Mazzone v. Holmes

557 N.E.2d 186, 197 Ill. App. 3d 886, 145 Ill. Dec. 416, 1990 Ill. App. LEXIS 563
CourtAppellate Court of Illinois
DecidedApril 24, 1990
Docket1-89-1755
StatusPublished
Cited by24 cases

This text of 557 N.E.2d 186 (Mazzone v. Holmes) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mazzone v. Holmes, 557 N.E.2d 186, 197 Ill. App. 3d 886, 145 Ill. Dec. 416, 1990 Ill. App. LEXIS 563 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff-appellant Dominick Mazzone filed a three-count amended complaint on May 8, 1980, against Henry M. Holmes, the Foster McGaw Hospital of Loyola University, and Zimmer Manufacturing Company, seeking damages for injuries resulting from the removal of a surgical pin in 1978. The counts against the hospital and the manufacturer were dismissed with prejudice following an undisclosed settlement.

Holmes moved for summary judgment on April 11, 1989, and his motion was granted. On April 14, 1989, however, the trial judge granted plaintiff’s motion for reconsideration and vacated the summary judgment order. Plaintiff then moved for a change of venue, but that motion was denied. The matter went to trial on April 24, 1989, and at the close of plaintiff’s case in chief, the trial judge granted Holmes’ motion for a directed verdict. Plaintiff now appeals.

The issues raised are (1) whether the trial judge properly denied plaintiff’s motion for a change of venue as a matter of right; (2) whether the trial judge properly denied plaintiff’s motion for a change of venue on grounds of bias or prejudice; (3) whether the trial judge properly denied plaintiff’s request to call Holmes’ expert as a hostile witness or as the court’s witness; (4) whether the trial judge properly precluded plaintiff from questioning Holmes’ expert regarding the number of medical malpractice cases pending against him; (5) whether the trial judge properly precluded plaintiff from questioning Holmes’ expert regarding the abandonment of the techniques and materials used by Holmes; (6) whether plaintiff proved a prima facie medical malpractice case under the common knowledge doctrine; and (7) whether the trial judge properly granted Holmes’ motion to bar plaintiff from calling Holmes’ expert as an expert in plaintiff’s behalf. We affirm.

Plaintiff’s amended complaint alleged that on or about June 16, 1978, Holmes performed an open reduction and internal fixation on plaintiff’s right acromiclavicular joint, utilizing a 7/64-inch Steinman orthopedic pin. The complaint alleged that on July 21, 1978, Holmes attempted to remove the pin, and as a result of his negligence, a portion of the pin broke off and remained embedded in plaintiff’s shoulder.

On September 28, 1982, Holmes filed Supreme Court Rule 220 (107 Ill. 2d R. 220) interrogatories, requesting disclosure of plaintiff’s experts. On November 17, 1982, plaintiff answered the interrogatories without disclosing any experts.

On February 23, 1984, Holmes filed a motion for summary judgment. No order was entered on that motion. Plaintiff represented to the trial judge at that time that he would either use Holmes as his expert or amend his complaint to add a count under the res ipsa loquitur doctrine.

On October 5, 1988, Holmes answered plaintiff’s Rule 220 interrogatories, naming Dr. Mitchell Sheinkop as Holmes’ expert witness. On December 9, 1988, the case was assigned a trial date of April 10, 1989. On March 7, 1989, Holmes filed supplemental interrogatories, including requests for the identity and opinions of plaintiff’s experts. Plaintiff did not answer those interrogatories. On April 3, 1989, plaintiff took Dr. Sheinkop’s deposition.

On April 10, the case was assigned to a judge for trial. On the same date, both parties appeared in court and answered ready for trial, and the case was assigned for immediate trial the following day. Later that afternoon, Holmes filed a 12-page motion for summary judgment, attaching Holmes’ and Dr. Sheinkop’s deposition transcripts.

On April 11, 1989, the trial judge asked plaintiff’s counsel to respond to Holmes’ motion for summary judgment. Plaintiff’s counsel stated that he had just received the motion the day before and requested 28 days in which to respond. The trial judge noted that the case had been pending for nine years and that plaintiff had failed to disclose an expert or add a res ipsa loquitur count following Holmes' previous motion for summary judgment. The trial judge asked plaintiff’s counsel if there was anything in the record to substantiate plaintiff’s allegations or anything in the motion that took plaintiff’s counsel by surprise. Plaintiff’s counsel stated again that he would like additional time to respond, but that he would stand on his written response to the earlier motion. The trial judge then granted Holmes’ motion for summary judgment.

On April 13, 1989, plaintiff filed a motion for reconsideration. A hearing on the motion was held on April 14, 1989, at which plaintiff’s counsel argued that the motion for summary judgment should have been stricken or plaintiff should have been allowed to respond. The trial judge stated he believed plaintiff’s counsel had misrepresented the outcome of the 1984 summary judgment motion at the April 11, 1989, hearing and that it would be a waste of time to go to trial because plaintiff did not have an expert witness. Plaintiff’s counsel stated again that he needed time to respond to the motion for summary judgment. The trial judge then vacated the order granting summary judgment in favor of Holmes and ordered an immediate trial. The trial date was continued to April 24, 1989, due to Holmes’ unavailability.

Immediately after granting plaintiff’s motion for reconsideration, the trial judge addressed the parties regarding the rules for voir dire, peremptory challenges, impeachment, and evidentiary depositions. The trial judge then heard argument on Holmes’ motion to bar plaintiff from introducing expert testimony at the time of trial on the ground that plaintiff had failed to disclose any experts under Rule 220. Plaintiff’s counsel requested time to respond, and the trial judge continued the matter until April 17, 1989.

On April 17, 1989, before the trial judge ruled on Holmes’ motion to bar plaintiff from introducing expert testimony, plaintiff filed a motion for change of venue. Plaintiff alleged that the trial judge was prejudiced against him, his counsel, and his case. The trial judge denied the motion. Plaintiff then presented a memorandum in which he argued that he had the right to call Dr. Sheinkop, Holmes’ expert, as a witness in his own behalf. Holmes responded that plaintiff could not call Dr. Sheinkop as an expert because plaintiff did not disclose any experts as required by Rule 220. The trial judge ruled that plaintiff could call Dr. Sheinkop as a witness but not as an expert witness.

On April 24, 1989, the trial judge" granted Holmes’ motion in limine barring plaintiff from questioning Dr. Sheinkop regarding his personal use of the Steinman pin. Opening statements were then heard, following which plaintiff was called as the first witness.

Plaintiff testified that in 1978, he was a police officer for the Village of North Riverside. On June 15, 1978, he injured his right shoulder while playing softball and was admitted to the Loyola University hospital for treatment. He was first treated by Holmes on June 16, 1978. Holmes told him that he had separated his shoulder and would require surgery. That same day, plaintiff underwent surgery, during which a Steinman pin was implanted in his right shoulder. After the surgery, plaintiff was put in a cast which immobilized his right arm and shoulder. He was discharged from the hospital on June 18,1978.

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Cite This Page — Counsel Stack

Bluebook (online)
557 N.E.2d 186, 197 Ill. App. 3d 886, 145 Ill. Dec. 416, 1990 Ill. App. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzone-v-holmes-illappct-1990.