admissions on

file, together with any affidavits, when viewed in the light most favorable to the nonmovant, reveal

that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter

of law. State Farm Fire & Casualty Co. v. Martinez, 384 Ill. App. 3d 494, 497-98 (2008). Summary

judgment is a drastic measure and should only be granted where the moving party’s right to

judgment is free and clear from doubt. Smith v. Bhattacharya, 2014 IL App (2d) 130891, ¶ 12. We

review a grant of summary judgment de novo. Id.

¶ 18 In medical malpractice actions, the plaintiff has the burden of proving: “(1) the proper

standard of care by which to measure the defendant’s conduct, (2) a negligent breach of the

standard of care, and (3) resulting injury proximately caused by the defendant’s lack of skill or

care.” Higgens v. House, 288 Ill. App. 3d 543, 546 (1997). Generally, a prima facie case of medical

negligence requires expert testimony “to establish the applicable standard of care, a deviation from

the standard, and the resulting injury to the plaintiff.” Id. Thus, where a plaintiff fails to present

any expert testimony of a violation of the appropriate standard of care, summary judgment is

proper. Smith, 2014 IL App (2d) 130891, ¶ 20.

¶ 19 Plaintiff concedes that summary judgment was appropriate, and we agree that it was, as

plaintiff had not presented any expert testimony to prove any of the elements of his medical

malpractice action. Rohe v. Shivde, 203 Ill. App. 3d 181, 198 (1990) (summary judgment proper

where the plaintiff failed to present any expert testimony that the doctor did not comply with the

standard of care and that such non-compliance resulted in the injuries alleged). However, plaintiff

challenges the circuit court’s April 26, 2024, order closing discovery, which he claims prevented

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him from obtaining the evidence necessary to survive summary judgment. The circuit court has

discretion over the conduct of discovery, and absent an abuse of that discretion, a reviewing court

will not overturn a circuit court’s ruling related to discovery. Ragan v. Columbia Mutual Insurance

Co., 183 Ill. 2d 342, 352 (1998). An abuse of discretion occurs only where the court’s ruling is

arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the court’s review.

Payne v. Hall, 2013 IL App (1st) 113519, ¶ 10.

¶ 20 Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018) requires the identification of

witnesses who will testify at trial. Specifically, subsections (f)(2) and (f)(3) require the disclosure

of any expert witnesses, as well as the subjects on which they will testify and their opinions and

the bases therefor. Ill. S. Ct. R. 213(f)(2), (3). Pursuant to Illinois Supreme Court Rule 218(c) (eff.

Feb. 2, 2023), the circuit court must hold a case management conference to set discovery deadlines

and is required to set dates that ensure that all discovery, including the disclosure of witnesses is

completed “not later than 60 days” before trial. Finally, Illinois Supreme Court Rule 219 (eff. July

1, 2002) contains various sanctions that the circuit court may impose on parties for failing to

comply with discovery deadlines and the rule “affords a trial judge broad discretion in fashioning

a sanction appropriate under the specific circumstances.” Locasto v. City of Chicago, 2014 IL App

(1st) 113576, ¶ 26. Under section (c), failure to comply with the rules of discovery or an order

entered by the court related to discovery may result in, inter alia, default judgment or dismissal of

a claim or the entire action. Ill. S. Ct. R. 219(c)(v) (eff. July 1, 2002). We also note that section (e)

states that “[i]n establishing discovery deadlines and ruling on permissible discovery and

testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct,

and orders entered in prior litigation involving a party.” Ill. S. Ct. R. 219(e).

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¶ 21 Here, plaintiff’s initial action, which was filed in August 2018, was dismissed in March

2021 for want of prosecution. He refiled his complaint a year later on February 22, 2022. The

circuit court entered a case management order, requiring discovery to be completed by April 2024.

In particular, plaintiff was required to complete his expert witness disclosure by October 2023 and

to take expert witness depositions by December 2023. Plaintiff did neither. Neither did he request

an extension prior to the October 2023 deadline. Instead, in February 2024, he then sought an

extension of time for the already past discovery deadline. Further, with the exception of presenting

himself for defendants’ deposition, neither did he complete any other discovery. Although in

March 2024, Judge Otto granted plaintiff an extension until September 2024, Judge Flanagan

vacated that order and closed discovery in April 2024. Again, plaintiff filed no motion for

reconsideration of Judge Flanagan’s order.

