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May 31, 1994



Released for Publication August 2, 1994. Petition for Leave to Appeal Denied October 6, 1994.


The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

On January 31, 1984, plaintiffs Maria and Jaime Cruz filed their complaint in the circuit court of Cook County alleging medical malpractice regarding the care and treatment of Maria Cruz during her labor and delivery, and asserting Jaime Cruz' loss of consortium claim. Plaintiffs named as defendants Columbus-Cuneo-Cabrini Medical Center, Dr. Michael T. Feingold, Dr. Anthony Cirrincione (hereinafter Columbus defendants), Dr. Matthew Ahranjani, and Dr. Z. Angelito Flojo. *fn1 On July 31, 1984, the trial court granted plaintiffs leave to file their first amended complaint and ordered all parties to comply with discovery within the next twenty-eight days.

Over the next year, the trial Judge issued several more discovery orders. On January 29, 1986, the trial court ordered that defendants appear for depositions on or before March 15, 1986, that plaintiff Jaime Cruz appear for his deposition on or before March 15, 1986, and that plaintiffs disclose their experts by March 20, 1986. The court also scheduled a status conference for March 20. Plaintiffs failed to disclose their experts by that date.

At the March 20 conference, the court ordered the completion of all depositions of parties and non-experts by June 1, 1986, that plaintiffs identify their experts by July 1, 1986, and that plaintiffs' experts be deposed by August 1, 1986. A status conference was scheduled for September 11, 1986. A June 7, 1986, letter fromplaintiffs to defendants stated that Dr. Matthew (also referred to as "Dr. Matview") had been "previously disclosed * * * as one of our experts" and that plaintiffs were "willing to produce him for a deposition after Dr. Ahranjani's deposition and the other depositions have been completed * * *." The record contains no other indication that plaintiffs complied with the March 20 order.

On June 25, 1986, plaintiffs moved for an extension of time to disclose experts until discovery had been completed, and on August 4, 1986, the court allowed them until December 1, 1986, to disclose their experts and left all other discovery open, subject to further court order. The court also scheduled a pretrial conference for March 27, 1987.

Plaintiffs' counsel failed to appear at the March 27 conference because of a diary error. At that hearing, the trial Judge ordered plaintiffs to answer all outstanding interrogatories, including Rule 220 interrogatories (134 Ill. 2d R. 220), and to present their experts for deposition by May 1, 1987. The court also scheduled another pretrial conference for January 8, 1988. Plaintiffs' counsel asserts that he did not receive a copy of this order and that one of the defendants' attorneys informed him only of the new pretrial date; thus, he was unaware of the new discovery deadlines.

On May 4, 1987, plaintiffs moved to vacate the March 27 order and requested the court to reset the pretrial conference for June or July 1987. All of the defendants then moved to dismiss plaintiffs' complaint with prejudice pursuant to Rule 219(c) (134 Ill. 2d R. 219(c)) for failure to comply with the four court orders regarding expert witnesses. The hearing on the motions was set for July 24, 1987, but was continued until July 30 because plaintiffs' counsel had to attend a funeral on July 24.

Plaintiffs' counsel received notice of the July 30 hearing, but he failed to attend, again because of a diary error. At the July 30 hearing, Judge Henshaw, of Saline County who was temporarily substituting for Judge Bonaguro, the Cook County Judge who had been assigned to this case, issued an order dismissing plaintiffs' complaint with prejudice, stating that he had been "fully advised of (sic) the premises." On August 12, plaintiffs moved to vacate the July 30 order pursuant to section 2-1301 (Ill. Rev. Stat. 1985, ch. 2-1301), but Judge Bonaguro refused, finding that he had no jurisdiction to vacate another Judge's final order. The motion was then transferred to Judge Henshaw, who denied it on January 29, 1988, finding that it had not been timely filed since no "file stamped" copy of the section 2-1301 motion existed in the official court file. That order was appealed to this court and weaffirmed in Cruz v. Columbus-Cuneo-Cabrini Medical Center (1990), 194 Ill. App. 3d 1037, 551 N.E.2d 1345, 141 Ill. Dec. 817. Plaintiffs filed their petition for leave to appeal from that decision, but the supreme court denied it in September 1990. Cruz v. Columbus-Cuneo-Cabrini Medical Center (1990), 133 Ill. 2d 553, 561 N.E.2d 688, 149 Ill. Dec. 318.

In the meantime, on December 23, 1987, plaintiffs had filed a section 2-1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) seeking relief from the July 30 order dismissing their complaint with prejudice. Plaintiffs' memorandum, filed with the section 2-1401 petition, asserted that the intent of the trial court's discovery orders had been to ensure that defendants' depositions were taken before plaintiffs disclosed their experts. Plaintiffs claimed that it "was almost impossible and impractical" for them to provide expert witnesses until they had defendants' deposition testimony. They argued that if Judge Henshaw had been aware that it is the "customary practice" in Cook County to allow plaintiffs to delay disclosure of their experts until defendants are deposed, that Dr. Ahranjani had not completed his deposition, and that plaintiffs had a motion pending to vacate the March 27 order, he would not have dismissed plaintiffs' complaint with prejudice. Plaintiffs also noted that Judge Bonaguro indicated that if he had heard the motions on July 30, he probably would have dismissed the cause without prejudice. In addition to their request that the court vacate its July 30 order, plaintiffs asked leave to file their Rule 220 interrogatories and to produce their experts for depositions within "a required period of time." In attached affidavits, plaintiffs' attorney, Robert Gordon, stated that the petition was true and correct, and attorney Robert Fisher, who originally filed plaintiffs' action, averred that he was not advised of the continuance from June 24 until July 30 and that he would have attended the hearing if he had known about it.

Plaintiffs did not set their section 2-1401 petition for hearing until March 26, 1991, about six months after the supreme court denied their petition for leave to appeal. On April 23, 1991, Columbus defendants filed a motion to dismiss plaintiffs' section 2-1401 petition pursuant to section 2-615 (Ill. Rev. Stat. 1989, ch. 110, par. 2-615), and Cook County Rule 2.3 (requiring movants to call their motions for hearing within ninety days of filing). Dr. Ahranjani filed a separate motion to dismiss. Because of his busy schedule, plaintiffs' counsel waited until July 3, 1991, to move for leave to file a memorandum of law, an additional affidavit, and an answer to Dr. Ahranjani's motion to dismiss. (Plaintiffs did not respond to Columbus defendants' motion to dismiss.) In their memorandum, plaintiffs reiterated the arguments in their earlier memorandum and stated thatthey "filed * * * answers to Rule 220 Interrogatories before Judge Bonaguro in his chambers" on August 5, 1987. Like the motion to vacate, these answers, although notarized on June 24, 1987, were not file-stamped.

On July 10, 1992, Judge Henshaw denied plaintiffs' section 2-1401 motion. Plaintiffs now appeal (case number 92-2537).

Plaintiffs subsequently moved this court for leave to supplement the record with, inter alia, a letter they sent to Judge Henshaw on December 22, 1987, and their notice of motion for a March 26, 1991 hearing on the section 2-1401 petition with attached post-office receipts. Plaintiffs contended that these documents were before the circuit court and would provide us with the factual background necessary to an adjudication of their appeal. On February 19, 1993, we denied the motion without prejudice regarding those documents, and granted plaintiffs leave to file "duly stamped copies" by March 2, 1993. Since plaintiffs did not have stamped copies of the documents, they returned to the circuit court of Cook County and moved to have the ...

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