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May 1, 1996


Appeal from the Circuit Court of Madison County. No. 91-L-189. Honorable Gordon E. Maag, Judge, presiding.

As Corrected May 3, 1996.

The Honorable Justice Schwartz delivered the opinion of the court: Justice Kuehn, specially concurring: Justice Mclaughlin, concurring in part and dissenting in part:

The opinion of the court was delivered by: Schwartz

The Honorable Justice SCHWARTZ delivered the opinion of the court:

Plaintiff, Curtis Bloome, filed a legal malpractice complaint against Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., and Richard Shaikewitz, Gerald McGivern, David Wahl, Robert Flavin, and David Hesi. At the close of evidence, the trial court directed verdicts in favor of defendants Robert Flavin and David Hesi. Plaintiff then voluntarily dismissed his claim against defendant Gerald McGivern. The case was submitted to the jury. The jury returned a verdict against the remaining defendants and assessed damages in the amount of $3,238,800. Defendants filed posttrial motions seeking to reduce the amount of the verdict. Ultimately, judgment was entered in the amount of $2,610,085. Defendants filed motions for new trial or for judgment notwithstanding the verdict. On October 23, 1992, these motions were denied. Defendants appeal.

Plaintiff's legal malpractice claim was based upon an underlying medical malpractice case. Plaintiff underwent open heart surgery in April 1988. He was intubated for much of this hospitalization and subsequently developed subglottic stenosis. After discharge, he began to wheeze. He treated with a Springfield, Illinois, otolaryngologist, Dr. Finch, on May 23, 1988. Dr. Finch hospitalized plaintiff and performed a tracheostomy on May 26, 1988. Following discharge, plaintiff remained intubated due to his windpipe collapse. Between May and December 1988, Dr. Finch performed five surgical procedures related to the tracheostomy. Plaintiff continued to experience breathing problems and required emergency room treatment on more than one occasion. During this time, plaintiff experienced vocal difficulties. In January 1989, Dr. Finch referred plaintiff to Dr. Konrad. After further diagnostic studies, additional surgery was recommended. As neither Dr. Finch nor Dr. Konrad was experienced with the recommended surgical procedure, plaintiff was referred to Dr. Dedo of San Francisco, California. Between February 1989 and March 1990, Dr. Dedo performed five surgical procedures. Plaintiff's voice did not improve.

Before plaintiff retained defendants as counsel, he consulted with other local attorneys regarding the possibility of filing a medical malpractice complaint.

Plaintiff met defendant Gerald McGivern at the San Francisco airport. On February 1, 1990, plaintiff met with defendant Richard Shaikewitz and executed a contingent fee contract. Because the first of the medical procedures occurred in February 1988, defendant Shaikewitz believed that he could only protect plaintiff's claims by immediately filing suit. Defendants arranged for Peter Tuteur, M.D., to examine plaintiff on April 3, 1990. Plaintiff met with defendants again on April 16, 1990, and signed a second contract. On April 17, 1990, defendant David Wahl prepared and filed a complaint naming several physicians as defendants in Sangamon County Circuit Court. Defendant Wahl also filed an affidavit requesting additional time in which to file a physician certificate of merit.

In early May 1990, Dr. Tuteur sent his report to defendants. In Dr. Tuteur's opinion, no physician associated with plaintiff's care and treatment deviated from the requisite standard of care. On May 10, 1990, defendant Wahl explained Dr. Tuteur's report to plaintiff and advised that defendants would take no further action on his case unless plaintiff located a new physician to support his claims. On May 12, 1990, defendant Wahl wrote plaintiff advising him that he was free to retain new counsel. Defendant Wahl and plaintiff discussed a voluntary dismissal, but plaintiff decided not to dismiss his suit because the law was uncertain regarding voluntary dismissal of a malpractice case unsupported by a physician's certificate.

On July 19, 1990, defendant Wahl wrote plaintiff advising that he filed a motion to withdraw and that the motion was set for hearing on August 9, 1990. On August 8, 1990, some of the doctors filed motions to dismiss plaintiff's complaint because of the physician's certificate deficiency. Defendants filed no responsive pleading because they were of the opinion that the lawsuit was not meritorious. Whether or not defendants attempted to contact plaintiff before the hearing is in dispute. At the hearing, defendant Wahl and/or the plaintiff objected to the motions to dismiss, asked for a continuance so that plaintiff could obtain new counsel or a new expert, and asked the trial court to allow plaintiff to voluntarily dismiss his case. The trial court dismissed plaintiff's complaint with prejudice, stating that the court could dismiss plaintiff's complaint without a motion because plaintiff filed no physician's certificate. On October 16, 1990, the remaining defendant was dismissed from the suit. Plaintiff was unrepresented at that hearing.

