Stewart v. Abbott Laboratories

2022 IL App (1st) 200609-U

• Court: Appellate Court of Illinois
• Decided: March 2, 2022
• Docket: 1-20-0609
• Status: Unpublished

Opinion

2022 IL App (1st) 200609-U

THIRD DIVISION March 2, 2022

No. 1-20-0609

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 JUDICIAL DISTRICT ______________________________________________________________________________

FRANCINE STEWART, Individually and as Special ) Administrator of the Estate of CHARLES STEWART, ) Deceased, ) ) Plaintiff-Appellee, ) ) v. ) . ) Appeal from the ABBOTT LABORATORIES, ST. JUDE MEDICAL, ) Circuit Court of S.C., INC., RICHARD TROHMAN, M.D., Individually ) Cook County and as agent and/or employee of RUSH UNIVERSITY ) MEDICAL CENTER, PARIKSHIT SHARMA, M.D., ) Individually and as agent and/or employee of RUSH ) 18 L 12962 UNIVERSITY MEDICAL CENTER, CHRISTOPHER ) MADIAS, M.D., Individually and as agent and/or ) employee of RUSH UNIVERSITY MEDICAL CENTER, ) Honorable SANDEEP A. SAHA, M.D., Individually and as agent ) Moira S. Johnson, and/or employee of RUSH UNIVERSITY MEDICAL ) Judge Presiding CENTER, NEAL RUGGIE, M.D., Individually and ) as agent and/or employee of RUSH UNIVERSITY ) MEDICAL CENTER, ) ) Defendants, ) ) (Rush University Medical Center, Defendant-Appellant.) ) _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Gordon and Justice Burke concurred in the judgment. No. 1-20-0609

ORDER

¶1 Held: Affirmed in part, vacated in part, remanded. Court did not abuse discretion by ordering defendant to answer discovery prior to plaintiff’s compliance with Section 2- 622. Contempt finding vacated, as defendant’s challenge was in good faith.

¶2 Rush University Medical Center (Rush) appeals the order holding it in friendly contempt

for refusing to answer discovery prior to plaintiff filing a medical-negligence affidavit and expert

report as required by state law. Before this court, Rush argues that it should not be required to

answer. We disagree and affirm the court’s discovery order. But because we find that Rush’s

argument was in good faith, we vacate the contempt finding.

¶3 BACKGROUND

¶4 For purposes of background, we draw most of the information from the complaint,

without expressing any opinion on the ultimate truth of these facts.

¶5 In March 2014, doctors at defendant Rush University Medical Center (“Rush”) placed an

implantable defibrillator device in Charles Stewart to treat his heart condition. This particular

device was known as an implanted cardioverter defibrillator device, or “ICD.” The ICD was

manufactured by defendant St. Jude Medical, S.C. (“St. Jude”).

¶6 In October 2016, St. Jude “issued an advisory recall” of the ICD and other defibrillators

“because of a premature battery depletion defective.” St. Jude issued notice of this product defect

to physicians and healthcare providers, including Rush.

¶7 On December 5, 2016, again at Rush, Charles underwent a “CRT-D Generator change,

possible lead revision” of his St. Jude implantable defibrillator device. Though the complaint

does not particularly elaborate on the details of this procedure, it seems clear enough that

medical professionals at Rush implanted a replacement defibrillator—a cardiac

resynchronization therapy defibrillator, or “CRT-D”—in Stewart.

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¶8 Before he had even left the Rush campus later that day, Charles was communicating with

Rush agents or employees, reporting “a problem with the device and/or its home monitoring

system.” Presumably later that day, Charles received information from both Rush and St. Jude

“on steps to take to synchronize and reset the [home monitoring] system and devices.”

¶9 The next day, December 6, Charles collapsed outside his home. He was taken by

ambulance to St. Bernard Hospital, where he died.

¶ 10 Less than a year later, the FDA issued a “Class I recall” of the defibrillator that had been

implanted in Charles, warning it “may cause serious injury and/or death.”

¶ 11 Nearly two years after Charles’s death, on December 3, 2018, Charles’s wife, plaintiff

Francine Stewart, individually and as special administrator of Charles’s estate, sued various

hospitals, doctors, and manufacturers of the defibrillator devices. Her five-count complaint

sounded in products liability and medical negligence. Among others not relevant here, plaintiff

sued Abbott Laboratories and St. Jude for designing, manufacturing, and distributing an

allegedly defective defibrillator. She also sued Rush for medical negligence, alleging that Rush

was negligent in (1) failing to protect her husband from alterations in heart rate; (2) failing to

adequately warn him of life-threatening problems associated with the defibrillator systems; (3)

failing to properly implant the defibrillator device; (4) failing to adequately monitor her husband

and the device; and (5) failing to test and inspect the defibrillator.

