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09/23/88 Susan J. Kubian Et Al., v. Harold C. Labinsky Et Al.

September 23, 1988

SUSAN J. KUBIAN ET AL., PLAINTIFFS-APPELLANTS

v.

HAROLD C. LABINSKY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

533 N.E.2d 22, 178 Ill. App. 3d 191, 127 Ill. Dec. 404 1988.IL.1430

Appeal from the Circuit Court of Cook County; the Hon. Anton J. Valukas, Judge, presiding.

APPELLATE Judges:

JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Plaintiffs, Susan and Richard Kubian, appeal from the dismissal of their medical malpractice action against defendant, Dr. Richard Labinsky, as a sanction under Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)) for failing to comply with certain discovery orders entered pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220).

On April 4, 1983, plaintiffs instituted a medical malpractice action against Dr. Labinsky, a surgeon, Dr. L.P. Concannon, a radiologist, and Alexian Brothers Medical Center. The record reveals that Alexian Brothers Medical Center was dismissed from the action by an agreed order entered on January 22, 1986, and that Dr. Concannon's motion for summary judgment was granted on July 30, 1987. Plaintiffs have appealed only from the order granting Dr. Labinsky's motion to dismiss and, thus, while we include references to Alexian Brothers Medical Center and Dr. Concannon herein for purposes of presenting an understandable, chronological review of the facts, this appeal concerns only the propriety of the order dismissing defendant Labinsky.

In their two-count complaint, plaintiffs alleged that as a result of various negligent acts and omissions by each of the original defendants, Susan underwent an unnecessary surgical procedure performed by Dr. Labinsky at Alexian Brothers Medical Center on May 18, 1981, to remove what had been diagnosed as a tumor but was ultimately determined to be a benign growth on the anterior portion of her skull.

Alexian Brothers filed its answer on May 19, 1983, and on August 1, 1983, the trial court granted Dr. Concannon's motion to dismiss the complaint, without prejudice, and allowed plaintiffs leave to file an amended complaint. Service of summons on defendant was accomplished by special process server on June 3, 1985, and on June 28 and July 17, respectively, he served plaintiffs with interrogatories and filed his answer to the complaint. The initial pretrial conference, originally scheduled for April 8, 1985, was then continued to February 26, 1986. On November 7, 1985, plaintiffs filed answers to defendant's interrogatories but, in response to the inquiry regarding the identity of their expert witness, stated "unknown at this time." On January 30, 1986, defendant served plaintiffs with supplemental interrogatories, pursuant to Rule 220, concerning the identity, qualifications and Conclusions of any expert witnesses expected to testify at trial. At the pretrial hearing on February 26, 1986, the trial court entered an order requiring plaintiffs to disclose their expert witness by March 21 and to present him for deposition by May 15. Defendant's expert was to be identified by July 1 and deposed by August 15. The final pretrial conference was set for September 11.

On July 22, 1986, defendant filed a motion to dismiss the action under Rule 219(c) for plaintiffs' failure to comply with the order of February 26, and on that same date the parties entered into an agreed order allowing plaintiffs 14 additional days -- to August 5 -- to disclose their expert. At the hearing on September 11, the trial court denied defendant's motion to dismiss and ordered that the case be continued to April 14, 1987, and that plaintiffs were to respond to defendant's Rule 220 supplemental interrogatories within seven days and make their expert available for deposition by October 1. Defendant subsequently filed two more motions to dismiss -- on September 12 and October 3. According to the parties, plaintiffs' counsel represented to the trial court at a hearing on October 3 that he had sent a letter to defense counsel naming an expert witness, but defense counsel denied having received it. The trial court then ordered plaintiffs to produce any letters sent to defense counsel identifying their expert, together with the expert's curriculum vitae, to respond to the supplemental interrogatories by October 10, and to produce the expert for deposition by November 15 or thereafter be barred from presenting expert testimony at trial.

On November 12, defendant filed another motion to dismiss, arguing generally, that plaintiffs had failed to comply with the court's previous orders and, specifically, that plaintiffs' counsel did not produce the letter referred to at the October 3 hearing but, rather, drafted a letter dated October 10 and mailed October 21 -- which was attached as an exhibit -- in which he provided the name and a summary of the professional credentials of their expert, Dr. John Baron, and stated that he would be produced for a deposition prior to November 15, at which time his full curriculum vitae would be provided. At the Conclusion of that hearing, the trial court entered and continued defendant's motion to dismiss to December 1, directed defendant to submit a statement of fees and costs for the preparation of the motion, ordered plaintiffs to produce their expert's curriculum vitae by November 19, answer the supplemental interrogatories by December 15 and present the expert for a deposition no later than January 7, 1987. On December 24, an agreed order was entered by another trial court Judge continuing a motion for summary judgment filed by Dr. Concannon to February 24, 1987. Defendant's motion to dismiss was also continued, first to December 19 and then to January 13, 1987.

On that date, the trial court awarded defendant the amount of fees stated in the report thereof, ordered plaintiffs to provide answers to the supplemental interrogatories and their expert's medical report, "if available," on or before January 27, and to present him for a deposition by February 8, and, finally, continued the motion to February 9, 1987. According to the parties, when plaintiffs' attorney appeared at the hearing on February 9, he represented to the court that Dr. Baron had decided not to testify as an expert at trial. The trial court then entered an order stating:

"Based on the representations of plaintiffs' counsel that plaintiffs' previously identified expert, Dr. Baron has refused to appear as an expert witness, and such fact was not known to plaintiffs' counsel until the later portion of the week of February 2, 1987, leave is granted to plaintiffs to disclose their expert and to answer Rule 220 Supplemental Interrogatories by 2/23/87 and to produce said expert by 3/15/87."

The court also ordered plaintiffs' counsel to set forth under oath a response to defendant's motion to dismiss by February 21 and ...


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