¶ 22 Plaintiff can only prevail in this appeal if we find that Judge Flanagan abused her discretion.

We are mindful of more than a few factors in addressing plaintiff’s claimed trial court error. First

and foremost, Judge Flanagan’s order vacating Judge Otto’s order and closing discovery, entered

just a few weeks after Judge Otto’s order, gives us pause. However, and although not dispositive,

the trial judges’ management of plaintiff’s discovery here is not our only concern. We consider, as

we must, that an important goal for every judge is the swift and efficient termination of litigation,

albeit preferably on the merits. To that end, judges are afforded wide discretion over the

management of their court dockets. Of equal importance is the practical effect of noncompliance

with discovery for plaintiffs and defendants alike.

¶ 23 Even so, the proper disposition of plaintiff’s claim requires our review of the record on

appeal, inclusive of any transcripts of the relevant proceedings. However, plaintiff simply did not

provide a transcript of those proceedings before the circuit court or an acceptable substitute. We

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again acknowledge plaintiff’s inclusion of an agreed statement of facts in the appendix to his

opening brief. However, as our supreme court has recently reaffirmed, “[i]f pleadings, exhibits, or

other materials are not in the record, they may not be placed before a reviewing court in an

appendix.” Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corporation, 2024

IL 129277, ¶ 20 (citing Ill. S. Ct. R. 342 (eff. Oct. 1, 2019)). Thus, absent the transcript, left

unanswered are the reasons supporting either judge’s orders; reasoning about which we must

refrain from speculating.

¶ 24 The dissent posits that “should we feel it necessary to have this stipulation made part of the

record,” this court could order plaintiff to file the agreed statement of facts with the circuit court,

have that court transmit the statement to the clerk of this court, and then order plaintiff to file a

motion to supplement the record. In that regard, we find noteworthy that prior to filing the record

in this case, plaintiff filed in this court a motion for extension of time to file his statement of facts.

We granted the motion for extension of time and further, in that same order, directed that “[t]he

Report of Proceedings is due on or before December 4, 2024. The Statement of Facts must be filed

with the Clerk of the Circuit Court, not with the appellate court.” Notwithstanding the extension

of time and clear direction from this court, no statement of facts appears to have been filed.

¶ 25 Nevertheless, at this stage of the litigation, the practical effect of proceeding in the manner

suggested by the dissent is to engage this court in aiding one party to the litigation. We believe

that to do so runs contrary to the well-established principle that the reviewing court should not

serve as an advocate for a litigant unless justice so requires. First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We have no obligation either to act as an

advocate or to seek error in the record. U.S. Bank v. Lindley, 397 Ill. App. 3d 437, 459 (2009).

Based on the record before us, we do not believe justice requires departure from our traditional

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role as the reviewing court particularly where: (1) in the court below, plaintiff indisputably failed

to demonstrate any interest in proving his own case or complying with court orders, (2) plaintiff

was admittedly aware of his burden to provide a complete record to this court on appeal and (3)

pursuant to this court’s December 2024 order, plaintiff was given clear direction concerning filing

of the requisite statement of facts. See Scatchell v. Board of Fire and Police Commissioners for

Village of Melrose Park, 2022 IL App (1st) 201361, ¶ 111 (where the reviewing court declined to

take judicial notice of a FOIA response attached to one of the parties’ briefs where there was no

motion to supplement the record); In re Parentage of Melton, 321 Ill. App. 3d 823, 826 (2001)

(ignoring improperly appended documents); McGee v. State Farm Fire and Casualty Co., 315 Ill.

App. 3d 673, 679 (2000) (declining to consider a hearing transcript included in the plaintiff’s

appendix to his brief where it was not included in the record on appeal and there was no motion to

supplement the record). Because there is no record of any proceedings before the circuit court, we

must presume that the court’s order was in conformity with the law and had a sufficient factual

basis. See Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156-57 (2005). Accordingly, we

conclude that Judge Flanagan’s order was not an abuse of discretion.

