Somers v. Quinn ( 2007 )

No. 2--05--0619 Filed: 4-25-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JEREMY SOMERS, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 01--L--458
)
MICHAEL J. QUINN, ) Honorable
) Margaret J. Mullen,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Plaintiff, Jeremy Somers, appeals the judgment of the circuit court that (1) granted defendant
Michael J. Quinn's motion in limine to bar the testimony of plaintiff's expert witness regarding the
standard of care applicable to defendant's medical treatment of plaintiff, and (2) denied plaintiff's
motion for a continuance to find another expert to testify to the standard of care. We affirm.
Plaintiff filed his complaint on June 11, 2001, alleging that defendant was negligent in his
treatment of plaintiff's broken leg and that his negligence resulted in injury to plaintiff. On July 5,
2002, pursuant to Supreme Court Rule 213 (210 Ill. 2d Rs. 213(f), (g), (h), (i), (j), (k)), plaintiff
disclosed that Dr. Mark Benson would describe at trial the treatment he provided plaintiff in the
months following plaintiff's treatment by defendant and would opine that defendant's treatment "was
inadequate and below the standard of care."
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Dr. Benson sat for a discovery deposition on June 2, 2003. Dr. Benson testified that he
acquired medical licenses from Colorado and Wisconsin in 1979. He let his Colorado license expire
after one year but retained his Wisconsin license. In 1993, Dr. Benson suffered a cervical spine
fracture in an automobile accident. He took hydrocordone for pain relief and became addicted to it.
In 1996, the Wisconsin medical licensing board suspended Dr. Benson's medical license after finding
that he had taken hydrocordone samples from his office. Dr. Benson testified that he secured
periodic stays of the suspension between 1996 and 2002. He further testified that he was twice
convicted of attempting to obtain a prescription by fraud, once in May 2000 and again in October
2002. In the spring of 2002, Dr. Benson surrendered his medical license due to vision problems
caused by eye ulcerations. Dr. Benson testified that he intended to return to the practice of medicine
in August 2003.
In October 2004, the trial court entered an order setting the case for jury trial on May 23,
2005. The order also set April 1, 2005, as the deadline for all motions for involuntary dismissal or
summary judgment.
Dr. Benson sat for an evidence deposition on May 20, 2005, three days before trial. He
testified that, on August 20, 2003, he petitioned the Wisconsin medical licensing board for
reinstatement of his license. On August 29, 2003, the board granted Dr. Benson a limited medical
license with the opportunities to apply for consecutive three-month extensions of that limited license.
In October 2004, the board found that Dr. Benson had obtained medication by forging prescriptions.
Subsequently, Dr. Benson surrendered his license, effective December 15, 2004.
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Dr. Benson testified that the board's findings that he had forged prescriptions were false, but
acknowledged that he stipulated to those findings in the board's written order accepting the surrender
of his license. Dr. Benson admitted that he held no medical license at the time of the deposition.
On May 23, 2005, the day of trial, defendant filed a motion in limine to exclude from
evidence the portions of Dr. Benson's evidence deposition in which he testified as to the standard
of care applicable to defendant's medical treatment of plaintiff and as to whether defendant's
treatment met that standard. Parenthetically we note that defendant did not challenge the
admissibility of Dr. Benson's descriptions of his or defendant's treatment of plaintiff. Defendant
argued that, because Dr. Benson lacked a medical license at the time of his evidence deposition, his
qualifications did not meet the standards for expert medical witnesses set forth in section 8--2501
of the Code of Civil Procedure (the Code) (735 ILCS 5/8--2501 (West 2004)). Defendant attached
to his motion a copy of a December 15, 2004, decision of the Wisconsin medical licensing board
finding that Dr. Benson "committed unprofessional conduct" by forging prescriptions on two
occasions in October 2004. The decision noted that Dr. Benson had voluntarily surrendered his
Wisconsin medical license effective immediately.
The record contains no transcript of the hearing on defendant's motion. The trial court issued
a written order in which it found that section 8--2501 of the Code categorically required that an
expert be licensed to practice medicine at the time he testified to the applicable standard of care in
a medical malpractice case. The trial court also held that, even if it had discretion to decide whether
to allow Dr. Benson's testimony, it would still exclude the testimony. Accordingly, the trial court
granted the motion to bar Dr. Benson's testimony relating to the standard of care applicable to
defendant. Plaintiff then moved for a continuance of the trial for the purpose of retaining another
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expert. The trial court denied the motion on the ground that plaintiff "was not duly diligent." The
parties stipulated that, in the absence of Dr. Benson's testimony, plaintiff would present no evidence
on the standard of care. Defendant then moved for a directed verdict, which the trial court granted.
Plaintiff filed this timely appeal.
