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Van Hyning v. Hyk

OPINION FILED NOVEMBER 28, 1979.

RICHARD LEON VAN HYNING, ADM'R OF THE ESTATE OF BONNIE LOU VAN HYNING, DECEASED, ET AL., PLAINTIFFS,

v.

DR. STEFAN HYK, DEFENDANT-APPELLEE AND CROSS-APPELLANT. — (STUART DOBBS, APPELLANT AND CROSS-APPELLEE.)



APPEAL from the Circuit Court of Morgan County; the Hon. GORDON D. SEATOR, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

This is an appeal by plaintiff's attorney of an order finding him in contempt of court and imposing a fine of $25.

There exists no procedural impropriety in the order of contempt. The sole issue on appeal is whether the trial court abused its discretion in finding the respondent in contempt. The defendant has cross-appealed from the trial court's refusal to allow him costs arising from the prosecution of the contempt citation.

The contempt sentence was imposed upon plaintiff's attorney as a sanction incident to discovery in a medical malpractice action. The underlying complaint alleged that plaintiff's wife died as the result of defendant's prescription of a drug to control weight.

Plaintiff, as administrator of his wife's estate, filed a wrongful death action against the defendant seeking pecuniary damages in the amount of $15,000 and the funeral expenses. That complaint, filed on April 12, 1978, also included in count III an allegation of wilful and wanton misconduct. The defendant answered the complaint and admitted his duty of care but denied its breach and therefore liability.

As part of their preparation, plaintiff and his attorney secured expert reports concerning the drug at issue from two experts in pharmacology and toxicology. While these reports are as yet not in the record, they supposedly detail the nature of the drug at issue and acknowledged rules for its proper use.

On May 11, 1978, defendant filed a request to produce. One of the items sought by that request was all relevant medical or expert reports. On July 11, 1978, plaintiff filed a notice of compliance with defendant's request to produce. Plaintiff stated in that notice that the above referenced reports of experts would be turned over to defendant after the defendant's discovery deposition. On that same day plaintiff served notice calling defendant to a discovery deposition on August 21, 1978.

On August 18, 1978, defendant responded by filing a motion to quash the notice of deposition and to compel production. No action was taken on that motion until November 27, 1978, when the trial court, in a memorandum opinion, quashed the notice of discovery deposition until plaintiff turned over the reports of its experts. On January 10, 1979, plaintiff was ordered to produce the reports on or before January 15, 1979. When plaintiff did not obey this order defendant moved that plaintiff's attorney be held in contempt of court and that plaintiff be ordered to pay the defendant's costs of securing the contempt order, including attorney's fees. The trial court found Mr. Dobbs in contempt and fined him $25. That order stated Dobbs could purge himself of the contempt by payment of the fine and by turning over the reports. The order also denied defendant's request for costs.

The same day Mr. Dobbs filed his notice of appeal. Defendant cross-appeals from the denial of costs.

In part, the argument here revolves around the correct law to apply. At the time this lawsuit was filed, Supreme Court Rule 201(e) (Ill. Rev. Stat. 1977, ch. 110A, par. 201(e)) provided:

"(e) Sequence of Discovery. Unless otherwise ordered, depositions and other discovery procedures shall be conducted in the sequence in which they are noticed or otherwise initiated."

In effect, this created a race to the courthouse for discovery. Defendant won that race here.

However, plaintiff's attorney argues that the supreme court's new Rule 201(e) (73 Ill.2d R. 201(e), as amended effective Nov. 1, 1978) should apply.

"(e) Sequence of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition ...


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