Nedzvekas v. Fung ( 2007 )

SECOND DIVISION
FILED: June 26, 2007
No. 1-06-0479
TERESA NEDZVEKAS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 03 L 001363
)
BARNETT FUNG, D.P.M., ) HONORABLE
) ABISHI CUNNINGHAM,
Defendant-Appellee. ) JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the opinion of this court:
The plaintiff, Teresa Nedzvekas, appeals from an order of the
circuit court barring her from calling certain witnesses at trial
and the court's subsequent order granting summary judgment in favor
of the defendant, Dr. Barnett Fung, in this refiled medical
negligence action. For the reasons which follow, we affirm the
barring order, reverse the summary judgment granted in favor of the
defendant, and remand this cause to the circuit court for further
proceedings.
The facts relevant to the resolution of this appeal are
undisputed.
On October 6, 2003, the plaintiff filed this action against
the defendant, alleging that his negligent care and treatment of
her feet resulted in severe pain, scarring, and deformity. After
the plaintiff's initial counsel was granted leave to withdraw, new
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counsel was retained and appeared on November 19, 2004.
At the case management conference held on December 27, 2004,
the circuit court entered an order requiring the plaintiff to
complete her written discovery and disclose her Rule 213(f)(1) (210
Ill. 2d R. 213(f)(1)) lay witnesses and Rule 213(f)(2) (210 Ill. 2d
R. 213(f)(2)) independent-expert witnesses by January 28, 2005.
The court set the next case management conference for February 14,
2005.
On February 14, 2005, the circuit court entered an order
extending the deadline for the plaintiff to complete her written
discovery and Rule 213(f)(1) and (2) disclosures until February 28,
2005. The order also required that the plaintiff complete her Rule
213(f)(3) ((210 Ill. 2d R. 213(f)(3)) controlled-expert disclosures
by March 7, 2005.
On March 16, 2005, the defendant filed a motion to bar the
plaintiff's Rule 213(f)(1) and (2) witnesses not previously
disclosed and all Rule 213(f)(3) witnesses because the plaintiff
had failed to disclose this information in violation of the circuit
court's orders. On June 2, 2005, the circuit court entered and
continued the defendant's motion to bar, giving the plaintiff until
June 9, 2005 to complete all written discovery and Rule 213(f)(1),
(2), and (3) disclosures. The next case management conference was
set for June 10, 2005.
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The plaintiff did not attend the June 10, 2005, case
management conference. That same day, the circuit court entered an
order barring the plaintiff from "introducing at trial all Illinois
Supreme Court Rule 213(f)(2) witness testimony not previously
disclosed and *** all Illinois Supreme Court Rule 213(f)(3) witness
testimony for failure to comply with court orders."
On June 17, 2005, the plaintiff served the defendant with her
Rule 213(f) disclosures, in which she disclosed the Rule 213(f)(1),
(2), and (3) witnesses she intended to call at trial. Relevant to
this appeal, the plaintiff disclosed Dr. Lowell Weil as her Rule
213(f)(3) controlled-expert witness and indicated that Dr. Weil was
expected to testify as to the defendant's alleged deviation from
the standard of care and the causation of her injuries.
On July 18, 2005, the defendant filed a motion for summary
judgment pursuant to section 2-1005 of the Code of Civil Procedure
(735 ILCS 5/2-1005 (West 2004)). While the defendant's motion for
summary judgment was pending, the plaintiff filed a motion to
vacate the circuit court's June 10, 2005, order barring her from
calling certain witnesses. The circuit court denied the
plaintiff's motion to vacate on November 3, 2005.
On December 6, 2005, the circuit court granted the defendant's
motion for summary judgment, finding that, because the plaintiff
had been barred from introducing expert testimony capable of
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establishing that the defendant deviated from the standard of care
and caused the plaintiff's injuries, she would be unable to meet
her burden of proof. This appeal followed.
The plaintiff argues that the circuit court abused its
discretion in barring any Rule 213(f)(2) witnesses not previously
disclosed and all Rule 213(f)(3) witnesses. The plaintiff contends
that the sanction imposed by the circuit court was too severe under
the circumstances of this case. We disagree.
