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05/17/96 MARGARET DOLORES O'BRIEN v. JOHN MEYER

May 17, 1996

MARGARET DOLORES O'BRIEN, ADMINISTRATRIX OF THE ESTATE OF DENNIS E. O'BRIEN, DECEASED, PLAINTIFF-APPELLANT,
v.
JOHN MEYER, M.D., AND MEYER MEDICAL GROUP, S.C., THOMAS R. ARAUJO, M.D., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Jacqueline P. Cox, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, J., concurs. Justice Rakowski, dissenting:

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

This is an appeal by the plaintiff, Margaret O'Brien, Administratrix of the Estate of her husband, Dennis E. O'Brien, of an order dismissing a wrongful death malpractice complaint against Dr. John Meyer, the Meyer Medical Group and Dr. Thomas Araujo.

The plaintiff filed a complaint in 1979; the case was tried in 1988; a verdict was returned in favor of the defendants; the appellate court reversed and remanded for a new trial ( O'Brien v. Meyer, 196 Ill. App. 3d 457, 554 N.E.2d 257, 143 Ill. Dec. 322 (1989)); petition for leave to appeal was denied; and the mandate was issued November 16, 1990.

The plaintiff did not formally move to reinstate the case until May 1994, after the defendants filed a motion to dismiss on the ground that the plaintiff's failure to reinstate the case constituted laches. The trial judge allowed the motion to dismiss on the ground of laches.

Before addressing the merits of the plaintiff's appeal, we must determine the appropriate standard on review. The defendants correctly cite Lee v. City of Decatur, 256 Ill. App. 3d 192, 627 N.E.2d 1256, 194 Ill. Dec. 614 (1994), for a holding that the determination of laches is left to the discretion of the trial judge. But laches is an affirmative defense and presents a question of fact. Gaffney v. Harmon, 405 Ill. 273, 90 N.E.2d 785 (1950). Like any affirmative defense, the burden is on the defendants to establish laches by a preponderance of the evidence. Anderson v. Lybeck, 15 Ill. 2d 227, 154 N.E.2d 259 (1958).

In Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 814, (4th Cir. 1992), the court said that "'abuse of discretion' is a legal term of art; it is not a wooden term but one of flexibility, dependent on the type of case in which it is to be applied and posture of the case when it arises." To us, the "discretion" granted a trial judge in determining the question of laches is different from the discretion involved in a number of other rulings by a trial judge; for example, admissibility of evidence, granting or denying a continuance, the scope of discovery, sanctions for discovery violations or sentencing in criminal cases, all of which involve to some degree the weighing of facts. In Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d 793, 483 N.E.2d 999, 91 Ill. Dec. 513 (1985), the court held that an abuse of discretion occurs when the court's decision is against the manifest weight of the evidence. In In re Marriage of Batchelor, 89 Ill. App. 3d 781, 412 N.E.2d 49, 45 Ill. Dec. 13 (1980), the court held that an abuse of discretion is shown when the judgment of the trial court is found to be palpably erroneous, contrary to the manifest weight of the evidence, or manifestly unjust. See also, Continental Cablevision of Cook County, Inc. v. Miller, 238 Ill. App. 3d 774, 787, 606 N.E.2d 587, 179 Ill. Dec. 755 (1992), citing Jefco Laboratories. We conclude, therefore, that it is proper for us to examine the record to determine whether the judge's finding that the defendants had established the plaintiff's guilt of laches was against the manifest weight of the evidence.

We turn now to the record upon which the judge based her decision. The defendants filed a joint motion to dismiss on April 13, 1994. That motion alleged that the defendant Dr. John Meyer had died and as a result his estate was hindered in asserting a defense to the plaintiff's case. At the same time the defendants filed a motion to dismiss, they filed a motion to spread the death of Dr. Meyer of record. He had died on February 19, 1994. His wife, Marcella Meyer, was substituted as a party defendant. The motion also alleged that the original expert retained by Dr. Araujo had also died since the mandate had been issued by the appellate court. The motion alleged further that "defendants have not engaged in any conduct which might bar the application of laches. "

On April 28, 1994, the plaintiff filed a motion to set the case for trial. Attached to the motion were the affidavits of the plaintiff and Dr. Gisella Albrecht, who had been the plaintiff's expert witness at the trial and was to testify again as the plaintiff's expert. The plaintiff also filed a reply to the motion to dismiss which incorporated the motion to set for trial. In her affidavit the plaintiff alleged that since 1990 she had been caring for her paraplegic son, whose spine had been severed. The affidavit went into great detail explaining her son's surgeries and hospitalizations and the time she had to spend caring for and visiting her son. She said that her son's condition had improved to the point that she could attend the trial.

In the affidavit of Dr. Albrecht, she said that she had had a relapse of tuberculosis, a coronary, a coronary angioplasty, a massive pulmonary embolism and frequent bouts of recurring bronchitis and cardiac arrhythmic abnormality. She was under a cardiologist's care. Since 1990 she had had conversations with the attorney for the plaintiff and had told her that she could not tolerate the stress that she suffered from the way she was treated by the attorneys for the defendants at the first trial. She was in Germany at the time the affidavit was made, and she intended to return to the United States at the end of August, 1994.

The reply included a letter dated January 8, 1993, from the attorney for Dr. Araujo to the plaintiff's attorney confirming that he would present his medical expert for his discovery deposition on January 19, 1993. Also included were the answers of Dr. Araujo to interrogatories in which Dr. Araujo identified Dr. Leonard Berlin as his medical expert and recited what Dr. Berlin's opinion would be. Those answers were filed also on January 8, 1993.

At the hearing on the motion, as is often the case, the "evidence" consisted primarily of the statements of the attorneys. Cf. Miller v. Bloomberg, 126 Ill. App. 3d 332, 335, 466 N.E.2d 1342, 81 Ill. Dec. 540 (1984). No objection was made by any of the attorneys or the court to that procedure. The attorney for the estate of Dr. Meyer spoke first. He recited the procedural history of the case and referred to an affidavit from a treating oncologist who said that Dr. Meyer was initially diagnosed with cancer in April of 1993 and that within a short period of time he "deteriorated to the point where he was basically incompetent and would have been unable to testify, would have been unable to assist counsel, anything of that nature." He concluded that the estate of Dr. Meyer was prejudiced due to the death of Dr. Meyer and that the court should dismiss the case because of laches.

The attorney for Dr. Araujo spoke next. He told the judge that Dr. Ringus, who was his original expert in the case, passed away in 1992. The death of Dr. Araujo's expert, he maintained, prejudiced him. He did ...


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