2025 IL App (1st) 241681-U
SIXTH DIVISION June 27, 2025
No. 1-24-1681
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
GREGORY PUCCETTI, as independent executor ) of the estate of KATHLEEN PUCCETTI, deceased, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County v. ) ) No. 2020 L 13594 FRANCISCAN COMMUNITIES, INC., an Indiana ) Not-For-Profit Corporation, and FRANCISCAN ) The Honorable SISTERS OF CHICAGO SERVICE ) Michael F. Otto, CORPORATION, an Illinois Not-For-Profit ) Judge Presiding. Corporation, ) ) Defendants-Appellees. )
PRESIDING JUSTICE TAILOR delivered the judgment of the court. Justices Hyman and C.A. Walker concurred in the judgment.
ORDER
¶1 Held: We affirm the grant of summary judgment to defendants.
¶2 I. BACKGROUND
¶3 St. Joseph Village of Chicago (St. Joseph) is a long-term care facility owned and operated
by defendants Franciscan Communities, Inc. and Franciscan Sisters of Chicago Service
Corporation (together, Franciscan). On December 21, 2018, Kathleen Puccetti was admitted to St. No. 1-24-1681
Joseph after she suffered a heart attack and stroke. Her intake paperwork indicated that she suffered
from “unspecified osteoarthritis” and “reduced strength of upper extremities.” While at St. Joseph,
Kathleen required assistance with daily living activities, including walking, toileting, bathing, and
transferring from her bed to a wheelchair.
¶4 On January 6, 2019, while Kathleen was still at St. Joseph, she called her daughter and told
her that a nurse pulled and twisted her arm. She did not tell her daughter who the person was,
however, just that it was someone “in charge of getting her up and moving her.” The next morning,
Kathleen complained of pain and said she was unable to lift her right arm. She was transported to
the emergency room and an x-ray study of her arm was performed, which revealed “body
demineralization without evidence of actual fracture or dislocation” and a “mildly” or
“[m]inimally displaced radial head fracture” of her right arm.
¶5 After learning about Kathleen’s fracture, Olive Mendoza, Franciscan’s Director of
Nursing, conducted an investigation, which included interviewing various staff members. In her
report, Mendoza noted that Kathleen had “no occurrence of fall or other incident[s] during her
stay” at St. Joseph and “never verbalize[d] to anyone in the community that her hand/arm [wa]s
being pulled by staff.” Mendoza concluded that Kathleen’s “minimal displaced radial head fracture
could have [been] caused by stress to the right hand due to the frequent use for bed mobility,
transfer and ambulation with walker while in therapy” and that “[g]iven [Kathleen’s] clinical
condition and weakened bone with diagnosis of OA [osteoarthritis] and osteopenia (CT scan result
from the hospital) the repeated use of the right hand/arm and all body weight going to that hand
might have caused the resident’s bone to break.”
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¶6 Kathleen did not return to St. Joseph after her emergency room visit. She died just over
four months later, on May 12, 2019, from “cardiorespiratory failure and aspiration
pneumonia/congestive heart failure.”
¶7 Kathleen’s son, plaintiff Gregory Puccetti (Puccetti), served as independent executor of her
estate. On December 21, 2020, he filed a complaint against Franciscan, alleging that Franciscan’s
negligence caused Kathleen to suffer an arm fracture as well as a sacral pressure injury. However,
he abandoned any claim related to the sacral pressure injury on appeal, so we do not discuss it
here. He also brought a res ipsa loquitur claim against Franciscan, claiming that Kathleen’s
injuries would not have occurred if ordinary care had been exercised by Franciscan. He later
amended his complaint to add a wrongful death claim.