Supreme Court Rule 219(c) authorizes the circuit court to
prescribe sanctions, including barring witnesses from testifying,
when a party fails to comply with the court's orders regarding
discovery. 166 Ill. 2d R. 219(c); Athans v. Williams, 327 Ill.
App. 3d 700, 703, 764 N.E.2d 586 (2002). The imposition of
sanctions is within the discretion of the circuit court, and the
court's decision in fashioning a sanction will not be disturbed on
appeal absent a clear abuse of that discretion. Athans, 327 Ill.
App. 3d at 703.
In determining whether the circuit court abused its discretion
in applying a sanction, this court must look to the same factors
that the circuit court was required to consider in deciding an
appropriate sanction. Smith v. P.A.C.E., 323 Ill. App. 3d 1067,
1076, 753 N.E.2d 353 (2001). These factors include: (1) the
surprise to the adverse party; (2) the prejudicial effect of the
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witness' testimony; (3) the nature of the testimony; (4) the
diligence of the adverse party; (5) the timeliness of the
objection; and (6) the good faith of the party seeking to offer the
testimony. Boatman's Nation Bank of Belleville v. Martin, 155 Ill.
2d 305, 314, 614 N.E.2d 1194 (1993). No single factor is
determinative, and each case presents a unique factual situation
which must be taken into consideration when determining whether a
particular sanction is proper. Smith, 323 Ill. App. 3d at 1076.
In this case, the record reveals that the plaintiff failed to
comply with three separate discovery deadlines set by the circuit
court. The only excuse offered by the plaintiff for her
noncompliance with these deadlines was her difficulty in arranging
a meeting with her controlled-expert witness, Dr. Weil, and, then,
her difficulty in locating specific x-rays requested by Dr. Weil.
The plaintiff, however, acknowledges in her briefs that she did not
inform the circuit court of her problems in complying with the
circuit court's discovery orders, nor does it appear that she ever
sought a continuance.
Seven days after the circuit court entered the order barring
certain witnesses from testifying at trial, the plaintiff served
the defendant with her Rule 213(f) disclosures. The plaintiff's
disclosures named Dr. Weil as her sole controlled-expert witness
and provided, inter alia, the following:
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"Dr. Weil holds the following opinions in
this matter: Plaintiff TERESA NEDZVEKAS
sustained an injury to her feet that resulted
from podiatric surgery, in which the
performing surgeon, DR. BARNETT FUNG, deviated
from the medical standard of care. Dr. Weil
holds the view that there is a causal
relationship between the podiatric surgery
performed on [sic] DR. BARNETT FUNG on
February 28, 1998 and the Plaintiff's
permanent damage to her feet, and that these
conditions have reached a state of maximum
medical improvement.
***
The above opinions are also based upon
the training, education, knowledge, and
experience of the witness."
For each controlled-expert witness, Rule 213(f)(3) requires
the disclosure of "(i) the subject matter on which the witness will
testify; (ii) the conclusions and opinions of the witness and the
bases therefor; (iii) the qualifications of the witness; and (iv)
any reports prepared by the witness about the case." 210 Ill. 2d
R. 213(f)(3). As acknowledged by the plaintiff in her brief, the
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details of Dr. Weil's opinions are not contained in her Rule 213(f)
disclosures. Rule 213 requires specifics. Sullivan v. Edward
Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Providing
the basis of a controlled-expert's opinion in a "catch-all"
provision does not comply with the disclosure requirements of this
rule. Chapman v. Hubbard Woods Motors, Inc., 351 Ill. App. 3d 99,
110, 812 N.E.2d 389 (2004).
Furthermore, nothing in the record suggests a lack of
diligence on the part of the defendant in conducting discovery.
The plaintiff argues that the defendant was not diligent because
his motion to bar does not include a statement, pursuant to Rule
201(k), that, after consultation and reasonable attempts to resolve
their differences, the parties have been unable to reach an accord.
