Brummel v. Grossman

2018 IL App (1st) 170516
No. 1-17-0516
Fourth Division
June 28, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
MARIA BRUMMEL, Executor of the Estate of Bruce ) Appeal from the Circuit Court
Brummel, Deceased, ) of Cook County.
)
Plaintiff-Appellant, ) No. 14 L 13363
)
v. ) The Honorable
) John P. Callahan, Jr.,
RICHARD D. GROSSMAN; AGNES E. GROSSMAN; ) Judge Presiding.
LAW OFFICES OF RICHARD D. GROSSMAN; )
RICHARD C. DANIELS; DANIELS, LONG & )
PINSEL, LLC; JASON S. MARKS; and NOONAN, )
PERILLO, POLENZANI & MARKS, LTD., )
)
Defendants )
)
(Richard D. Grossman; Agnes E. Grossman; Law Offices )
of Richard D. Grossman; Richard C. Daniels; Daniels, )
Long & Pinsel, LLC, Defendants-Appellees). )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the trial court's grant of summary judgment against
plaintiff Maria Brummel’s amended complaint for legal malpractice committed by
defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, LLC
No. 1-17-0516
(collectively, Daniels defendants) and attorneys Richard D. Grossman and Agnes E.
Grossman and the Law Offices of Richard D. Grossman (collectively, Grossman
defendants). 1 The lawsuit, originally filed by Bruce Brummel 2 (decedent) on December 30,
2014, alleged legal malpractice against defendants for negligently representing him during a
case he filed in 2009 against his employer, Nicor Gas, for retaliatory discharge and for a
violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), in which he
claimed that Nicor terminated his employment because he reported to various government
agencies that the drinking water where he worked was contaminated. In the instant case, the
trial court entered an order on April 13, 2016, limiting the amount of additional oral
discovery sought by plaintiff. On February 3, 2017, the trial court granted defendants’ motion
for summary judgment, finding that the decedent could not have prevailed in the
whistleblower case regardless of defendants’ representation, since there was no evidence that
the decedent was discharged for a protected activity, and that the doctrine of judicial estoppel
barred the decedent’s claim that he was able to return to work. Plaintiff appeals, arguing (1)
that a genuine issue of material fact existed as to whether Nicor terminated the decedent’s
employment for reporting toxic work conditions to government authorities, and (2) that the
doctrine of judicial estoppel did not bar his claim. Plaintiff also appeals the trial court’s April
13, 2016, order limiting the amount of additional oral discovery, arguing that the trial court
1
Plaintiff also alleged a separate count of legal malpractice against the Daniels defendants,
attorney Jason S. Marks, and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively,
Marks defendants) for their handling of a separate related worker’s compensation and/or occupational
diseases claim, but those counts are not at issue in this appeal.
2
Bruce Brummel passed away on June 3, 2015, during the pendency of his legal malpractice
lawsuit. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October
6, 2015.
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No. 1-17-0516
erred when it allowed her to conduct only one deposition prior to responding to the motion
for summary judgment. For the following reasons, we affirm the judgment of the trial court.
¶2 BACKGROUND
¶3 The decedent’s employer, Nicor Gas (Nicor), is a natural gas distribution company. The
decedent began working for Nicor in December 1980 when he was 18 years old, and he
remained with the company for over 22 years. The decedent was employed as a distribution
technician with job duties that included repairing gas mains, operating machines, and
directing and leading members of his crew. His job required physical labor, which he
described as heavy, strenuous work. In 2001, the decedent and some of his coworkers at
Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and
fatigue. The decedent consulted a physician, who opined that the decedent’s symptoms were
caused by ingestion of chemicals. From 2001 to 2003, the decedent, as well as other
employees, informed Nicor about his concerns that its drinking water was contaminated, but
Nicor did not take any action to investigate or remedy the problem. The decedent also
reported his concerns to the Occupational Safety and Health Administration in 2001 after
Nicor did not take remedial action. The decedent conducted his own investigation, designed
to discover the source of the chemicals at the Nicor facility where he worked, and he found
that the drinking water in the break room connected to the flush line of the boiler, which
allowed toxins to be emitted from the boiler into the drinking water consumed by Nicor
employees. The decedent informed his union about the contaminated drinking water, but the
union also ignored his requests for help. In late 2002, the decedent reported his findings
concerning the connection between the boiler and the drinking water to the Occupational
Safety and Health Administration for the second time, and he reported his findings to the
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No. 1-17-0516
City of Aurora, the Kane County Health Department, and the Illinois Department of Public
Health. Although the decedent continued to consult his physician for gastrointestinal
problems, his health continued to deteriorate, and he began a medical leave of absence on
October 6, 2003.
¶4 On October 14, 2003, the City of Aurora’s emergency response team and head plumbing
inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the
facility. The inspection revealed that the drinking water was contaminated with methylene
chloride and/or dichloro methane. Nicor later resolved the problem by installing backflow
protection devices, which conformed the plumbing to city, state, and federal water safety
regulations.
¶5 Once the decedent was on medical leave, Nicor placed him in its short-term disability
plan governed by the company’s Employee Benefit Association. In order to receive benefits,
the Employee Benefit Association rules required the decedent to provide proof of his short-
term disability.
¶6 On December 26, 2003, Nicor’s senior labor and employee relations consultant, Jean
Smolios, sent a letter to the decedent, advising him that Nicor had not received medical
documentation to support his leave of absence, and that, since the Employee Benefit
Association rules required the decedent to provide proof of his disability claim within 18
days of his absence, failure to provide the documentation could result in the suspension of his
Employee Benefit Association benefits.
¶7 Smolios sent the decedent another letter on December 29, 2003, advising him that his
Employee Benefit Association benefits would be suspended on January 12, 2004, if he did
not provide medical documentation supporting his leave of absence.
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¶8 On January 13, 2004, Nicor’s medical services administrator, Eileen Boedigheimer, sent
the decedent a letter, advising him that, since Nicor never received medical documentation
supporting his leave of absence, his Employee Benefit Association benefits were suspended
as of January 12, 2004, and that the suspension would be in effect until Nicor were to receive
the appropriate documentation in the future. Boedigheimer also offered to fax another copy
of the required form to the decedent’s physician, as she previously discussed with the
decedent on the telephone.
¶9 Three days later, on January 16, 2004, the decedent’s physician, Dr. J. David Siegfried,
faxed an “Employee Benefit Association Proof of Claim Form” and “Family and Medical
Leave Act of 1993 Certification of Health Care Provider” form to Nicor, which stated that he
diagnosed the decedent with chronic reflux disease and esophagitis. In the certification of
health care provider form, Dr. Siegfried opined that the decedent was indefinitely disabled as
of October 6, 2003, and that his disability was still “ongoing.” Dr. Siegfried also answered in
response to question 5.b that, from October 3, 2003, to October 3, 2004, the decedent would
be “off intermittently when exacerbations occur or treatment is necessary.” In response to
question 5.c, Dr. Siegfried opined that the decedent “is unable to work from 10/6/03 thru
indefinite.” In response to question 7.a, which asked whether the decedent was able to
perform work of any kind, Dr. Siegfried answered that the decedent “is able to work unless
exacerbations occur, which is intermittently.” Despite submitting these documents, Nicor
never lifted the suspension of his Employee Benefit Association benefits.
¶ 10 Three months later, on March 16, 2004, Smolios mailed the decedent another letter,
advising him that Nicor had not received medical documentation to support his October 6,
2003, leave of absence, and that Nicor would terminate his employment if he did not provide
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a medical certification in support of his leave of absence by April 2, 2004. Smolios noted
that, in late December, Nicor “again requested that you provide documentation to support
your absence and again you failed to provide evidence in support of your continued
absence.” In response, on March 26, 2004, the decedent sent Nicor copies of the same two
forms that Dr. Siegfried faxed to Nicor on January 16, 2004, but provided Nicor no new
information.
¶ 11 On April 2, 2004, Smolios mailed the decedent another letter, explaining that the
documentation he provided on March 26, 2004, was the same information from October of
2003, and that Nicor had not received any documentation concerning his treatment or
condition since that time. Smolios enclosed a blank proof of claim form to be completed by
the decedent’s physician, and she advised the decedent that, “[i]n order for the company to
maintain you as an employee it is imperative that you supply the company’s Medical
Department with information regarding your current health status and treatment program.”
She further advised the decedent that, “[i]f this information is not received by the company as
of Monday, April 12, [2004,] your employment with Nicor Gas will be terminated.” Despite
Smolios’ letter, the decedent never submitted any additional medical documentation.
¶ 12 On April 15, 2004, Smolios sent the decedent another letter, advising him that his right to
a leave of absence under the Family and Medical Leave Act of 1993 had expired and that
Nicor was terminating his employment since he had not provided appropriate medical
documentation to support his leave of absence despite numerous requests.
¶ 13 Later that year, on December 17, 2004, the decedent applied for disability benefits from
the Social Security Administration, representing that he was disabled and unable to work
since he began his leave of absence. The Social Security Administration denied his
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application, but an administrative law judge reversed the denial on appeal in a written
decision on January 9, 2007. The administrative law judge determined that the decedent had
been disabled and was “not able to engage in any substantial gainful activity” since October
6, 2003, that he was unable to perform his job as a distribution technician, and that his job
skills did not transfer to other occupations within a residual functional capacity. Attorney
George Weber represented the decedent in those proceedings.
¶ 14 In late 2005 or early 2006, the decedent discussed his health and work issues with
defendant attorney Richard C. Daniels, a friend that the decedent had met through the
Shriner’s. Defendant Daniels agreed to represent decedent in a workers’ compensation and/or
occupational diseases case and an action against Nicor for retaliatory discharge and violating
the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). The decedent and defendant
Daniels entered into a retainer agreement that defendant Daniels would receive a contingency
fee of one-third of any recovery and that the decedent would pay all costs. Defendant Daniels
also agreed to be paid his fee on the workers’ compensation and/or occupational diseases
action in accordance with the provisions of the Workers’ Compensation Act (820 ILCS 305/1
et seq. (West 2004)) and the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq.
