Nedzvekas v. Fung
| Decision Date | 26 June 2007 |
| Docket Number | No. 1-06-0479.,1-06-0479. |
| Citation | 872 N.E.2d 431 |
| Parties | Teresa NEDZVEKAS, Plaintiff-Appellant, v. Barnett FUNG, D.P.M., Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Goldstein, Fishman, Bender & Romanoff, Chicago (Ehsan Eftekhari and Harry C. Lee, of counsel), for Appellant.
Figliulo & Silverman, P.C., Chicago (John J. Lynch and Catherine M. Towne, of counsel), for Appellee.
The plaintiff, Teresa Nedzvekas, appeals from an order of the circuit court barring her from calling certain witnesses at trial and the court's subsequent order granting summary judgment in favor of the defendant, Dr. Barnett Fung, in this refiled medical negligence action. For the reasons which follow, we affirm the barring order, reverse the summary judgment granted in favor of the defendant, and remand this cause to the circuit court for further proceedings.
The facts relevant to the resolution of this appeal are undisputed.
On October 6, 2003, the plaintiff filed this action against the defendant, alleging that his negligent care and treatment of her feet resulted in severe pain, scarring, and deformity. After the plaintiff's initial counsel was granted leave to withdraw, new counsel was retained and appeared on November 19, 2004.
At the case management conference held on December 27, 2004, the circuit court entered an order requiring the plaintiff to complete her written discovery and disclose her Rule 213(f)(1) (210 Ill.2d R. 213(f)(1)) lay witnesses and Rule 213(f)(2) (210 Ill.2d R. 213(f)(2)) independent-expert witnesses by January 28, 2005. The court set the next case management conference for February 14, 2005.
On February 14, 2005, the circuit court entered an order extending the deadline for the plaintiff to complete her written discovery and Rule 213(f)(1) and (2) disclosures until February 28, 2005. The order also required that the plaintiff complete her Rule 213(f)(3) (210 Ill.2d R. 213(f)(3)) controlled-expert disclosures by March 7, 2005.
On March 16, 2005, the defendant filed a motion to bar the plaintiff's Rule 213(f)(1) and (2) witnesses not previously disclosed and all Rule 213(f)(3) witnesses because the plaintiff had failed to disclose this information in violation of the circuit court's orders. On June 2, 2005, the circuit court entered and continued the defendant's motion to bar, giving the plaintiff until June 9, 2005 to complete all written discovery and Rule 213(f)(1), (2), and (3) disclosures. The next case management conference was set for June 10, 2005.
The plaintiff did not attend the June 10, 2005, case management conference. That same day, the circuit court entered an order barring the plaintiff from "introducing at trial all Illinois Supreme Court Rule 213(f)(2) witness testimony not previously disclosed and * * * all Illinois Supreme Court Rule 213(f)(3) witness testimony for failure to comply with court orders."
On June 17, 2005, the plaintiff served the defendant with her Rule 213(f) disclosures, in which she disclosed the Rule 213(f)(1), (2), and (3) witnesses she intended to call at trial. Relevant to this appeal, the plaintiff disclosed Dr. Lowell Weil as her Rule 213(f)(3) controlled-expert witness and indicated that Dr. Weil was expected to testify as to the defendant's alleged deviation from the standard of care and the causation of her injuries.
On July 18, 2005, the defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2004)). While the defendant's motion for summary judgment was pending, the plaintiff filed a motion to vacate the circuit court's June 10, 2005, order barring her from calling certain witnesses. The circuit court denied the plaintiff's motion to vacate on November 3, 2005.
On December 6, 2005, the circuit court granted the defendant's motion for summary judgment, finding that, because the plaintiff had been barred from introducing expert testimony capable of establishing that the defendant deviated from the standard of care and caused the plaintiff's injuries, she would be unable to meet her burden of proof. This appeal followed.
The plaintiff argues that the circuit court abused its discretion in barring any Rule 213(f)(2) witnesses not previously disclosed and all Rule 213(f)(3) witnesses. The plaintiff contends that the sanction imposed by the circuit court was too severe under the circumstances of this case. We disagree.