Plaintiff challenges the trial court's decision barring Dr. Benson's testimony on the ground
that he lacked a medical license at the time he gave his evidence deposition. The plaintiff in a
medical malpractice action must prove: (1) the proper standard of care against which the defendant's
conduct is measured; (2) a negligent failure to comply with the applicable standard; and (3) a
resulting injury proximately caused by the defendant's want of skill or care. Jinkins v. Evangelical
Hospitals Corp., 336 Ill. App. 3d 377, 382 (2002). " 'Unless the physician's negligence is so grossly
apparent or the treatment so common as to be within the everyday knowledge of a layperson, expert
medical testimony is required to establish the standard of care and the defendant physician's
deviation from that standard.' " Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004), quoting
Purtill v. Hess, 111 Ill. 2d 229, 242 (1986).
At the time of this case, section 8--2501 of the Code contained four factors for the trial court
to consider in qualifying an expert witness, including whether the witness was licensed in the same
profession as the defendant. 735 ILCS 5/8--2501(c) (West 2004). This section provides in relevant
part:
"Expert Witness Standards. In any case in which the standard of care applicable to
a medical professional is at issue, the court shall apply the following standards to determine
if a witness qualifies as an expert witness and can testify on the issue of the appropriate
standard of care.
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(a) Whether the witness is board certified or board eligible in the same specialties as
the defendant and is familiar with the same medical problem or problems or the type of
treatment administered in the case;
(b) Whether the witness has devoted 75% of his or her time to the practice of
medicine, teaching or University based research in relation to the medical care and type of
treatment at issue which gave rise to the medical problem of which the plaintiff complains;
(c) whether the witness is licensed by any state or the District of Columbia in the
same profession as the defendant; and
(d) whether, in the case against a nonspecialist, the witness can demonstrate a
sufficient familiarity with the standard of care practiced in this State." 735 ILCS 5/8--2501
(West 2004).
As to plaintiff's first contention, our standard of review is de novo because the construction
of a statute is a question of law. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006), citing In re Estate
of Dierkes, 191 Ill. 2d 326, 330 (2000). Our primary objective is to ascertain and give effect to the
intention of the legislature. DeLuna, 223 Ill. 2d at 59, citing Southern Illinoisan v. Illinois
Department of Public Health, 218 Ill. 2d 390, 415 (2006). When the language of a statute is clear
and unambiguous, a court must give effect to the plain and ordinary meaning of the language without
resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove, 209
Ill. 2d 248, 255 (2004), citing Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
504 (2000). " 'One of the fundamental principles of statutory construction is to view all provisions
of an enactment as a whole. Words and phrases should not be construed in isolation, but must be
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interpreted in light of other relevant provisions of the statute.' " Raintree Homes, Inc., 209 Ill. 2d at
255-56, quoting Michigan Avenue National Bank, 191 Ill. 2d at 504.
Section 8--2501 of the Code provides standards that the trial court shall apply in medical
malpractice cases "to determine if a witness qualifies as an expert witness and can testify on the issue
of the appropriate standard of care." 735 ILCS 5/8--2501 (West 2004); see also Thompson v.
Gordon, 221 Ill. 2d 414, 433 (2006). The plain language of section 8--2501 does not impose a
mandatory licensure requirement. Instead, the statute leaves the admission of the expert's testimony
to the determination and discretion of the trial court. The legislature could have imposed a
mandatory licensure requirement had it wished to do so, and we will not read such a requirement into
the statute. See Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 398-99 (2004) (noting
that the appellate court may not read into a statute exceptions, limitations, or conditions not
expressed by the legislature).
Plaintiff argues that subsections (a) through (d) are not "necessarily mandatory," but instead
are "factors *** to be applied by the court in making its determination." We find plaintiff's argument
persuasive and determine that the plain language of the statute is controlling. We determine that it
is inappropriate to disregard statutory authority governing the admission of expert testimony in
medical malpractice cases and to instead decide the case based upon other common-law
requirements for the competency of a medical expert. See 735 ILCS 5/1--104 (West 2004)
(providing that supreme court may not make rules governing civil practice and procedure that are
inconsistent with the provisions of the Code). This court should also not ignore section 8--2501 of
the Code simply because our supreme court has not yet had occasion to address its meaning or effect
as it would specifically apply to the circumstances presented in this case.
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Furthermore, the special concurrence applies Sullivan beyond its facts to determine that
Sullivan is controlling and requires that licensure must exist at the time the witness testifies. The
special concurrence states:
"The supreme court held in Sullivan that ' "in order to testify as an expert on the standard of
care in a given school of medicine, the witness must be licensed therein." ' (Emphasis
added.) Sullivan, 209 Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. *** Sullivan can be
read but one way: the testimony of a witness cannot be considered competent medical
opinion testimony unless the witness holds a medical license at the time of the testimony."
Slip op. at 21.
There is nothing in Sullivan or common experience that implies or concludes that expertise
exists solely and dependently on the existence of a license and that, upon termination of the license,
regardless of cause, the expertise fades to black and is lost until the license is renewed. Such an
interpretation does violence to the concept of memory.
Our supreme court explained in Sullivan that licensure in the school of medicine about which
the expert proposes to testify is required because:
"[T]here are different systems or schools of medicine with varying tenets and practices, and
*** testing the care and skill of a practitioner of one school of medicine by the opinion of
a practitioner of another school would result in inequities. The practitioner of a particular
school of medicine is entitled to have his or her conduct tested by the standards of that
school. Dolan, 77 Ill. 2d at 283 (and authorities cited therein)." Sullivan, 209 Ill. 2d at 113.