(West 2004)). After the decedent retained defendant Daniels as counsel, defendant Daniels
recommended that the decedent also retain defendant attorney Jason S. Marks as cocounsel
for the Workers’ Compensation Act and/or Workers’ Occupational Diseases Act claim, since
defendant Marks represented that he had experience in handling those cases. Defendant
Marks agreed, defendants Daniels and Marks entered into a fee sharing agreement, and the
decedent agreed. Defendant Daniels also recommended that the decedent retain defendant
attorneys Richard and Agnes Grossman, who represented that they specialized in litigating
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No. 1-17-0516
“whistleblower” cases. The decedent agreed, and the Grossman defendants entered into an
oral contingency agreement with the decedent. Defendant Daniels continued to supervise and
participate in the whistleblower case on a regular basis.
¶ 15 In 2006, defendant Marks filed a workers’ compensation and/or occupational diseases
claim against Nicor on the decedent’s behalf, claiming that the decedent was permanently
disabled as a result of exposure to contaminated water while working at Nicor. Five years
later, while the workers’ compensation and/or occupational diseases claim was still pending,
Nicor offered the decedent a lump sum settlement of $125,000, and decedent accepted it on
October 20, 2011. An arbitrator approved the settlement five days later on October 25, 2011.
The settlement order stated that the decedent claimed that he was “unable to work” and had
an injury to his “whole body,” which rendered him “permanently and totally disabled for any
employment.”
¶ 16 On April 13, 2009, after the decedent filed his workers’ compensation and/or
occupational diseases claim but before it settled, the Grossman defendants filed a lawsuit on
the decedent’s behalf against Nicor for retaliatory discharge and violation of the
Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), alleging that Nicor unlawfully
terminated his employment in retaliation for him reporting to various government officials
that he suspected the drinking water at the Nicor facility where he worked was contaminated.
In the complaint, the decedent claimed that, after he reported the water contamination to
various government agencies, Nicor began a course of conduct calculated to result in the
termination of his employment, which included claims that his supervisors (1) did not
respond to his requests for adequate staffing and then blamed him for alleged work
deficiencies, (2) failed to process his medical leave documentation and deliberately frustrated
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No. 1-17-0516
his attempts to obtain disability benefits, and (3) told other employees that he was a
“troublemaker,” that they were going to “get” him, and to report his minor infractions so that
negative information be placed in his file.
¶ 17 On January 30, 2013, the decedent was deposed in the whistleblower case. At his
deposition, he testified that he had not worked or looked for work in the nine years since he
began his leave of absence on October 6, 2003. He further testified that he had been unable to
work since he began his leave of absence and that he was physically incapable of performing
his prior job at Nicor. He also testified that he was “very sick” and “on the ground sick” from
the beginning of his leave of absence through at least 2007, when an administrative judge
reversed the denial of his application for Social Security Administration benefits on appeal,
and that he “had no idea” when he would have been able to return to any kind of
employment.
¶ 18 The decedent testified that, after Smolios’s letter of April 2, 2004, he never provided
Nicor any further medical documentation to support his continuing leave of absence. The
decedent also did not recall sending between October of 2003 and April 15, 2004, any other
medical documentation to support his leave of absence to Nicor, other than the two forms
signed by Dr. Siegfried. The decedent admitted that, other than the two forms faxed by Dr.
Siegfried, he was unaware of any additional medical documentation in support of his leave of
absence sent to Nicor prior to faxing those forms on January 16, 2004. The decedent further
admitted that, although Dr. Siegfried signed the two forms in January of 2004, Dr. Siegfried
had not examined or treated him since October 31, 2003. The decedent also testified that he
did not recall if he tried to schedule an appointment with Dr. Siegfried to obtain the medical
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No. 1-17-0516
documentation or if he spoke with anyone at Nicor to ask for more time to obtain the
documentation after receiving Smolios’ April 2, 2004, letter.
¶ 19 The decedent further testified that he knew when he applied to the Social Security
Administration for disability benefits that he needed to provide medical evidence that he was
disabled and unable to perform any gainful activity and that he presented such evidence
under penalty of perjury. He also testified that he agreed with the findings of the
administrative law judge that he “had been disabled since October 6, 2003,” that he was “not
able to engage in any substantial gainful activity because of [his] determinable physical or
mental impairment,” that he had “not engaged in any gainful activity since October 6, 2003,”
and that he was “unable to perform any task relevant work.”
¶ 20 On December 13, 2013, Nicor filed a motion for summary judgment, arguing that the
decedent could not prove that Nicor discharged him in retaliation for his protected activities
because the record showed that Nicor terminated the decedent’s employment for failing to
provide, after numerous requests, the required medical documentation to support his
continuing medical leave of absence. Nicor also argued that the decedent could not prove
damages, an essential element of his claims, because the record showed that he repeatedly
admitted that he was disabled and unable to work since he began his leave of absence and
that judicial estoppel barred him from claiming otherwise.
¶ 21 After a hearing on February 5, 2014, the trial court granted the motion for summary
judgment, finding that there was no genuine issue of material fact that Nicor terminated the
decedent’s employment because it had not received medical documentation supporting his
continuing leave of absence. The trial court also found that there was no genuine issue of
material fact that the decedent was unable to work and that the decedent could not prove
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damages as a result. After the trial court granted the motion for summary judgment, the
decedent retained new counsel, Edmund Moran, Jr., who then filed motion to reconsider the
summary judgment finding, which the trial court denied.
¶ 22 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and
Grossman defendants for legal malpractice for their handling of the whistleblower case
against Nicor for retaliatory discharge and violating the Whistleblower Act (740 ILCS 174/1
et seq. (West 2004)). The decedent claimed that the Grossman defendants did not adequately
conduct or respond to discovery, including a failure to respond to requests to admit that
resulted in those requests being deemed admitted, which resulted in the trial court granting
Nicor’s motion for summary judgment. By failing to respond to the requests to admit, the
decedent admitted that he did not work for any employer since he began his leave of absence,
that he did not seek alternative employment since Nicor discharged him, that he was disabled
and unable to perform the essential functions of his former job at Nicor since he began his
leave of absence, that he was disabled and unable to perform any gainful employment due to
disability since he began his leave of absence, and that he submitted an application to the
Social Security Administration for disability benefits in which he represented, under penalty
of perjury, that he was disabled and unable to work since October 6, 2003. The decedent also
argued that the trial court granted summary judgment in favor of Nicor because the
Grossman defendants failed to respond to the motion summary judgment or appear at the
hearing on the motion on February 5, 2014. The lawsuit also alleged separate counts of legal
malpractice against the Daniels and Grossman defendants for their handling of the decedent’s
related workers’ compensation and/or occupational diseases claim; however, those counts are
not at issue in this appeal.
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¶ 23 In the complaint, the decedent also claimed that the trial court in the whistleblower case
granted Nicor’s motion to transfer venue and transferred the case from Cook County to
Du Page County. The decedent alleged that Nicor served a discovery request on the
Grossman defendants in January of 2010, and later that year, the trial court dismissed the
case for want of prosecution, since the Grossman defendants failed to appear in court. The
decedent alleged that the trial court later reinstated the case, but on November 17, 2010, the
Grossman defendants voluntarily non-suited the case without informing the decedent. The
decedent argued that the Grossman defendants subsequently refiled the whistleblower case
again in an identical complaint on October 28, 2011—three days after the workers’
compensation and/or occupational diseases settled—and the trial court ultimately transferred
the case from Cook County to Du Page County. The decedent also alleged in the complaint
that, in late 2012, he attended a case management conference but the Grossman defendants
did not appear and the trial court told him that his attorneys had not appeared in court for
some time. The decedent claimed he immediately called the Grossman defendants, who did
not respond to his call. The decedent then called defendant Daniels, who assured him
everything was fine, that he would call the Grossman defendants, and that the decedent did
not need to worry about the handling of his case.
¶ 24 The decedent also claimed in the complaint that the trial court granted Nicor’s motion to
compel answers to discovery and set a deadline for the decedent to produce documents, but
that the Grossman defendants only partially responded to the discovery requests, despite the
decedent providing the Grossman and Daniels defendants with all the information needed to
respond. The decedent alleged that, as a result, the trial court entered a sanction order against
the decedent on May 16, 2013, barring him from offering any documents into evidence at
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No. 1-17-0516
trial that had not been produced. The same day, the trial court granted Nicor’s motion for the
request to admit deemed admitted, since the Grossman defendants failed to respond to the
request to admit. The decedent also claimed that the Grossman defendants never served
discovery requests on Nicor.
¶ 25 The decedent also claimed that, in 2013, Nicor withdrew its motion for summary
judgment and began settlement discussions with the decedent. The Grossman defendants
initially told the decedent that Nicor offered $240,000 to settle all claims, then later told him
that Nicor reduced the amount to $50,000, and again later reduced the offer to $20,000. Nicor
then refiled its motion for summary judgment, since it was unable to settle the whistleblower
case with the decedent.
¶ 26 The decedent also alleged that he had defenses that would have defeated Nicor’s motion
for summary judgment, but neither the Grossman defendants nor the Daniels defendants told
him about the motion and the consequences of not responding to it. The decedent alleged
that, for unknown reasons, neither the Grossman defendants nor the Daniels defendants
responded to Nicor’s motion for summary judgment. The decedent argued that, since the
Grossman and Daniels defendants (1) did not develop evidence, including taking the
deposition of persons who could support the decedent’s claim that he was adversely treated
and wrongfully discharged; (2) did not respond to the motion for summary judgment; (3) did
not request additional time to respond to the motion; (4) did not tell the decedent that he
would need to retain new counsel to respond the motion; and (5) did not appear at the hearing
on the motion, the trial court granted the summary judgment motion and dismissed the
decedent’s case. The decedent claimed that he personally attended the hearing on the motion
for summary judgment and requested the trial court to grant him time to find a new attorney
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and respond to the motion, but he claimed that the trial court denied his request due in part to
the Grossman defendants’ dilatory tactics and lack of attention to the case throughout the
litigation.
