Smith v. Murphy

• Decision Date: 16 July 2013
• Docket Number: Docket No. 1–12–1839.
• Parties: Bozena SMITH, Plaintiff–Appellant, v. Brian MURPHY, M.D. and James McFadden, M.D. Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 121839

994 N.E.2d 617

373 Ill.Dec. 848

Bozena SMITH, Plaintiff–Appellant,

v.Brian MURPHY, M.D. and James McFadden, M.D. Defendants–Appellees.

Docket No. 1–12–1839.

Appellate Court of Illinois, First District, Second Division.

July 16, 2013.

Dean J. Caras, P.C., of Chicago (Tara C. Meadows, of counsel), for appellant.

Lowis & Gellen, LLP, of Chicago (Deborah M.R. O'Brien, Michael A. Code, and Brad E. Wolven, of counsel), for appellees.

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

OPINION

¶ 1 I. INTRODUCTION

¶ 2 Plaintiff appeals the entry of judgment in favor of the defendants claiming the trial court abused its discretion when, as a sanction for plaintiff's violation of discovery rules and court orders entered regarding discovery, it did not allow plaintiff to utilize an affidavit of a new, undisclosed expert well after discovery closed and the case was set for trial. Plaintiff never sought an extension of discovery and only submitted her undisclosed expert's affidavit in response to defendants' timely motion for summary judgment and without leave of court. For the reasons that follow, we hold that the trial court did not abuse its discretion and affirm the entry of judgment in favor of defendants.

¶ 3 II. BACKGROUND

¶ 4 In 2007, plaintiff, Bozena Smith, filed a medical professional negligence complaint concerning the 2006 postsurgical treatment she received. Plaintiff named the two doctors, Drs. Murphy and McFadden, who are the defendants-appellees and were employed as residents back in 2006, as well as two other doctors.

¶ 5 After all fact discovery was completed by the parties, the trial court entered the deadline of September 13, 2010 for plaintiff to disclose any experts pursuant to Rule 213(f)(3). Ill. S.Ct. R. 213(f)(3) (eff. Jan. 1, 2007). Plaintiff disclosed one expert she had hired to render an opinion in this case, Dr. Robert Henry Quinn.¹ Plaintiff stated she expected that Dr. Quinn, in part, would provide an expert opinion that both residents deviated from the standard of care in treating the plaintiff.

¶ 6 On November 8, 2010, plaintiff presented Dr. Quinn to opposing parties for deposition testimony at which time Dr. Quinn withdrew all adverse opinions he previously rendered against the residents and testified that he now held no opinions that implicated the residents in any substandard medical care of the plaintiff. Specifically, plaintiff's expert testified, as follows: “[I]t's my opinion that residents in training should not be held accountable for these kinds of decisions, and, ultimately, actions of a resident * * * are the responsibility of the attending physician. * * * I would like to scratch the two paragraphs [in my report] that implicate the residents.” Dr. Quinn was then asked if it was fair to say that he had no criticisms of the residents. He testified that statement was true. To completely clarify plaintiff's expert's withdrawal of his written report on the residents' professional conduct, Dr. Quinn testified that it was fair to say that he held “no opinions that any of the residents involved in Ms. Smith's care deviated from the standard of care.”

¶ 7 Plaintiff had numerous opportunities to bring the issue of her only expert, Dr. Quinn, and his deposition testimony to the trial court's attention, with the first opportunity coming nine days after Dr. Quinn's deposition testimony. Plaintiff was silent on the issue and the court issued its order setting a January 14, 2011 deadline for defendants to disclose their experts in rebuttal to the opinions held by plaintiff's only expert, Dr. Quinn. Defendants complied with this deadline.

¶ 8 On May 2, 2011, the trial court ordered all discovery closed on May 19, 2011. A final case management conference was held on May 24, 2011 at which time the trial court and the parties agreed upon a jury trial date of October 17, 2011. The trial court emphasized in that order that all discovery was closed as of the date of its order entered May 24, 2011.

¶ 9 Defendants filed timely motions for summary judgment on August 9, 2011. Between the November 8, 2010 deposition testimony of plaintiff's expert, Dr. Quinn, and the August 9, 2011 filing date of defendants' motions for summary judgment, there is no evidence in the record that plaintiff brought Dr. Quinn's withdrawal of his opinion that the two residents provided any substandard care to the court's attention.

