NO. 4-96-0793
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
TINA E. HIGGENS and RONALD HIGGENS, ) Appeal from
Plaintiffs-Appellants, ) Circuit Court of
v. ) Coles County
DR. STEPHEN L. HOUSE, ) No. 94L52
Defendant-Appellee, )
and ) Honorable
SARAH BUSH LINCOLN HEALTH CENTER, ) Paul C. Komada,
Defendant. ) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
This is an appeal from the judgment of the circuit
court of Coles County denying plaintiffs' motion to set aside the
summary judgment entered in defendant Dr. Stephen L. House's
favor in a medical malpractice action. See 735 ILCS 5/2-1203, 2-
1005 (West 1994). Plaintiffs appeal, arguing substantial justice
between the parties was not achieved when the trial court denied
their motion to set aside the summary judgment. We affirm.
In May 1994, plaintiffs Tina and Ronald Higgens filed a
complaint alleging medical malpractice against defendant and
Sarah Bush Lincoln Health Center (Health Center). In January
1996, plaintiffs voluntarily dismissed the Health Center.
On numerous occasions in the course of the litigation,
plaintiffs failed to comply with defendant's discovery requests
and identify their proposed expert opinion witness(es). Eventu-
ally, on March 29, 1996, the trial court held a case management
conference and entered a case management order directing plain-
tiffs to disclose their opinion witnesses within 30 days and
produce such witnesses for deposition by June 28, 1996. Plain-
tiffs failed to disclose their opinion witnesses as ordered and,
in May 1996, defendant filed a motion for summary judgment, argu-
ing this failure entitled him to judgment as a matter of law.
Defendant sent counsel for plaintiffs a copy of the
motion for summary judgment and notice of the June 19, 1996,
hearing date, yet counsel for plaintiffs did not file a response
to the motion and failed to appear at the hearing. Accordingly,
the trial court entered summary judgment in defendant's favor on
June 19, 1996. On July 18, 1996, counsel for plaintiffs filed a
motion to set aside the summary judgment, stating he had over-
looked the notice of the hearing date but did have an expert who
was available for deposition. Counsel did not explain his fail-
ure to file a response to the motion for summary judgment. Fol-
lowing a September 1996 hearing, the trial court denied plain-
tiffs' motion to set aside the summary judgment.
In their brief, plaintiffs contend the order of summary
judgment was a default order, entered as a sanction for failing
to attend the hearing on the summary judgment motion (see 735
ILCS 5/2-1301(d) (West 1994)). They argue the trial court should
have liberally construed their motion to set aside the order, as
courts do when ruling on petitions to vacate default orders en-
tered pursuant to section 2-1301 of the Code of Civil Procedure
(Code).
It is possible to view the summary judgment order as a
default order or a sanction for discovery abuse. However, plain-
tiffs' failure to file a response to the motion or identify an
expert witness by the hearing date also justified the entry of
summary judgment on the merits of defendant's motion.
Contrary to defendant's assertion, section 2-1401 of
the Code has no application to these facts because plaintiffs
filed their motion to set aside the order of summary judgment
within 30 days of its entry. 735 ILCS 5/2-1401 (West 1994). The
trial court retained jurisdiction to set aside the summary judg-
ment, a final order disposing of the litigation, for 30 days
after its entry. Board of Managers of Dunbar Lakes Condominium
Ass'n II v. Beringer, 94 Ill. App. 3d 442, 446, 418 N.E.2d 1099,
1102 (1981).
We approach plaintiffs' motion to set aside the summary
judgment as a motion to reconsider or vacate the judgment pur-
suant to section 2-1203 of the Code. 735 ILCS 5/2-1203 (West
1994). Such a motion invokes the sound discretion of the trial
court, and absent a showing the trial court abused its discre-
tion, we will not disturb the court's ruling on review. See
Freeman v. Augustine's, Inc., 46 Ill. App. 3d 230, 236, 360
N.E.2d 1245, 1249 (1977). We need not address the question of
whether the trial court could have chosen to impose a sanction
against the plaintiffs or their counsel as a means to spur them
to disclose the expert and comply with future court orders.
Perhaps another trial judge would have proceeded in a different
fashion. We must focus on what the trial court did and whether
that was an abuse of discretion. The issue presented is whether
the trial court abused its discretion in denying plaintiffs' mo-
tion to set aside the summary judgment where plaintiffs failed to
respond to the motion for summary judgment and offered no reason-
able explanation for their failure to identify an expert witness
until after the trial court entered summary judgment in
defendant's favor.
