Gibellina v. Handley

• Decision Date: 22 February 1989
• Docket Number: Nos. 65781,66010 and 66197,s. 65781
• Citation: 129 Ill.Dec. 93,535 N.E.2d 858,127 Ill.2d 122
• Parties: , 129 Ill.Dec. 93 Michael GIBELLINA, Appellee, v. George HANDLEY, et al., Appellants. Joseph SCHMITT, et al., Appellees, v. MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., et al. (Motorola Communications and Electronics, Inc., Appellant). David WARE, Appellee, v. CENTRAL DuPAGE HOSPITAL, et al., Appellants.
• Court: Illinois Supreme Court

Page 858

535 N.E.2d 858

127 Ill.2d 122, 129 Ill.Dec. 93

Michael GIBELLINA, Appellee, v. George HANDLEY, et al., Appellants.

Joseph SCHMITT, et al., Appellees, v. MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., et al.

(Motorola Communications and Electronics, Inc.,

Appellant).

David WARE, Appellee, v. CENTRAL DuPAGE HOSPITAL, et al., Appellants.

Nos. 65781, 66010 and 66197.

Supreme Court of Illinois.

Feb. 22, 1989.

Wildman, Harrold, Allen & Dixon, of Wheaton (Lenard C. Swanson and Bruce S. Terlep, of counsel), for appellants in 65781, George Handley and Harb Boury.

Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, Donald N. Hoppe and Nancy Tordai O'Shaughnessy, of counsel), for appellants in 65781, Mark Heymann et al.

Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Jeffry S. Spears and Diane I. Jennings, of counsel), for appellant in 65781, Central DuPage Hospital.

Daniel J. Rice, of Forest Park, in 65781, for appellee.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini and Richard R. Winter, of counsel), for amicus curiae in 65781, Illinois Association of Defense Trial Counsel.

Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellant in 66010.

Carr & O'Rourke Associates, of Chicago (Donald A. Carr and Robert R. Dlugajczyk, of counsel), for appellees in 66010.

James T. Newman, of Robert J. Cooney & Associates, of Chicago, and Kathy Byrne, law student, for amicus curiae in 66010, Illinois Trial Lawyers Association.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini and Richard R. Winter, of counsel), for amicus curiae in 66010, Illinois Association of Defense Trial Counsel.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (David P. Meyer, Stephen R. Swofford and Adam S. Kreuzer, of counsel), for appellant in 66197, Gerald A. Jabaay.

Thomas J. McDonnell, of Chicago, for appellee in 66197.

Justice CLARK delivered the opinion of the court:

At issue in each of these cases is an interpretation of the scope and extent of the right extended to a plaintiff by the voluntary dismissal statute in the Illinois Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2- 1009). The cases are similar in these respects: In each case the appellant filed a pretrial motion for summary judgment and in each case the appellee subsequently filed a motion for voluntary dismissal before any decision had been entered on appellants' motion for summary judgment. Each trial court granted the motion for summary judgment and denied the appellees' motion for voluntary dismissal. The appellate court reversed in each instance, holding that, because the trial courts did not have the discretion to hear the appellants' motions in advance of appellees' motions for voluntary dismissal, they therefore erred in denying the motions for voluntary dismissal. (Gibellina v. Handley, 158 Ill.App.3d 866, 110 Ill.Dec. 707, 511 N.E.2d 884; Schmitt v. Motorola, Inc., 160 Ill.App.3d 1059, 112 Ill.Dec. 460, 513 N.E.2d 1069; Ware v. Jabaay, 161 Ill.App.3d 1160, 122 Ill.Dec. 609, 526 N.E.2d 1148 (unpublished order under Supreme Court Rule 23).) Appellants' petitions for leave to appeal were each granted (107 Ill.2d R. 315) and these cases were consolidated; Gibellina and Schmitt were consolidated before oral argument while Ware was added following oral argument before this court. The Illinois Association of Defense Trial Counsel was granted leave to file an amicus curiae brief in support of appellants' position and the Illinois Trial Lawyers Association was similarly granted leave to file an amicus curiae brief on behalf of appellees' position. While, for the reasons stated herein, we today affirm the decisions of the appellate court, we announce a prospective change, elaborated below, which is initiated to curb the current abuses of the voluntary dismissal statute.

Because each case presents a somewhat different procedural history, and because appellants assert that change in the law is required because of the extensive abuse of the statutory right, the procedural background of each case will be presented before a discussion of the scope and extent of the rights embodied in the voluntary dismissal statute.

