Swiszcz v. Ill. Cent. R.R. Co.
| Decision Date | 13 May 2016 |
| Docket Number | No. 1-14-3775,1-14-3775 |
| Citation | 2016 IL App (1st) 143775 -U |
| Parties | DANIEL SWISZCZ, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
Honorable James P. Flannery, Judge Presiding.
¶ 1 Held: We affirmed the denial of plaintiff's petition under sections 2-1301 and, alternatively, 2-1401 of the Code of Civil Procedure to set aside the dismissal of his FELA claim for want of prosecution, finding that plaintiff's petition under both section 2-1301 and section 2-1401 was time-barred.
¶ 2 Plaintiff, Daniel Swiszcz, brought an action against defendant, the Illinois Central Railroad Company, under the Federal Employers' Liability Act (FELA) (45 U.S.C. §51 et seq.), to recover damages occasioned by defendant's alleged negligence. The circuit court dismissed the action without prejudice for want of prosecution. Plaintiff filed a petition pursuant to section 2-1301 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1301(West 2012)), or, in the alternative, section 2-1401 of the Code, (735 ILCS 5/2-1401 (West 2012)) (hereinafter, the section 2-1301/2-1401 petition), to set aside the dismissal order and reinstate the action. The circuit court denied the section 2-1301/2-1401 petition, and plaintiff filed this appeal. We affirm.1
¶ 3 Plaintiff began working for defendant in 1998 as a machinist. In January 2004, he was diagnosed with cancer in his right lung, which he had surgically removed. He underwent chemotherapy for several months and eventually returned to work.
¶ 4 In late 2010, plaintiff was diagnosed with cancer in his left lung. On December 13, 2011, plaintiff filed his three-count, FELA complaint against defendant, alleging that during the course of his employment with defendant, he was exposed to harmful and hazardous diesel exhaust and that as a result, he contracted lung cancer. Count I alleges that defendant's negligence caused or contributed to his right lung cancer. Counts II and III allege that defendant's negligence caused or contributed to his left lung cancer.
¶ 5 From the time plaintiff filed his complaint in December 2011 until July 2014, his case was primarily handled by attorney Kenneth Rudd from the C. Marshall Friedman firm in St. Louis, while attorney Anthony Elman in Chicago served as plaintiff's local counsel.
¶ 6 During the November 1, 2013, deposition of plaintiff's pulmonologist, Dr. Layous, Mr. Rudd questioned Dr. Layous about a document (the Layous document) he signed on April 4, 2011, in which he rendered an opinion about causation in this matter. Plaintiff had not previously produced the Layous document to defendant, even though the document was responsive to numerous requests defendant propounded on plaintiff nearly a year and a half earlier. As such, defendant was unprepared to question Dr. Layous about the document at the time of his deposition. Defendant was also denied the opportunity to question plaintiff about theLayous document, as plaintiff's deposition took place more than eight months prior to Mr. Rudd's disclosure of the document.
¶ 7 On December 11, 2013, one day before the scheduled deposition of one of plaintiff's other treating physicians, Dr. Jano, Mr. Rudd produced a document (the Jano document) that had not been previously produced despite defendant's numerous requests to which the document was responsive and despite defendant's repeated requests that plaintiff produce copies of the medical records in his possession. The Jano document included an opinion on causation in this matter and was identical to the Layous document except for the name of the doctor signing it and the date on which it was signed.
¶ 8 At the case management conference on January 2, 2014, defendant informed the court that plaintiff had not yet answered defendant's discovery requests related to the Layous document and also raised the issue of Mr. Rudd's withholding the Layous and Jano documents from defendant. The circuit court ordered: (1) plaintiff to answer defendant's Rule 213(f)(3) (Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007)), interrogatories by February 18, 2014; (2) defendant to file a motion to compel relating to the issues surrounding its discovery requests relating to the Layous document; (3) Mr. Rudd to appear at the hearing on defendant's motion to compel; and (4) that Rule 213(f)(1) and (f)(2) discovery was closed for all other matters.
¶ 9 Defendant filed its motion to compel plaintiff's responses to discovery requests and sanctions on February 21, 2014. At the next case management conference on February 27, 2014, the court entered an order providing that plaintiff, who had not disclosed his Rule 213(f)(3) witnesses by the February 18, 2014, deadline, had waived his Rule 213(f)(3) disclosures.
