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09/18/87 Melba Jean Curtis, v. Henry Wolfe Et Al.

September 18, 1987

MELBA JEAN CURTIS, PLAINTIFF-APPELLANT

v.

HENRY WOLFE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

513 N.E.2d 1139, 160 Ill. App. 3d 588, 112 Ill. Dec. 530 1987.IL.1378

Appeal from the Circuit Court of Kankakee County; the Hon. John F. Michela, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This matter has been appealed to this court by plaintiff-appellant, Melba Curtis, from an order dismissing plaintiff's second amended complaint with prejudice entered on September 18, 1986, and an order entered November 13, 1986, denying plaintiff's motion to reconsider.

The underlying facts of the case arose from the alleged refusal of the defendant Henry Wolfe, M.D. (Dr. Wolfe) to prepare his testimony, assist in cross-examination of defendant doctors and testify as an expert in a previous lawsuit where the plaintiff had sued for alleged malpractice. The cause of action against defendants James A. White and Carle Foundation Hospital was based upon their alleged action in inducing and directing Dr. Wolfe not to testify as an expert in the preceding case although Dr. Wolfe had previously agreed to testify as an expert on behalf of the plaintiff (Curtis).

Dr. Wolfe was a treating physician of the plaintiff's subsequent to an abdominal hysterectomy performed by Dr. James Goldenstein and Dr. Bernard Ruder on or about January 24, 1979. In the prior malpractice action (Curtis v. Goldenstein (1984), 125 Ill. App. 3d 562, 465 N.E.2d 1367), plaintiff alleged medical negligence against Dr. James Goldenstein and Dr. Bernard Ruder, both of whom were obstetricians and gynecologists, in the performance of an abdominal hysterectomy on or about January 24, 1979. Dr. Wolfe subsequently treated plaintiff at Carle Clinic Association and Carle Foundation Hospital in Urbana, Illinois, from January 30, 1979, to March 17, 1979., Plaintiff in the prior case then named Dr. Wolfe as her expert witness in the malpractice action and defendants' counsel deposed Dr. Wolfe on June 1, 1982.

Apparently plaintiff was prohibited from presenting any expert witness other than Dr. Wolfe at trial as a sanction for failing to attend pretrial conferences and causing other delay in the underlying case. Plaintiff moved for a continuance of the trial, stating that Dr. Wolfe refused to give an opinion at trial but had rendered an expert opinion at his deposition on June 1, 1982, and further, that plaintiff's counsel had arranged for a pretrial meeting with Dr. Wolfe approximately a week before the trial but was prevented from meeting with Dr. Wolfe due to the interference of James White and Carle Foundation Hospital. The motion was denied.

Plaintiff, however, subpoenaed Dr. Wolfe to testify at trial and then attempted to call Dr. Wolfe as an adverse witness in her case in chief. The court denied plaintiff's motion, but gave plaintiff the opportunity to renew the motion to examine Dr. Wolfe as an adverse witness if Dr. Wolfe's testimony deviated from the testimony at deposition. Plaintiff did not renew her motion to examine Dr. Wolfe as an adverse witness. On cross-examination, Dr. Wolfe indicated that he had no opinion concerning the treatment given by Doctors Goldenstein and Ruder.

The trial court in the prior case then directed a verdict in favor of defendants which was affirmed by this court in Curtis v. Goldenstein (1984), 125 Ill. App. 3d 562, 465 N.E.2d 1367.

The present action was subsequently filed by plaintiff against Dr. Wolfe, James White and Carle Foundation Hospital. Ultimately, the trial court granted defendants' motion to dismiss pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)). In doing so, the trial court took judicial notice of the underlying case file in Curtis v. Goldenstein to find that Dr. Wolfe had testified in the underlying case, that Dr. Wolfe did not testify differently from his deposition, and that plaintiff made no motion, after being given leave, to examine Dr. Wolfe as an adverse witness if Dr. Wolfe testified contrary to his deposition testimony.

Plaintiff on appeal bases her cause of action against Dr. Wolfe on two theories. First, that Dr. Wolfe breached his contractual duty with plaintiff by not meeting with plaintiff prior to trial to discuss the case, by not helping plaintiff prepare cross-examination of the defendant doctors and by failing to render an opinion as to the operating procedures and care given by the defendant doctors. Second, in plaintiff's reply brief and at oral argument, plaintiff raised the issue that Dr. Wolfe breached a fiduciary duty owed to plaintiff when he failed to give an expert opinion at the preceding trial.

A motion to dismiss filed pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure must demonstrate "[that] the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9).) Therefore, the trial court, in taking judicial notice of the underlying malpractice case, determined that Dr. Wolfe had given testimony pursuant to the alleged contract and ...


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