166 Ill. 2d R. 201(k). Contrary to the plaintiff's argument,
however, compliance with Rule 201(k) is not required when, as in
this case, a party has disregarded discovery orders issued by the
circuit court. Gayton v. Levi, 146 Ill. App. 3d 142, 150, 496
N.E.2d 1045 (1986).
By violating three separate court orders setting the deadlines
for disclosing witnesses, and, then, untimely serving the defendant
with an insufficient witness disclosure, the plaintiff demonstrated
a deliberate and unwarranted disregard of the court's authority.
Based upon the record before us, we cannot conclude that the
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circuit court abused its discretion in entering the June 10, 2005,
order barring the plaintiff from calling certain witnesses at trial
or denying the plaintiff's motion to vacate that order.
Next, the plaintiff argues that the circuit court erred in
granting summary judgment in favor of the defendant based upon her
inability to present expert testimony establishing the defendant's
deviation from the standard of care and causation. The plaintiff
contends that summary judgment should not have been granted because
the necessary expert testimony can still be provided by one of her
treating physicians, Dr. Steven Rembos, who is not barred by the
circuit court's June 10, 2005, order.
In response, the defendant maintains that the plaintiff has
waived this argument by failing to raise it in the circuit court.
Waiver, however, is a limitation on the parties and not this court.
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
518, 732 N.E.2d 528 (2000). In the interests of achieving a just
result and maintaining a sound and uniform body of precedent, we
will consider this issue. Village of Lake Villa v. Stokovich, 211
Ill. 2d 106, 121, 810 N.E.2d 13 (2004).
Summary judgment is a drastic means of disposing of litigation
and should only be employed when the pleadings and evidentiary
material in the record, when viewed in the light most favorable to
the nonmovant, show that there is no genuine issue of material fact
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and the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005(c) (West 2004); Happel v. Wal-Mart Stores, Inc.,
199 Ill. 2d 179, 186, 766 N.E.2d 1118 (2002). We review the
circuit court's order granting summary judgment de novo. Harrison
v. Hardin County Community Unit School District No. 1, 197 Ill. 2d
466, 470-71, 758 N.E.2d 848 (2001).
In a medical malpractice action, a plaintiff must generally
present expert testimony establishing that the defendant deviated
from the proper standard of care and that the deviation proximately
caused her injuries. Suttle v. Lake Forest Hospital, 315 Ill. App.
3d 96, 102-03, 733 N.E.2d 726 (2000). Where a plaintiff is unable
to present such expert testimony, summary judgment in favor of the
defendant is appropriate. Higgens v. House, 288 Ill. App. 3d 543,
547, 680 N.E.2d 1089 (1997).
The order entered by the circuit court on June 10, 2005, did
not preclude the plaintiff from calling all expert witnesses at
trial. Rather, the order barred the plaintiff from presenting all
Rule 213(f)(3) witnesses and any Rule 213(f)(2) witnesses not
previously disclosed. In response to the interrogatories
propounded by the defendant in the original action, the plaintiff
disclosed one of her treating physicians, Dr. Rembos, as an
individual with knowledge that the defendant deviated from the
applicable standard of care and who had discussed with the
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plaintiff or her counsel the relationship between the defendant's
acts and/or omissions and the injuries she suffered.
A treating physician is considered a Rule 213(f)(2)
independent-expert witness. See 210 Ill. 2d R. 213(f)(2),
Committee Comments, at lxxxvi ("'Independent expert witnesses'
include persons such as *** a doctor who gives expert testimony
based on the doctor's treatment of the plaintiff's injuries").
Because Dr. Rembos was one of the plaintiff's treating physicians
and was disclosed prior to the circuit court's June 10, 2005,
order, his testimony was not barred. A plaintiff may rely upon the
testimony of a treating physician in proving her medical negligence
action. See Benison v. Silverman, 233 Ill. App. 3d 689, 698, 599
N.E.2d 1101 (1992). Consequently, it appears that the June 10,
2005, order did not entirely prevent the plaintiff from presenting
expert testimony that the defendant deviated from the applicable
standard of care and caused her injuries.
The defendant argues that the plaintiff cannot rely on Dr.