¶ 27 The decedent’s legal malpractice complaint also alleged new information that did not
appear in the whistleblower complaint. The decedent claimed that Nicor’s course of adverse
conduct against him included significantly increasing the number of assignments he was
expected to accomplish, significantly increasing quality control inspection, sending him
home without pay for non-existent offenses, taking amenities from him and his team that
other teams were allowed to have such as microwaves and water coolers, singling him out
and acting angrily towards him, ordering him to report his time in a certain fashion and then
accusing him of stealing time when he followed management directions, providing written
reprimands for his minor work infractions when in the past he was issued only verbal
warnings, withdrawing a promotion that was offered to him, and singling out his team by
preparing photographic records of the work his team performed.
¶ 28 The decedent also newly alleged in the legal malpractice complaint that he had asked
Nicor to assign him to a less-physically stressful job but Nicor did not accommodate him,
despite the provisions of his union’s contract with Nicor, which provided that Nicor had an
obligation to attempt to locate a different job to accommodate an employee’s disability. The
decedent claimed that he also sought a referral to Dr. Katherine Duvall, a physician who
specializes in work-related injuries, but he could not obtain a medical referral. The decedent
claimed that he told Nicor personnel that he was having difficulty obtaining additional
medical documentation due to his poor health and that Nicor’s nurse told him that he should
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No. 1-17-0516
not worry because she would take care of following up on the documentation, which never
happened.
¶ 29 On May 15, 2015, the decedent filed a motion to expedite discovery and advance trial,
since his physician diagnosed that his medical condition was terminable. On May 19, 2015,
the trial court granted the motion except for his request to advance the trial. Defendants
submitted written discovery, and the decedent answered on May 28, 2015. The trial court
scheduled the decedent’s deposition for June 3, 2015, but the decedent passed away that day
before he was deposed. The trial court substituted Maria Brummel, the executor of his estate,
as plaintiff on October 6, 2015.
¶ 30 Neither the decedent nor plaintiff submitted written discovery until January 7, 2016, and
the Grossman defendants answered. Plaintiff also did not notice any depositions, other than
the decedent’s, before the Grossman defendants filed their motion for summary judgment.
¶ 31 On February 1, 2016, the Grossman defendants filed a motion for summary judgment,
and the Daniels defendants joined. In the motion, the Grossman defendants argued they were
entitled to entry of summary judgment because the decedent’s deposition testimony in the
whistleblower case alleged foreclosed plaintiff’s ability to prove a “case within a case.”
Specifically, the Grossman defendants argued the decedent’s deposition testimony
established that (1) Nicor terminated his employment, since he failed to provide required
medical documentation to support his leave of absence despite numerous requests from his
employer, (2) he was permanently and totally disabled and unable to perform the essential
functions of his job at Nicor, and (3) he is judicially estopped from claiming otherwise, since
he previously admitted he was totally disabled and unable to work in proceedings before the
Social Security Administration and Illinois Workers’ Compensation Commission.
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¶ 32 On March 3, 2016, after the Grossman defendants filed their motion for summary
judgment, plaintiff filed a motion to take additional oral discovery, which attached an
affidavit from her counsel, Julie Boynton, naming at least 32 witnesses whom plaintiff
argued needed to be deposed before plaintiff could respond to the motion for summary
judgment. Plaintiff later amended the motion by substituting her attorney’s affidavit with her
own affidavit. In the motion, plaintiff claimed that, at the time defendants filed their motion
for summary judgment motion, the parties had neither completed written discovery nor taken
depositions.
¶ 33 In response to plaintiff’s motion for additional discovery, the Grossman defendants filed
a motion to strike plaintiff’s Illinois Supreme Court Rule 191(b) affidavit and for entry of a
protective order, arguing that the affidavit was defective, since it did not aver that the
witnesses plaintiff sought to depose were the only people with knowledge of material facts
necessary to respond to the motion for summary judgment. See Ill. S. Ct. R. 191(b) (eff. Jan.
4, 2013). The Grossman defendants further argued that all material facts relating to their
summary judgment motion were contained in the decedent’s deposition testimony in the
whistleblower case and that the decedent’s testimony demonstrated that he is the only person
with knowledge of facts relevant to the motion, rather than Nicor employees or other
witnesses named by plaintiff.
¶ 34 At oral argument on the motion for additional discovery on April 13, 2016, counsel for
the Grossman defendants claimed that the motion for summary judgment was straightforward
and narrow in scope, arguing that it was based entirely on the admissions the decedent made
in his deposition in the whistleblower case, as well as admissions the decedent made before
the Social Security Administration and Illinois Workers Compensation Commission. The
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No. 1-17-0516
Grossman defendants further argued that no amount of discovery could undo the decedent’s
binding admissions, which were dispositive of plaintiff’s legal malpractice case. The trial
court then granted plaintiff’s motion for additional discovery in part and denied it in part,
allowing plaintiff one deposition before responding to the Grossman defendants’ motion for
summary judgment. The trial court recommended that plaintiff depose Jean Smolios, finding
that deposing her would make the most sense, since she was a former human resources vice
president who authored the letter to the decedent advising him that if they did not receive the
medical verification of his present condition of ill-being, his employment would be
terminated.
¶ 35 The trial court that day also granted plaintiff leave to file an amended complaint
concerning the legal malpractice claims against the Daniels and Marks defendants
concerning the workers’ compensation and/or occupational diseases case only. The order
further stated that plaintiff was not given leave to amend the pleadings concerning the
Daniels and Grossman defendants’ handling of the whistleblower case. On April 22, 2016,
plaintiff filed an amended complaint in the instant lawsuit, with the counts concerning the
whistleblower case remaining the same. On August 25, 2016, the trial granted defendants’
motion to dismiss the counts concerning the workers’ compensation and/or occupational
diseases claim, finding that the decedent did not raise those counts within the two-year
statute of limitations governing legal malpractice actions (735 ILCS 5/13-214.3 (West
2014)), and we later affirmed the trial court’s dismissal on appeal (see Brummel v.
Grossman, 2018 IL App (1st) 162540, ¶ 44).
¶ 36 Smolios was deposed on October 17, 2016, and she testified that she had terminated the
decedent’s employment because the Employee Benefit Association medical department
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No. 1-17-0516
advised her that he did not provide medical documentation to support his leave of absence.
She testified that the Employee Benefit Association rules require claims to be current every
30 days and that the decedent only submitted medical documentation concerning an
examination during the first month of his leave of absence. However, Smolios admitted that
the proof of claim form did not explain the 30-day requirement.
¶ 37 Plaintiff responded to the Grossman defendants’ motion for summary judgment on
November 30, 2016, arguing that the evidence showed that the decedent was discharged for
reporting toxic work conditions to various government agencies and that he was not
discharged for his failing to provide medical documentation to support his continuing leave
of absence. Plaintiff further claimed that the evidence showed that, after the decedent
reported the toxic work conditions, Nicor engaged in a calculated course of retaliation against
him, which culminated in the termination of his employment. Plaintiff also argued that
judicial estoppel did not bar the decedent’s claims in either the whistleblower case or the
instant case. Concerning the trial court’s ruling on her motion for additional discovery,
plaintiff stated she had been prejudiced by not being allowed to undertake discovery before
responding to the summary judgment motion, and she renewed her request for additional
discovery.
¶ 38 After arguments on February 3, 2017, the trial court granted the Grossman defendants’
motion for summary judgment, finding (1) that the decedent’s prior admissions established
that he was disabled and unable to work, (2) that there was no evidence that Nicor terminated
the decedent’s employment in retaliation for a protected activity, and (3) that the doctrine of
judicial estoppel barred the decedent’s claim that he was able to return to work. The trial
court found that the whistleblower case was “unwinnable” for the decedent and that the “die
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was cast in this particular matter by [the decedent] even before the time the Grossman
Defendants were in play and had proceedings involving this matter.” The trial court also
determined that there was no evidence that the decedent could have produced to prevail in
the whistleblower case that could have overcome his failure to produce the current medical
evidence of his disability. Plaintiff now appeals the trial court’s granting summary judgment
in favor of the defendants.
¶ 39 ANALYSIS
¶ 40 On appeal, plaintiff claims that the trial court erred when it granted defendants’ motion
for summary judgment in the legal malpractice case, arguing (1) that a genuine issue of
material fact existed in the whistleblower case as to whether Nicor discharged the decedent
for reporting toxic work conditions to governmental authorities and (2) that the doctrine of
judicial estoppel did not bar his claims. Alternatively, plaintiff argues that the trial court in
the legal malpractice case erred when it allowed her to conduct only one deposition prior to
responding to the motion for summary judgment. For the following reasons, we affirm the
judgment of the trial court.
¶ 41 I. Summary Judgment
¶ 42 Plaintiff first argues that the trial court erred when it granted summary judgment in favor
of defendants in the legal malpractice case, arguing that there existed a genuine issue of
material fact that Nicor terminated the decedent’s employment for toxic work conditions to
governmental authorities. Defendants argue that, due to the decedent’s deposition testimony
in the whistleblower case, plaintiff could not prove a claim for legal malpractice since the
decedent would not have prevailed in the whistleblower case regardless of the alleged
conduct of his attorneys. In that case, the trial court found that the decedent could not
19
No. 1-17-0516
establish a causal relation between the termination of his employment and his whistleblowing
activities due to his own admissions in his deposition testimony, which established that (1)
Nicor terminated his employment for his failure to provide required medical documentation
to support his continuing leave of absence after numerous requests from his employer and (2)
he was permanently disabled and unable to perform the essential functions of his job at
Nicor. Defendants also argue that the decedent was judicially estopped from claiming in the
whistleblower case that he was not totally disabled and unable to work, since he previously
admitted otherwise in proceedings before the Social Security Administration and Illinois
Workers’ Compensation Commission. For the following reasons, we affirm the trial court’s
award of summary judgment in favor of defendants.
¶ 43 A trial court is permitted to grant summary judgment only “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 a judgment as a matter of
law.” 735 ILCS 5/2-1005(c) (West 2014). The trial court must view these documents and
exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v.
Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to
grant a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means we perform the same
analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
578 (2011).
¶ 44 “Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.
However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary
20
No. 1-17-0516
judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party
moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.
App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively
showing that some element of the case must be resolved in his favor or by establishing “ ‘that
there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.