¶ 10 On March 7, 2014, the circuit court: granted defendant's motion to compel, and entered an order providing that defendant had until April 23, 2014, to bring a petition for fees; barred plaintiff from using the Layous document at trial and barred Dr. Layous from giving testimony at trial relating to the document; required plaintiff to produce a privilege log to defendant by March 14, 2014; and ordered Mr. Rudd to appear at the April 23, 2014, case management conference. The order further stated that Mr. Rudd "failed to appear today despite being ordered to on January 2, 2014."
¶ 11 On April 17, 2014, plaintiff filed an emergency motion to reopen discovery and permit him to disclose experts pursuant to Rule 213 and Rule 218. The circuit court denied the motion on April 23, 2014.
¶ 12 At the case management conference on June 18, 2014, the court granted Mr. Elman and his firm leave to file a motion to withdraw as plaintiff's counsel and ordered that "[r]esponsible trial counsel is *** to appear at all future court hearings or the case will be [dismissed for want of prosecution]."
¶ 13 On June 24, 2014, Mr. Elman filed his motion to withdraw as plaintiff's local counsel. On July 9, 2014, the court granted Mr. Elman's motion and ordered that Scott Friedman, an attorney from Mr. Rudd's firm who is licensed in Illinois, file his appearance as plaintiff's counsel on or before July 16, 2014. In a separate order entered on that same date, the court ordered that both Mr. Rudd and Mr. Friedman appear at all court hearings or the case would be dismissed with prejudice, and that plaintiff's deposition of defense expert Dr. Rosenberg shall proceed on August 18, 2014, at 5 p.m. in Beachwood, Ohio. Dr. Rosenberg required prepayment of $500 from plaintiff prior to his deposition; plaintiff did not make the payment, and accordingly Dr. Rosenberg did not appear for the deposition. Neither Mr. Rudd nor Mr.Friedman notified defendant ahead of time that Dr. Rosenberg would not be appearing for the deposition.
¶ 14 On July 18, 2014, the case came above the court's so-called "Black Line" established by General Administrative Order 03-1 of the Law Division (Cook Co. Ct. Admin. Order 03-1 (eff. March 20, 2004)) (hereinafter General Administrative Order 03-1), and was called for trial on that date. See paragraph 1.4d of General Administrative Order 03-1, providing that cases above the Black Line are subject to immediate trial assignment. Neither Mr. Rudd nor Mr. Friedman appeared in court on July 18, 2014, and as a result, the circuit court dismissed the case for want of prosecution (DWP).
¶ 15 On September 16, 2014, plaintiff filed his section 2-1301/2-1401 petition seeking to reinstate counts II and III of his complaint relating to his left lung cancer2. Plaintiff claimed therein that his counsel did not appear at the Black Line trial call because neither Mr. Rudd nor Mr. Friedman received any notice from the court that the case had come up on the Black Line. Plaintiff also claimed his counsel did not learn of the DWP until September 2, 2014.
¶ 16 Plaintiff argued that the circuit court should treat the DWP as an interlocutory order and set it aside pursuant to section 2-1301(e), which provides the court with the authority to set aside certain non-final orders or judgments. 735 ILCS 5/2-1301(e) (West 2012). Alternatively, plaintiff argued that if the court determined that the DWP was a final judgment, then it should vacate the judgment pursuant to section 2-1401, which provides for relief from final judgments after 30 days from the entry thereof. 735 ILCS 5/2-1401 (West 2012). In making his section 2-1401 argument, plaintiff contended that the three-year statute of limitations for FELA actionsshould be considered to have been tolled during the pendency of this case in the circuit court, such that resumption of the suit would be considered timely. We will discuss the statute of limitations argument in more detail later in this order.
¶ 17 On September 24, 2014, plaintiff noticed his section 2-1301/2-1401 petition for a hearing on October 23, 2014. On October 8, 2014, plaintiff served an amended notice of hearing, resetting the hearing date for November 13, 2014. In doing so, plaintiff did not seek leave of the court or strike the previously scheduled hearing and, thus, the October 23, 2014, hearing remained on the circuit court's docket and was stricken by the court when counsel failed to appear.
¶ 18 On October 9, 2014, defendant filed its response to plaintiff's section 2-1301/2-1401 petition. Defendant argued that a DWP in a FELA case is a final order, and that since plaintiff filed his petition more than 30 days after the entry of this final order, the court could not reinstate the case pursuant to section 2-1301. See 735 ILCS 5/2-1301(e) (West 2012) (...
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