The following is a list of the alleged contractual breaches committed by defendants, upon which the jury was instructed:

(a) Over plaintiff's protestations defendants permitted his medical malpractice action to be dismissed with prejudice;

(b) Defendants withdrew when it was known that a motion to dismiss was pending and would result in preemptory dismissal of the action;

(c) Defendants failed to fully explain the status of the case to plaintiff and particularly regarding its imminent dismissal;

(d) Defendants failed to seek a voluntary dismissal of said claim so that it could have been refiled in one year;

(e) Defendants failed to seek a continuance or order which would have permitted plaintiff to obtain new counsel to prevent the dismissal of his claim with prejudice; and

(f) Defendants failed to object to the untimely filing of the motion to dismiss by the medical malpractice defendants.

Defendants appeal. Only portions of this decision are to be published.

[The following material is nonpublishable under Supreme Court Rule 23 and Administrative Order MR No. 10343 (Official Reports Advance Sheet No. 15 (July 20, 1994), eff. July 1, 1994).]

[The preceding material is nonpublishable under Supreme Court Rule 23 and Administrative Order MR No. 10343.]

Defendants contend that the trial court erred in disallowing certain testimony related to the legal malpractice claim. The trial court sustained objections to the testimony of defendants' legal malpractice expert, attorney Thomas Keefe, regarding postdismissal relief available to plaintiff, the reasonableness of defendants' conduct, and letters to plaintiff from other attorneys upon which attorney Keefe partially based his opinions.

During plaintiff's case, plaintiff's legal malpractice expert, attorney Gary Peel, testified that defendant Wahl's conduct at the August 9, 1990, hearing provided no basis for a meritorious appeal of the order of dismissal, in part because the hearing was not on the record. The record reflects that immediately before attorney Thomas Keefe testified, plaintiff struck the paragraph of his complaint which involved the failure of defendants to advise the plaintiff of the importance of a motion to voluntarily dismiss his case. Defendants sought to examine their expert, Keefe, regarding whether the dismissal could have been successfully appealed or set aside within 30 days or longer after August 9, 1990, and regarding the reasonableness of defendants' conduct. The trial court sustained plaintiff's objections to this line of questioning.

Based upon the scope of the legal malpractice claimed, we do not find that the trial court erred in refusing Keefe's testimony on these issues. Plaintiff was not claiming that defendants committed malpractice in failing to appeal the August 9, 1990, order or have it set aside. Furthermore, plaintiff does not claim that defendants committed malpractice by not advising him how to take action to protect his claim following August 9, 1990. Before defendants' expert testified, plaintiff dismissed the only portion of his complaint that remotely bore upon these issues. The record reveals that the jury was properly informed of the appropriate standard of care owed a client in this factual situation, through the cross-examination of plaintiff's expert and in the examination of defendants' legal malpractice experts. The record further reflects that the jury was advised that whether an appeal would have been successful or not was not an issue in the case.

A legal malpractice plaintiff does not have the burden to prove the exhaustion of all avenues of appeal on the underlying claim in order to state a legal malpractice claim. See Zupan v. Berman, 142 Ill. App. 3d 396, 398, 491 N.E.2d 1349, 1351, 96 Ill. Dec. 889 (1986); Belden v. Emmerman, 203 Ill. App. 3d 265, 270, 560 N.E.2d 1180, 1183, 148 Ill. Dec. 583 (1990), appeal denied, 136 Ill. 2d 541, 567 N.E.2d 328 (1991) (declining to hold that a legal malpractice plaintiff's cause of action could not accrue until all avenues of appeal had been exhausted). Therefore, testimony regarding whether and how an appeal could have been successfully taken is irrelevant to the claims presented by plaintiff in this case.

If there was any error in disallowing Keefe's testimony in response to Peel's testimony, such error was harmless not rising to a level of prejudice mandating reversal or remand for a new trial.

With respect to the letters upon which attorney Keefe partially based his opinions, defendants claim that the trial court's ruling was contrary to established Illinois law. The trial court stated that the letters were inadmissible as double hearsay. An expert's opinion may be based upon:

"(1) the scientific, technical, or other specialized knowledge that makes the witness an expert, *** including facts, data, or opinions contained in a learned treatise recognized as reliable authority, [citations] (2) first-hand observation of facts or data perceived by him before trial, [citation] (3) facts, data, or opinions introduced in evidence at trial, and (4) facts, data, or opinions not admitted into evidence when such facts, data, or opinions are types reasonably relied upon by experts in the field in forming ...

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