¶ 26 Plaintiff’s initial action had been dismissed for failure to take any action in the case for 31

months. In the refiled action, over a period of 26 months, only one deposition had been taken, at

defendants’ request, and plaintiff had not made any expert witness disclosures. Plaintiff did not

request an extension of the discovery deadlines until February 2024, nearly 18 months after the

initial case management order was entered and more than three months after the expert witness

disclosure deadline had passed. In that motion, plaintiff’s counsel asserted that competing trials

resulted in his failure to progress discovery in this case. Otherwise, plaintiff provides no

explanation for his consummate failure to prosecute his case for over a total of 57 months, and he

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has never advised the circuit court or this court, for that matter, that he has secured an expert

witness. See Ashcraft v. Rockford Memorial Hospital, 2021 IL App (2d) 190860-U (summary

judgment affirmed where the alleged negligence occurred five years prior, the current litigation

had been pending for three years, the plaintiff failed to disclose an expert witness after given

multiple opportunities to do so, the plaintiff did not request an extension prior to the initial

deadline, the plaintiff failed to explain the difficulty in finding an expert, and the plaintiff failed to

respond to the summary judgment motion); Knight v. Haydary, 223 Ill. App. 3d 564, 578-79 (1992)

(trial court did not abuse its discretion in barring expert testimony where the disclosure came six

years after the initial complaint was filed, the plaintiff never explained his delay, and the plaintiff

did not contend that the trial court’s discovery deadlines were unfair or unduly burdensome).

Additionally, plaintiff never filed any motion to reconsider or to vacate the circuit court’s orders.

Although not necessarily relevant to the issue of discovery, plaintiff’s failure to seek

reconsideration lends credence to the perception of a lack of diligence and effort in pursuing this

action.

¶ 27 Overlooking for the moment our concerns over Judge Flanagan’s vacatur of Judge Otto’s

order, it otherwise appears that the trial court’s April 26, 2024, order was a reasonable exercise of

its authority to control discovery, prevent undue delay, and manage its docket. Simply put,

plaintiff’s case was going nowhere, and the court was under no obligation to grant plaintiff an

extension where there was no reason to believe plaintiff would suddenly, after 57 months of failing

to progress his own lawsuit, exercise due diligence in completing discovery on an expedited

timeline. In sum, we cannot say that “no reasonable person would take the view adopted by the

trial court.” Bankers Life & Casualty Co. v. American Senior Benefits, LLC, 2017 IL App (1st)

160687, ¶ 83.

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¶ 28 Nonetheless, plaintiff cites Anglin v. Carle Foundation Hospital, 2021 IL App (4th)

200322-U, in his opening and reply briefs for support of his argument. We note initially that Anglin

is a nonprecedential Rule 23 order, which may be cited for persuasive purposes only. That said, in

Anglin, a medical malpractice lawsuit, the plaintiff failed to file expert witness disclosures by the

requisite date and a month later the defendant filed a motion for summary judgment. Id. ¶ 2. The

circuit court denied the plaintiff’s request for an extension, found that the plaintiff had failed to

show good cause, and granted summary judgment in favor of the defendants. Id. On appeal, the

Fourth District of this court reversed the circuit court’s judgment. Id. The court first concluded

that the circuit court wrongly considered Rule 218 in making its decision, rather than Rule 219,

which is applicable to discovery sanctions. Id. ¶ 34. After considering discovery sanction factors,

as set out in Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 124 (1998), the court then

found that the sanctions were unreasonable where the plaintiff had not acted in bad faith, this was

the plaintiff’s first violation of the discovery order, the plaintiff had not previously sought an

extension, trial was not set to begin for another year, and the parties had exchanged written

discovery, taken numerous depositions, and engaged in extensive motion practice already. Id. ¶¶

45-47. We do not find the facts in Anglin analogous. Here, plaintiff has not engaged in any motion

practice or conducted any discovery in two years, and plaintiff already had his initial action

dismissed for want of prosecution. Thus, in our case, the circuit court had no reason to believe that

plaintiff would comply with any discovery order or progress the action at all.

