Brown v. Jaimovich
| Decision Date | 31 March 2006 |
| Docket Number | No. 1-05-0146.,1-05-0146. |
| Citation | 847 N.E.2d 870 |
| Parties | Michael BROWN, Individually and as Independent Administrator of the Estate of Michael Brown, Jr., Deceased, and Jeanne Brown, Individually, Plaintiffs-Appellees, v. David JAIMOVICH, M.D., Criticare Systems, Ltd., Javeed Akhter, M.D., and Advocate Christ Medical Center, d/b/a Advocate Christ Hospital and Medical Center and d/b/a Hope Children's Hospital, Defendants-Appellants (George Skarpathiotis, M.D., George Skarpathiotis, M.D., S.C., a corporation, Chicago Pediatrics, Ltd., a corporation, Palos Pediatrics, Ltd., a corporation, and Companion Care Medical Group, Inc., Suburban Pediatric Pulmonology Associates, S.C., Jaidad, LLC, Defendants). |
| Court | United States Appellate Court of Illinois |
Defendants David Jaimovich, M.D., Criticare Systems, Ltd., Javeed Akhter, M.D., and Advocate Medical Center, doing business as Advocate Christ Hospital and Medical Center and doing business as of the Hope Children's Hospital appeal from an order of the circuit court converting them from respondents in discovery to defendants under section 2-402 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West 2004)), in plaintiffs Michael Brown, individually and as the independent administrator of the Estate of Michael Brown, Jr., and Jeanne Brown's medical malpractice action against defendants. This matter is before us on interlocutory appeal pursuant to the following question certified by the trial court:
"Whether a trial court had discretion to extend the six-month statutory window for conversion set forth in 735 ILCS 5/2-402 after the September 25, 2003 decision in Robinson v. Johnson, 346 Ill.App.3d 895, 809 N.E.2d 123, 284 Ill. Dec. 1 (1st Dist. September 25, 2003) (No. 1-02-2121), rehearing denied (Mar. 22, 2004), opinion supplemented on denial of rehearing by Robinson v. Johnson, 346 Ill.App.3d 895, 2004 WL 594098 (1st Dist. Mar. 25, 2004), and subsequently order conversion of respondents in discovery to defendants after the initial six-month statutory window had expired."
For the reasons set forth below, we answer the certified question in the affirmative, as limited.
This lawsuit arose as a result of the death of plaintiffs' eight-year-old son due to the alleged negligence of certain entities and individuals. On April 11, 2003, plaintiffs filed their complaint against Dr. George Skarpathiotis, George Skarpathiotis, M.D., S.C., a corporation, Chicago Pediatrics, Ltd., and Palos Pediatrics, Ltd. and named, inter alia, Dr. Javeed Akhter, Companion Care Medical Group, Inc., Suburban Pediatric Pulmonology Associates, S.C., Jaidad, LLC, Dr. David Jaimovich, Criticare Systems, Ltd., and Advocate Christ Medical Center as respondents in discovery. Pursuant to section 2-402, plaintiffs had until October 11 to convert respondents in discovery into defendants. Thereafter, plaintiffs submitted discovery requests to Akhter. On June 2, plaintiffs also submitted discovery requests to Jaimovich. On September 3, Akhter answered plaintiffs' discovery. On September 18, plaintiffs filed a motion to extend the time for discovery and to extend the time to convert respondents in discovery for 120 days to February 11, 2004, because, in part, respondents had not answered discovery and had not appeared for depositions.
On September 25, 2003, the Robinson court answered the following certified question in the negative: "whether a trial court has discretion pursuant to Illinois Supreme Court Rule 183 (134 Ill.2d R. 183) to extend the six-month statutory period set forth in section 2-402 * * * for converting respondents in discovery to defendants." Robinson, 346 Ill.App.3d at 897-98, 284 Ill.Dec. 1, 809 N.E.2d 123. Subsequently, the Robinson plaintiff filed a petition for rehearing and the court granted leave to the Illinois Trial Lawyers Association to file an amicus curiae petition for rehearing. Robinson, 346 Ill. App.3d at 907, 284 Ill.Dec. 1, 809 N.E.2d 123.