¶8 On June 1, 2023, Franciscan filed a motion for summary judgment, arguing that Puccetti
“failed to offer any evidence indicating [Franciscan’s] acts, or failure to act, were the proximate
cause of [Kathleen’s] injuries or death.” Franciscan argued that although Puccetti alleged it was
negligent in allowing Kathleen to sustain an arm fracture, “[t]his fracture was unwitnessed, and it
would have occurred when she had yet-to-be diagnosed low bone density.” Although Kathleen
made references to a “nurse” hurting her arm, she never named this person or provided any other
identifying details. Therefore, Franciscan argued that summary judgment on the negligence counts
was appropriate, as “no facts in evidence show this alleged person was under the control of
[Franciscan] to tie up the causal connection.” Franciscan also argued that because Kathleen died
more than four months after her discharge from Franciscan and her causes of death were listed as
“cardiorespiratory failure and aspiration pneumonia/congestive heart failure,” it could not be held
liable as Puccetti “failed to present any specific facts” to support a finding that the staff at
Franciscan “caused or contributed to” Kathleen’s death. Finally, Franciscan argued that Puccetti
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could not establish res ipsa loquitur, because he “fail[ed] to establish the accident is of the type
that does not ordinarily happen” when ordinary care is exercised. Franciscan noted that Kathleen’s
“right arm x-ray revealed bony demineralization” and argued that “fractures in the presence of
osteopenia (low bone density) do regularly occur, despite ordinary care [being] exercised.”
¶9 In its response, Puccetti argued that genuine issues of material fact existed regarding the
cause of Kathleen’s arm fracture. He pointed to Kathleen’s medical records, which indicated that
Kathleen was transferred by only one staff member on numerous occasions, and argued, based on
his Rule 213 general disclosures, that anticipated testimony from his nursing expert, Charlotte
Sheppard, would create a genuine issue of material fact as to whether Franciscan’s nursing staff’s
failure to perform proper transfers caused Kathleen’s arm fracture. He also argued, based on the
anticipated testimony of Dr. Hollingsworth, an orthopedic surgeon, that “even if Kathleen had
osteopenia and/or osteoarthritis, the condition(s) would not have caused Kathleen’s injury unless
she experienced a fall or some other traumatic event or force.”
¶ 10 In its reply, Franciscan argued that Puccetti failed to offer any evidence of negligence and
instead relied solely on speculation to support his theory that Franciscan caused Kathleen’s right
arm fracture. Franciscan also argued that the proposed testimony of Puccetti’s controlled experts,
nurse Sheppard and Dr. Hollingsworth, could not be considered as “neither [expert] ha[d] sworn
to their disclosed opinions under penalties of perjury,” and that “[a]ny attempt to create triable
questions of fact arising out of the unverified, disclosed opinions of controlled expert witnesses
who have not yet testified at deposition or submitted an affidavit is improper at the summary
judgment stage.”
¶ 11 Dr. Hollingsworth was deposed on April 11, 2024. At the hearing on Franciscan’s motion
for summary judgment, which took place on April 19, 2024, Franciscan argued that Puccetti failed
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to establish a genuine issue of material fact on breach of duty and causation because there was no
evidence that anyone from Franciscan caused Kathleen’s radial fracture. Franciscan also argued
that Puccetti could not rely on unsubstantiated disclosures from Dr. Hollingsworth or nurse
Sheppard for support, and pointed out that Puccetti never submitted deposition testimony or
affidavits from either Dr. Hollingsworth or nurse Sheppard before the hearing or asked the court
to stay the summary judgment proceedings. Puccetti admitted that did he not submit a transcript
of Dr. Hollingsworth’s testimony or an affidavit from him even though he was deposed the week
prior, but argued that “even without [these] expert opinions, a jury could reasonably conclude that
negligence occurred or at least some sort of incident occurred.”
¶ 12 On April 24, 2024, five days after argument, the court granted Franciscan’s motion for
summary judgment. It found Puccetti’s Rule 213 disclosures were not competent evidence for
purposes of a summary judgment motion, because they were drafted by attorneys and merely
contained anticipated testimony from Puccetti’s experts. The court reasoned that “without the
expert disclosures on which [Puccetti] relies, [Puccetti] has no evidence that [Franciscan]
committed any negligent act which may have proximately caused either of [Kathleen’s] injuries,
or that such injuries proximately caused [Kathleen’s] later death.” The court also found that
because Puccetti “presented no evidence apart from expert disclosures (that cannot be considered
at this stage)” to show that this was the sort of injury that does not normally happen in the absence
of negligence, Franciscan was entitled to summary judgment on the res ipsa loquitur count.
¶ 13 On May 24, 2024, Puccetti filed a motion to reconsider. He claimed that Dr.