App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose
of summary judgment is not to try an issue of fact but *** to determine whether a triable
issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002)
(quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis
appearing in the record, whether or not the trial court relied on that basis or its reasoning was
correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 45 In the instant case, the trial court granted defendants’ motion for summary judgment on
plaintiff’s legal malpractice claim. The elements of a legal malpractice claim are well
established. To prevail on a cause of action for legal malpractice, a plaintiff must plead and
prove sufficient facts to establish (1) that the defendant attorney owed the plaintiff client a
duty of due care arising from an attorney-client relationship, (2) that the attorney breached
that duty, (3) that the client suffered an injury in the form of actual damages, and (4) that the
attorney’s breach was the proximate cause of those actual damages. Fox v. Seiden, 382 Ill.
App. 3d 288, 294 (2008) (citing Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d
195, 199 (2006)); Cedeno v. Gumbiner, 347 Ill. App. 3d 169, 174 (2004); Serafin v. Seith,
284 Ill. App. 3d 577, 586-87 (1996)).
¶ 46 The fact that an attorney owed a duty of care and breached it is not enough to sustain a
cause of action. Fox, 382 Ill. App. 3d at 295 (citing Northern Illinois Emergency Physicians
21
No. 1-17-0516
v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005)). Even if an attorney was
negligent, a plaintiff cannot recover unless that negligence proximately caused actual
damages. Fox, 382 Ill. App. 3d at 295 (citing Northern Illinois, 216 Ill. 2d at 306-07). Thus,
both proximate cause and actual damages are essential to a viable cause of action. Fox, 382
Ill. App. 3d at 295 (citing Northern Illinois, 216 Ill. 2d at 306-07). “To satisfy the proximate
cause aspect of a malpractice action, the plaintiff must essentially plead and prove a ‘case
within a case,’ meaning that the malpractice complaint is dependent on the underlying
lawsuit.” Fabricare Equipment Credit Corp. v. Bell, Boyd & Lloyd, 328 Ill. App. 3d 784, 788
(2002) (citing Sharpenter v. Lynch, 233 Ill. App. 3d 319, 323 (1992)). The plaintiff must
plead sufficient facts to establish that, “but for” the negligence of the attorney, the client
would have succeeded in the underlying suit. Fox, 382 Ill. App. 3d at 299; Cedeno, 347 Ill.
App. 3d at 174; Serafin, 284 Ill. App. 3d at 587. “Because legal malpractice claims must be
predicated upon an unfavorable result in the underlying suit, no malpractice exists unless
counsel’s negligence has resulted in the loss of the underlying action.” Ignarski v. Norbut,
271 Ill. App. 3d 522, 525 (1995) (citing Claire Associates v. Pontikes, 151 Ill. App. 3d 116,
122 (1986)).
¶ 47 Plaintiff claims that the decedent had defenses in the whistleblower case that would have
defeated Nicor’s motion for summary judgment, but that neither the Grossman defendants
nor the Daniels defendants told him about the motion and that neither filed a response.
Plaintiff further claims that the trial court granted the summary judgment motion and
dismissed the case, since the Grossman and Daniels defendants (1) did not fully develop
evidence by deposing witnesses who could have supported the decedent’s claims, (2) did not
respond to the motion for summary judgment, (3) did not request additional time to respond
22
No. 1-17-0516
to the motion, (4) did not advise the decedent that he would need to retain new counsel to
respond to the motion, and (5) did not appear at the hearing on the motion. Plaintiff argued
that the decedent personally attended the hearing on the motion for summary judgment and
requested the trial court to grant him time to hire a new attorney to respond to the motion, but
he claimed that the trial court denied his request due in part to the Grossman defendants’
dilatory tactics and lack of attention to the case throughout the litigation.
¶ 48 To determine whether the actions of the Grossman and Daniels defendants amounted to
legal malpractice, we must consider whether their actions were the proximate cause of the
dismissal of the whistleblower case. Fox, 382 Ill. App. 3d at 299. The whistleblower case
raised claims of common law retaliatory discharge and violation of the Whistleblower Act
(740 ILCS 174/1 et seq. (West 2004)). In Illinois, a noncontracted employee is one who
serves at the employer’s will, and the employer may discharge such an employee for any
reason or no reason. Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009). “The
accepted general rule is that in an employment at will there is no limitation on the right of an
employer to discharge an employee.” Price v. Carmack Datsun, Inc., 109 Ill. 2d 65, 67
(1985). However, an exception to the general rule of at-will employment arises when there
has been a retaliatory discharge of the employee. Turner, 233 Ill. 2d at 500 (citing Price, 109
Ill. 2d at 67). To prove a valid cause of action for retaliatory discharge, an employee must
prove that “(1) the employer discharged the employee, (2) in retaliation for the employee’s
activities, and (3) that the discharge violates a clear mandate of public policy.” Turner, 233
Ill. 2d at 500. Similarly, to establish a claim under the Whistleblower Act, an employee must
demonstrate that his or her employer retaliated against the employee for disclosing
information to a government or law enforcement agency that he or she had reasonable cause
23
No. 1-17-0516
to believe disclosed a violation of a state or federal law, rule, or regulation. Zuccolo v.
Hannah Marine Corp., 387 Ill. App. 3d 561, 566 (2008); 740 ILCS 174/15(b) (West2008).
¶ 49 The requirement that the discharge be in retaliation for an employee’s activities requires
that a plaintiff establish a causal relationship between the employee’s activities and the
discharge. Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31. The employer’s
motive in discharging the employee is the ultimate issue when deciding the element of
causation. Michael, 2014 IL 117376, ¶ 31. “The element of causation is not met if the
employer has a valid basis, which is not pretextual, for discharging the employee.” Hartlein
v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992).
¶ 50 We find that the actions of the Grossman defendants were not the proximate cause of the
trial court dismissing the whistleblower case because the decedent would not have prevailed
in that case. The element of causation was not met because the employer had a valid basis to
terminate the decedent’s employment when he failed to provide the current medical
documentation of his claimed disability. The evidence before the trial court showed that
Nicor repeatedly requested the decedent to provide medical documentation to support his
continuing leave of absence and that it terminated his employment after he failed to provide
current documentation as required.
¶ 51 The evidence shows that, once the decedent was on medical leave, Nicor placed him in
its short-term disability plan governed by the company’s Employee Benefit Association,
which required the decedent to provide proof of his short-term disability in order to receive
benefits. On December 26, 2003, Smolios sent the decedent a letter, advising him that Nicor
had not received medical documentation to support his medical leave, and that, since the
Employee Benefit Association rules required the decedent to provide proof of his disability
24
No. 1-17-0516
claim within 18 days of his absence, failure to provide the documentation could result in the
suspension of his Employee Benefit Association benefits. Smolios sent the decedent another
letter on December 29, 2003, advising him that his Employee Benefit Association benefits
would be suspended on January 12, 2004, if he did not provide medical documentation
supporting his leave of absence. On January 13, 2004, Boedigheimer sent the decedent a
letter advising him that, since Nicor never received medical documentation supporting his
leave of absence, his Employee Benefit Association benefits were suspended until Nicor
received the proper documentation, effective as of January 12, 2004. Boedigheimer also
offered to fax another copy of the required form to the decedent’s physician, as she
previously told the decedent on the telephone.
¶ 52 Three days later, on January 16, 2004, Dr. Siegfried faxed an “Employee Benefit
Association Proof of Claim Form” and “Family and Medical Leave Act of 1993 Certification
of Health Care Provider” form to Nicor, which stated that he diagnosed the decedent with
chronic reflux disease or esophagitis. In the certification of health care provider form, Dr.
Siegfried opined that the decedent was indefinitely disabled as of October 6, 2003, and that
his disability was still “ongoing.” Dr. Siegfried also opined that, from October 3, 2003, to
October 3, 2004, the decedent would be “off intermittently when exacerbations occur or
treatment is necessary,” and that the decedent was “unable to work from 10/6/03 thru
indefinite.” In response to a question on the form asking whether the decedent was able to
perform work of any kind, Dr. Siegfried answered that the decedent “is able to work unless
exacerbations occur, which is intermittently.”
¶ 53 Three months later, on March 16, 2004, Smolios mailed the decedent another letter,
advising him that Nicor had not received medical documentation to support his leave of
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No. 1-17-0516
absence, and that Nicor would terminate his employment if he did not provide a medical
certification in support of his leave of absence by April 2, 2004. Smolios noted in the letter
that, in late December, Nicor “again requested that you provide documentation to support
your absence and again you failed to provide evidence in support of your continued
absence.” In response, on March 26, 2004, the decedent sent Nicor copies of the same two
forms that Dr. Siegfried faxed to Nicor on January 16, 2004, and provided Nicor no new
information. On April 2, 2004, Smolios mailed the decedent another letter explaining that the
documentation he provided on March 26, 2004, was the same information from October of
2003, and that Nicor had not received any documentation concerning his treatment or
condition since that time. Smolios enclosed a blank proof of claim form to be completed by
the decedent’s physician, and she advised the decedent that, “[i]n order for the company to
maintain you as an employee it is imperative that you supply the company’s Medical
Department with information regarding your current health status and treatment program.”
She further advised the decedent that, “[i]f this information is not received by the company as
of Monday, April 12, [2004,] your employment with Nicor Gas will be terminated.” On April
15, 2004, Smolios sent the decedent another letter advising him that his right to a leave of
absence under the Family and Medical Leave Act of 1993 had expired and that Nicor was
terminating his employment since he had not provided appropriate medical documentation to
support his continuing leave of absence despite numerous requests.
¶ 54 At his deposition in the whistleblower case, the decedent testified that, after Smolios’s
letter of April 2, 2004, he never provided Nicor any further medical documentation to
support his continuing leave of absence. The decedent also did not recall sending, between
October of 2003 and April 15, 2004, any other medical documentation to support his leave of
26
No. 1-17-0516
absence to Nicor, other than the two forms signed by Dr. Siegfried. The decedent admitted
that he was unaware of any additional medical documentation in support of his leave of
absence sent to Nicor prior to faxing those two forms. The decedent further admitted that,
although Dr. Siegfried signed the two forms in January of 2004, Dr. Siegfried had not
examined or treated him since October 31, 2003. The decedent also testified that he did not
recall if he tried to schedule an appointment with Dr. Siegfried to obtain the medical
documentation or if he spoke with anyone at Nicor to ask for more time to obtain the
documentation after receiving Smolios’ April 2, 2004, letter.