In a medical malpractice case, Illinois law mandates a
plaintiff prove (1) the proper standard of care by which to mea-
sure the defendant's conduct, (2) a negligent breach of the stan-
dard of care, and (3) resulting injury proximately caused by the
defendant's lack of skill or care. Gorman v. Shu-Fang Chen,
M.D., Ltd., 231 Ill. App. 3d 982, 986, 596 N.E.2d 1350, 1353
(1992). Necessary to the establishment of a prima facie case of
medical negligence is the presentation of expert testimony to es-
tablish the applicable standard of care, a deviation from the
standard, and the resulting injury to the plaintiff. Addison v.
Whittenberg, 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556 (1988).
The disposition of a medical malpractice claim by sum-
mary judgment is appropriate when no genuine issue of material
fact remains to be resolved; accordingly, when a defendant files
a summary judgment motion and affidavit establishing he was not
negligent, it is incumbent on the plaintiff to substantiate his
allegations of negligence through expert testimony. Brandeis v.
Salafsky, 206 Ill. App. 3d 31, 35-36, 563 N.E.2d 1026, 1029
(1990). Where a plaintiff has failed to show the present ability
to offer such expert testimony, summary judgment in a defendant's
favor is appropriate. Purtill v. Hess, 111 Ill. 2d 229, 250, 489
N.E.2d 867, 876 (1986); Smock v. Hale, 197 Ill. App. 3d 732, 741,
555 N.E.2d 74, 80 (1990).
Because plaintiffs failed to file a response to the mo-
tion for summary judgment, there was no genuine issue of material
fact on the issue of medical malpractice, i.e., plaintiffs had
not disclosed the expert required to establish the essential
elements of their claim. In these circumstances, the court could
grant the motion as a matter of law. Brandeis, 206 Ill. App. 3d
at 36-37, 563 N.E.2d at 1029; Diggs v. Suburban Medical Center,
191 Ill. App. 3d 828, 834, 548 N.E.2d 373, 377-78 (1989).
When counsel for plaintiffs did not appear at the hear-
ing on the motion for summary judgment, the trial court had de-
fense counsel contact plaintiffs' attorney. Counsel for plain-
tiffs indicated he inadvertently missed the hearing date, yet he
did not assure the court he could produce an expert witness. We
conclude the trial court's entry of summary judgment was proper.
Whether the trial court's ruling on a motion to recon-
sider or vacate a judgment achieved substantial justice between
the litigants is a relevant inquiry in assessing whether the
trial court abused its discretion in ruling on the motion. See
Mryszuk v. Hoyos, 228 Ill. App. 3d 860, 863, 593 N.E.2d 900, 902
(1992). A reviewing court should determine whether, under the
circumstances, it would have been reasonable to compel the non-
moving party to go to trial on the merits of the case. Mryszuk,
228 Ill. App. 3d at 863, 593 N.E.2d at 902. Plaintiffs argue,
because their expert witness has now been disclosed and is avail-
able for deposition, a trial on the merits could go forward in a
timely manner and without prejudice to defendant. However, exam-
ining plaintiffs' lack of diligence throughout the discovery
process in pursuing this claim, we conclude it would not be rea-
sonable to compel defendant to proceed to trial.
In September 1995, defendant served plaintiffs with in-
terrogatories regarding expert witnesses pursuant to Supreme
Court Rule 220. 134 Ill. 2d R. 220 (repealed eff. January 1,
1996). Plaintiffs failed to answer defendant's interrogatories
and, in October 1995, defendant sent plaintiffs a letter pursuant
to Supreme Court Rule 201(k), requesting compliance with his
written discovery requests. 134 Ill. 2d R. 201(k). Plaintiffs
did not respond to the letter and defendant filed a motion to
compel in November 1995. The motion to compel was cancelled and
plaintiffs agreed to disclose their expert witness(es) by January
31, 1996. Plaintiffs failed to disclose their expert(s) by that
date.
In January or February 1996, defendant served plain-
tiffs with supplemental interrogatories pursuant to the recently
amended Supreme Court Rule 213. Official Reports Advance Sheet
No. 20 (September 27, 1995), R. 213, eff. January 1, 1996.
Plaintiffs did not answer the supplemental interrogatories or
defendant's request for production. Defendant sent plaintiffs
another letter pursuant to Rule 201(k) and, in April 1996, filed
another motion to compel.
The parties attended a case management conference in
March 1996 and, as stated, plaintiffs failed to comply with the
case management discovery order entered following the conference.
Counsel for plaintiffs admits he has no compelling excuse for not
complying with the trial court's case management order regarding
the disclosure of expert witnesses. Counsel states he was in
contact with the intended expert witness regarding this case long
before the complaint was filed but follow-up with the expert
became difficult due to the expert's move to a new Florida of-
fice.