Thus, the licensure requirement serves to protect practitioners of one school of medicine from the
imposition of standards followed in other schools of medicine. Preventing the testimony of someone
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who had never been licensed in the school of medicine at issue or, especially, someone licensed in
a different school of medicine clearly would tend to prevent the imposition of an improper standard.
We fail to see how allowing the testimony of an expert who had been licensed in the appropriate
school of medicine, but who was no longer so licensed, would result in the harm that Sullivan
identified.
The issue then becomes what effect the witness's lack of current licensure has on his or her
ability to opine on the current state of the standards in a school of medicine. The legislature touched
on this issue in the recent amendment to section 8--2501 contained in Public Act 94--677, eff.
August 25, 2005. Though this amendment cannot be used to dispose of this case, because it was
passed after the trial court's ruling in this case, its terms are instructive in this situation.
Section 8--2501 of the Code now allows for testimony from a retired expert if the expert
provides:
"[E]vidence of attendance and completion of continuing education courses for 3 years
previous to giving testimony. An expert who has not actively practiced, taught, or been
engaged in university-based research, or any combination thereof, during the preceding 5
years may not be qualified as an expert witness." 735 ILCS Ann. 5/8--2501 (West Supp.
2005).
Accordingly, the legislature has now found fit to allow testimony from experts who have retired or
have not been in active practice for up to five years.
Here, Dr. Benson had surrendered his license only five months before trial was scheduled.
While his lack of a current license was certainly a factor that the trial court should have considered
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in determining whether Dr. Benson qualified as an expert, we do not find that his lack of a current
license is a basis for an automatic disqualification.
We also believe that the special concurrence fails to examine Sullivan in context. In
Sullivan, the expert was never licensed in the area in which he was presented to opine; he was,
however, licensed in another area of medicine. Furthermore, we have not discovered another
reported case wherein the issue of a prior licensure has been considered. Therefore, neither Sullivan
nor any other reported case is controlling or precedential.
"A judicial precedent attaches a specific legal consequence to a detailed set of facts in an
adjudged case or judicial decision, which is then considered as furnishing the rule for the
determination of a subsequent case involving identical or similar material facts and arising
in the same court or a lower court in the judicial hierarchy." Allegheny General Hospital v.
National Labor Relations Board, 608 F.2d 965, 969-70 (3rd Cir. 1979).
Chief Justice Marshall examined the purpose of this principle of law in 1821 when he wrote:
" 'It "is a maxim not to be disregarded, that general expressions, in every opinion, are
to be taken in connection with the case in which those expressions are used. If they go
beyond the case, they may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for decision. The reason of this maxim is
obvious. The question *** before the [c]ourt is investigated with care, and considered in its
full extent. Other principles, which may serve to illustrate it, are considered in their relation
to the case decided, but their possible bearing on all other cases is seldom completely
investigated." [Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400, 5 L. Ed. 257, 290
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(1821).]' R. Aldisert, The Judicial Process 314 [(1996)]." People v. Trimarco, 364 Ill. App.
3d 549, 555 (2006) (McLaren, J., dissenting).
We submit that Sullivan is logical and sound only as it applies to the particular facts in
Sullivan. The witness in that case was a licensed physician but never obtained a license in the area
of medicine at issue and thus patently was not certified as a knowledgeable expert. Applying
Sullivan retrogressively, as the special concurrence has, is counterintuitive. Among other things,
licenses expire, are suspended, are revoked, and are even voluntarily surrendered. However, the
underlying skills that the license certified do not mystically or automatically disappear when the
license is no longer legally valid. The termination of a license to operate a motor vehicle does not
cause the driver to lose the mental or physical ability to control and maneuver a vehicle. Rather, the
driver loses only the legal ability to operate a motor vehicle. The unlicensed driver can still opine
as to the cause of an accident he or she witnesses while a pedestrian, a passenger, or the driver of a
vehicle. There is no logical reason to conclude that never having had a license is the same thing as
having had a license but not at the time of testifying.
In a recent decision, our supreme court held that a witness's compliance with an engineering
licensing requirement was not a prerequisite to admissibility of the witness's expert testimony;
instead, it was merely a factor to be weighed in considering whether the witness was qualified as an
expert, thereby overruling People v. West, 264 Ill. App. 3d 176 (1994). Thompson, 221 Ill. 2d at
429. The Thompson court further provided that, "[t]o the extent that West may be read as holding
that licensing is a prerequisite to the admissibility of expert testimony rather than a factor to be
weighed in considering expert qualifications, we overrule that portion of the West decision and reject
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defendants' argument that West controls the disposition of this case." Thompson, 221 Ill. 2d at 432-33.