¶ 55 Illinois courts have found that “medical inability to work was a ‘legitimate
nondiscriminatory reason’ for discharge.” LaPorte v. Jostens, Inc., 213 Ill. App. 3d 1089,
1093 (1991) (quoting Horton v. Miller Chemical Co., 776 F.2d 1351, 1359 n.11 (7th Cir.
1985)). “Illinois law does not obligate an employer to retain an at-will employee who is
medically unable to return to his assigned position.” Hartlein, 151 Ill. 2d at 159-60 (citing
Horton, 776 F.2d 1351). Also, an employer is not obligated to reassign a disabled employee
to another position rather than terminate his or her employment. See LaPorte, 213 Ill. App.
3d at 1093. An employer may also discharge an employee for excess absenteeism caused by
a compensable injury. Slover v. Brown, 140 Ill. App. 3d 618, 621 (1986). Furthermore, courts
have previously affirmed summary judgment in favor of an employer in retaliatory discharge
cases where an employee could not prove causation. See Wright v. St. John’s Hospital of the
Hospital Sisters of the Third Order of St. Francis, 229 Ill. App. 3d 680, 688 (1992) (finding
no issue of material fact concerning the employee’s medical inability to return to work,
which was a legitimate nondiscriminatory reason for discharge); LaPorte, 213 Ill. App. 3d at
1094 (same); McCoy v. Maytag Corp., 495 F.3d 515, 523-24 (7th Cir. 2007) (affirming
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No. 1-17-0516
summary judgment in favor of the employer on a retaliatory discharge claim where the
employee failed to provide current medical documentation to support his absence from work
in accordance with company policy).
¶ 56 At the time of his discharge, the decedent had been on a leave of absence for over seven
months and had not provided Nicor with any current medical documentation other than the
forms from Dr. Siegfried that were based on his examination of the decedent during the first
month of his leave of absence. In light of this evidence, the trial court in the whistleblower
case found that there was no genuine issue of material fact that the decedent failed to provide
Nicor support for his medical leave and that they terminated his employment as a result.
Since Nicor had a valid basis for discharging the decedent, the trial court found that he could
not prevail as a matter of law and granted summary judgment in favor of Nicor.
¶ 57 In the instant legal malpractice case, plaintiff argues that defendants mishandled the
decedent’s case by failing to develop evidence, take depositions, or respond to the motion for
summary judgment; however, even if defendants had done all of this, the record shows that it
would not have been enough to create a genuine issue of material fact that Nicor terminated
the decedent’s employment because he failed to provide current medical documentation to
support his leave of absence as it required. As a result, defendants did not proximately cause
actual damages to the decedent, and the trial court did not err when it granted defendants’
motion for summary judgment dismissing the legal malpractice case.
¶ 58 Additionally, defendants were not the proximate cause of actual damages to the decedent
in the whistleblower case, since the evidence shows that he was totally disabled and unable to
work due to his health, and he could not recover compensatory damages as a result.
“Damages for an injury to the plaintiff are an essential element of any tort cause of action.”
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No. 1-17-0516
Reuter v. MasterCard International, Inc., 397 Ill. App. 3d 915, 928 (2010). “[A] plaintiff is
not entitled to retaliatory discharge damages during the time of his total incapacity to work.”
Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 559 (1992). “[T]ime when an employee is
away from work because of his own infirmity, rather than as a consequence of his employer’s
tortious conduct, does not qualify for retaliatory discharge damages.” Kritzen, 226 Ill. App.
3d at 559-60. “Lost wages attributable solely to one’s infirmity do not naturally flow from
the commission of retaliatory discharge.” Kritzen, 226 Ill. App. 3d at 560.
¶ 59 The decedent testified at his deposition that, since he began his medical leave of absence
on October 6, 2003, he was medically unable to perform his job as a distribution technician at
Nicor. At the time of the deposition in 2013, the decedent testified that he had not worked or
searched for work in the nine years since he began his leave of absence on October 6, 2003.
Additionally, the decedent applied for disability benefits from the Social Security
Administration, representing that he was disabled and unable to work since he began his
leave of absence. Although the Social Security Administration initially denied his
application, an administrative law judge reversed the denial on appeal, finding that the
decedent had been disabled since October 6, 2003, and that he was unable to perform his job
at Nicor. The decedent testified at his deposition that he agreed with the administrative law
judge’s findings that he “had been disabled since October 6, 2003,” that he was “not able to
engage in any substantial gainful activity because of [his] determinable physical or mental
impairment,” that he had “not engaged in any gainful activity since October 6, 2003,” and
that he was “unable to perform any relevant task work.” In addition, the decedent settled his
workers’ compensation and/or occupational diseases claim with Nicor in 2011, and the
settlement order stated that the decedent claimed that he was “unable to work” and had an
29
No. 1-17-0516
injury to his “whole body,” which rendered him “permanently and totally disabled for any
employment.”
¶ 60 In light of this overwhelming evidence, there existed no genuine issue of material fact
that the decedent was disabled and unable to return to his job at Nicor. Since the decedent
was unable to work, he could not recover compensatory damages in the whistleblower case.
As a result, defendants in the instant case did not proximately cause an actual injury to the
decedent when the trial court dismissed the whistleblower case, since he could not recover
compensatory damages in that case, and the trial court did not err when it granted summary
judgment in the legal malpractice case in favor of defendants.
¶ 61 Plaintiff claims that defendants could have proven the element of causation because the
decedent could have shown that Nicor subjected him to a course of adverse treatment after he
reported the water contamination to governmental authorities, which culminated in the
termination of his employment. Plaintiff argues that the evidence could have shown that
Nicor’s supervisors significantly increased the number of assignments the decedent was
expected to accomplish, significantly increased quality control inspection, sent him home
without pay for non-existent offenses, took amenities from him and his team that other teams
were allowed to have such as microwaves and water coolers, singled him out and acted
angrily towards him, ordered him to report his time in a certain fashion and then accused him
of stealing time when he followed management directions, provided written reprimands for
his minor work infractions when in the past he was issued only verbal warnings, withdrew a
promotion that was offered to him, and singled out his team by preparing photographic
records of the work his team performed. Plaintiff claims that Nicor’s course of conduct
continued after the decedent began his leave of absence when it refused to acknowledge his
30
No. 1-17-0516
injury was work-related, refused to accept the medical documentation he provided, failed to
explain to him how the documentation he provided was insufficient, and misled him when
Boedigheimer told him that she was contacting his physician and that he did not need to
worry about obtaining the medical documentation. Plaintiff also argues that, in essence,
Nicor required that the decedent consult a physician for medical documentation and then
refused to authorize treatment when he tried to visit Dr. Duvall.
¶ 62 However, the elements of retaliatory discharge require the decedent to show that he was
discharged (Turner, 233 Ill. 2d at 500), and alleged adverse treatment is not actionable under
a theory of retaliatory discharge (see Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d
148, 153 (1999)). As a result, plaintiff cannot recover for retaliatory discharge solely based
on Nicor’s actions that fell short of discharging the decedent.
¶ 63 Also, as stated, there was no genuine issue of material fact that Nicor terminated the
decedent’s employment as a result of his failure to provide current medical documentation of
his continuing leave of absence. The overwhelming evidence shows that Smolios repeatedly
advised the decedent that he needed to provide current medical documentation, which he
failed to provide before the noticed deadline. As a result, the allegations that Nicor treated
the decedent adversely prior to his leave of absence does not create a genuine issue of fact
that Nicor’s stated reason for discharging him was fabricated pretext for another illegitimate
reason. Furthermore, whether Nicor subjected the decedent to adverse treatment is
immaterial, since he testified that he was disabled and unable to work at the time of his leave
of absence. Since he could not work, he could not have proven damages, which is an
essential element of his retaliatory discharge claim. Reuter, 397 Ill. App. 3d at 928; Kritzen,
226 Ill. App. 3d at 559.
31
No. 1-17-0516
¶ 64 Plaintiff argues that the decedent still could have prevailed on a claim for violation of the
Whistleblower Act since that statute provides for damages for “any action against an
employee.” 740 ILCS 174/30 (West 2004). However, the Whistleblower Act did not become
effective until January 1, 2004, so the decedent could not have prevailed on a claim
concerning Nicor’s conduct prior to the statute’s enactment. Plaintiff cites Feltmeier v.
Feltmeier, 207 Ill. 2d 263 (2003), in support of her argument that Nicor’s prior conduct
should be considered under the doctrine of a continuing tort. Plaintiff points to the Feltmeier
court’s finding that “[a] pattern, course, and accumulation of acts can make an individual’s
conduct ‘sufficiently extreme to be actionable, whereas one instance of such behavior might
not be.’ ” Feltmeier, 207 Ill. 2d at 274 (quoting Pavlik v. Kornhaber, 326 Ill. App. 3d 731,
746 (2001)). However, the continuing tort doctrine explained in Feltmeier concerned the
applicability of the statute of limitations in a claim for intentional infliction of emotional
distress. Feltmeier, 207 Ill. 2d at 279. The Feltmeier court found that, “under the ‘continuing
tort’ or ‘continuing violation’ rule, ‘where a tort involves a continuing or repeated injury, the
limitations period does not begin to run until the date of the last injury or the date the tortious
acts cease.’ ” Feltmeier, 207 Ill. 2d at 278 (quoting Belleville Toyota, Inc. v. Toyota Motor
Sales, U.S.A., Inc., 199 Ill. 2d 325, 345 (2002)). In the instant case, plaintiff argues entirely
different circumstances by claiming that the principles of the continuing tort doctrine extend
to finding liability for actions that would have violated a statute prior to that statute’s
enforcement. The Whistleblower Act does not state that its provisions apply retroactively,
and we cannot say that Nicor’s conduct prior to the enactment of the statute was actionable.
See First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 182 (1995) (“statutes
32
No. 1-17-0516
are presumed to apply prospectively only and will not be given retroactive effect absent clear
language within the statute indicating that the legislature intended such effect”).
