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04/29/94 BETTY PRATHER v. DENIS MCGRADY

April 29, 1994

BETTY PRATHER, INDIVIDUALLY AND AS GUARDIAN OF THE ESTATE OF CLARENCE PRATHER, A DISABLED ADULT, PLAINTIFF-APPELLANT,
v.
DENIS MCGRADY, SR. AND DENIS MCGRADY, JR., INDIVIDUALLY AND D/B/A MCGRADY & MCGRADY, A PARTNERSHIP, DEFENDANTS-THIRD-PARTY PLAINTIFFS-APPELLEES, V. EVELYN GOLDSTEIN AND ELLIOTT BLINDERMAN, THIRD-PARTY DEFENDANTS.



Appeal from Circuit Court of Macon County. No. 91L70. Honorable John L. Davis, Judge Presiding.

As Corrected May 23, 1994. Petition for Rehearing Denied and Released for Publication June 17, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

On June 9, 1993, the circuit court of Macon County entered an order, barring plaintiff from naming expert witnesses because of a violation of the discovery, pretrial and trial scheduling order (scheduling order) regarding disclosure of such witnesses set pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220). The circuit court then entered summary judgment in favor of defendants on August 6, 1993, finding that the nature of plaintiff's cause of action was such that she was required to present expert testimony in order to make a prima facie case. Plaintiff appeals, contending summary judgment was improperly granted and the circuit court abused its discretion in granting defendants' motion to bar the naming of expert witnesses. Because the trial court did not abuse its discretion in granting defendants' motion to bar the naming of expert witnesses, we affirm.

On July 18, 1990, plaintiff filed a complaint in Effingham County alleging legal malpractice by defendants. The complaint alleged defendants committed legal malpractice by failing to properly pursue her claims for medical malpractice against physicians who had allegedly caused and then treated her husband for spinal meningitis.

On June 21, 1991, defendants filed a motion to dismiss contending plaintiff's claims were barred by the relevant statute of limitations. This motion was denied on September 30, 1991, and a motion to reconsider was denied on March 6, 1992. On December 2, 1991, defendants filed interrogatories seeking the names of plaintiff's expert witnesses and the substance of their opinions. The record on appeal indicates that on December 16, 1992, defendants were served with answers to the interrogatories, compliance with a request for production and a request to produce. Defendants sent the documents requested in the request to produce to plaintiff via United Parcel Service on January 28, 1993.

Defendants filed their answer on October 8, 1992. On December 9, 1992, defendants filed a motion to dismiss for want of prosecution, or in the alternative, for failure to comply with discovery. This motion was denied on January 12, 1993. The trial court entered the scheduling order on December 21, 1992, requiring plaintiff to make all Rule 220 disclosures by March 1, 1993, and to take all depositions by April 1, 1993. Trial was to be held during the jury term commencing on November 15, 1993.

On March 1, 1993, plaintiff filed a motion to amend the scheduling order asking that the time to make Rule 220 disclosures be extended to April 1, 1993, and the time to take depositions be extended to May 1, 1993. Plaintiff alleged that because of defendants' late compliance with the request to produce documents, and her attorney's schedule and caseload, she was prevented from timely communicating with her Rule 220 experts. It is important to note plaintiff never requested a hearing on this motion to amend. On March 5, 1993, defendants filed a motion to bar the naming of expert witnesses. A hearing was set for April 13, 1993, and on that date, arguments were heard and the parties were directed to file briefs within 10 days.

On April 23, 1993, plaintiff filed a first-amended motion to amend the scheduling order. She sought to extend the time for disclosure of Rule 220 experts to May 1, 1993, and the time for taking depositions of such experts to June 1, 1993. Plaintiff noted the trial was scheduled for the week of November 15, 1993, and attached certain correspondence to this motion. This correspondence, dated April 8, 1993, contained a partial disclosure of experts, including the names of an attorney and two doctors as well as the curriculum vitaes of the doctors. No notice of motion was attached to that motion but the cover letter from plaintiff's attorney requested that a hearing be held at the same time as the hearing on defendants' motion to bar the naming of experts. The record on appeal does not indicate any hearing or ruling on plaintiff's motion.

On May 28, 1993, defendants filed the disclosure of their experts. Defendants alleged that plaintiff had failed to comply with the scheduling order in that, although the April 8, 1993, letter disclosed the names of the experts, plaintiff had not yet disclosed those experts' opinions and the bases for those opinions. Defendants disclosed Stephen Willoughby, a lawyer, who would state that defendants did not breach the standard of care in the underlying medical malpractice action.

On June 6, 1993, a hearing was held on defendants' motion to bar the naming of expert witnesses. The docket entry for that date states:

"Defendants' Motion to Bar Naming of Plaintiff's Expert having been heard and the court having reviewed the authority submitted by the parties herein finds the plaintiff has violated the provisions of the pre-trial discovery order and Supreme Court Rule 220 by failure to name experts on or before March 1, 1993. See trial scheduling order. Defendants' Motion to Bar Expert is allowed for Plaintiff's failure to comply with pre-trial discovery order and Supreme Court Rule 220. See Oldenburg v. Hagemann, 207 Ill. App. 3d 315 (1991), Phelps v. O'Malley, 159 Ill. App. 3d 214 (1987) [,] and Betts v. Manville Personal Injury Trust, 225 Ill. App. 3d 882 (1992). Clerk of the court ordered and directed to forward a copy of this docket entry to all attorneys of record for plaintiff and defendant."

On June 15, 1993, defendants filed a motion for summary judgment alleging the order barring plaintiff from naming experts prevented her from making a prima facie case for professional negligence. On July 6, 1993, plaintiff filed a motion to reconsider the order of June 9, 1993, barring plaintiff from naming expert witnesses. Plaintiff attached to that motion the affidavit of her attorney, Michael J. Meyer. Two exhibits were attached to that affidavit, the first being the letter dated April 8, 1993, disclosing the names of the experts plaintiff wished to call and the curriculum vitaes of the two doctors. The second exhibit attached to this affidavit was a letter dated April 30, 1993, from plaintiff's attorney to defendants' attorney, stating the qualifications of ...


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