Thus, it would appear here that the supreme court has effectively overruled sub silencio the
special concurrence's interpretation of Sullivan. From Thompson, it is clear that whether an expert
witness has a license or does not have a license is a factor to be considered, and that the lack of a
license does not inevitably lead to the conclusion that the witness has also lost all the knowledge that
he or she previously possessed or that any diminution occurred in the amount of knowledge
previously possessed. Interestingly, the witness in this case apparently lost his license because of
improper acts related to substance addiction and not because of an established deficiency based upon
a loss of memory or some other mental disability that sapped his knowledge in the area of his
claimed expertise.
Because current licensure is a factor to be considered by the trial court, we believe that the
appropriate analysis in this case deals with whether the trial court abused its discretion based upon
the totality of the circumstances. As our supreme court has stated:
"With regard to expert testimony, it is well settled that the decision whether to admit
expert testimony is within the sound discretion of the trial court. Snelson v. Kamm, 204 Ill.
2d 1, 24 (2003). A person will be allowed to testify as an expert if his experience and
qualifications afford him knowledge that is not common to laypersons and where his
testimony will aid the trier of fact in reaching its conclusions. People v. Miller, 173 Ill. 2d
167, 186 (1996). 'There is no predetermined formula for how an expert acquires specialized
knowledge or experience and the expert can gain such through practical experience, scientific
study, education, training or research.' Miller, 173 Ill. 2d at 186. Thus, '[f]ormal academic
training or specific degrees are not required to qualify a person as an expert; practical
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experience in a field may serve just as well to qualify him.' Lee v. Chicago Transit
Authority, 152 Ill. 2d 432, 459 (1992)." Thompson, 221 Ill. 2d at 428-29.
In the present case, the trial court initially held that it had no discretion to allow the witness
to testify. However, the trial court also mentioned that it would not have allowed the witness to
testify even if it had the discretion to do so. This court will find an abuse of discretion only when
no reasonable person would take the position adopted by the lower court. McKenzie Dredging Co.
v. Deneen River Co., 249 Ill. App. 3d 694, 700 (1993). The test is not whether the reviewing court
agrees with the trial court's decision, but whether the lower court " ' "acted arbitrarily without the
employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds
of reason and ignored recognized principles of law so that substantial prejudice resulted." ' "
American Federation of State, County & Municipal Employees, Council 31 v. Schwartz, 343 Ill.
App. 3d 553, 559 (2003), quoting Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d
591, 595 (1991), quoting In re Marriage of Aud, 142 Ill. App. 3d 320, 326 (1986). Here, the trial
court could have reasonably concluded that Dr. Benson was not qualified to testify as an expert due
to the surrender of his medical license and due to the other findings made by the Wisconsin board
of medical examiners. Considering the totality of the circumstances, we cannot conclude the trial
court abused its discretion.
Plaintiff's next contention is that the trial court erred in refusing to grant him a continuance
to retain another expert witness. Litigants do not have an absolute right to a continuance, and the
grant or denial of a motion for a continuance lies in the sound discretion of the trial court. Williams
v. Covenant Medical Center, 316 Ill. App. 3d 682, 692 (2000). The decisive factor in assessing the
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merits of a motion for a continuance is whether the moving party has exercised due diligence in
proceeding with the case. Williams, 316 Ill. App. 3d at 692.
Plaintiff claims that he acted with due diligence at all stages of the proceedings and criticizes
defendant for not bringing his motion to exclude Dr. Benson's testimony before the day of trial.
Plaintiffs asserts that "due diligence can scarcely require the Plaintiff to anticipate as-yet-unregistered
objections by the Defendant, or to make such objections in the Defendant's stead." Plaintiff's protests
do not ring true. Due diligence required plaintiff to stay abreast of the status of his own witness's
medical license, which plaintiff knew or should have known had been in a precarious state for years.
Though defendant did learn at Dr. Benson's June 2003 discovery deposition that he was not currently
licensed, defendant had no duty to file what at that point would have been a possibly premature
motion in limine, especially in light of Dr. Benson's stated intention to seek reinstatement of his
license in the next two months. Nor did defendant have a duty to monitor Dr. Benson's credentials
in the intervening months to determine whether he had regained his license before his evidence
deposition. When the evidence deposition finally transpired on May 20, 2005, plaintiff should have
expected that Dr. Benson's lack of a medical license at that time would draw a motion to exclude his
testimony. Defendant, we recognize, could have filed that motion on May 20 rather than three days
later on May 23, but the diligence at issue here is not defendant's, but plaintiff's. Since the supreme
court's 2004 decision in Sullivan, there has been no question that licensure is an absolute requirement
of a witness who would testify to the standard of care in a medical malpractice case. Plaintiff's
counsel at the time of the motion in limine had been in the case since January 24, 2002. At least
since June 2003, counsel was aware that Dr. Benson had suffered physical ailments and committed
misdeeds that negatively impacted the viability of his license, leading first to the licensing board's
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suspension of that license and, later, in the spring of 2002, to his outright surrender of it. This
knowledge obligated plaintiff's counsel to stay current on the status of this witness's license. If
counsel did not know well before May 2005 that Dr. Benson had again surrendered his license in
December 2004, counsel certainly should have known. Plaintiff has no excuse for failing to secure
an expert with adequate credentials before the May 20, 2005, deposition.
