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Burton v. Estrada

OPINION FILED NOVEMBER 18, 1986.

STEPHANIE BURTON, A MINOR, BY LOU ADA BURTON, INDIV. AND AS HER MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLEES,

v.

EVELYN ESTRADA, DEFENDANT-APPELLANT (THE UPJOHN COMPANY, ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. James E. Murphy, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Appellant, Dr. Evelyn Estrada, appeals under Supreme Court Rule 304(b)(3) (103 Ill.2d R. 304(b)(3)), from the grant of a section 2-1401 petition (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), which vacated a dismissal order and reinstated her as a defendant in this case. We affirm.

On January 16, 1979, plaintiffs, Stephanie Burton, a minor, and her mother, Lou Ada Burton, filed suit against appellant and two drug manufacturers, Merck, Sharp & Dohme and The Upjohn Company. Plaintiffs alleged that Stephanie was born on March 11, 1977, with congenital anomalies of the genitourinary tract because her mother had been taking two drugs, Hydrodiuril and Provera. Plaintiffs charged that appellant committed medical malpractice by negligently prescribing the two drugs, and they also asserted separate claims against the drugs' manufacturers under strict liability and negligence theories.

Discovery proceeded and appellant gave a deposition in Chicago, which was not completed. On January 28, 1985, the parties appeared before Judge James E. Murphy for a pretrial conference, and he set the cause for further pretrial proceedings on March 18, 1985. At the March 18 meeting, May Griffioen, a partner in the firm of Goldberg & Goldberg, appeared for plaintiffs and Kay Schichtel represented appellant. On the same day, Judge Murphy entered an order that dismissed the case against appellant with prejudice. The order stated:

"This cause coming on for pre-trial, all parties being represented by counsel,

IT IS HEREBY ORDERED THAT:

(1) This cause is dismissed with prejudice and without costs to the parties with respect to Dr. Evelyn Estrada only, all matters in controversy having been settled between Dr. Estrada and plaintiffs;

(2) This matter shall continue as to all other parties;

(3) All discovery against Upjohn will be stayed until after the next pre-trial;

(4) Further pre-trial is set for September 17, 1985 at 11:30 a.m. before Judge Murphy."

Because there was no Rule 304(a) finding of no just reason to delay appeal or enforcement, this dismissal order was not enforceable or appealable at the time it was entered. See 103 Ill.2d R. 304(a).

On April 1, 1985, appellant's attorney, Kay Schichtel, mailed a letter to May Griffioen and enclosed documents identified as a release of attorney's lien, covenant not to sue and indemnity agreement, and a copy of the dismissal order entered on March 18, 1985. The letter concluded:

"You mentioned at the pre-trial that this portion of the settlement would be placed in an interest-bearing account. I think that we should have the name of the bank on the check, along with your firm's name and that of Mrs. Burton. Please let me know the name of the bank or other repository of the funds. I will then request the settlement draft in the amount of $100,000.00."

Barry Goldberg, of Goldberg & Goldberg, wrote a letter to Ms. Schichtel, on April 4, 1985, in which he asserted that the "releases" were forwarded to his office prematurely. Goldberg advised Schichtel that he could not consider a settlement until the discovery and evidentiary depositions of appellant had been completed, with appellant's testimony "being as you led me to believe it would be."

To prepare for a deposition of appellant, defendant Upjohn filed a motion to compel Mrs. Burton to produce the calendar diary that she kept before Stephanie's birth, to help pinpoint the date of conception. In its motion, mailed May 9, 1985, Upjohn ...


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