¶ 29 We additionally distinguish this case from others where the closure of discovery or denial

of an extension was found to be an abuse of discretion. First, in Cometo v. Foster McGraw

Hospital, 167 Ill. App. 3d 1023, 1026 (1988), the plaintiff disclosed an expert witness after being

given an extension; however, that expert subsequently refused to testify on the plaintiff’s behalf.

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The plaintiff was given another opportunity to disclose an expert witness and failed to do so. Id.

The defendants filed a motion for summary judgment. Id. To his response, the plaintiff attached

an affidavit of his previously disclosed witness who had now agreed to testify on the plaintiff’s

behalf. Id. at 1027. The circuit court struck the affidavit and granted the defendants’ motion. Id.

On appeal, the reviewing court reversed, finding that the circumstances had changed because the

plaintiff’s expert had agreed to testify and the expert’s initial refusal could not be attributed to the

plaintiff. Id. at 1029-30. In contrast, here, plaintiff did not provide the circuit court or this court

with any changed circumstances which would render the court’s decision to close discovery unjust.

Additionally, and most significantly, at no point in this litigation has plaintiff ever identified any

potential expert witness.

¶ 30 Second, in Kubian v. Labinsky, 178 Ill. App. 3d 191, 192 (1988), the circuit court dismissed

the plaintiff’s medical malpractice action against the defendant as a sanction for failure to comply

with discovery orders. The plaintiff had missed several discovery deadlines for disclosing

witnesses. At some point, the plaintiff alerted the court that it had identified an expert witness, and

the court granted another extension. Id. at 193. The plaintiff again failed to comply and later

informed the court that the expert had decided not to testify at trial. Id. at 194. Then, around the

time that the defendant filed the operative motion to dismiss, the plaintiff’s attorney left the employ

of the plaintiff’s law firm. Id. at 195. After allowing the plaintiff additional time to respond to the

motion, the trial court granted the motion to dismiss. Id. The plaintiff filed a motion to reconsider,

stating that the subsequent attorney assigned to the case had inadequately presented the facts to

potential experts and subsequently the originally identified expert witness was apprised of the

correct facts and submitted an affidavit of his opinion, which was attached to the motion. Id. at

195-96. The trial court denied the motion. Id. at 196.

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¶ 31 On appeal, this court reversed the dismissal. Id. at 202. In doing so, the court noted the

plaintiff’s repeated noncompliance with discovery order but ultimately found that the

noncompliance “did not rise to the level of deliberate, contumacious disregard for the court’s

authority[.]” Id. at 201. This conclusion was based on the various extenuating circumstances that

had occurred throughout the litigation. Id. Like in Cometo, the appellate court’s reversal was based

on changes in circumstances that had occurred in the court below, which rendered dismissal

unwarranted. Here, plaintiff never identified any expert witness and there were no extenuating

circumstances whatsoever to excuse plaintiff’s dilatory conduct.

¶ 32 We next reject plaintiff’s contention that, even with the September trial date set by Judge

Flanagan, there was sufficient time between March and September to complete discovery.

Pursuant to Rule 218(c), all discovery would have needed to be completed in July, which means

the parties would have had about two months to prepare depositions for yet unidentified

individual(s). See Ill. S. Ct. R. 218(c) (eff. Feb. 2, 2023) (providing that discovery must be

completed “not later than 60 days” before trial).

¶ 33 The Second District of this court rejected a similar argument in Smith v. Bhattacharya,

2014 IL App (2d) 130891. There, following a voluntary dismissal, the plaintiff refiled his medical

malpractice lawsuit in November 2010. Id. ¶¶ 3-4. The plaintiff failed to comply with the discovery

schedule and by May 2013, he still had not disclosed an expert witness. Id. ¶ 7. Soon after, the

defendants filed a motion for summary judgment, and the circuit court granted it in July 2013. Id.

¶¶ 7-9. In doing so, the circuit court stated that had the plaintiff produced an affidavit of an expert

witness at the summary judgment hearing, the court likely would have granted him additional time.