Plaintiff argues that defendant waived his objection to Dr. Benson's testimony by failing to
raise it at the May 2003 evidence deposition. Plaintiff cites three cases, Lundell v. Citrano, 129 Ill.
App. 3d 390 (1984), Banwart v. Okesson, 83 Ill. App. 3d 222 (1980), and Bireline v. Espenscheid,
15 Ill. App. 3d 368 (1973), all of which rely on Supreme Court Rule 211(c)(1) (134 Ill. 2d R.
211(c)(1)). That rule provides:
"Grounds of objection to the competency of the deponent or admissibility of
testimony which might have been corrected if presented during the taking of the deposition
are waived by failure to make them at that time; otherwise objections to the competency of
the deponent or admissibility of testimony may be made when the testimony is offered in
evidence." 134 Ill. 2d R. 211(c)(1).
The crucial phrase here is, "might have been corrected if presented during the taking of the
deposition." 134 Ill. 2d R. 211(c)(1). Dr. Benson admitted at the deposition that he was not
currently licensed in medicine. As plaintiff was powerless to remedy Dr. Benson's lack of a medical
license during the deposition, defendant was not required to raise that lack in an objection to Dr.
Benson's opinion.
Lundell, Banwart, and Bireline do not help plaintiff. In Lundell, the plaintiff sued the
defendant for lower-back injuries that the plaintiff claimed were caused when the defendant's
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automobile struck the plaintiff's. At trial, the defendant sought to exclude from evidence the portions
of a chiropractor's deposition testimony in which he opined that the plaintiff's injuries were caused
by a certain type of neck strain. The defendant argued that the chiropractor "lacked a history of the
plaintiff's lower-back problems" and that, therefore, any opinion he rendered about the cause of those
problems was speculative and lacking in foundation. Lundell, 129 Ill. App. 3d at 397. The
reviewing court held that the defendant waived the argument because "objections to deposition
testimony of an expert witness which assumes facts without evidentiary support must be made at the
time the deposition is taken." Lundell, 129 Ill. App. 3d at 398. The reviewing court explained that
"[t]he lack of foundation for [the chiropractor's] testimony was evident at the time of the deposition
and should have been pointed out to afford the plaintiff a chance to remedy the defect." Lundell, 129
Ill. App. 3d at 398.
In Banwart, the defendant moved to exclude the deposition testimony of a physician who
treated the plaintiff following an accident involving scaffolding owned by the defendant. The
defendant argued that the physician's opinions were based on facts contained in hospital records and
thus were inadmissible as hearsay. Citing Rule 211(c)(1), but providing no discussion, the reviewing
court held that the defendant's hearsay objection was waived for his failure to raise it at trial.
Banwart, 83 Ill. App. 3d at 227-28.
In Bireline, the defendants objected at trial to leading questions asked by the plaintiff during
his witness's evidence deposition. Citing Rule 211, the reviewing court summarily found the
defendants' objection waived. Bireline, 15 Ill. App. 3d at 371.
The bases for the objections in Lundell, Banwart, and Bireline differed fundamentally from
the grounds for the objection in the present case. Where a deponent's testimony is based on hearsay
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or lacks proper foundation, or where the deponent is asked an improper leading question, the
impropriety may potentially be remedied on the spot. In Lundell, Banwart, and Bireline, defects such
as these were found curable at the depositions. By contrast, Dr. Benson's lack of a medical license
could not be remedied during the deposition. See Schultz v. Richie, 148 Ill. App. 3d 903, 908 (1986)
(objection to "the competency of the deponent and [the] relevancy of the subject matter of the
testimony in whole" was not waived under Rule 211); Peterson v. Henning, 116 Ill. App. 3d 305, 310
(1983) (objection to deponent's expression of an opinion about the veracity of plaintiff's prior
statement to her was not waived, because "[t]he defect of [the witness] interjecting her opinion could
not have been 'corrected' at the time her deposition was taken").
Next, plaintiff argues that, because Dr. Benson's testimony was the lynchpin of his case,
defendant's motion in limine to exclude that testimony was "essentially equivalent" to a motion for
involuntary dismissal and, therefore, should have been brought before the April 1, 2005, deadline
for motions to dismiss. Plaintiff also complains that the trial court did not give him "an opportunity
to file or otherwise prepare a response" to defendant's motion in limine. The record contains no
indication that plaintiff asked the trial court to deny the motion in limine as untimely or allow him
a response to it. Therefore, plaintiff has not shown us that he properly preserved these arguments
for appellate review. See Morgan v. Richardson, 343 Ill. App. 3d 733, 742 (2003) (failure to object
at trial and to raise the issue in a posttrial motion results in waiver).