As mentioned above, plaintiffs were notified of
defendant's motion for summary judgment and of the hearing date
for the motion yet filed no response to the motion and missed the
hearing date. Counsel assures us his failures to identify an ex-
pert witness and to attend the hearing on the motion for summary
judgment were inadvertent and there was no wilful or intentional
attempt to ignore the trial court's orders.
We have already concluded the trial court correctly en-
tered summary judgment in defendant's favor. We conclude further
the trial court's denial of plaintiffs' motion to set aside the
summary judgment was proper in light of the lack of diligence in
the prosecution of this case. Counsel for plaintiffs urges us to
reverse the trial court's ruling so his clients will not be pun-
ished for his errors. Counsel's failure to exercise care in the
handling of this case is not a proper basis for us to reverse the
trial court's judgment. See People v. Mamolella, 42 Ill. 2d 69,
72, 245 N.E.2d 485, 487 (1969). For nearly three years, defen-
dant has expended resources in defending this action. Allowing
plaintiffs to proceed to a trial on the merits, merely because
they should not be penalized for the omissions of their own at-
torney, "would be visiting the sins of plaintiff[s'] lawyer upon
the defendant." (Emphasis in original.) Link v. Wabash R.R.
Co., 370 U.S. 626, 634 n.10, 8 L. Ed. 2d 734, 740 n.10, 82 S. Ct.
1386, 1390 n.10 (1962).
For the above reasons, the judgment of the circuit
court is affirmed.
Affirmed.
GARMAN, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
Plaintiffs' attorney (1) did not respond to interroga-
tories served upon him on September 14, 1995, (2) did not comply
with an agreement to disclose expert by January 31, 1996, (3) did
not answer interrogatories served on him apparently on February
1, 1996, and (4) did not comply with a case management order to
disclose expert by April 28, 1996. If counsel had responded to
the interrogatories, the response would apparently have been that
plaintiff had not yet retained an expert. No cutoff date for
disclosure of experts had been established when the interrogato-
ries were served. Nevertheless, discovery was conducted in this
case. Depositions were taken of all witnesses except the experts
on both sides, and there was other discovery as well. It appears
the parties were able to resolve their differences voluntarily,
as they are encouraged to do by Rule 201(k). For example, defen-
dant filed a motion to compel on November 16, 1995, but that
motion was withdrawn. Defendant filed a second motion to compel
at the time of the case management conference, March 29, 1996,
which was apparently resolved at that time.
Plaintiffs' attorney suggests (1) his expert was the
same physician with whom he had consulted when he filed his affi-
davit pursuant to section 2-622 of the Code (735 ILCS 5/2-622
(West 1994)), (2) he had delayed naming the physician as his
expert because he wanted the physician to examine depositions
taken in August and September 1995 to see if they altered his
opinion, (3) the physician had not gotten back to him, and (4)
contact with the physician was difficult because the physician
had relocated his offices to Florida.
Although plaintiffs' attorney had apparently not com-
plied with some of defendant's requests for discovery, the only
court order that had not been complied with was the case manage-
ment order setting a deadline of April 28, 1996, for the disclo-
sure of opinion witnesses. When plaintiff failed to comply with
that portion of the case management order, defendant did not file
a motion for sanctions as in Clymore v. Hayden, 278 Ill. App. 3d
862, 663 N.E.2d 755 (1996), but instead filed a motion for summa-
ry judgment.
Summary judgments are not entered as sanctions. They
are entered where there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 1994). Nevertheless, where
plaintiff in a medical malpractice case is unable to procure the
necessary expert testimony, summary judgment for the defendant is
appropriate. Stevenson v. Nauton, 71 Ill. App. 3d 831, 835, 390
N.E.2d 53, 57 (1979); see Addison, 124 Ill. 2d at 295-96, 529
N.E.2d at 556; Pogge v. Hale, 253 Ill. App. 3d 904, 917, 625
N.E.2d 792, 800 (1993). The basis for such a summary judgment is
that plaintiff is unable to procure an expert, not that plaintiff
is in technical violation of some discovery schedule. Where
plaintiff indicates she will be able to obtain an expert, she
must be given every opportunity to do so. See Stevenson, 71 Ill.
App. 3d at 835, 390 N.E.2d at 56; Addison, 124 Ill. 2d at 299,
529 N.E.2d at 557 (no claim plaintiff did not have sufficient
time to procure expert). Of course, the trial court is not re-
quired to accept plaintiff's promise that an expert will be
forthcoming and may set a deadline for production. The basis for
the summary judgment, however, is the trial court's determination
that no expert will be produced. In Addison, the supreme court
specifically refused to uphold summary judgment on the basis that
the Rule 220 deadline had passed. See Addison, 124 Ill. 2d at
295-96, 529 N.E.2d at 556.