Id. ¶ 9. On appeal, the Second District of this court found that the grant of summary judgment was

not a sanction and affirmed the circuit court. Id. ¶¶ 13, 23. The court pointed out that six years had

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passed since the alleged negligence, litigation in the refiled suit had been ongoing for nearly three

years, and the plaintiff had not provided any evidence that he was able to retain an expert witness.

Id. ¶ 20. The court also specifically rejected the argument that the trial was still six months away

at the time summary judgment was granted because the circuit court had “set reasonable deadlines

and gave plaintiff multiple opportunities to comply with them.” Id. ¶ 21. Additionally, it

emphasized that, “if the discovery rules are to have any force or effect, the time left before trial or

for completing discovery must be viewed as irrelevant[.]” Id. See also James by James v.

Yasunaga, 157 Ill. App. 3d 450, 457 (1987) (supporting the trial court’s enforcement of its

discovery schedule and rejected the plaintiffs’ contention that trial was still three months away as

“irrelevant” if a disclosure schedule is “to have any force or effect”). Here, the trial date may have

been six months away, but plaintiff had six years to obtain an expert witness and had failed to do

so.

¶ 34 We also disagree with plaintiff’s efforts to place any onus on defendants to complete

discovery. Defendants had no obligation to complete discovery and did not violate any deadlines.

As defendants aptly explain, they are not responsible for advancing a lawsuit against themselves.

Because plaintiff never deposed any of the defendants, any medical providers, or any expert

witnesses, there was no need for defendants to seek any further discovery where plaintiff had yet

to introduce any evidence of medical negligence or causation. Thus, we will not impute any

responsibility for the lack of progress to defendants, where the responsibility fell solely on

plaintiff.

¶ 35 The dissent would find Judge Flanagan’s order vacating Judge Otto’s order improper based

on the principle that a successor judge should not revise discovery rulings unless there has been a

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change of circumstances or additional facts were proffered to warrant such action. See Balciunas

v. Duff, 94 Ill. 2d 176, 188 (1983). Specifically, our supreme court stated:

“As we have noted, in previous cases this court has indicated that prior interlocutory

rulings should be modified or vacated by a successor judge only after a careful

consideration. In the context of discovery, where abuse is said to be widespread and delay

phenomenal, we think it is particularly appropriate for a judge before whom a motion for

reconsideration is pending to exercise considerable restraint in reversing or modifying

previous rulings. This is especially true if there is evidence of ‘judge shopping’ or it is

apparent that a party is seeking, for delay or abusive purposes, a reconsideration of prior

rulings.” (Citations omitted.) Id. at 187-88.

As this court in McCaley v. Petrovic, 2024 IL App (1st) 230918, ¶ 74, pointed out, a successor

judge may also “undo a discretionary ruling by a predecessor judge” where the decision was

erroneous as a matter of law.

¶ 36 We agree with the dissent that there is nothing about Judge Otto’s order that suggests it

was erroneous as a matter of law. However, for a reviewing court to determine whether the

successor judge demonstrated careful consideration of the motion, whether there was evidence of

judge shopping, whether the party seeking reconsideration was acting in bad faith, or whether the

successor judge was confronted with additional facts or changed circumstances, a complete record

must be provided. Such a determination may only be made on the specific facts and circumstances

presented to both the original judge and the successor judge. As we have attempted to make clear,

the record in this case is not complete and is insufficient to make such a determination. Absent the

same, we cannot conclude that Judge Flanagan’s order was violative of the principles pronounced

in Balciunas. Our review of the record, excluding the improperly appended statement of facts,

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demonstrates that additional facts were presented to Judge Flanagan. Namely, that in nearly two

months since the case management order was extended by Judge Otto, plaintiff had only managed

to issue subpoenas to the doctor and nurse involved in the alleged medical negligence. Yet

additional evidence of plaintiff’s indifference to timely completing discovery.

¶ 37 The dissent notes that, based upon her review of the stipulation, there was no proper basis

for Judge Flanagan to vacate Judge Otto’s order and, as a result, “plaintiff had no ability to

meaningfully respond to the defendants’ motion for summary judgement, since he had no

opportunity to name an expert.”

