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Schaefer v. Sippel

OPINION FILED MARCH 31, 1978.

KARL SCHAEFER, PLAINTIFF-APPELLANT,

v.

DR. RAYMOND G. SIPPEL ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order entered pursuant to Supreme Court Rules 218 and 219(c) (Ill. Rev. Stat. 1975, ch 110A, pars. 218, 219(c)), dismissing his complaint for failing to disclose any expert witness during a pretrial conference. We reverse and remand. The pertinent facts follow.

This action was filed on June 24, 1974, to recover damages allegedly sustained by plaintiff when he underwent "a needless and dangerous exploratory operation of the abdomen." Plaintiff alleged that it was the various negligent acts of the several defendants which caused him to undergo said operation, and thus caused his injuries. Defendants answered the complaint denying liability, and both sides proceeded with discovery.

On December 3, 1974, plaintiff filed his answers to interrogatories propounded by the defendant hospital. In response to Interrogatory No. 18's request that he "[s]tate the name and address of any and all expert witnesses" plaintiff stated "None."

On March 4, 1976, an order was entered setting this cause for "pretrial/trial." The pretrial was scheduled for April 21, 1976; however, there is no indication in the record of what, if any, proceedings actually occurred on that date. The March 4 order also recited that all discovery be concluded by April 21.

Shortly thereafter, plaintiff's original attorney withdrew from the case. The order granting the withdrawal, entered on June 15, 1976, provided that all proceedings in the action were stayed until after September 1, 1976, for the purpose of enabling plaintiff to secure other counsel. Plaintiff subsequently engaged his present counsel and on February 28, 1977, the defendant doctors filed the following motion:

"MOTION TO COMPEL DISCLOSURE OF PLAINTIFF'S EXPERT AND TO SET FOR TRIAL

Defendants Dr. Raymond G. Sippel and Dr. Ben Tatarowicz move this Court to enter an order compelling the plaintiff to disclose the name, address, and specialty of his expert witness within 7 days and to produce such expert for deposition within 7 days thereafter, and a further order setting this matter for trial at the convenience of the court."

In response to this motion the court entered an order on March 1, 1977, dismissing plaintiff's suit. The order reads:

"This cause having come to be heard on motion of defendants Sippel and Tatarowicz, and continued to this day, plaintiff being present by counsel,

It is hereby ordered that this action be dismissed for failure of plaintiff to disclose any expert witness, pursuant to Rule 218 and 219(c)."

Other than the order entered on that date, no report of the proceedings on March 1 appears in the record. However, in his motion to vacate the dismissal, filed on March 25, 1977, plaintiff's counsel recited that during the hearing on defendants' motion he informed the court that he did not yet have an expert witness and that he might be compelled to rely upon adverse examination of the defendant doctors. The court denied plaintiff's motion to vacate the dismissal, and this appeal follows.

OPINION

Supreme Court Rule 218 (Ill. Rev. Stat. 1975, ch. 110A, par. 218) ...


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