¶ 65 Plaintiff additionally argues that Nicor violated the collective bargaining agreement with
the union by not attempting to place the decedent in a less-strenuous job that he could
perform. Plaintiff cite to a provision of the collective bargaining agreement, which states
that:
“In the case of a regular employee or part-time regular employee who has given long
and faithful service and who is unable to carry on his/her regular work to advantage,
[Nicor] will attempt to place such employee on work, which he/she is able to perform.
In such cases, the other provisions of this Article shall not apply.”
The collective bargaining agreement further stated that, “[i]f a regular employee or part-time
regular employee becomes disabled and is unable to perform his/her regular work to
advantage, [Nicor] will attempt to place the employee on work within the employee’s
capabilities.” Plaintiff argues that the evidence shows that Nicor acted in bad faith and
intended to discharge the decedent for reporting toxic work conditions, since it did not
attempt to accommodate his disability by placing him in a less-strenuous job.
¶ 66 However, whether Nicor attempted to place the decedent in another job position is
immaterial where he testified and represented to the Social Security Administration and
Illinois Workers’ Compensation Commission that he was disabled and unable to work during
his leave of absence. It follows that, if the decedent could not work, then Nicor could not
possibly place him in a job that he could perform. Also, the collective bargaining agreement
further provides that Nicor retained the right to discharge employees for proper cause. The
collective bargaining agreement stated that “[t]he management of [Nicor] and the direction of
33
No. 1-17-0516
the working forces herein, including the right to hire, suspend, or discharge for proper cause,
promote, demote, transfer and layoff because of lack of work or for other reasons, are vested
in [Nicor], except as otherwise specifically provided in this Agreement.” Although the
collective bargaining agreement provided that Nicor would attempt to place a disabled
employee on work within the employee’s capabilities, the agreement provided no guarantee
of a new job placement or an absolute right to such placement.
¶ 67 Additionally, even if Nicor did not attempt to place the decedent another job position,
that would not have raised a genuine issue of fact that it had another illegitimate motive to
discharge him. As stated, the evidence overwhelmingly shows that Nicor terminated the
decedent’s employment, since he failed to provide current medical documentation to support
his continuing leave of absence, despite numerous requests. Since there existed no genuine
issue of material fact that Nicor discharged the decedent for failing to provide support for his
medical leave, defendants in the legal malpractice case did not proximately cause actual
damages to the decedent. Additionally, defendants in the legal malpractice case did not
proximately cause actual damages, since the decedent could not recover compensatory
damages in the whistleblower case due to his inability to work during his leave of absence.
As a result, the trial court did not err when it granted defendants’ motion for summary
judgment dismissing the legal malpractice case.
¶ 68 II. Judicial Estoppel
¶ 69 Plaintiff next argues that the trial court erred when it granted summary judgment in favor
of defendants in the legal malpractice case, since judicial estoppel did not bar the decedent’s
claim. Defendants argue that, even if the decedent did not testify in his deposition testimony
that he was unable to return to work during his leave of absence, judicial estoppel bars him
34
No. 1-17-0516
from claiming otherwise due to his prior admissions to the Social Security Administration
and the Illinois Workers’ Compensation Commission. For the following reasons, we affirm
the trial court’s award of summary judgment in favor of defendants.
¶ 70 The doctrine of judicial estoppel provides that “ ‘a party who assumes a particular
position in a legal proceeding is estopped from assuming a contrary position in a subsequent
legal proceeding.’ ” Barack Ferrazzano Kirschbaum Perlman & Nagelberg v. Loffredi, 342
Ill. App. 3d 453, 460 (2003) (quoting Bidani v. Lewis, 285 Ill. App. 3d 545, 550 (1996)). The
purpose of the doctrine is “ ‘to promote the truth and to protect the integrity of the court
system by preventing litigants from deliberately shifting positions to suit the exigencies of
the moment.’ ” Loffredi, 342 Ill. App. 3d at 460 (quoting Bidani, 285 Ill. App. 3d at 550).
The five elements necessary for the application of judicial estoppel include the following:
“ ‘the party to be estopped must have (1) taken two positions, (2) that are factually
inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intended
for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first
proceeding and received some benefit from it.’ ” Loffredi, 342 Ill. App. 3d at 460 (quoting
People v. Caballero, 206 Ill. 2d 65, 80 (2002)). Judicial estoppel must be proved by clear and
convincing evidence. Seymour v. Collins, 2015 IL 118432, ¶ 39. Since judicial estoppel is an
equitable doctrine invoked by the court at its discretion, we review a trial court’s invocation
of the doctrine under the abuse-of-discretion standard. Seymour, 2015 IL 118432, ¶ 41. A
trial court abuses its discretion “only where its ruling is arbitrary, fanciful, or unreasonable or
where no reasonable person would take the view adopted by the trial court.” Crichton v.
Golden Rule Insurance Co., 358 Ill. App. 3d 1137, 1150 (2005) (citing People v. Hall, 195
Ill. 2d 1, 20 (2000)).
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No. 1-17-0516
¶ 71 Prior to the instant legal malpractice case, the decedent applied for disability benefits
from the Social Security Administration, where he represented that he was disabled and
unable to work since he began his leave of absence. An administrative law judge reversed the
denial of his application on appeal, finding that the decedent had been disabled since October
6, 2003, and that he was unable to perform his job at Nicor. The decedent also settled his
workers’ compensation and/or occupational diseases claim with Nicor, and he signed the
settlement order, which stated that he claimed injury to his “whole body,” rendering him
“permanently and totally disabled for any employment.” In the instant case, the decedent
claimed that he desperately wanted to return to work but Nicor would not accommodate him
by placing him in a “less physically stressful job.”
¶ 72 The decedent’s prior position that he was disabled and unable to work is factually
inconsistent with the position that he was able to return to a different job at Nicor. The
decedent’s statements were also made in judicial or quasi-judicial proceedings, and he
intended the trier of fact to accept the fact of the truth of the facts he alleged so that he would
receive benefits as a result. An administrative law judge accepted the decedent’s statements
that he was disabled and reversed the denial of his application for Social Security
Administration disability benefits, and an arbitrator accepted the decedent’s representations
when it approved the settlement of his workers’ compensation and/or occupational diseases
case, for which the decedent received $125,000 in compensation. We cannot say that the trial
court’s finding that judicial estoppel applies is arbitrary, fanciful, or unreasonable, or that no
reasonable person would make that finding. As a result, the trial court did not abuse its
discretion when it found that the doctrine of judicial estoppel applies, and the decedent was
barred from claiming that he was able to return to work at Nicor. Since he could not claim
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No. 1-17-0516
that he was able to return to work, he could not recover compensatory damages in the
whistleblower case, and defendants in the instant legal malpractice case did not proximately
cause an actual injury to the decedent. As a result, the trial court did not err when it granted
summary judgment in the legal malpractice case in favor of defendants.
¶ 73 Plaintiff argues that, “for judicial estoppel to apply, the two positions taken must be
‘totally inconsistent’ ” (emphasis omitted) (Wolfe v. Wolf, 375 Ill. App. 3d 702, 705 (2007)
(quoting Bidani, 285 Ill. App. 3d at 550)), and that the decedent’s representations to the
Social Security Administration and the Illinois Workers’ Compensation Commission were
not inconsistent with his claims in the whistleblower case. As to the decedent’s
representations to the Social Security Administration, plaintiff argues that the administrative
law judge found that, although the decedent could not perform his job at Nicor as a
distribution technician, was able to perform some type of sedentary work. Plaintiff claims
that judicial estoppel does not apply, since the administrative law judge’s findings were not
inconsistent with the decedent’s claim that he was able to return to work in a “less physically
stressful job” at Nicor.
¶ 74 However, the position that the decedent was able to work in a less-physically stressful job
during his leave of absence is totally inconsistent with the representations set forth in the
administrative law judge’s findings that the decedent was “not able to engage in any
substantial gainful activity” since October 6, 2003. Although the judge found that the
decedent had the “residual functional capacity to perform sedentary work,” he determined
that the decedent “is unable to perform any past relevant work,” that his “job skills do not
transfer to other occupations within the residual functional capacity,” and that his
“limitations so narrow the range of work that [he] might otherwise perform that a finding of
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No. 1-17-0516
‘disabled’ is appropriate.” The judge’s order notes that, to support a finding that the decedent
is not disabled, the Social Security Administration had the burden to demonstrate “that other
work exists in significant numbers in the national economy that [the decedent] can do.” In
other words, the administrative judge’s findings show that the decedent’s disability was so
significant that, not only was he unable to perform any past relevant work, but that he did not
even have the ability to perform any job that existed in significant numbers in the national
economy. As a result, the representations set forth in the judge’s findings are totally
inconsistent with the claim that the decedent could have worked in a less-physically stressful
job at Nicor.
¶ 75 Plaintiff claims that the decedent did not argue inconsistent positions, since he always
claimed that he could have performed a different job at Nicor, pointing to his deposition
testimony that he could perform a less-physically stressful job at Nicor. However, that
deposition was taken in 2013, where the decedent answered the question of what job he
would be able to perform at that time, not during his leave of absence, which began nearly 10
years prior. Instead, the decedent testified that he was “very sick” and “on the ground sick”
from the time of his leave of absence through at least 2007 and that he “had no idea” when he
would have been able to return to any kind of employment. To argue now that he could have
worked in a different job at Nicor while he was on medical leave is not only inconsistent with
the administrative law judge’s finding but also with the decedent’s own prior testimony.
¶ 76 Plaintiff also argues that the claim that decedent could work during his leave of absence
is not inconsistent with the findings in the workers’ compensation and/or occupational
diseases settlement since, in that case, he merely sought compensation from Nicor for
exposing him to toxins that impaired his ability to do his job. Plaintiff argues that position
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No. 1-17-0516
was also not inconsistent with his claims in the whistleblower case, since in that case, the
decedent claimed Nicor treated him adversely and discharged for reporting toxic work
conditions to governmental authorities. However, the settlement order stated that the
decedent claimed that he was “unable to work” and had an injury to his “whole body,” which
rendered him “permanently and totally disabled for any employment.” Additionally, the
decedent represented to the Social Security Administration that he was disabled and unable
to work. These representations are inconsistent with the decedent’s claim that he could have
performed a different job at Nicor during his leave of absence and, as a result, the decedent
was judicially estopped from claiming otherwise.
