Brummel v. Grossman, 1–17–0516

Citation428 Ill.Dec. 196,121 N.E.3d 970,2018 IL App (1st) 170516
Decision Date28 June 2018
Docket NumberNo. 1–17–0516,1–17–0516
Parties Maria BRUMMEL, Executor of the Estate of Bruce Brummel, Deceased, Plaintiff–Appellant, v. Richard D. GROSSMAN ; Agnes E. Grossman; 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).
CourtUnited States Appellate Court of Illinois

Julie A. Boynton and Donald L. Johnson, of Yorkville, for appellant.

James J. Sipchen and Thomas V.P. Draths, of Pretzel & Stouffer, Chtrd., of Chicago, for appellees Richard D. Grossman, Agnes E. Grossman, and Law Offices of Richard D. Grossman.

Joseph R. Marconi, David M. Macksey, and Brian C. Langs, of Johnson & Bell, Ltd., of Chicago, for other appellees.

JUSTICE GORDON delivered the judgment of the court, with 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 (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 Brummel2 (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 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 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.

¶ 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 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...

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3 cases
  • Carlson v. Michael Best & Friedrich LLP
    • United States
    • United States Appellate Court of Illinois
    • July 15, 2021
    ...when he or she believes that additional discovery is necessary to adequately respond to a motion for summary judgment. Brummel v. Grossman , 2018 IL App (1st) 170516, ¶ 91, 428 Ill.Dec. 196, 121 N.E.3d 970. Rule 191(b) requires in relevant part that the party seeking additional discovery pr......
  • Fox v. Adams & Assocs., Inc.
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    • United States Appellate Court of Illinois
    • February 6, 2020
    ...176 Ill.Dec. 22, 601 N.E.2d 720. ¶ 64 A medical inability to work is a legitimate nondiscriminatory reason for discharge. Brummel v. Grossman , 2018 IL App (1st) 170516, ¶ 55, 428 Ill.Dec. 196, 121 N.E.3d 970 ; La Porte v. Jostens, Inc. , 213 Ill. App. 3d 1089, 1093, 157 Ill.Dec. 745, 572 N......
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    • U.S. District Court — District of Maryland
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    ...damages alone; punitive damages represent a type of relief rather than an independent cause of action." Brummel v. Grossman , 428 Ill.Dec. 196, 121 N.E.3d 970, 998 (Ill. App. Ct. 2018). Because none of Hand's claims for liability survive summary judgment, her claim for punitive damages also......

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