Supreme Court Rule 219(c) authorizes the circuit court to prescribe sanctions, including barring witnesses from testifying, when a party fails to comply with the court's orders regarding discovery. 166 Ill.2d R. 219(c); Athans v. Williams, 327 Ill.App.3d 700, 703, 261 Ill. Dec. 971, 764 N.E.2d 586 (2002). The imposition of sanctions is within the discretion of the circuit court, and the court's decision in fashioning a sanction will not be disturbed on appeal absent a clear abuse of that discretion. Athans, 327 Ill.App.3d at 703, 261 Ill.Dec. 971, 764 N.E.2d 586.
In determining whether the circuit court abused its discretion in applying a sanction, this court must look to the same factors that the circuit court was required to consider in deciding an appropriate sanction. Smith v. P.A.C.E., 323 Ill.App.3d 1067, 1076, 257 Ill.Dec. 158, 753 N.E.2d 353 (2001). These factors include: (1) the surprise to the adverse party; (2) the prejudicial effect of the witness' testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timeliness of the objection; and (6) the good faith of the party seeking to offer the testimony. Boatmen's National Bank of Belleville v. Martin, 155 Ill.2d 305, 314, 185 Ill.Dec. 509, 614 N.E.2d 1194 (1993). No single factor is determinative, and each case presents a unique factual situation which must be taken into consideration when determining whether a particular sanction is proper. Smith, 323 Ill.App.3d at 1076, 257 Ill.Dec. 158, 753 N.E.2d 353.
In this case, the record reveals that the plaintiff failed to comply with three separate discovery deadlines set by the circuit court. The only excuse offered by the plaintiff for her noncompliance with these deadlines was her difficulty in arranging a meeting with her controlled-expert witness, Dr. Weil, and, then, her difficulty in locating specific x-rays requested by Dr. Weil. The plaintiff, however, acknowledges in her briefs that she did not inform the circuit court of her problems in complying with the circuit court's discovery orders, nor does it appear that she ever sought a continuance.
Seven days after the circuit court entered the order barring certain witnesses from testifying at trial, the plaintiff served the defendant with her Rule 213(f) disclosures. The plaintiff's disclosures named Dr. Weil as her sole controlled-expert witness and provided, inter alia, the following:
For each controlled-expert witness, Rule 213(f)(3) requires the disclosure of "(i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case." 210 Ill.2d R. 213(f)(3). As acknowledged by the plaintiff in her brief, the details of Dr. Weil's opinions are not contained in her Rule 213(f) disclosures. Rule 213 requires specifics. Sullivan v. Edward Hospital, 209 Ill.2d 100, 109, 282 Ill.Dec. 348, 806 N.E.2d 645 (2004). Providing the basis of a controlled-expert's opinion in a "catch-all" provision does not comply with the disclosure requirements of this rule. Chapman v. Hubbard Woods Motors, Inc., 351 Ill. App.3d 99, 110, 285 Ill.Dec. 569, 812 N.E.2d 389 (2004).
Furthermore, nothing in the record suggests a lack of diligence on the part of the defendant in conducting discovery. The plaintiff argues that the defendant was not diligent because his motion to bar does not include a statement, pursuant to Rule 201(k), that, after consultation and reasonable attempts to resolve their differences, the parties have been unable to reach an accord. 166 Ill.2d R. 201(k). Contrary to the plaintiff's argument, however, compliance with Rule 201(k) is not required when, as in this case, a party has disregarded discovery orders issued by the circuit court. Gayton v. Levi, 146 Ill.App.3d 142, 150, 99 Ill.Dec. 953, 496 N.E.2d 1045 (1986).
By violating three separate court orders setting the deadlines for disclosing witnesses, and, then, untimely serving the defendant with an insufficient witness disclosure, the plaintiff demonstrated a deliberate and unwarranted disregard of the court's authority. Based upon the record before us, we cannot conclude that the circuit court abused its discretion in entering the June 10, 2005, order barring the plaintiff from calling certain witnesses at trial or denying the plaintiff's motion to vacate that order.
Next, the plaintiff argues that the circuit court erred in granting summary judgment in favor of the defendant based upon her inability to present expert testimony establishing the defendant's deviation from the standard of care and causation. The plaintiff contends that summary judgment should not have been granted because the necessary expert testimony can still be provided by one of her...
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