Last, plaintiff argues that, because his complaint stated all the elements of a cause of action
for medical malpractice, the dismissal of his case was a "palpable injustice." In support, plaintiff
cites cases that set forth the elements of medical malpractice. Our concern, however, is not whether
plaintiff's complaint was sufficient, but whether he diligently sought an expert with the proper
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credentials. We find that he did not. We conclude, therefore, that the trial court did not abuse its
discretion in denying plaintiff's motion for a continuance.
For the reasons stated above, we affirm the judgment of the circuit court of Lake County.
Affirmed.
McLAREN, J., concurs.
JUSTICE O'MALLEY, specially concurring:
The majority states that following our supreme court's decision in Sullivan, as I would do in
this case, is "retrogressive" because Sullivan is not "logical and sound" beyond its particular facts.
Slip op. at 10. Thus, the majority apparently takes a retrogressive view of judicial hierarchy, wherein
the appellate court decides the soundness of a supreme court decision and then decides whether it
should be precedential or limited to its particular facts. If the supreme court's decisions are meant
to be limited to their facts, then it has squandered considerable time and paper detailing the policy
ramifications of rulings that affect only the parties to each case the supreme court reviews, and, if
the supreme court's function is one of error correction confined to a particular case rather than policy
determination to guide lower courts such as ours, then the supreme court's practice of straining
through myriad petitions for leave to appeal to sift out the cases worthy of its review is arbitrarily
cruel. Despite what may the wisdom of the majority's belief that licensure alone should not be
dispositive in determining whether an expert healthcare witness is qualified, I must admit that I lack
the temerity to declare a supreme court decision illogical and unsound and on those grounds decline
to follow it. For the reasons I detail below, I believe our supreme court was clear in stating in
Sullivan that licensure is a " 'foundational requirement[]' " (Sullivan, 209 Ill. 2d at 114, quoting
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Jones v. Young, 154 Ill. 2d 39, 43 (1992)) for the admission of expert healthcare testimony, and I
would follow that supreme court precedent in this case.
Plaintiff challenges the trial court's decision barring Dr. Benson's testimony on the ground
that he lacked a medical license at the time he gave his evidence deposition.
Our supreme court has developed common-law requirements for the competency of a medical
expert. In Dolan v. Galluzzo, 77 Ill. 2d 279, 285 (1979), the supreme court held:
"[I]n order to testify as an expert on the standard of care in a given school of
medicine, the witness must be licensed therein. Once the fact of such license has been
established, it lies within the sound discretion of the trial court to determine if the witness
is qualified to testify as an expert regarding the standard of care. [Citation.]"
The supreme court reaffirmed the common-law licensure requirement in Purtill v. Hess, 111 Ill. 2d
229, 243 (1986) ("It must be established that the expert is a licensed member of the school of
medicine about which he proposes to express an opinion"). Recently, in Sullivan, the supreme court
dismissed the notion that its decisions since Dolan and Purtill eroded the requirement "that a health
professional expert witness must always be a licensed member of the school of medicine about
which the expert proposes to testify." Sullivan, 209 Ill. 2d at 114. The plaintiff in Sullivan argued
that the supreme court's prior decision in Jones "retreat[ed] from any rigid, formalistic rule" on
licensure. Sullivan, 209 Ill. 2d at 114. Surveying its past decisions on the qualifications of expert
medical witnesses, the court responded:
"We cannot accept this argument. Jones clearly reaffirms this court's decision in
Purtill describing two foundational requirements: that the health-care expert witness must
be a licensed member of the school of medicine about which the expert proposes to testify;
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and that the expert must be familiar with the methods, procedures, and treatments ordinarily
observed by other health-care providers in either the defendant's community or a similar
community. *** It is only after determining that both foundational requirements are
satisfied that the court proceeds to evaluate whether the allegations of negligence concern
matters within the expert's knowledge and observation." (Emphasis in original.) Sullivan,
209 Ill. 2d at 114-15.
Plaintiff cites Witherell v. Weimer, 118 Ill. 2d 321 (1987), a pre-Sullivan medical
malpractice case where the supreme court applied a "prejudice" test to the admission of opinion
testimony from an unlicensed physician. In Witherell, the court wrote:
"Language in Dolan, which was criticized in a dissenting opinion, suggested *** that an
expert must actually hold a license in order to testify. (See also Purtill v. Hess (1986), 111
Ill. 2d 229, 243; cf. Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282.) Whether
or not a license is in fact required, we are unable to perceive how the fact that [the physician]
did not hold such a license prejudiced the defendant here." Witherell, 118 Ill. 2d at 334.
Although Sullivan did not include Witherell in its survey of prior decisions, I consider
Witherell's approach no longer valid after Sullivan. The supreme court in Sullivan reaffirms as
unexceptionable the requirement that a medical expert hold a license in the school of medicine about
which the expert proposes to give opinion testimony. Sullivan forecloses the notion that the
admission of opinion testimony from a witness unlicensed in the relevant school of medicine can be
considered harmless error, as was held in Witherell. Plaintiff, in fact, fully admits that Sullivan
conflicts with Witherell, acknowledging that Sullivan "overlook[s] the commonsensical and
equitable considerations that actuated the [Witherell] court[] to permit medically expert testimony
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from unlicensed individuals who were nevertheless astute and competent expert witnesses." Plaintiff
urges us to follow Witherell, but our allegiance should be to Sullivan.