Hollingsworth’s deposition testimony – which he attached as an exhibit to his motion – was “newly
discovered evidence” that “clearly establish[ed]” that Kathleen’s injuries “would not have
occurred in the absence of negligence.” In his deposition, Dr. Hollingsworth opined that the “acute
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fracture of the elbow occurred with inappropriate handling or inattentive nursing staff allowing
[Kathleen’s] elbow to be fractured” and that it was a “breach in the nursing standards that allowed
for this fracture to occur.” Dr. Hollingsworth also testified that he “d[id]n’t believe that [Kathleen]
could have caused this [injury] herself.” In response, Franciscan noted that Puccetti did not dispute
the propriety of summary judgment in its favor as to Kathleen’s alleged sacral pressure injury or
as to her alleged wrongful death. In addition, it argued that Puccetti’s “attempt to cite” Dr.
Hollingsworth’s testimony in support of its negligence and res ipsa loquitur claims was an
improper “second bite” at the apple that “neither satisfies the grounds for reconsideration nor
presents triable questions of fact.” It argued that because “Illinois law does not afford parties
reconsideration of final judgments based on evidence they could have – but failed – to submit to
the court for consideration,” Puccetti’s motion to reconsider should be denied.
¶ 14 At a hearing on the motion to reconsider, the court pointed out that Dr. Hollingsworth’s
deposition was taken the week before the hearing on the motion for summary judgment. It noted
that Puccetti could have rushed the transcript of Dr. Hollingsworth’s deposition testimony or
obtained an affidavit from him, but instead decided to rely solely on its Rule 213 disclosures. When
the court asked Puccetti how this evidence could be considered unavailable at the time the court
granted summary judgment. Puccetti responded, “I’m not suggesting that we should not have
brought this to the court’s attention and asked the Court to delay ruling pending the receipt of the
deposition testimony. I’m not making an excuse for that. I believe that should have been done.”
Puccetti argued, however, that although Dr. Hollingsworth was deposed on April 11, 2024, he “did
not have the ability to provide the court with Dr. Hollingsworth’s testimony” at that time.
¶ 15 The court denied Puccetti’s motion to reconsider, reasoning that he “did not attempt to
provide a copy of [Dr. Hollingsworth’s testimony] after argument but before [the court] issued a
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ruling, nor did [he] provide the Court with an affidavit from the expert. [Puccetti] relied on the
disclosures, which are [inadmissible] according to the case law cited in the briefs and in the Court’s
prior Order. **** It’s not sufficient evidence to overcome.” The court acknowledged that if the
transcript of Dr. Hollingsworth’s deposition testimony had been submitted earlier, then it “would
have denied summary judgment.”
¶ 16 II. ANALYSIS
¶ 17 A. The Trial Court Properly Granted Summary Judgment to Franciscan
¶ 18 Puccetti argues that the trial court erred when it concluded that he “failed to present
evidence beyond expert disclosures to establish factual issues regarding [Franciscan’s] breach of
the appliable standard of care” and granted summary judgment in Franciscan’s favor. Puccetti
argues that his “theory about an improper transfer,” coupled with the medical records Franciscan
submitted in support of its motion for summary judgment, were enough to “lead a reasonable jury
to conclude that [Franciscan] failed to provide the required level of assistance during [Kathleen’s]
transfers, thereby forcing her to exert undue force on her arm, which contributed to cause her
fracture, as detailed in [Franciscan’s] investigation report.”
¶ 19 We review a trial court’s grant of summary judgment de novo. Butkiewicz v. Loyola
University Medical Center, 311 Ill. App. 3d 508, 511 (2000). A grant of summary judgment is
proper “if the pleadings, depositions, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2022). While a plaintiff “need not
prove his case during summary judgment,” he “must present some evidentiary facts to support the
elements of his cause of action.” Krueger v. Oberto, 309 Ill. App. 3d 358, 367 (1999). Summary
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judgment is proper if the plaintiff cannot establish any one of the elements of the cause of action.
Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
¶ 20 Here, Puccetti brought negligence and res ipsa loquitur claims against Franciscan. To
prove negligence, a plaintiff must prove that the defendant breached a duty of care, and that this
breach proximately caused the injury. Myers v. Heritage Enterprises, Inc., 354 Ill. App. 3d 241,
244 (2004). For a res ipsa loquitur claim, the plaintiff must “prove that he was injured (1) in an
occurrence that ordinarily does not happen in the absence of negligence (the probability element)
(2) by an agency or instrumentality within the defendant’s exclusive control (the control element).”
Johnson v. Armstrong, 2022 IL 127942, ¶ 35 (2022).