Gibellina v. Handley, 158 Ill.App.3d 866, 110 Ill.Dec. 707, 511 N.E.2d 884, is a medical malpractice action first initiated in the Cook County circuit court in early 1983. Appellee filed a complaint which alleged that surgery had been negligently performed at Central DuPage Hospital in Du Page County in March 1981. Nineteen defendants were named in the suit; 18 of the defendants resided in Du Page County and one resided in Cook County. In July 1985 the case was transferred to the circuit court of Du Page County, where a status hearing was held on December 30, 1985. At the status hearing the court set a pretrial conference for July 11, 1986, with trial to commence on August 11, 1986. During the early months of 1986, appellants, the defendants in the court below, filed various interrogatories and requests for identification of the appellee's expert witnesses. Failing a full response to the interrogatories and requests, on May 5, 1986, the court ordered that appellee respond to all outstanding discovery requests by May 19, 1986. Appellee, however, indicated that he had not as yet selected an expert witness. Appellants then filed additional requests during May and June, to which appellee did not respond. During the pretrial conference on July 11, 1986, the appellee was still not prepared to name an expert witness; on appellants' motion the trial court therefore barred appellee from presenting expert witnesses at the trial pursuant to Supreme Court Rule 220 (107 Ill.2d R. 220). Following this ruling barring testimony from expert witnesses, appellants individually filed affidavits and motions for summary judgment. On August 4, 1986, the appellee filed a motion to vacate the July 11 order barring expert witnesses, asserting that more time was needed to complete discovery prior to naming experts. The court denied the motion to vacate, but did order that the deposition of one of the appellants be completed by August 8, 1986, the date on which the court had scheduled a hearing on the summary judgment motions. In the interim, appellee filed a section 2-1009 motion (Ill.Rev.Stat.1985, ch. 110, par. 2-1009) for voluntary dismissal and scheduled arguments on the motion for August 7. Appellants objected to the section 2-1009 motion, asserting that their previously filed and potentially dispositive motions for summary judgment took precedence. Based on our decision in O'Connell v. St. Francis Hospital (1986), 112 Ill.2d 273, 97 Ill.Dec. 449, 492 N.E.2d 1322, the trial court denied appellee's motion pending a hearing on the appellants' motions for summary judgment. Because appellee would be barred from presenting expert witness testimony at the trial to establish a deviation from the medical standard of care, the trial court granted summary judgment for the appellants. Appellee appealed from the orders barring expert testimony, denying the motion for voluntary dismissal and granting the motion for summary judgment. The appellate court reversed the trial court's denial of the motion for voluntary dismissal and did not address the remaining issues. 158 Ill.App.3d 866, 110 Ill.Dec. 707, 511 N.E.2d 884.

Schmitt v. Motorola Communications and Electronics, Inc., No. 66010, is a products liability case first filed on June 15, 1979, against three parties: Motorola, Inc., Motorola Communications and Electronics, Inc., and Industrial Electronics Service Corporation. The complaint alleged that communications equipment purchased on June 21, 1977, had generated excessive amounts of electromagnetic radiation which caused loss of hair, loss of hearing, headaches, sporadic blurred vision, muscle spasms and pain. Approximately three years later, on April 17, 1982, one of the named defendants, Motorola, Inc., filed a counterclaim against appellees based on their failure to pay for the communications equipment. A few days later, on April 22, 1982, Motorola, Inc., also requested that the court regulate discovery. Although appellees had previously responded to interrogatories by naming 11 individuals as their expert witnesses, it appears from the record that they had merely named nationally known authorities on radio wave emissions and had never personally contacted these authorities to serve as experts for this litigation. At the April 22 hearing, appellees were ordered to disclose their experts on or before July 22, 1982. However, 2 1/2 years later, on January 16, 1985, appellants again filed interrogatories pursuant to Supreme Court Rule 220 because appellees had not, as of that date, disclosed experts. Subsequently, one year later, on February 24, 1986, Motorola, Inc., moved to bar appellees from calling any expert witnesses at trial based on their failure to comply with the Rule 220 interrogatories. However, the court again instructed the appellees to name an expert, this time requiring that disclosure be made on or before June 13, 1986. On June 13 the court granted an additional 30-day extension with the stipulation that should appellees fail to disclose experts by that time they would be barred from calling any experts at trial. Appellees failed to disclose expert witnesses as ordered and on October 9, 1986, all appellants moved for summary judgment based on the assertion that appellees would be unable to establish a defect in the products without expert testimony. The motion was set for a briefing schedule and a hearing date; however, before the hearing could be held on the summary judgment motion, the appellees, on November 6, 1986, filed a section 2-1009 motion to voluntarily dismiss the suit. On November 10 the motion for voluntary dismissal was preliminarily denied, again based on O'Connell, but subject to a rehearing after briefing by all the parties....