¶ 77 This case is similar to Department of Transportation v. Coe, 112 Ill. App. 3d 506 (1983).
In Coe, the employee suffered an injury during the course of his employment that he claimed
rendered him 20% permanently disabled and unable to perform his job. Coe, 112 Ill. App. 3d
at 508. The employee began a medical leave of absence and filed a workers’ compensation
claim against the employer, which the parties settled. Coe, 112 Ill. App. 3d at 508. The
settlement agreement, which the Illinois Industrial Commission approved, stated that the
employee received a lump sum representing “ ‘20% man as a whole,’ ” and the employer
soon afterwards advised the employee that he would be discharged, since he was
permanently disabled and unable to perform his job and his leave of absence was nearing
expiration. Coe, 112 Ill. App. 3d at 508-09. The employee then attempted to obtain his
former job back, telling his employer that he was not disabled and that he could work. Coe,
112 Ill. App. 3d at 509. The employer then began discharge proceedings before the Civil
Service Commission, which ordered the employee reinstated in his job. Coe, 112 Ill. App. 3d
at 509. The trial court reversed the commission, finding that the employee was judicially
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No. 1-17-0516
estopped from claiming that he was no longer disabled. Coe, 112 Ill. App. 3d at 509. The
appellate court affirmed on appeal, finding that the employee was judicially estopped from
claiming that he could return to work in his former job after previously claiming during a
settlement that he had a permanent disability that rendered him unable to work. Coe, 112 Ill.
App. 3d at 511. In the instant case, the decedent likewise settled his workers’ compensation
and/or occupational diseases case, claiming that he was permanently disabled and unable to
return to work, and the decedent now claims that he could have returned to work during his
leave of absence in a less-physically stressful job. As in Coe, the decedent is judicially
estopped from first claiming for settlement purposes that he was disabled and unable to work
and now claiming in discharge proceedings that he could have returned to work had Nicor
placed him a in different job position.
¶ 78 Plaintiff further argues that judicial estoppel did not bar the decedent’s claim, since he
was not required to show that he was able to work to prove damages in order to prevail on a
retaliatory discharge claim. Plaintiff argues that the decedent’s whistleblower complaint
sought compensatory damages from being discharged, including “back pay, retirement and
other benefits, aggravation and inconvenience in a sum to be proved at trial.” Plaintiff cites
Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071, ¶ 27, in support of her argument
that the decedent’s representations to the Social Security Administration were not a
“factually inconsistent” position that judicially estopped his retaliatory discharge claim. In
Batson, the employee developed carpel tunnel syndrome and filed a workers’ compensation
claim, after which her employer discharged her. Batson, 2013 IL App (1st) 123071, ¶¶ 6, 27.
Prior to her discharge, the employee sought and received disability benefits from the Social
Security Administration. Batson, 2013 IL App (1st) 123071, ¶ 27. The employee then sued
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No. 1-17-0516
for retaliatory discharge, and the trial court invoked the collateral source rule, which barred
the employee from asserting judicial estoppel as an affirmative defense. Batson, 2013 IL App
(1st) 123071, ¶ 22. On appeal, the appellate court affirmed, finding that, since the employer
never presented any evidence of a valid, nonpretextual basis for discharging the employee
and the employee’s retaliatory discharge action claimed she was discharged solely for filing a
workers’ compensation claim, her disability claim with the Social Security Administration
that she was disabled and unable to work was not a “ ‘factually inconsistent’ ” position that
judicially estopped her recovering on a retaliatory discharge claim. Batson, 2013 IL App
(1st) 123071, ¶ 27.
¶ 79 However, Batson is distinguishable since, unlike the instant case, Nicor presented
sufficient evidence that it terminated the decedent’s employment due to his failure to provide
medical documentation in support of his continuing leave of absence. Furthermore, the
employee in Batson brought a retaliatory discharge claim under the Workers’ Compensation
Act, whereas the decedent in the instant case brought a common law retaliatory discharge
claim. Batson, 2013 IL App (1st) 123071, ¶ 30. Also, the trial court in Batson invoked the
collateral source rule and found under its discretion that judicial estoppel did not apply. In the
instant case, the trial court did not consider the collateral source rule and used its discretion
to find that judicial estoppel barred the decedent’s claims. Batson, 2013 IL App (1st) 123071,
¶ 22.
¶ 80 In reaching its findings, the Batson court distinguished a federal case, Muellner v. Mars,
Inc., 714 F. Supp. 351 (N.D. Ill. 1989). In Muellner, the employer placed the employee on
long-term disability, for which she received benefits. Muellner, 714 F. Supp. at 352. While
she was on disability leave at work, she applied for and received disability benefits from the
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No. 1-17-0516
Social Security Administration, for which she claimed that she was totally disabled and
unable to work. Muellner, 714 F. Supp. at 352. The employer then terminated the employee
per company policy, since she had been on long-term disability for two years, and advised
her that she would continue to receive disability benefits until she recovered, retired, died, or
reached age 65, whichever comes first. Nevertheless, the employer soon terminated the
benefits because the employee did not provide medical documentation that she continued to
be disabled. Muellner, 714 F. Supp. at 353. The employee then filed a lawsuit for retaliatory
discharge, claiming that she was discharged because she refused to accept early retirement.
Muellner, 714 F. Supp. at 353. Applying Illinois law, the district court found that the
employee was judicially estopped from asserting a claim of retaliatory discharge and granted
the employer’s motion for summary judgment, since she represented to the Social Security
Administration that she was unable to work, while the ability to work was a “necessary
prerequisite” to her retaliatory discharge claim. Muellner, 714 F. Supp. at 360. The Batson
court declined to follow Muellner, since it found that the employee’s ability to work was not
a necessary prerequisite to a retaliatory discharge claim under the Workers’ Compensation
Act. Batson, 2013 IL App (1st) 123071, ¶ 30.
¶ 81 However, in the instant case, the decedent was required to prove damages, which is an
element of a common law tort of retaliatory discharge. As stated, “[d]amages for an injury to
the plaintiff are an essential element of any tort cause of action” (Reuter, 397 Ill. App. 3d at
928) and “a plaintiff is not entitled to retaliatory discharge damages during the time of his
total incapacity to work” (Kritzen, 226 Ill. App. 3d at 559). Plaintiff argues that Muellner (as
well as Coe) is distinguishable, since the decedent was not an at-will employee claiming that
he was totally disabled and then attempting to return to his former job claiming he could
42
No. 1-17-0516
perform the job, and that he instead admitted that he could not perform his old job and he
wanted to return to Nicor in a role more suitable for his circumstances. However, as stated,
the decedent did, in fact, testify that he was unable to work at the time of his leave of absence
through at least 2007, when he began to receive social security disability benefits. The
decedent did testify that he could return to a different job at Nicor in 2013, nearly 10 years
after he began his leave of absence; however, he never claimed that he was able to work
during his leave of absence, and he admitted he never attempted to find a less-strenuous job
since he was discharged. As a result, the trial court did not abuse its discretion when it found
judicial estoppel applied as a result of the decedent’s prior inconsistent representations to the
Social Security Administration and the Illinois Workers’ Compensation Commission.
¶ 82 Plaintiff claims that, even if the decedent were too sick to work, he could still recover
punitive damages under a theory of retaliatory discharge or violation of the Whistleblower
Act. Plaintiff cites Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978), which found that “[i]t
has long been established in this State that punitive or exemplary damages may be awarded
when torts are committed with fraud, actual malice, deliberate violence or oppression, or
when the defendant acts willfully, or with such gross negligence as to indicate a wanton
disregard of the rights of others.” Plaintiff cites Holland v. Schwan’s Home Service, Inc.,
2013 IL App (5th) 110560, as a case where “an award of $3.6 million in punitive damages
comported with due process when, among other reasons, the employee’s retaliatory discharge
action was based on termination for exercise of Worker’s Compensation Act rights.” Holland
cites the elements of punitive damages as a finding of “ ‘whether: (1) the harm caused was
physical as opposed to economic; (2) the tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others; (3) the target of the conduct had financial
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No. 1-17-0516
vulnerability; (4) the conduct involved repeated actions or was an isolated incident; and (5)
the harm was the result of intentional malice, trickery, or deceit, or mere accident.’ ”
Holland, 2013 IL App (5th) 110560, ¶ 258 (quoting Blount v. Stroud, 395 Ill. App. 3d 8, 24­
25 (2009)).
¶ 83 However, as stated, “[d]amages for an injury to the plaintiff are an essential element of
any tort cause of action” (Reuter, 397 Ill. App. 3d at 928) and “a plaintiff is not entitled to
retaliatory discharge damages during the time of his total incapacity to work” (Kritzen, 226
Ill. App. 3d at 559). In Holland, the jury awarded the plaintiff punitive damages of $3.6
million in addition to compensatory damages of $660,400. Holland, 2013 IL App (5th)
110560, ¶ 252. In this case, the decedent was unable to work, so he could not show damages,
which is an element of proving the tort of retaliatory discharge. Since the decedent could not
prove the elements of retaliatory discharge, he was not entitled to punitive damages. Illinois
does not recognize a cause of action for punitive damages alone; punitive damages represent
a type of relief rather than an independent cause of action. Kemner v. Monsanto Co., 217 Ill.
App. 3d 188, 199 (1991); see Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 146 (a
“plaintiff cannot assert punitive damages without first properly pleading the underlying
claims”).
¶ 84 Plaintiff additionally argues that the Whistleblower Act does not require that the decedent
be able to return to work and that he could have recovered damages for the loss of Employee
Benefit Association benefits, loss of a promotion, loss of his ability to work a more sedentary
job, loss of his health care benefits, and more, and that he could recover damages even if he
could not perform his former job. The Whistleblower Act states:
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No. 1-17-0516
“Damages. If an employer takes any action against an employee in violation of
Section 15 or 20, the employee may bring a civil action against the employer for all
relief necessary to make the employee whole, including but not limited to the
following, as appropriate:
(1) reinstatement with the same seniority status that the employee would have
had, but for the violation;
(2) back pay, with interest; and
(3) compensation for any damages sustained as a result of the violation,
including litigation costs, expert witness fees, and reasonable attorney’s fees.”
