Colburn v. Mario Tricoci Hair Salons & Day Spas, Inc.

• Decision Date: 26 June 2012
• Docket Number: No. 2–11–0624.,2–11–0624.
• Parties: Virginia COLBURN, Plaintiff–Appellant, v. MARIO TRICOCI HAIR SALONS AND DAY SPAS, INC., Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 110624

972 N.E.2d 266

361 Ill.Dec. 781

Virginia COLBURN, Plaintiff–Appellant,

v.MARIO TRICOCI HAIR SALONS AND DAY SPAS, INC., Defendant–Appellee.

No. 2–11–0624.

Appellate Court of Illinois, Second District.

June 26, 2012.

Robert K. Leyshon, Evins & Sklare, Ltd., Chicago, for appellant.

Robert Marc Chemers, Suzanne M. Crowley, Richard M. Burgland, Pretzel & Stouffer, Chartered, Chicago, for appellee.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

[361 Ill.Dec. 783]¶ 1 Plaintiff, Virginia Colburn, sued defendant, Mario Tricoci Hair Salons & Day Spas, Inc., alleging that she sustained injuries when defendant negligently recommended and performed a “Vitamin C facial” on January 13, 2004, following a “seaweed facial” that had irritated her skin on January 9, 2004. Plaintiff appeals from the trial court's order barring her esthetician ¹ expert witness's opinion testimony and granting summary judgment in favor of defendant on the basis that plaintiff had presented no evidence of the standard of care applicable to an esthetician at the time of the occurrence. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff originally initiated an action against defendant in 2006, but voluntarily dismissed the action in September 2009 pursuant to section 2–1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1009 (West 2010)). The record on appeal begins with the commencement of plaintiff's refiled action in October 2009.

¶ 4 Plaintiff's first amended complaint in the refiled action alleged the following. On January 9, 2004, plaintiff was a business invitee of defendant and received a seaweed facial. “[I]mmediately thereafter the very area where the facial had been applied turned red.” Plaintiff called defendant, and a manager instructed her “to come back to get a Vitamin C facial.” Plaintiff received a second facial, “which worsened the condition.” Defendant owed plaintiff a duty “to exercise ordinary and reasonable care and caution * * * so as not to cause harm and injury to its patrons.” Defendant violated that duty in various ways, including that defendant “improperly applied chemicals and/or products to [p]laintiff's face causing permanent burns to [p]laintiff's face” and “[c]arelessly and negligently recommended and applied a second facial when [defendant] knew or should have known, based on the reaction to the first facial, that it was not safe to do so.” As a result of defendant's negligence, “[p]laintiff's face has been permanently disfigured, discolored, and scarred, [and] the [p]laintiff has developed an allergic and sensitive condition to contaminants in the air and a good number of smells and presently cannot go into the sun.”

¶ 5 According to plaintiff's brief, she disclosed Natalia Doran pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) as her retained esthetician expert witness in the original action. However, nothing in the record indicates that the parties completed any further expert discovery before plaintiff voluntarily dismissed the action.

¶ 6 After plaintiff commenced her refiled action, the trial court ordered plaintiff to disclose her retained expert witnesses pursuant to Rule 213(f)(3) on or before June 1, 2010. The trial court subsequently extended that deadline to August 1, 2010, and then to October 7, 2010. On November 1, 2010, plaintiff disclosed Dr. Jeffrey Coe as her retained expert witness. Plaintiff's witness disclosure stated that Dr. Coe would testify to his opinion that the January 13, 2004, facial caused plaintiff to suffer various specified injuries. According to defendant's brief, when defendant took Dr. Coe's deposition on March 10, 2011, Dr. Coe testified that he had no opinion on the standard of care applicable to an esthetician. The record does not contain a transcript of Dr. Coe's deposition.

¶ 7 On April 18, 2011, plaintiff filed her “Motion to Disclose New (f)(3) Standard of Care Witness.” Plaintiff alleged the following. She had previously disclosed an esthetician expert witness ² who would testify to her opinion that defendant did not meet the applicable standard of care. Plaintiff's relationship with her expert had broken down to the extent that she could not continue with her as an expert. Plaintiff's medical causation expert ³ would remain the same and had been deposed. Plaintiff requested until April 29, 2011, to disclose a new esthetician expert witness.

¶ 8 The same day, the trial court entered an order directing plaintiff to disclose her new expert witness and corresponding report by April 29, 2011, at 4:30 p.m. or plaintiff would be barred from disclosing an esthetician expert.

