APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
a corporation, Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, HONORABLE ODAS NICHOLSON and HONORABLE EDWIN M. BERMAN, PRESIDING. 1989.IL.838
COCCIA, J. LORENZ, PINCHAM, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA
On December 31, 1987, Justice John J. Sullivan filed an opinion reversing and remanding this appeal. The opinion was concurred in by Justices Lorenz and Pincham. Petitions for rehearing were filed by both defendants requesting this court to grant a rehearing, staying its ruling of December 31, 1987, pending the Illinois Supreme Court's decision in the case of Gibellina v. Handley, (1989), 127 Ill. 2d 122, 535 N.E.2d 858, a similar appeal, with identical issues, the Disposition of which would be controlling here. Justice Sullivan retired on October 1, 1988 and the appeal was subsequently reassigned to Justice Michel A. Coccia. In reversing the orders denying plaintiff's motion for a voluntary dismissal and granting summary judgment for defendants, we held that under section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a)) a plaintiff's right to a voluntary dismissal without prejudice prior to the commencement of trial is an absolute right which the trial court had no discretion to deny. Gibellina v. Handley, (1989), 127 Ill. 2d 122, 535 N.E.2d 858, recently decided by the Illinois Supreme Court, is totally in accord with the opinion delivered by this court on December 31, 1987.
As set forth in Justice Sullivan's original opinion, this is an appeal from orders barring plaintiff from presenting an expert witness at trial, denying her motion for a voluntary dismissal and granting defendants' motions for summary judgment.
On December 7, 1982, plaintiff, Doris Jackson, individually and as special administrator of the estate of Robert M. Jackson, filed a medical malpractice action against defendants Mercy Hospital and Medical Center (Mercy) and Dr. Leonard Smith. Her three-count-complaint, in which she sought damages for the wrongful death and the loss of the support and companionship of her husband, Robert Jackson (decedent), alleged that he was admitted to Mercy on October 21, 1981, and the following day underwent knee surgery performed by Dr. Smith. On October 25, he complained of pain in his leg and of having difficulty breathing. Over the next few days, he became increasingly agitated and confused and experienced swelling in the lower portion of his left leg. In the early morning of October 27, he suffered cardiopulmonary arrest. Resuscitation efforts were unsuccessful, and he died. The post-mortem examination revealed that the cause of death was a pulmonary embolism. Plaintiff alleges that decedent's death resulted from the negligence of defendants in their diagnosis and treatment of him.
On February 22, 1983, defendants served plaintiff with a notice to produce the names of any experts she intended to call as witnesses at trial. On June 8, 1983, plaintiff responded, "none at this time." At the first pretrial conference, on December 5, 1984, the trial court entered an order requiring disclosure by February 1, 1985. Plaintiff neither named an expert on that date nor requested an extension of time in which to do so. On July 30, 1985, a second order was entered (a) directing plaintiff to identify her expert by October 1, 1985, and (b) continuing the pretrial until February 6, 1986. On October 3, 1985, defendants presented a motion requesting that the trial court enter an order, pursuant to Supreme Court Rule 220 (107 Ill. 2d R.220), barring plaintiff from presenting expert testimony at trial. Defendants assert that they personally served plaintiff's attorney with the motion and notice of it on September 30, 1985; however, plaintiff maintains that she received only the motion but not notice that a hearing on it was scheduled for October 3 and, thus, did not appear at the hearing where at the court entered an order barring her from presenting an expert witness at trial. On October 22, 1985, plaintiff served defendants with a motion for an extension of time in which to name an expert. In response thereto, defendants served plaintiff with a motion to strike, based upon entry of the October 3 order. On November 18, defendants filed a motion for summary judgment together with the affidavit of Dr. Richard Jones, their expert witness, who stated that the treatment rendered by defendants to decedent met the accepted standard 'of care. A hearing on the motion was set for January 21, 1986. Plaintiff thereafter filed the first of several motions to vacate the order barring her expert witnesses. A hearing thereon was conducted on January 15, 1986, but when plaintiff's attorney stated that he required additional time to secure an expert, the trial court denied the motion to vacate for lack of diligence. The motion for summary judgment was continued to April 8, 1986, and then again to July 14. On April 17, plaintiff served defendants with her second motion to vacate the