¶ 21 Here, Puccetti alleged that Kathleen was injured as a result of Franciscan’s negligence, and
that Kathleen’s injury was the sort that does not normally happen in the absence of negligence.
For support, he relied heavily on his Rule 213 disclosures, which included the anticipated
testimony of his controlled expert, Dr. Hollingsworth. However, the trial court correctly
disregarded the information contained in the 213 disclosures, as “[u]nsworn statements of opinion
from a party’s retained expert may not be considered for purposes of section 2–1005(c) of the
Code.” Essig v. Advocate BroMenn Medical Center, 2015 IL App (4th) 140546, ¶ 43; In re Estate
of Case, 2016 IL App (2d) 151147, ¶ 30 (“the contents of a Rule 213(f) disclosure are not evidence
for purposes of summary judgment” because a Rule 213(f) disclosure “does not constitute a
pleading, deposition, admission, or affidavit under section 2-1005(c)”).
¶ 22 Puccetti argues that even without this testimony, evidence in the record was sufficient to
defeat Franciscan’s motion for summary judgment. He references several of Kathleen’s medical
records that were submitted by Franciscan in support of its motion for summary judgment –
including “the OT visit note from January 4, 2019; the PT visit note from January 5, 2019; the
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skilled nursing assessment from January 6, 2019; the note documenting [Kathleen’s] first
complaint of arm pain; and the single incident report completed in connection with the injury” –
and argues that these records raised questions of fact regarding the cause of Kathleen’s right arm
fracture. He reasons that because Kathleen’s medical records “indicate Kathleen required two-staff
assistance for bed and mobility transfers” and reflect that Kathleen was “transferred by one staff
member on numerous occasions,” this is enough to defeat summary judgment. Puccetti’s brief on
appeal does not have any citations to the record to support this argument.
¶ 23 When reviewing a trial court’s decision on a summary judgment motion, we consider all
evidence that was properly submitted. Nationwide Advantage Mortgage Co v. Ortiz, 2012 IL App
(1st) 112755, ¶ 17. However, Illinois Supreme Court Rule 341(h)(7) requires parties to support
their arguments by referencing “the pages of the record on appeal where evidence may be found.”
Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Puccetti’s failure to cite to the record here required this
court to scour Kathleen’s 500-plus pages of medical records for evidence to support his argument.
This violation of Rule 341 provides grounds for this court to reject his argument entirely. See Hall
v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 12 (“The failure to provide
proper citations to the record is a violation of Rule 341(h)(7), the consequence of which is the
forfeiture of the argument.”). Although we decline to do so here, we find no evidence in the record
sufficient to defeat Franciscan’s motion for summary judgment. While some of Kathleen’s medical
records indicate that “maximum assistance” and two-person support was required for certain
activities such as transfers and toileting, the records also indicate that one-person support was all
that was required for others, including bathing, hygiene, dressing and bed mobility. And while
certain records indicate that transfers were meant to be completed by two people, others stated that
that they could be conducted “with the assistance of 2 people/lift devices as required,” implying
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that two-person transfers were not always mandatory. (Emphasis added.) In addition, Gloria Leiva,
the occupational therapist in charge of Kathleen’s care, was asked in her deposition if “maximum
assistance” requires two staff members to help a patient. She responded that it was a “judgment
call” by the therapist or nurse based on an assessment of the patient that is done at that time, that
“depend[s] on [the] patient” and “[d]epends on the day.” Thus, the medical records are not
sufficient to create a genuine issue of material fact about whether Franciscan breached the standard
of care when performing transfers.
¶ 24 Even if these records provided evidence to demonstrate a breach of the standard of care,
Puccetti still fails to identify any evidence the record to support the causation element of his
negligence claim. See Majetich v. P.T. Ferro Construction Co., 389 Ill. App. 3d 220, 224 (2009)
(internal citations omitted) (“The existence of proximate cause cannot be established by
speculation, surmise, or conjecture. Absent affirmative and positive evidence that defendant
proximately caused plaintiff’s injuries, a plaintiff fails to establish the existence of a genuine issue
of material fact.”) Other than Dr. Hollingsworth’s testimony, which was submitted after summary
judgment was already granted to Franciscan, Puccetti points to nothing in the record to support a
finding that Kathleen’s arm fracture was the sort of injury that does not normally occur in the
absence of negligence. Therefore, the trial court properly granted summary judgment to
Franciscan.
