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02/29/88 James Cometo, v. Foster Mcgaw Hospital Et

February 29, 1988

JAMES COMETO, PLAINTIFF-APPELLANT

v.

FOSTER MCGAW HOSPITAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

522 N.E.2d 117, 167 Ill. App. 3d 1023, 118 Ill. Dec. 662 1988.IL.268

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

This appeal arises out of a medical malpractice action filed by plaintiff, James Cometo, against defendants, Foster McGaw Hospital, Loyola University Medical Center (jointly referred to as Foster McGaw) and Donald Dixon, M.D. *fn1 As the result of plaintiff's failure to disclose an expert witness in compliance with the trial court's discovery orders entered pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), the trial court imposed Rule 220 sanctions on plaintiff in an order dated July 23, 1986, which barred him from introducing expert testimony at trial. Defendants then moved for summary judgment. At the hearing on the summary judgment motion, the trial court struck the counteraffidavit of plaintiff's expert on the grounds that it was barred by the July 23, 1986, order and granted summary judgment in favor of defendants. On appeal, plaintiff contends that: (1) the trial court abused its discretion in striking the affidavit of plaintiff's expert and in refusing to open discovery for the purpose of deposing expert witnesses; and (2) the trial court erred in granting summary judgment as to plaintiff's res ipsa loquitur count. For the following reasons, we reverse the judgment of the trial court and remand the cause for further proceedings.

The pleadings set forth the following events which resulted in this appeal. On April 2, 1981, plaintiff underwent a cardiac catheterization procedure at Foster McGaw, which was performed by Dixon. During the procedure, plaintiff suffered a seizure which required Dr. Ivan Pacold, an attending physician, to restrain plaintiff's right arm in order to prevent injury to plaintiff's right brachial artery. At that time, plaintiff apparently suffered an avulsion fracture to his right humerus.

On April 21, 1983, plaintiff filed his medical malpractice action, seeking damages for the avulsion fracture, and alleging that the injury was the result of defendants' not having properly restrained plaintiff during the cardiac catheterization procedure. In count V of the complaint, plaintiff invoked the res ipsa loquitur doctrine, alleging that his injury would not have occurred had each of the defendants not been negligent.

At the time of the first pretrial conference on April 19, 1985, none of the parties had disclosed their expert witnesses. As a result, the court entered an order pursuant to Supreme Court Rule 220 requiring: (1) plaintiff to identify his expert(s) by August 1, 1985; (2) defendants to depose plaintiff's expert(s) by September 1, 1985; (3) defendants to identify their expert(s) by October 1, 1985; and (4) plaintiff to depose defendants' expert(s) by November 1, 1985. The final pretrial conference was scheduled for November 20, 1985.

On November 20, 1985, plaintiff still had not disclosed his expert witnesses. Thus, the court entered a second order requiring plaintiff to disclose his expert(s) by January 7, 1986, and requiring defendants to depose plaintiff's expert(s) by March 1, 1986. The final pretrial conference was scheduled for April 3, 1986. Subsequently, in a letter dated January 6, 1986, plaintiff advised defendants' attorneys that his expert would be Dr. Ronald van der Horst. Defendants then filed a notice for the deposition of Dr. van der Horst to be taken on February 21, 1986. However, the deposition was never taken because plaintiff's counsel informed defendants' counsel that Dr. van der Horst had refused to testify as an expert witness and would not be called to testify at trial.

Subsequently, at the third pretrial conference on April 3, 1986, the court entered its order requiring: (1) plaintiff to disclose his expert(s) by April 18, 1986; (2) defendants to depose plaintiff's expert(s) by May 16, 1986; (3) defendants to disclose their expert(s) by June 20, 1986; and (4) plaintiff to depose defendants' expert(s) by July 18, 1986. The final pretrial conference was then scheduled for July 23, 1986.

At the July 23 pretrial conference, defendants moved to bar plaintiff from calling any expert witnesses to testify at trial as a sanction for plaintiff's violation of three court orders entered pursuant to Supreme Court Rule 220. In an order dated July 23, 1986, Judge Valukas granted defendants' motion and barred plaintiff from using any undisclosed and unidentified experts at trial. The order further allowed defendants one day to disclose their experts, who were to be deposed by September 1, 1986. The case was then returned to the trial call for September 10, 1986.

On August 8, 1986, defendants filed separate motions for summary judgment, which were later amended so as to attach the necessary affidavits. Foster McGaw's amended motion was supported by the affidavit of Dr. Ivan Pacold, a participant in the catheterization procedure. Although Pacold had not been previously disclosed as an expert, his deposition had been taken as an occurrence witness. Dixon's amended motion for summary judgment was supported by the affidavit of Dr. William Towne, who had been identified by Dixon as an expert witness, but who had not yet been deposed. Plaintiff, in turn, filed a response to the summary judgments and attached the counteraffidavit of Dr. van der Horst, who now agreed to testify.

At the hearing on the summary judgment motions, defendants moved to strike van der Horst's affidavit pursuant to Judge Valukas' order which barred plaintiff from using any experts at trial. Judge Hoffman, before whom the motions were being argued, stated that he found the issue to be the interpretation of Judge Valukas' July 23, 1986, order and that he would not "jump . . . into Judge Valukas' mind to determine what it is he intended when he entered the order." Accordingly, Judge Hoffman sent the parties to Judge Valukas' chambers Instanter for the purpose of obtaining from him an order ...


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