¶ 9 On April 29, 2011, plaintiff sent a letter to defendant, purporting to enclose the Rule 213(f)(3) report of Pamela Stieber. Plaintiff stated that Stieber had e-mailed the report the night before and that it was therefore unsigned. The report consisted of a letter from Stieber to plaintiff's counsel and an attached one-page document. The letter stated the following. Stieber was an esthetician licensed in the state of Illinois since 2006. She had attendedPivot Point International Academy. She had experience with various skin and facial treatments and techniques, including microdermabrasion, chemical peels, facials, and laser treatments for rosacea, sun damage, acne, wrinkles, and scars.

¶ 10 The one-page document attached to the letter stated that Stieber had reviewed the depositions of plaintiff, Dr. Coe, defendant's spa coordinator and manager, defendant's corporate spa director, and one of defendant's estheticians. She had also reviewed plaintiff's handwritten summary of the incident, photographs of plaintiff, a book entitled Milady's Standard Esthetics Fundamentals Manual, defendant's esthetics training manual, defendant's written discovery responses, material safety data sheets, a “Repechage review summary sheet,” and a product ingredient listing sheet. None of these documents were attached to the report, and none are contained in the record.

¶ 11 The document then stated the following under the heading “Personal Opinion of Pamela Stieber”:

“When [p]laintiff, Virginia Colburn returned for her SECOND treatment on January 13, 2004, with demarcation from treatment dated January 9, 2004, I would have refused to treat Ms. Colburn. Upon reviewing the documents stated above, it is in my opinion when Ms. Colburn returned to Mario Tricoci on January 13, 2004, she should not have been treated. I feel this second treatment to Ms. Colburn, which included a steam treatment, exasperated [ sic ] her condition. As stated: MILADY'S Standard Esthetics Fundamentals Manual, Part 3 ‘The Skin Sciences' page 216, under CONTRAINDICATIONS, it states that a skin disorder or skin irritation can all contraindicate a service. Also, contraindications indicator shown in MARIO TRICOCI AESTHETIC TRAINING MANUAL, Facial Training—Sec. 2: Skin Analysis, Part B, Page 1, first bullet point asks:

Question[:] ‘Do you use vaporizers'?

Answer: Yes, we do use vaporizers in every Facial Treatment, unless a condition is present in which heat is a contraindication.

In Virginia Colburn's deposition transcript, she stated that her skin was irritated and blotchy, page 98, line number 23 and in her personal diary, dated Friday, January 9, 2004, she stated she experienced pain and redness of her face.

It is my personal opinion when Virginia Colburn returned for her second treatment on January 13, 2004 upon consulting and viewing client's skin, she should not have been treated, and she should have immediately been referred for medical attention.” (Emphases in original.)

¶ 12 Defendant then filed its “Motion to Bar and for Summary Judgment.” Defendant asked the court to strike Stieber's purported Rule 213(f)(3) report on the following grounds: (1) Stieber was not a licensed esthetician in 2004 when the incident occurred; (2) Stieber did not identify the standard of care for an esthetician in 2004; (3) Stieber gave her “personal opinion” rather than her professional opinion; and (4) Stieber did not identify the specific actions that violated a standard of care. Defendant then asked the court to enter summary judgment in its favor because “absent a properly disclosed expert to establish and address standard of care issues, plaintiff is unable to proceed with her alleged cause of action against the defendant.”

¶ 13 In response to defendant's motion, plaintiff argued that her disclosure was sufficient to qualify Stieber as an expert. Plaintiff contended that Stieber need not have been licensed in 2004 to be qualified to give her opinion as to the “conduct and standard” of an esthetician. Plaintiff maintained that Stieber's references to Milady's Standard Esthetics Fundamentals Manual and to defendant's own esthetics training manual established that she was giving her opinion on the standard of care applicable to defendant.

¶ 14 Plaintiff further argued that summary judgment would be improper because this was a “standard negligence case” in which the standard of care was that of a reasonable person, not a “medical arts” case. Plaintiff contended that defendant had “not demonstrated that there was not negligence under a general negligence standard.”

¶ 15 Plaintiff attached Stieber's affidavit to her response. The affidavit largely repeated the disclosures contained in Stieber's letter and one-page report, but included the following revised paragraph:

“In my professional opinion, when Virginia Colburn returned for her second treatment on January 13, 2004 with demarcation from treatment on January 9, [s]he should have been refused any treatment and referred to a physician. This demarcation was also described as painful, irritated, and blotchy skin. Refusal of treatment and referral was the appropriate standard of care under with [ sic ] the skin conditions present. When Ms. Colburn was treated on January 13, 2004, this violated the standard of care and...