¶ 38 We are neither unmindful nor are we insensitive to the consequences, sometimes harsh,

which flow from a party’s non-compliance with our supreme court’s rules. Many a case has been

dismissed or issues forfeited for a litigant’s failure to properly present their arguments on appeal.

Even so, as a lower court, we are no less bound to comply with supreme court rules than are the

parties who appear before us. Accordingly, as the stipulation was not, by plaintiff’s own omission,

made a part of the record, we may not consider it. For that same reason, we think it presumptuous

to state that no additional facts were presented to Judge Flanagan. Nothing in that portion of the

record that is properly before us is sufficient to support that presumption.

¶ 39 Plaintiff contends that Judge Flanagan’s April 26, 2024 order was in effect a discovery

sanction, a contention with which the dissent agrees. Even were we to consider the order a sanction

pursuant to Rule 219(c), reversal is only available where there has been a clear abuse of discretion.

Shimanovsky, 181 Ill. 2d at 123. We once again point out that Judge Flanagan’s specific reasons

for closing discovery are not a part of the record on appeal. Because plaintiff has presented an

insufficient record, we may only conclude that Judge Flannagan’s order was in conformance with

the law and had sufficient basis.

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¶ 40 For the foregoing reasons, we do not find that the circuit court’s April 26, 2024 order

closing discovery was an abuse of discretion and its grant of summary judgment in favor of

defendants is therefore affirmed.

¶ 41 III. CONCLUSION

¶ 42 For the reasons stated, we affirm the judgment of the circuit court.

¶ 43 Affirmed.

¶ 44 Mikva, J., dissenting.

¶ 45 As the majority understands, what we are reviewing in this case is Judge Flanagan’s order

of April 28, 2024, that vacated Judge Otto’s order of March 7, 2024, which had given the plaintiff

until September 2, 2024, to make his Rule 213(f) disclosures. Once that order was vacated, plaintiff

had no ability to meaningfully respond to the defendants’ motion for summary judgment, since he

had no opportunity to name an expert. It was on that basis alone that the defendants sought

summary judgment, and the circuit court had no choice but to grant their motion. I disagree with

the majority that this order by Judge Flanagan was anything but a clear abuse of her discretion.

¶ 46 Our supreme court has made it clear that: “a successor judge, before whom the case has

been assigned, should revise or modify previous discovery rulings only if there is a change of

circumstances or additional facts which warrant such action.” Balciunas v. Duff, 94 Ill. 2d 176,

188 (1983). In this case, Judge Flanagan vacated an order by another judge that had extended the

time for the plaintiff to make his Rule 213(f) disclosures, with no change in circumstances,

additional facts, or other basis that would warrant such an action.

¶ 47 Plaintiff’s counsel had obtained an order from Judge Michael Otto, on March 7, 2024,

giving him until September 2, 2024, to make his Rule 213(f)(3) disclosures. Illinois Supreme Court

Rule 183 expressly provides that an extension may be sought after a previously set time limit has

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expired. Ill. S. Cr. Rule 183 (eff. Feb. 16, 2011) (“The court, for good cause shown on motion after

notice to the opposite party, may extend the time for filing any pleading or the doing of any act

which is required by the rules to be done within a limited period, either before or after the

expiration of the time.”) Thus, this is not a situation in which Judge Otto’s order was erroneous as

a matter of law, such that Judge Flanagan would certainly have been correct to disregard it. See,

e.g, McCaley v. Petrovic, 2024 IL App (1st) 230918, ¶ 74 (distinguishing Balciunas on that basis).

¶ 48 There is no transcript of the hearing before Judge Flanagan, but the record reflects no

change in circumstances or additional facts to warrant such an action. The majority correctly points

out (supra ¶ 4) that the burden was on plaintiff to provide a complete record. However, counsel

for the plaintiff and counsel for one group of defendants stipulated to an agreed statement of facts

as to what occurred in this case, beginning with their appearance before Judge Otto, continuing

with their appearance before Judge Flanagan, and concluding with their appearance before Judge

Slattery Boyle, who ruled on the motion for summary judgment. Counsel for both the plaintiff and

the other group of defendants relied on that stipulation in their briefs. While I agree with the

majority (supra ¶¶ 4-5) that by attaching this stipulation to his appendix without making it part of

the record on appeal, the plaintiff did not follow our supreme court rules, those rules clearly

provide that in the absence of a transcript, the parties may rely on a written stipulation of facts. Ill.