October 3 order, indicating therein that she had secured an expert witness -- Dr. Lawrence Dry, Jr. On June 18, the trial court denied her motion on the bases that plaintiff had failed to disclose the identity of the expert when given the opportunity at the January 15 hearing and that in the light of plaintiff's dilatory conduct, the sanction was appropriate. The court did, however, grant plaintiff's request for an extension to file her response to defendants' motions for summary judgment, and the matter was continued to August 21, 1986. Plaintiff's third motion to vacate was filed on July 2 before a Judge in the Pretrial and Mediation Division who declined to entertain the motion on the ground that he lacked authority to consider it and he transferred the case back to the motion Judge who had entered the order. On August 7, Mercy filed a motion to strike the affidavit of Dr. Dry which plaintiff had attached to her response to the motions for summary judgment, arguing that the order barring expert testimony at trial operated to also exclude an expert's affidavit for purposes of raising a question of fact to defeat a motion for summary judgment. Plaintiff then filed a fourth motion to vacate the sanction order, which was heard and denied on August 27, 1986. The hearing on the motions for summary judgment having been set for final arguments on December 1, plaintiff filed a motion to voluntarily dismiss the action in early September 1986. That motion was denied on November 10 and, at the December 1 hearing, the trial court granted defendants' motions to strike the affidavit of plaintiff's expert and entered summary judgment in their favor. This appeal followed.
On appeal, plaintiff contends that (1) the trial court's order barring expert witnesses from testifying at trial was void because it was entered without notice to her; (2) the trial court abused its discretion in denying her motion to vacate that order; (3) the court erred in (a) refusing to allow her to voluntarily dismiss the action, and (b) granting summary judgment for defendants. Section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a)), provides in pertinent part:
"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who had appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause."
In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, the defendants appealed from an order granting the plaintiff's motion for a voluntary dismissal which had been filed after the trial court had ruled on various motions in limine on the date set for trial. Responding to the defendants' arguments that trial began when the court ruled on those motions and that the plaintiff should not be allowed to "test the waters" and then voluntarily dismiss after receiving adverse rulings, the supreme court held that arguments and rulings on pretrial motions did not constitute the commencement of trial and stated,
"At common law, the plaintiff could voluntarily dismiss without prejudice at any point before the judgment was returned. The legislature attempted to discourage vexatious suits by limiting the plaintiff's freedom, but only by preventing an automatic voluntary dismissal without prejudice after trial or hearing commenced. [Citation.] Any further limits on the plaintiff's common law rights should be enacted by the legislature, not declared by this court." 104 Ill. 2d 302, 307-08, 472 N.E.2d 787, 789.
Its statement in Kahle notwithstanding, the supreme court did, as defendants point out, subsequently carve out an additional exception to the common law rule that a plaintiff has an absolute right to a voluntary dismissal in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. In that case, the defendants filed a motion, pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), to dismiss the plaintiff's complaint with prejudice for lack of diligent service of process. Plaintiff moved for and was granted a voluntary dismissal without prejudice and thereafter refiled the action pursuant to section 13-217 (Ill. Rev. Stat. 1985, ch. 110, par. 13-217), of the Code. Defendants again moved to dismiss under Rule 103(b), reasserting plaintiff's lack of diligence in effecting service of process in the original suit. The trial court denied the motions but certified an interlocutory appeal, which was denied by the appellate court. The supreme court granted leave to appeal and found that a conflict existed between its Rule 103(b) and sections 2-1009 and 13-217 of the Code, and that under the circumstances of the case, the Code provisions unduly infringed upon the judiciary's ability to discharge its duties fairly and expeditiously and its exclusive authority to render judgments, noting that "[n]othing is more critical to the judicial function than the administration of Justice without delay [citation]" and that "[c]entral to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it." (112 Ill. 2d 273, 282, 492 N.E.2d 1322, 1326.) The court held that "[w]here a rule of this court on a matter within the court's ...