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07/27/87 Michael Gibellina, v. George Handley Et Al.

July 27, 1987

MICHAEL GIBELLINA, PLAINTIFF-APPELLANT

v.

GEORGE HANDLEY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

511 N.E.2d 884, 158 Ill. App. 3d 866, 110 Ill. Dec. 707 1987.IL.1068

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Michael Gibellina, appeals from orders of the circuit court of Du Page County barring him from producing experts at trial, denying his motion for voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009), and granting the defendants' motions for summary judgment.

Plaintiff raises three issues on appeal: (1) whether the trial court erred in barring plaintiff from producing expert witnesses at trial; (2) whether the trial court erred in denying plaintiff's motion for voluntary dismissal under section 2 -- 1009; and (3) whether the trial court erred in granting defendants' motions for summary judgment.

Plaintiff filed his complaint on February 7, 1983, in the circuit court of Cook County against defendants Central Du Page Hospital, 18 named physicians, and unknown physicians. Plaintiff alleged negligence by all defendants in count I by causing injuries, including a severe brain stem stroke following surgery, and alleged wilful and wanton misconduct by all defendants in count II. Count II was later dismissed on defendants' motion. A motion to transfer the cause to Du Page County on the basis of forum non conveniens was granted.

Several of the defendant physicians were dismissed from plaintiff's cause of action with prejudice by agreed order and two defendants were voluntarily dismissed from the suit without prejudice pursuant to plaintiff's section 2 -- 1009 motion. On December 30, 1985, trial was set for August 11, 1986. On May 5, 1986, defendants Heymann, Hamouda, Bregman, Kuzycz, Asselmeier, McCray, and Dieter filed a motion for summary judgment with attached affidavits stating that they did not render any care or treatment to the plaintiff related to the injury purportedly sustained by him. Defendant Imana later filed his own motion for summary judgment also stating that he did not render any care or treatment to plaintiff prior to the date upon which he suffered his injury.

Plaintiff filed his answers to defendants' interrogatories on May 19, 1986, stating that no expert witnesses had been selected at that time. Defendants again requested information regarding expert witnesses on June 24, 1986, but received no response. A pretrial conference was held July 11, 1986. On defendants' oral motion, the court ordered that plaintiff was barred from producing expert witnesses at trial pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220) as plaintiff had failed to disclose experts pursuant to defendants' requests.

Defendants Central Du Page Hospital, Handley, and Boury then filed motions for summary judgment stating that expert testimony is needed to support a charge of malpractice and to prove a deviation from accepted standards of medical care. A hearing was held August 4, 1986, and the trial court denied plaintiff's motion to vacate the order barring his use of expert witnesses.

Plaintiff then filed a section 2 -- 1009 motion for voluntary dismissal on August 7, 1986. Trial was scheduled to commence on August 11. The trial court denied the motion, stating that the defendants were entitled to a hearing on their pending motions for summary judgment, filed prior to the filing of plaintiff's motion. Defendants' motions for summary judgment were granted the next day, and this appeal by plaintiff followed.

We address first plaintiff's contention that the trial court erred in not allowing plaintiff to voluntarily dismiss his action without prejudice as no trial or hearing had begun and no Rule ...


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