On September 26, the trial court here, unaware of Robinson, granted plaintiffs' motion to extend to February 11, 2004. On October 6, Dr. Akhter cancelled his deposition that had been previously scheduled and confirmed for this date. On October 23, Akhter filed a motion to terminate his status as a respondent in discovery and to reconsider the court's September 26 order based on Robinson. Six days later, Advocate Christ Medical Center filed a motion to terminate its status as a respondent in discovery. On October 30, the trial court set a briefing schedule and set a status date for December 22.
On December 2, plaintiffs filed an emergency motion for an extension of time to file a response to Dr. Akhter's motion to reconsider, which the trial court granted, giving plaintiffs until December 13 to respond, and set the case for status on January 13. On December 12, the trial court granted plaintiffs' additional emergency motion for an extension to respond, and continued defendants' motion to terminate and reconsider for status on January 13.
On January 13, 2004, the trial court continued defendants' motions to terminate and reconsider to March 15. On February 11, plaintiffs filed an emergency motion to extend time to convert respondents into defendants on the basis respondents filed motions to reconsider and a petition for rehearing was pending in Robinson. Plaintiffs' motion was continued to February 17. On February 12, Dr. Jaimovich answered plaintiffs' discovery requests propounded in June 2003. On February 17, the trial court continued plaintiffs' emergency motion to extend time to convert to March 15. On March 15, the trial court continued defendants and plaintiffs' motions to March 20 for status.
On March 25, the Robinson court denied the petitions for rehearing, but supplemented and modified its opinion. On rehearing, the Robinson court addressed the applicability of section 2-1007 of the Code, "Extension of Time and Continuances," to the issue at hand as well as prospective versus retroactive applicability of its ruling. The Robinson court held that
"our decision that Supreme Court Rule 183 does not provide a basis to extend the six-month time limit of section 2-402 applies only to those cases in which plaintiffs sought and received extensions of their section 2-402 motions beyond that section's six-month time limit commencing after the date of our decision in this case." Robinson, 346 Ill.App.3d at 911, 284 Ill.Dec. 1, 809 N.E.2d 123.
On April 7, plaintiffs filed a motion to convert certain respondents in discovery into defendants, including defendants before this court. On April 19, a briefing schedule was set with a status date set for June 16. On May 3, plaintiffs filed their brief in support of probable cause for conversion. Thereafter, defendants filed responses to plaintiffs' motion to convert. However, on June 2, plaintiffs filed an emergency motion to strike the briefing schedule based on the fact the plaintiff in Robinson had filed a petition for leave to appeal (PLA) to the supreme court, requesting that their motion to convert be continued until the supreme court resolved the PLA. The trial court granted plaintiffs' motion to strike the briefing schedule and set a status date for June 30. On June 30, the trial court continued the case to October 13.
On October 6, the supreme court denied the PLA filed in Robinson. On October 13, the trial court in the instant case set the matter for status on November 5 and thereafter set the case for hearing on December 6. On December 6, the trial court granted plaintiffs' motion to convert respondents in discovery to defendants, denied defendants' motions to terminate status as respondents in discovery, and denied defendants' motions to reconsider its order of September 26, 2003. At a hearing on this date, plaintiffs' counsel in argument indicated that the reason for the delay in ruling on motions in this case was because the parties and court were waiting for the Robinson issue to be decided. None of respondents' attorneys objected to this comment, nor did they argue to the contrary in their arguments. Thereafter, plaintiffs filed their amended complaint, adding respondents in discovery as defendants.
On January 4, 2005, Dr. Akhter filed an emergency motion to reconsider the court's December 6, 2004, order or, in the alternative, to clarify the appellate court's language and to certify a legal question of law for appeal. Dr. Jaimovich and Criticare joined this motion. The trial court denied the motion to reconsider, but granted the motion to clarify and certify a question for appeal. On January 13, the trial court entered an order allowing defendants an immediate appeal and certified for appeal the question set forth above. Thereafter, Akhter filed a petition for leave to appeal the certified question in this court pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), joined by Advocate Christ Medical Center, Criticare Systems, Ltd., and Jaimovich, which we granted.
The rules with respect to our review of certified questions are well-settled:
Fosse v. Pensabene, 362 Ill.App.3d 172, 177, 297 Ill. Dec. 771, 838 N.E.2d 258 (2005).
Section 2-402 provides in pertinent part:
"A person or entity named as a...
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