¶ 12 Generally speaking, when a complaint alleging medical negligence is filed, section 2-622

of the Code of Civil Procedure requires the plaintiff’s counsel to attach to the complaint an

affidavit indicating that counsel has conferred with a qualified health professional who, in a

written report, has found “reasonable and meritorious cause” to file the action. 735 ILCS 5/2-

622(a) (West 2016). But section 2-622(a) also permits, in lieu of that affidavit and written report,

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an affidavit by counsel attesting that counsel has requested records from the relevant defendant

health care facility or practitioner, and the party required to comply has not produced the records

within 60 days of the request. Id.; see 735 ILCS 5/8-2001 (West 2016) (as referenced in section

2-622(a), requiring health care facilities and practitioners to produce records upon request of

patient or patient’s legal representative). In that latter event, the affidavit and written report is

due within 90 days after the records requested are produced. 735 ILCS 5/2-622(a) (West 2016).

¶ 13 Plaintiff’s counsel here filed this latter affidavit, claiming that plaintiff had requested

medical and other records from Rush under section 8-2001 of the Code, which had yet to be

produced. The affidavit acknowledged that a section 2-622 affidavit would be due within 90 days

of receipt of those requested records.

¶ 14 Plaintiff later moved for an extension of time to file the affidavit and report, claiming that

counsel needed time to review the “15,577 pages of medical records and radiology studies

relating to Mr. Stewart’s care and treatment” that Rush produced. While the medical record

review was ongoing, plaintiff also issued interrogatories seeking information about the

defibrillator implanted in Charles.

¶ 15 The court did not immediately grant the extension and continued the matter several times

for status on Rush’s answer to discovery. Eventually, the court ordered Rush to answer the

discovery “relating to [the] defib device.” In that same order, the court entered and continued the

motion for extension “generally” and set the case for status.

¶ 16 The court order specifically required Rush to answer Interrogatories 20 and 21.

Interrogatory 20 requested:

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“the names of any known persons, agencies, government offices, entities, or law

enforcement officers or agencies both currently or previously involved in identifying,

selecting, handling, transporting or copying documents or materials related to the

investigation of ST. JUDE MEDICAL implantable defibrillator device including Model

1688TC/52, 1688TC/58, 7121Q/65, 1258T/92, and CD 3357-40Q. This interrogatory

seeks to establish the chronological chain of custody for any and all documents, notes,

or materials compiled during the investigation of the location of the ST. JUDE

MEDICAL implantable defibrillator device including Model 1688TC/52, 1688TC/58,

7121Q/65, 1258T/92, and CD 3357-40Q.”

¶ 17 Interrogatory Number 21 sought:

“the addresses of your document depositories or any other place where you maintain or

have maintained records relating to the ST. JUDE MEDICAL implantable defibrillator

device including Model 1688TC/52, 1688TC/58, 7121Q/65, 1258T/92, and CD 3357-

40Q up through and including the present, and also list the Bates stamp number and other

identifying information for the document or documents in question, as well as the dates in

which the document or documents have been retained in the specific location(s)

listed. If the records have been moved at all during the time period between from the date

alleged in the complaint at law and the present, state the reason for the move, and if a

clear chain of custody cannot be established, provide an explanation. This interrogatory

seeks to establish the chronological chain of custody for any and all documents, notes or

materials compiled during the investigation ST. JUDE MEDICAL implantable

defibrillator device including Model 1688TC/52, 1688TC/58, 7121Q/65, 1258T/92, and

CD 3357-40Q.”

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¶ 18 In answering each interrogatory, Rush responded: “None known to this defendant.

Plaintiff’s Interrogatory [] is better directed towards Co-defendants.” Plaintiff filed a motion to

compel. At the hearing on the motion, the court was unclear about why Plaintiff needed “chain of

custody information.” Because there was nothing discussing that need in the motion, and counsel

could not provide an explanation in open court, the court ordered a written explanation and

continued the motion to compel.

¶ 19 Plaintiff then gave the following written explanation for her need for the information:

“The Plaintiff’s medical records do not reflect what the RUSH UNIVERSITY

MEDICAL CENTER physicians were informed by ABBOTT, which specific devices

they were informed were defective, how when and where the defibrillator implanted in

Mr. Stewart was interrogated and by whom (ie-private company personnel, ST. JUDE

personnel, RUSH UNIVERSITY personnel, etc.), the location of the defibrillator in

question and the chain of custody of the device associated with the official

investigation/interrogation of the device. This information is relevant and necessary for

purposes of determining what RUSH UNIVERSITY physicians knew about the defective

devices, MR. STEWART’s specific device, and whether the implanted defibrillator

device should have been removed from MR. STEWART on or before December 5,

2016.” (Parenthetical in original.)