¶ 25 B. The Trial Court Properly Denied Puccetti’s Motion to Reconsider
¶ 26 Puccetti argues the trial court erred when it denied his motion to reconsider. We review a
trial court’s decision to deny a motion to reconsider for an abuse of discretion. Stringer v.
Packaging Corporation of America, 351 Ill. App. 3d 1135, 1140 (2004). We will reverse only if
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the trial court’s ruling was arbitrary or unreasonable, or where no reasonable person would agree
with the court’s position. People v. Wells, 2024 IL App (1st) 232453, ¶ 16.
¶ 27 “The purpose of a motion to reconsider is to bring to the trial court’s attention (1) newly
discovered evidence not available at the time of the hearing, (2) changes in the law, or (3) errors
in the court’s previous application of existing law.” Stringer, 351 Ill. App. 3d at 1140. “When a
party seeks to have a motion to reconsider granted on grounds of newly discovered evidence, the
movant must provide a reasonable explanation for why the evidence was not available at the time
of the original hearing.” Id. at 1141; Woolums v. Huss, 323 Ill App. 3d 628, 640 (2001)
(“Submission of new matter on a motion to reconsider summary judgment lies in the discretion of
the trial court and should not be allowed absent a reasonable explanation of why it was not
available at the time of the original hearing.”)
¶ 28 Here, Puccetti argues that although Dr. Hollingsworth was deposed more than a week
before the hearing on Franciscan’s motion for summary judgment, he “did not have the ability to
provide the court with Dr. Hollingsworth’s testimony.” But Franciscan argued at the hearing that
summary judgment was proper because Puccetti failed to present the “minimal level of essential
evidence” necessary to support his negligence and res ipsa loquitur claims, and that Puccetti could
not rely on Dr. Hollingsworth’s “unverified disclosed opinions” to create a question of fact. Yet
Puccetti did not explain why he could not have rushed a transcript of Dr. Hollingsworth’s
testimony, provided an affidavit from him, asked the court for an extension of time, or submitted
anything in the five days after the hearing, before the court ruled on the motion for summary
judgment. Puccetti admitted that he probably should have done so at the hearing on his motion to
reconsider, telling the court he “believe[d] that should have been done.” Therefore, this case is
analogous to those where this court has affirmed a trial court’s decision to deny plaintiff’s motion
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to reconsider. See, e.g., Gardner v. Navistar Int’l Transportation Corp., 213 Ill. App. 3d 242, 248
(1991) (affirming the trial court’s decision to disregard an affidavit submitted for the first time
with a motion to reconsider, noting that the affidavit’s contents were available before the summary
judgment hearing, yet the plaintiff provided no explanation—reasonable or otherwise—why the
material was not presented earlier, and reasoning that trial courts “should not permit litigants to
remain silent, lose a motion, and then frantically gather evidentiary material to show that the court
erred in its ruling”); Freeman v. Augustine’s Inc., 46 Ill. App. 3d 230, 236 (1977) (refusing to
accept depositions and transcripts attached to a motion to reconsider when the plaintiff ”had ample
opportunity to present evidence prior to the entry of summary judgment” and yet failed to do so);
Vantage Hospitality Group, Inc. v. Q III Development, LLC, 2016 IL App (4th) 160271, ¶ 57
(stating that “a party filing or opposing a dispositive motion *** should always be required to
muster everything the party has at the hearing on that motion” because “[t]he other party and the
court are entitled to no less”); Woolums, 323 Ill App. 3d at 640-41 (finding that the trial court did
not abuse its discretion when it denied plaintiffs’ motion to reconsider when there was “no
indication from plaintiffs why they could not have produced the detailed affidavits of [their
experts] earlier”, reasoning that “[t]he purpose of a motion to reconsider is not to reiterate
arguments already made, nor to add new evidence that could have been produced earlier”).
¶ 29 “When a movant seeks reconsideration based on newly discovered evidence, ‘a party must
show that the newly discovered evidence existed before the initial hearing but had not yet been
discovered or was otherwise unobtainable.’ ”. Simmons v. Reichardt, 406 Ill. App. 3d 317, 324
(2010) (quoting Stringer, 351 Ill. App. 3d at 1141). Because Puccetti failed to meet this burden
here, we find that the trial court properly exercised its discretion to deny his motion to reconsider.
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¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 32 Affirmed.