The majority discounts the above precedent in favor of the statutory factors enumerated in
section 8--2501 of the Code. There is no case from our supreme court employing section 8--2501
to determine whether a witness is a proper medical expert. However, though Dolan, decided in
1979, predated section 8--2501, which was enacted in 1985 (Pub. Act 84--7, eff. August 15, 1985),
the remaining supreme court cases discussed above were decided after the enactment of section 8--
2501. We are not free to depart from an unequivocal holding of our supreme court that licensure in
the relevant school of medicine is an absolute requirement of a medical expert giving opinion
testimony. The majority claims that I "disregard" section 8--2501 (slip op. at 6). To the contrary,
I have duly noted section 8--2501 and its import. However, "[i]t is fundamental to our judicial
system that once our supreme court declares the law on any point, its decision is binding on all
Illinois courts, and we cannot refuse to follow it, because we have no authority to overrule or modify
supreme court decisions" (Du Page County Airport Authority v. Department of Revenue, 358 Ill.
App. 3d 476, 486 (2005)). Thus, I cannot choose whom to follow here. The majority is exactly
wrong when it says that I "inappropriate[ly] *** disregard statutory authority governing the
admission of expert testimony." Slip op. at 6. On the contrary, it is the majority that inappropriately
holds that supreme court precedent is unsound.
The majority states that I fail to "examine Sullivan in context." Slip op. at 9. It further
claims that my position would inappropriately expand Sullivan beyond its facts in that the witness
in Sullivan "was never licensed in the area [of medicine] in which he was presented to opine" (slip
op. at 9), but Dr. Benson was licensed in this area of medicine up to approximately five months
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before he gave his opinion testimony. The majority states that "[t]here is nothing in Sullivan or
common experience that implies or concludes that expertise exists solely and dependently on the
existence of a license and that, upon termination of the license, regardless of cause, the expertise
fades to black and is lost until the license is renewed." Slip. op. at 7. The first clause of this
sentence may accurately state what "common experience" holds, but it does not accurately state what
Sullivan holds. Sullivan holds that a "health-care expert witness must be a licensed member of the
school of medicine about which the expert proposes to testify." Sullivan, 209 Ill. 2d at 114. Thus,
for the supreme court, a witness's competence to testify in a given school of medicine is indeed
dependent on the witness's licensure in that school. As for the second clause of the sentence, I see
no warrant for reading into Sullivan's licensure requirement an exception for a witness who, though
not licensed in the relevant school of medicine when he gives his testimony, had such a license at
some prior time and is otherwise qualified to offer an opinion in light of his skill and knowledge.
The supreme court held in Sullivan that " ' in order to testify as an expert on the standard of care in
a given school of medicine, the witness must be licensed therein.' " (Emphasis added.) Sullivan, 209
Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. If the supreme court did not intend to require that the
licensure be concurrent with the testimony, it would have said that the witness "must be or have been
licensed therein." Regardless of "common experience," Sullivan can be read but one way: the
testimony of a witness cannot be considered competent medical opinion testimony unless the witness
holds a medical license at the time of the testimony.
In fact, if ever there was a situation in which the supreme court would favor "common
experience" over a per se rule requiring licensure for a medical witness, the particular facts of
Sullivan itself presented it. The proposed witness in Sullivan was a doctor who sought to testify
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regarding the standard of care for nurses. "Common experience" tells us that there will be at least
some doctors who have enough experience with the duties of nurses (which would be uncommon
experience for the common person) to opine on the duties of nurses, since "common experience" tells
us that, in no small measure, nurses do what doctors tell them to do. Nevertheless, even under its
particular facts, Sullivan lays out a per se rule that, irrespective of a doctor's experience, including
for example his having been previously licensed as a nurse, the doctor is unqualified to testify
regarding the standard of care for a nurse due to the lack of a current license in that school of
medicine.
The majority persists that neither "Sullivan nor any other reported case is controlling or
precedential" (slip op. at 9), and in support of this approach the majority cites reflections on the
nature of precedent by federal judges, including no less a figure than Chief Justice Marshall. Slip
op. at 9-10. If we were equals with our supreme court I might consider reading Sullivan as sharply
as these authorities could be construed to warrant, but given our subordinate posture it is best that
we hew to a more narrow path. The supreme court may revise and limit Sullivan if it sees fit to do
so, but we exceed our prerogative in doing the same.
The majority's approach to precedent is strikingly reminiscent of the view vigorously
advanced by the majority in People v. Luedemann, 357 Ill. App. 3d 411 (2005). The majority in
Luedemann claimed that "every case like this one is sui generis in that no two factual situations are
identical," and so, though "[p]recedent may provide some insight ***, common sense must be our
main guide." (Emphasis added.) Luedemann, 357 Ill. App. 3d at 421. Similarly, the majority states
that "Sullivan is logical and sound only as it applies to the particular facts in Sullivan" (slip op. at
10). Where the majority in Luedemann invoked "common sense" as a guide in determining which
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cases were controlling, the majority here invokes "common experience" as the reason Sullivan does
not control. Slip op. at 7.