¶ 20 After this explanation, the court heard argument. Again, Rush claimed it was not required

to answer discovery. Plaintiff argued that she needed the information to determine whether Rush

belonged in the case. The court resolved the matter as follows:

“So here’s what I’m going to do: I had already ordered for you [Rush] to review the

answers that he gave. The plaintiff has directed you to two instances where witnesses or

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communications are made between people. And so instead of you arguing anymore, you

need to get the information about the communications between Rush and your co-

defendant with regard to the defibrillator. We need the names and information and we

need those answers.”

¶ 21 The parties then discussed the specific information the interrogatories requested. Again,

the court told Rush to answer the interrogatories. Plaintiff offered to amend the language to be

more precise. But Rush’s counsel responded: “I am not quarreling with the language, Judge.

What I am quarreling with is that there is a medical negligence claim against Rush in this case

without a 622 report.” After counsel added that plaintiff was “put[ting] the cart before the horse,”

the court interjected as follows:

“Okay. Here, let me say it this way: We have a combination negligence/products liability

case that involves the installation of some kind of defibrillator. In order for the expert to

determine whether there was a breech [sic] of deviation from the standard of care, he

needs this information to give to his expert. So we unfortunately have to handle this a

little bit differently than we usually do with a typical standard medical negligence where

the only thing we’re looking at is the conduct of medical providers and so we need this

information.

Now, plaintiff has offered and I don’t have a problem with it because I don't see a

problem with answering this question because the answer that is typical, please see the

medical records, is not sufficient. But if plaintiff wants to give you in seven days

something that is—something that he thinks may be more descriptive and helpful to you

in answering this question, do it. But we’re going to have to have an answer with regard

to this defibrillator.”

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¶ 22 The court then allowed plaintiff to issue supplemental interrogatories within 7 days,

allowed 28 days to respond, and granted the motion for extension of time “without prejudice.”

The court told the parties, “And when and if I see that there’s been compliance with this

discovery, I will then tell you how long you will have to get a 622 on file.”

¶ 23 Consistent with its position that the discovery was inappropriate, Rush failed to respond

within the time ordered by the Court. Plaintiff filed another motion to compel and argued that

Rush should be sanctioned or held in contempt. The court agreed and entered “a sanction of $200

per day” against Rush. At that point, Rush’s counsel advised the court that it would consider

friendly contempt.

¶ 24 About a month later, Rush requested friendly contempt, and the court obliged. It vacated

the entirety of the $200/per day sanction and entered a $500 penalty and held Rush in contempt

for failing to respond to Plaintiff’s interrogatories.

¶ 25 Rush timely appealed.

¶ 26 ANALYSIS

¶ 27 Rush claims the circuit court erred in requiring answers to “extensive” discovery before

requiring plaintiff to file her section 2-622 affidavit and report. In Rush’s view, plaintiff did not

justify her need for that discovery, which resulted as well in an “indefinite” delay in filing the

required affidavit and report in violation of section 2-622.

¶ 28 A party may challenge the correctness of a discovery order through contempt

proceedings. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001). When the party appeals the contempt

sanction for noncompliance with that discovery order, our review necessarily includes the

propriety of the discovery order itself. Id.; see In re Marriage of Nettleton, 348 Ill. App. 3d 961,

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968 (2004) (review of contempt finding “necessarily requires review of the order upon which it

is based”).

¶ 29 As noted, section 2-622 requires plaintiffs seeking “damages for injuries or death by

reason of medical hospital or other healing art malpractice” to file an affidavit of merit and

expert report. 735 ILCS 5/2-622 (West 2020). This affidavit ensures that plaintiffs, or their

attorney, have consulted with a medical professional who, in a written report, has found “a

reasonable and meritorious cause” for filing the claim. Id. § 2-622(a).

¶ 30 This requirement was designed to eliminate frivolous medical malpractice suits at the

pleading stage. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 117 (2004); DeLuna v. St.

Elizabeth’s Hospital, 147 Ill. 2d 57, 65 (1992). But we should liberally construe section 2-622,

not apply it “ ‘mechanically *** to deprive a plaintiff of [their] substantive rights.’ ” Lee v.