740 ILCS 174/30 (West 2004).
¶ 85 Although the Whistleblower Act provides for all relief necessary to make the employee
whole, in the instant case, there were no damages that the decedent could have shown that
would have made him whole, since he was not able to work when Nicor discharged him. As
a result, the decedent could not have been reinstated with a job at Nicor, since he could not
work, and he similarly could not have recovered damages resulting from the termination of
his employment, such as lost pay or health insurance, since he was not able to work and
receive those benefits in the first place. Furthermore, the Whistleblower Act does not provide
for punitive damages. See Averett v. Chicago Patrolmen’s Federal Credit Union, No. 06 C
4606, 2007 WL 952034, at *4 (N.D. Ill. Mar. 27, 2007) (finding that punitive damages are
not available under the whistleblower statute where the statute’s inclusion of a damages
section allowing only for “ ‘make whole’ ” relief revealed the legislature’s intent to exclude
the availability of other types of damages). As a result, the decedent could not recover
damages under the whistleblower act where he was unable to work.
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No. 1-17-0516
¶ 86 Plaintiff also argues that, “[w]hile plaintiff understands that judicial estoppel is to protect
the integrity of the judicial system, contrary to [Nicor]’s claim, [Nicor] could never have
raised a judicial estoppel defense” in the whistleblower case because the workers’
compensation and/or occupational diseases settlement stated that “[t]he parties hereto
acknowledge that the [decedent] presently has a lawsuit against [Nicor] pending in the
Circuit Court of Du Page County, Case No. 2010 L 128, and, notwithstanding any other
provision of this Contract and Rider, the parties agree that said lawsuit is neither waived nor
released by this agreement.” However, the settlement terms in this passage merely state that
the settlement of the workers’ compensation and/or occupational diseases case does not
extinguish the claims in the decedent’s separate whistleblower case, allowing that litigation
to proceed. As a result, the settlement order does prevent Nicor from raising judicial estoppel
in the whistleblower case.
¶ 87 We cannot say that the trial court’s finding that judicial estoppel applies is arbitrary,
fanciful, or unreasonable, or that no reasonable person would make that finding. As a result,
the trial court did not abuse its discretion when it found that the doctrine of judicial estoppel
applies, and the decedent was barred from claiming that he was able to return to work at
Nicor. Since the decedent could not claim that he was able to return to work, he could not
recover compensatory damages in the whistleblower case, and defendants in the instant legal
malpractice case did not proximately cause an actual injury to the decedent. As a result, the
trial court did not err when it granted summary judgment in the legal malpractice case in
favor of defendants, and we affirm.
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No. 1-17-0516
¶ 88 III. Discovery
¶ 89 In the alternative, plaintiff argues that the trial court erred when it limited oral discovery
prior to hearing defendants’ motion for summary judgment. Specifically, plaintiff claims that
it was “fundamentally unfair” for the trial court to refuse her request to depose at least 32
witnesses, since she could have obtained evidence in those depositions that could defeat
defendants’ motion for summary judgment, especially where defendants’ failure to conduct
discovery in the whistleblower case is a key allegation of legal malpractice in the instant
case. For the following reasons, we affirm the trial court’s order limiting the scope of
discovery.
¶ 90 “A trial court is afforded considerable discretion in ruling on matters pertaining to
discovery, and thus its rulings on discovery matters will not be reversed absent an abuse of
that discretion.” Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine,
Ltd., 392 Ill. App. 3d 1, 11 (2009) (citing Wisniewski v. Kownacki, 221 Ill. 2d 453, 457
(2006), and Crichton , 358 Ill. App. 3d at 1150). As stated, a trial court abuses its discretion
“only where its ruling is arbitrary, fanciful, or unreasonable or where no reasonable person
would take the view adopted by the trial court.” Crichton, 358 Ill. App. 3d at 1150 (citing
Hall, 195 Ill. 2d at 20).
¶ 91 “[Illinois] Supreme Court Rule 191(b) specifies the procedure to be followed where
additional discovery is needed in regard to summary judgment proceedings.” Giannoble v.
P&M Heating & Air Conditioning, Inc., 233 Ill. App. 3d 1051, 1064 (1992). Illinois Supreme
Court Rule 191(b) provides:
“If the affidavit of either party contains a statement that any of the material facts
which ought to appear in the affidavit are known only to persons whose affidavits
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No. 1-17-0516
affiant is unable to procure by reason of hostility or otherwise, naming the persons
and showing why their affidavits cannot be procured and what affiant believes they
would testify to if sworn, with his reasons for his belief, the court may make any
order that may be just, either granting or refusing the motion, or granting a
continuance to permit affidavits to be obtained, or for submitting interrogatories to or
taking the depositions of any of the persons so named, or for producing documents in
the possession of those persons or furnishing sworn copies thereof.” Ill. S. Ct. R.
191(b) (eff. Jan. 4, 2013).
¶ 92 After the Grossman defendants filed their motion for summary judgment in the instant
legal malpractice case, plaintiff filed a motion to take additional oral discovery and attached
an affidavit naming at least 32 witnesses whom plaintiff argued needed to be deposed before
responding to the Grossman defendants’ motion for summary judgment. However, plaintiff’s
affidavit did not meet the requirements of Illinois Supreme Court Rule 191(b) (eff. Jan. 4,
2013), since she did not aver what she believed each prospective witness would testify to and
the reasons for her beliefs. “ ‘The affidavit must state specifically what the affiant believes
the prospective witness would testify to if sworn and reasons for the affiant’s belief.’ ” Olive
Portfolio Alpha, LLC v. 116 W. Hubbard Street, LLC, 2017 IL App (1st) 160357, ¶ 29
(quoting Giannoble, 233 Ill. App. 3d at 1065 (“Rule 191(b) requires facts, not
conclusions.”)). Instead, plaintiff’s affidavit sets forth a long list of potential witnesses,
including doctors who may know more information concerning the decedent’s medical
condition and current and former Nicor employees who may know more information
concerning testing the drinking water for contamination, the failure to remediate the problem,
and the harassment the decedent may have received after reporting it. However, allegations
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No. 1-17-0516
in a “general sense” of what relevant information proposed witnesses would provide for the
plaintiff’s claim is not sufficient to show compliance with Rule 191(b). Wynne v. Loyola
University of Chicago, 318 Ill. App. 3d 443, 456 (2000) (finding that “[f]ailure to comply
with Rule 191(b) defeats an objection on appeal that insufficient time for discovery was
allowed”). It would appear that the decedent was on a “fishing excursion” and had no idea
what, if anything, the witnesses would provide in the manner of useful evidence. As a result,
plaintiff’s affidavit did not comply with the requirements of Rule 191(b), since she did not
state specifically what she believed the prospective witness would testify to if sworn and the
reasons for her belief.
¶ 93 Also, as explained earlier, the decedent’s claim that he was not totally disabled and that
he could return to work in a different job at the time of his leave of absence was barred by the
doctrine of judicial estoppel. None of the testimony sought by plaintiff could have changed
the fact that the decedent represented to the Social Security Administration and the Illinois
Workers’ Compensation Commission that he was disabled and unable to work. As a result,
the testimony sought by plaintiff would not have prevented judicial estoppel from barring the
decedent’s claims as a matter of law, and the trial court did not need extensive deposition
testimony to consider defendants’ motion for summary judgment.
¶ 94 Additionally, plaintiff did not aver that any of the 32 witnesses would raise an issue of
material fact by testifying that the decedent was not totally disabled during his leave of
absence and could return to work. Plaintiff lists only one physician as a potential witness, Dr.
Siegfried, who she avers “will have information about [the decedent]’s medical condition,”
without explaining what he would reveal about the decedent’s health or his ability to work.
The proof of claim forms completed by Dr. Siegfried were already in the record in the
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No. 1-17-0516
whistleblower case, and the trial court determined that they did not raise a genuine issue of
material fact that the decedent was disabled and unable to work. Since plaintiff’s affidavit did
not aver that any of the 32 witnesses would testify that the decedent was not totally disabled
and was able to return to work, the depositions sought by plaintiff would not have raised a
genuine issue of material fact.
¶ 95 Furthermore, the legal malpractice case had been pending for more than a year at the time
plaintiff filed her motion for additional discovery, and both parties had exchanged written
discovery, including answers to interrogatories and production of thousands of pages of
documents. At the time plaintiff filed her motion, she had not conducted any depositions,
despite her claim that she needed to depose at least 32 witnesses to respond to the motion for
summary judgment. As a result, we cannot say that the trial court abused its discretion when
it denied plaintiff’s motion in part and granted her leave to depose one additional witness.
¶ 96 Plaintiff argues that strict compliance with Rule 191(b) is not required where a motion for
summary judgment is made by the party who does not have the burden of proof on an issue
asserting that the nonmovant cannot prove a prima facie case, and the respondent has not
been provided a reasonable opportunity to conduct discovery before summary judgment.
Jiotis v. Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 26. However, Jiotis further
explained that, “to demand strict compliance with Rule 191(b) before adequate discovery—
before a party even knows the identity of witnesses who can provide material facts—turns
Rule 191(b) from a procedural safeguard for the nonmovant into a tactical weapon for the
movant.” (Emphasis added.) Jiotis, 2014 IL App (2d) 121293, ¶ 29. In the instant case, we
cannot say that plaintiff did not have an adequate opportunity to conduct discovery. At the
time of plaintiff’s motion, the parties had exchanged written discovery, including answers to
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No. 1-17-0516
interrogatories and production of thousands of pages of documents, and plaintiff was able to
name at least 32 potential witnesses that she wanted to depose who she claimed had
knowledge of material facts, yet no depositions other than the decedent’s were noticed during
the 14 months that the case was pending. As a result, we cannot say that the trial court abused
its discretion when it limited plaintiff to one additional deposition, and we affirm.
¶ 97 CONCLUSION
¶ 98 For the foregoing reasons, we affirm the judgment of the trial court. The trial court did
not err when it granted defendants’ motion for summary judgment, and it did not abuse its
discretion when it found that judicial estoppel barred the decedent’s claims. Additionally, the
trial court did not abuse its discretion when it limited the scope of discovery prior to ruling
on the motion for summary judgment.
¶ 99 Affirmed.
51