There is no indication in the present case that the
trial court was convinced that plaintiffs could not obtain an
expert. Instead, the trial court stated the motion was granted
by default but also indicated the motion could have been granted
"on the merits," because the time frame in which to disclose the
expert had expired "and I think under those circumstances, absent
some good cause, that apparently would not be present here, that
period would not have been expanded by the Court." Accordingly,
even if plaintiffs had appeared, plaintiffs would have been
"without any means of defending the motion for summary judgment."
The failure to disclose an expert by April 28, 1996,
may have been a basis for the imposition of sanctions, but it was
not a basis for the entry of summary judgment. Brandeis, 206
Ill. App. 3d at 36, 563 N.E.2d at 1029 (granting summary judgment
as a discovery sanction improper). Dismissal is a possible sanc-
tion, but such a drastic sanction should only be employed as a
last resort. See Clymore, 278 Ill. App. 3d at 867-68, 663 N.E.2d
at 757-58 (repeated violations of court orders and rules, first
motion to dismiss denied, second granted). There was no court
order in this case requiring disclosure of an expert until the
case management conference on March 29, 1996. The case manage-
ment conference set a trial date of March 31, 1997. That trial
date had not been jeopardized. "The purpose of imposing sanc-
tions is to coerce compliance with court rules and orders, not to
punish the dilatory party." Sander v. Dow Chemical Co., 166 Ill.
2d 48, 68, 651 N.E.2d 1071, 1081 (1995). A trial court abuses
its discretion by imposing the most severe sanction possible when
it could have achieved its goals by fining defense counsel sever-
al hundred dollars. See People v. Foster, 271 Ill. App. 3d 562,
566-68, 648 N.E.2d 337, 340-41 (1995).
The majority suggests that allowing plaintiffs to pro-
ceed to trial, because they should not be penalized for their
lawyer's omissions, would be visiting the sins of plaintiffs'
lawyer upon the defendant. Slip op. at 7. I do not understand
that statement. Defendant has no right to a summary judgment in
this case if plaintiffs are able to produce an expert witness.
Defendant has expended resources for nearly three years in de-
fending this action, but there has been no showing those expenses
were caused by the improper actions of plaintiffs' attorney.
Every defendant incurs expenses in defending an action. If this
defendant has been put to additional expense because of the de-
lays of plaintiffs' attorney, those expenses can be recovered
through money sanctions.
The majority complains that plaintiffs' attorney did
not explain his failure to file a response to the motion for
summary judgment. Slip op. at 2. As the trial court noted,
plaintiffs' attorney did explain that he received the motion and
notice of hearing among a group of other pleadings from defen-
dant, overlooked them, and failed to enter the date on his calen-
dar. Plaintiffs' attorney stated that in the county where he
regularly practices, the court calendars motions and that motions
are not set by an attorney filing a notice of hearing. There is
no indication the trial court disbelieved those representations.
The majority complains that plaintiffs' attorney was
given the opportunity to explain his omissions, and possibly
obtain a continuance, when he was contacted on the hearing date,
but he did not do so. Slip op. at 5. When plaintiffs' attorney,
who practices in Madison County, did not appear at the hearing in
Coles County, the trial court directed defendant's attorney to
call plaintiffs' attorney. The substance of that conversation is
not in the record, but plaintiffs' attorney states he asked de-
fense counsel to continue the case, to explain that the missed
date was accidental, and to apologize to the trial court. De-
fense counsel responded that he could not agree to a continuance
and indicated the court would not grant a continuance. In the
absence of a record we should not assume anything to the con-
trary. Plaintiffs' attorney did not just file a motion to set
aside the judgment on July 18, 1996. In addition, plaintiffs'
attorney answered the Rule 220 interrogatories, disclosed his
expert, and made him available for deposition on any Saturday in
August 1996. Plaintiffs' attorney had fully complied with all
court orders and requests for discovery when he filed his motion
to set aside.
Under the rule announced today, a single missed setting
can result in dismissal where the trial court, in hindsight,
concludes that the attorney could have worked harder on the case.
Sanctions imposed in hindsight serve to punish but do little to
further the goal of achieving compliance. We have here what
Jeremy Bentham referred to as "dog law," the "'age-old method of
training dogs by waiting until they do what they are to be for-
bidden to do and then kicking them.'" Rivard v. Chicago Fire
Fighters Union, Local No. 2, 122 Ill. 2d 303, 309, 522 N.E.2d
1195, 1198 (1988) (discussing the preference for prospective
application of statutes), quoting 1A A. Sutherland, Statutory
Construction §41.02, at 340-41 (4th ed. 1986).