Berkshire Nursing & Rehab Center, LLC, 2018 IL App (1st) 171344, ¶ 18 (quoting Schroeder v.

Northwest Community Hospital, 371 Ill. App. 3d 584, 595 (2006)). Indeed, “ ‘a medical

malpractice plaintiff should be afforded every reasonable opportunity to establish his case.’ ” Id.

(quoting Hansbrough v. Kosyak, 141 Ill. App. 3d 538, 549 (1986)).

¶ 31 While the affidavit and report are required when filing the complaint, the statute permits

two exceptions to that concurrent filing. Horlacher v. Cohen, 2017 IL App (1st) 162712, ¶ 62.

Section 2-622 allows the party to file an affidavit swearing they were unable to provide the

affidavit and report (1) due to the impending expiration of the limitations period or (2) because

the defendant has not turned over medical records pursuant to a separate section of the Code of

Civil Procedure requiring caregivers and hospitals to turn over medical and other records to

patients or their representatives. 735 ILCS 5/2-622(a)(2) (West 2016); see id. ¶ 8-2001. In each

of these cases, Section 2-622 permits a 90-day extension on filing the affidavit. Id. ¶ 2-622(a).

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¶ 32 The court, in its discretion, may allow plaintiffs to take discovery from a health care

facility, beyond a patient’s personal medical records, before filing the section 2-622 affidavit and

report. See Zangara v. Advocate Christ Medical Center, 2011 IL App (1st) 091911, ¶ 33. We

traditionally afford a trial court “great latitude” in determining the scope of discovery.

Redelmann v. Claire Sprayway, Inc., 375 Ill. App. 3d 912, 927 (2007).

¶ 33 The circuit court here recognized that this case presented a somewhat unique example of

a medical-negligence case that involved an allegedly defective product. So the question of

whether Rush was negligent in implanting the original and replacement defibrillators depended,

at least in part, on Rush’s knowledge of the defective nature of the device—information that

might not be discernible simply from reviewing a patient’s medical records. Plaintiff needed to

know what Rush knew or was told about the defective nature of the defibrillator and when, so

that an expert could assess whether Rush and its physicians deviated from the appropriate

standard of care. By no means could we say that the trial court’s decision to allow this discovery

was so arbitrary or unreasonable as to constitute an abuse of discretion.

¶ 34 Rush complains that the discovery rulings by the court had the de facto effect of

indefinitely extending the deadline for filing the affidavit and report under section 2-622 without

good cause. See Horlacher, 2017 IL App (1st) 162712, ¶ 67 (extensions of time beyond 90-day

filing are permitted upon showing of “good cause” under Illinois Supreme Court Rule 183 (eff.

Feb. 16, 2011)).

¶ 35 To the extent we might read Rush as arguing that the court erred by entering and

continuing plaintiff’s motion for extension initially, and later by granting the motion without a

fixed deadline for compliance, we lack jurisdiction to consider it. As noted, we are limited to

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reviewing the contempt order and the underlying order that spawned it—the discovery order

compelling Rush’s response. Norskog, 197 Ill. 2d at 69.

¶ 36 But we read Rush as citing this delay-without-good-cause as another example of how the

trial court abused its discretion in allowing plaintiff’s discovery in the first instance. To that, we

would note that most of the delay in the proceedings below owed to Rush’s refusal to comply

with the discovery. Plaintiff first moved for an extension of time after receiving over 15,000

documents from Rush. But in the interim, plaintiff issued the discovery to Rush, which Rush

believed it had no obligation to answer. And from there, the standoff continued via motions to

compel and contempt citations. We are not suggesting that Rush was acting in bad faith—quite

the opposite, in fact, as discussed below—but the fact remains that the bulk of the time passage

was much more a result of Rush’s failure to comply than anything else.

¶ 37 Finding no abuse of discretion, we uphold the trial court’s discovery order.

¶ 38 We do, however, vacate the contempt finding, as the trial court predicted we would. As

noted, Rush followed the appropriate course by challenging the discovery order via contempt

proceedings. See Norskog, 197 Ill. 2d at 69. Regardless of whether we agree with Rush’s

objections to the discovery order, vacatur of the contempt finding is appropriate if Rush acted in

good faith with a sound legal basis. See Brown v. Advocate Health & Hospitals Corp., 2017 IL

App (1st) 161918, ¶ 28; Adler v. Greenfield, 2013 IL App (1st) 121066, ¶¶ 71-72. Rush met that

standard here.

¶ 39 CONCLUSION

¶ 40 We affirm the discovery order under review. We vacate the contempt order.

¶ 41 Affirmed in part, vacated in part, remanded.