Rembos' testimony because the plaintiff failed to disclose the
basis for the doctor's opinions and failed to present an affidavit
from the doctor with her response to the defendant's motion for
summary judgment. The argument, however, is not well taken.
First, Dr. Rembos is a Rule 213(f)(2) witness. Unlike a Rule
213(f)(3) controlled-expert witness, the basis for a Rule 213(f)(2)
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independent-expert witness' opinion need not be disclosed. 210
Ill. 2d Rs. 213(f)(2), (3). For each independent-expert witness,
Rule 213(f)(2) requires only the disclosure of "the subject on
which the witness will testify and the opinions the party expects
to elicit." 210 Ill. 2d R. 213(f)(2). In this case, the plaintiff
disclosed that Dr. Rembos had knowledge that the defendant deviated
from the applicable standard of care and that the defendant's acts
and/or omissions caused the injuries she suffered. We find that
this disclosure was sufficient to comply with the requirements of
Rule 213(f)(2).
Furthermore, a defendant moving for summary judgment bears the
initial burden of production. Pecora v. County of Cook, 323 Ill.
App. 3d 917, 933, 752 N.E.2d 532 (2001). The defendant may meet
his burden of production in two ways: (1) by affirmatively showing
that some element of the case must be resolved in his favor,
(Hutchcraft v. Independent Mechanical Industries, 312 Ill. App.3d
351, 355, 726 N.E.2d 1171 (2000)), or (2) by establishing "that
there is an absence of evidence to support the nonmoving party's
case." (Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986)). When a defendant seeks to
establish that the nonmovant lacks sufficient evidence to prove an
essential element, the defendant is required to do more than "point
out" the absence of evidence. Pecora, 323 Ill. App. 3d at 934.
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Only when the defendant satisfies his initial burden does the
burden then shift to the plaintiff to present a factual basis which
would arguably entitle her to a favorable judgment. Paul H.
Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App. 3d 65, 78,
829 N.E.2d 818 (2005); Kleiss v. Bozdech, 349 Ill. App. 3d 336,
350, 811 N.E.2d 330 (2004); Pecora, 323 Ill. App. 3d 917, 933-34,
752 N.E.2d 532 (2001); Williams v. Covenant Medical Center, 316
Ill. App. 3d 682, 689, 737 N.E.2d 662 (2000); Hutchcraft, 312 Ill.
App. 3d at 355. "A party opposing summary judgment may rely solely
upon the pleadings to create a question of material fact until the
movant supplies facts that would clearly entitle [him] to judgment
as a matter of law." Williams, 316 Ill. App. 3d 689.
In this case, the defendant's motion for summary judgment
contained no affidavits and only a bare assertion that, because the
plaintiff was barred from presenting expert testimony at trial, she
could not maintain her burden to prove that the defendant deviated
from the applicable standard of care and that the defendant's
deviation caused her injuries. However, the June 10, 2005, order
did not prevent the defendant from calling all expert witnesses,
only all Rule 213(f)(3) witnesses and any Rule 213(f)(2) witnesses
not previously disclosed. It appears that a Rule 213(f)(2)
witness, namely Dr. Rembos, was previously disclosed and is,
therefore, not barred from testifying. Additionally, the
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plaintiff's disclosures indicate that Dr. Rembos may be able to
offer an opinion regarding the defendant's deviation from the
applicable standard of care and the cause of the plaintiff's
injuries. We, therefore, conclude that the defendant's assertion
was insufficient to establish that the necessary expert testimony
could not be presented at trial. Consequently, the defendant
failed to meet his burden of production, and the plaintiff was
entitled to rely on her pleading to create an issue of material
fact. See Pecora, 323 Ill. App.3d at 935.
In summary, we affirm the June 10, 2005, order of the circuit
court barring the plaintiff from calling at trial any Rule
213(f)(2) witnesses not previously disclosed and all Rule 213(f)(3)
witnesses, reverse the order of the circuit court granting summary
judgment in favor of the defendant, and remand the cause for
further proceedings.
Affirmed in part; reversed in part and remanded.
WOLFSON, P.J., and HALL, J., concur.
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