S. Ct. R. 323(d) (eff. July 1, 2017). While I do not think these agreed facts are necessary to

determine the outcome of this case, my review of this stipulation confirms that there was no proper

basis for Judge Flanagan to vacate Judge Otto’s order.

¶ 49 According to the stipulated facts, the only change between March 7, 2024, when Judge

Otto extended the time for making Rule 213(f) disclosures, and April 28, 2024, when Judge

Flanagan vacated that order, was that on March 8, 2024, plaintiff’s counsel requested dates for the

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deposition of Dr. Novey and a hospital nurse. Thus, plaintiff’s counsel was at least making a start

at undertaking the discovery that he had been so dilatory with respect to in beginning. The

stipulation also says that plaintiff’s counsel told Judge Flanagan that by closing Rule 213(f)

discovery she had “effectively barred Plaintiff from being able to put forth a prima facie case.”

Plaintiff had “requested even a short date to disclose 213(f) witnesses that would allow for

completion of discovery in advance of the September 3, 2024 trial date,” but, according to the

stipulation, “Judge Flanagan denied that request, stating that the parties should mediate the case.”

¶ 50 I note that if the majority feels it necessary to have this stipulation made part of the record

in order to resolve this case, we can certainly order the plaintiff to file these stipulated facts in the

circuit court, have that court transmit them to the clerk of this court, and then require the plaintiff

to file a motion to supplement the record with this stipulation.

¶ 51 On appeal, plaintiff makes a different but also compelling argument in support of his claim

that Judge Flanagan’s order was an abuse of discretion. His argument is that the order was in effect

a sanction barring him from putting on his case, that such an extreme sanction “ ‘should only be

employed as a last resort and after all the court’s other enforcement powers have failed to advance

the litigation’ ” (Anglin v. Carle Foundation Hospital, 2021 IL App (4th) 200322-U, ¶ 37 (quoting

Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123 (1998)), and that it will be proper

“ ‘only in those cases where the party’s actions show a deliberate, contumacious or unwarranted

disregard of the court’s authority.’ ” Id. ¶ 37 (quoting Stringer v. Packaging Corp. of America, 351

Ill. App. 3d 1135, 1138 (2004)).

¶ 52 Anglin, which, as the majority notes (supra ¶ 28), is a nonprecedential Rule 23 order,

involves a scenario similar to but less extreme than the one presented here. In Anglin, the plaintiff

did not even seek an extension of time to make his Rule 213(f) disclosures until the defendants

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filed their motion for summary judgment arguing, as defendants did here, that plaintiff could not

prove his case without an expert. Id. ¶ 2. In Anglin there was no order in place from another judge

granting an extension of time to make Rule 213(f) disclosures. Rather, the claim was that the circuit

court had abused its discretion in denying such an extension. Id.

¶ 53 This court found that because the circuit court’s denial of the extension of time had the

effect of barring the plaintiff from presenting his case, the order had to survive review as a

discovery sanction. Id. ¶ 34. Viewed in that light, under well settled principles that such a fatal

sanction should only be utilized in extreme circumstances, we found the denial of the extension to

be an abuse of discretion. Id. ¶ 47.

¶ 54 In my view, it does not matter whether we view this as a discovery sanction or simply a

new scheduling order on discovery that contravened the discovery order of a predecessor judge.

The time that Judge Otto had given the plaintiff to make his Rule 213(f) disclosure was simply

eviscerated. The result, as the defendants put it in their motion for summary judgment, was that

“Plaintiff ha[d] no viable way to contest [their] motion or to present a prima facie claim for medical

negligence to a jury.” That was not the right result, regardless of Judge Flanagan’s understandable

frustration with plaintiff counsel’s speed at prosecuting this case. I respectfully dissent.

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