In reversing our decision, the supreme court in Luedemann said:
"The central flaw in the appellate court's opinion was its failure to consider and
discuss the large body of case law addressing [the relevant issue]. The appellate court freed
itself from the moorings of precedent by asserting that each of these cases is 'sui generis in
that no two factual situations are identical' and that, while precedent may provide some
insight, 'common sense' must be a court's main guide. [Citation.] The court's failure to
consider the applicable case law resulted in the court's finding a seizure based on factors that
courts had not previously found to be coercive ***.
Although it is true that the facts of no two cases are ever exactly the same, that does
not mean that a court is free simply to ignore an entire body of relevant case law and the
principles and guidelines articulated therein." (Emphasis added.) People v. Luedemann, 222
Ill. 2d 530, 551-52 (2006).
The majority also contends that my position conflicts with Thompson v. Gordon, 221 Ill. 2d
414 (2006). In Thompson, the supreme court held that a witness need not be licensed as an engineer
in order to qualify as an expert on engineering issues. The court applied the general rule that
"[e]xpert testimony *** is admissible 'if the proffered expert is qualified by knowledge, skill,
experience, training, or education, and the testimony will assist the trier of fact in understanding the
evidence.' " Thompson, 221 Ill. 2d at 429, quoting Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). The
court stated that "[w]hile licensing may be a factor to consider in determining whether an engineer
is qualified to testify as an expert witness, this court does not require an engineering license as a
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prerequisite to testifying." Thompson, 221 Ill. 2d at 429. The majority contends that Dr. Benson's
qualifications, like those of the witness in Thompson, should be judged by the general principles
governing the admissibility of expert testimony, according to which a witness's licensure in the field
about which he proposes to testify is only a factor in judging his competency as an expert. Slip op.
at 10-11. I cannot follow the majority's recommendation without disregarding Sullivan. The
approach the majority endorses was the very approach urged unsuccessfully by the plaintiff in
Sullivan. The plaintiff asked the supreme court to shun a "rigid, formalistic rule" in judging the
competency of a medical expert and instead hold that the witness's lack of a license in the relevant
school of medicine "should *** [go] only to the weight of his testimony and not its admissibility."
Sullivan, 209 Ill. 2d at 115. Against the plaintiff's urging, the supreme court held that licensure in
the relevant school of medicine is an indispensable requirement for a medical expert. Thus, a
medical witness is subject to a per se rule of licensure in the medical field about which the witness
proposes to give opinions. Accordingly, medical testimony is an exception to the holistic approach
that otherwise governs the admission of expert opinion testimony, including, as Thompson shows,
testimony about the field of engineering.
I also note that the majority's readings of Sullivan and Thompson cannot be reconciled.
According to the majority, Sullivan at least sets up a per se rule that bars the testimony of "someone
who had never been licensed in the school of medicine at issue." Slip op. at 8. The majority cannot
maintain this interpretation of Sullivan while also believing that the "totality of the circumstances"
approach of Thompson should apply to expert medical testimony, because that holistic approach
does not allow for any per se requirement with respect to licensure.
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The majority also relies on an amendment to section 8--2501 to support its position (see slip
op. at 8-9), but I need not dwell long on that topic. The amendment allows medical expert testimony
from retired witnesses who have not engaged in active practice, research, or teaching for up to five
years prior to the testimony. To the extent the amendment overrules any part of Sullivan, it does not
apply here, because Dr. Benson is not a retired expert and did not submit the requisite evidence of
continuing education to be qualified under the amendment.
Finally, I must note my uncertainty as to why the majority affirms the exclusion of Dr.
Benson's opinion testimony. The majority argues at length that Dr. Benson's testimony could not
properly have been excluded for his lack of a license alone. The majority also derides the idea that
Dr. Benson's lack of licensure affected his expertise. The majority states that it would do "violence
to the concept of memory" to conclude that a lack of licensure, regardless of its cause, affects
expertise. Slip op. at 7. However, when it comes time to consider whether to affirm the trial court's
exclusion of Dr. Benson's testimony, the majority relies on the idea that "the trial court could have
reasonably concluded that Dr. Benson was not qualified to testify as an expert due to the surrender
of his medical license." Slip op. at 12. I am at a loss as to why, under the majority's reasoning,
impugning Dr. Benson's expertise on the ground that his license was withdrawn for personal
problems does not do "violence to the concept of memory" (slip op. at 7) just as much as it would
on the ground of any other loss of license for reasons unrelated to expertise.
Based on Sullivan's strictures, I would conclude that the trial court did not err in barring the
opinion testimony of Dr. Benson. The supreme court may very well someday revisit its holding in
Sullivan, but it has not done so as of today. It is not our place to concern ourselves with the wisdom
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of the supreme court's decisions for the purpose of deciding which ones we follow; it is our place
to follow the supreme court's decisions. I would do so in this case.
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