¶ 10 On August 23, 2011, the trial court issued an order requiring plaintiff to respond to the defendants' motions for summary judgment by October 14, 2011, and struck the upcoming October 17, 2011 trial date. On October 12, 2011, plaintiff filed her response to defendants' motion for summary judgment, in part, by attaching an unsigned, proposed affidavit of a previously undisclosed retained expert, Dr. Salem El–Attrache. Plaintiff filed this affidavit, as well as a pleading entitled “Plaintiff's Supplemental Answers to Rule 213(f)(3) Interrogatories” without leave of court and well outside the discovery cutoff date of May 24, 2011. That same day plaintiff filed a motion requesting time to file a signed affidavit of Dr. Salem El–Attrache. The trial court ordered a briefing schedule on this motion. Defendants opposed the untimely disclosure of a completely new expert by plaintiff at this stage of the litigation.

¶ 11 A hearing was held on the issue of plaintiff's untimely disclosure of a new expert on February 17, 2012. The trial court ruled as follows:

“[S]ince the affiant would not be entitled to testify at trial, [the court] can't consider the affiant's affidavit for purposes of a motion for summary judgment. * * * [Plaintiff] waited until the motion was filed, until the conclusion of expert discovery, until Defendants ha[d] already incurred the cost of an expert witness and presented them for deposition. [Plaintiff] waited until that point to * * * backdoor a reopening of discovery which * * * is too late at this juncture. * * * We were set to go to trial. Discovery was closed. * * * [I]f [plaintiff] had stated ... we need an extension of time to disclose an additional witness, that's an issue we could have taken up [right after Dr. Quinn's deposition] but we didn't. Instead, no objection was raised. * * * [I]t would be awfully prejudicial at this juncture to say okay, [plaintiff] get[s] this new expert [that plaintiff] can use at trial and [plaintiff] can change now the facts of the case and [plaintiff] can supplement [her] 213s. I think its prejudicial and untimely.”

¶ 12 Having barred plaintiff's expert's opinion from consideration in the case, the court proceeded with the defendants' motions for summary judgment. On May 23, 2012, the trial court granted defendants' motions for summary judgment. On June 12, 2012, the trial court made the ruling final pursuant to Rule 304(a). Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010). Plaintiff filed a timely notice of appeal on June 26, 2012.

¶ 13 III. ANALYSIS

¶ 14 A. Standard of Review

¶ 15 On appeal, plaintiff argues that the trial court erred when it barred the affidavit of her previously undisclosed expert witness. The decision whether or not to impose sanctions for a party's failure to comply with the rules or court orders on discovery lies within the sound discretion of the trial court. The trial court's imposition of sanctions will not be reversed absent an abuse of discretion. Sullivan v. Edward Hospital, 209 Ill.2d 100, 110, 282 Ill.Dec. 348, 806 N.E.2d 645 (2004). Plaintiff relies on Jackson v. Graham, 323 Ill.App.3d 766, 773, 257 Ill.Dec. 330, 753 N.E.2d 525 (2001), when she argues that this court should apply the de novo standard of review because her affidavit of an undisclosed expert was attached to her response to defendants' motion for summary judgment. This court will follow the Sullivan standard of review. However, we would still affirm the trial court's imposition of the discovery sanction under a de novo review of its decision.

¶ 16 B. Illinois Supreme Court Rules on Discovery

¶ 17 Supreme Court Rule 213(f) requires a party answering an interrogatory to disclose, among other things, the following information:

“Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:

* * *

Controlled Expert Witnesses. A ‘controlled expert witness' is a person giving expert testimony who is the party, * * * or the party's retained expert. For each controlled expert witness, the party must identify: (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.” Ill. S.Ct. R. 213(f) (eff. Jan. 1, 2007).

¶ 18 Supreme Court Rule 213(d) requires a party to answer or object to an interrogatory within 28 days after service of the interrogatory. Ill. S.Ct. R. 213(d) (eff. Jan. 1, 2007). Additionally, pursuant to Rule 213(i), each party has a duty to “seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.” Ill. S.Ct. R. 213(i) (eff. Jan. 1, 2007).

¶ 19 All Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties. Sullivan v. Edward Hospital, 209 Ill.2d 100, 109, 282 Ill.Dec. 348, 806 N.E.2d 645 (2004); Zickuhr v. Ericsson, Inc., 2011 IL App (1st) 103430, ¶ 79, 357 Ill.Dec. 73, 962 N.E.2d 974. Our supreme court has stated that “[t]o allow either side to ignore Rule 213's plain language defeats its purpose and encourages tactical gamesmanship.” Sullivan v. Edward Hospital, 209 Ill.2d 100, 109–10, 282 Ill.Dec. 348, 806 N.E.2d 645 (2004). The Sullivan court also explained that the procedures for disclosure now contained in Rule 213 establish more exacting, precise standards than the predecessor Rule 220, which formerly...