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02/03/89 Russell Vortanz, v. Elmhurst Memorial Hospital

February 3, 1989

RUSSELL VORTANZ, PLAINTIFF-APPELLANT

v.

ELMHURST MEMORIAL HOSPITAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 625, 179 Ill. App. 3d 584, 128 Ill. Dec. 443 1989.IL.131

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

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Russell Vortanz, appeals from the denial of a motion to vacate an order dismissing his complaint with prejudice as a sanction pursuant to Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)) because of his failure to produce an expert witness for deposition on the date the trial Judge had directed the deposition to proceed. Plaintiff contends on appeal that the trial court should have vacated the dismissal order for the following reasons: (1) the trial court did not have any authority pursuant to Rule 219(c) to dismiss the case on its own motion; (2) plaintiff had no notice that a motion to dismiss would be presented to the trial court on the date in question; (3) plaintiff's actions did not exhibit a deliberate, contumacious or unwarranted disregard for the trial court's authority; and (4) the trial Judge's rulings were influenced by his alleged prejudice against attorneys who practice in Cook County. We reverse and remand.

Plaintiff filed his medical malpractice complaint against defendants, Elmhurst Memorial Hospital, Carl Dinello, and George Nachich, in the circuit court of Cook County on July 10, 1985. After one of the defendants moved for a change of venue, the case was transferred to the circuit court of Du Page County on March 12, 1986. The two individual defendants filed their answers to the complaint shortly after venue was transferred.

At a hearing on November 10, 1986, the trial court ordered that all discovery be completed by April 15, 1987. On April 23, 1987, Dr. Nachich filed a motion to dismiss plaintiff's complaint pursuant to Supreme Court Rule 219(c), in which he alleged that plaintiff had failed to submit to a deposition, disclose expert witnesses, or comply with outstanding written discovery. The court did not dismiss the complaint at this time, but did direct plaintiff to disclose expert witnesses by June 1 and submit to a deposition by June 9. Defendants were ordered to disclose their expert witnesses by November 1.

Because of plaintiff's failure to comply with the deadline for disclosure of expert witnesses, defendants filed motions to bar plaintiff from presenting expert testimony. At the June 29, 1987, hearing on these motions, plaintiff disclosed Dr. Bruce Farkas as his expert witnesses. On August 5, 1987, defendant Elmhurst Memorial sent out a notice of deposition setting Dr. Farkas' deposition for September 10. The deposition was rescheduled twice by agreement of the parties. On October 26, Elmhurst Memorial presented a motion to the trial court requesting that the November 1 deadline for disclosure of defendants' expert witnesses be extended because plaintiff's expert had not yet been deposed, and his deposition was scheduled for November 9. Plaintiff's attorneys received notice of this motion and hearing but did not attend. The trial Judge entered an order directing that the Farkas deposition proceed as scheduled on November 9 and continuing the motion until November 10.

The court held a status hearing on November 2. Plaintiff's attorneys failed to attend the hearing, which was continued until November 10 along with the pending motion. Plaintiff's attorneys also failed to attend the November 10 hearing. The attorney for Dr. Dinello informed the court that plaintiff failed to produce his expert witness for the scheduled deposition on November 9. The trial Judge later asked what relief had been requested in the pending motion. The following colloquy then occurred:

"MR. MANCINI [Dr. Dinello's attorney]: At the time we filed our motion we were seeking an extension of time for expert witness [ sic ]. It's my position now that pursuant to Rule 219 the Court can, by its own motion, dismiss the case for failure to comply with the order of this Court.

THE COURT: I will do that. There appears to have been more than adequate opportunity for the plaintiff to produce an expert for deposition."

The trial Judge entered a written dismissal order that same day.

On December 10, 1987, within 30 days of the dismissal, plaintiff filed a motion to vacate the November 10 order. The motion stated that plaintiff's expert could not attend the scheduled November 9 deposition because he could not find another physician to cover his patients. The motion also stated that plaintiff had diligently attempted to produce his expert witness ...


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