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Lewis v. Family Planning Management

August 03, 1999


The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

This appeal arises from a medical malpractice claim against an abortion clinic and some of its personnel. Certain defendants and nonparty witnesses (collectively deponents) refused to answer various questions during discovery depositions. The trial court ordered them to answer the questions. The court's order further provided that a cost of $100 per day would be assessed against any deponent not in compliance after 14 days. Deponents filed this appeal under Supreme Court Rule 304(b)(5), allowing appeals from orders "finding a person *** in contempt of court which imposes a monetary or other penalty." 155 Ill. 2d R. 304(b)(5). Because the trial court neither found deponents in contempt nor imposed a penalty for contempt, we find that the requirements of Supreme Court Rule 304(b)(5) have not been met and conclude that we lack jurisdiction over this case. Consequently, we dismiss this appeal.

I. Facts

The genesis of this appeal is a medical negligence brought by plaintiffs Cynthia Lewis and Dennis Dezutter, individually, and Cynthia Lewis as special administrator of the estate of Baby Boy Lewis, deceased (collectively plaintiffs). As defendants, plaintiffs named Family Planning Management, Inc., d/b/a Albany Medical-Surgical Center (Center), Family Planning Associates Medical Group, Ltd., Dr. E. Steven Lichtenberg, Kathy Fitch, Colleen Hammond, and Jane Doe (collectively defendants). Plaintiffs allege that Lewis changed her mind about proceeding with an abortion after defendants initiated a three-day abortion procedure. Upon asking defendants to stop the procedure, defendants allegedly misinformed her that once the procedure was begun, it could not be stopped. As such, plaintiffs contend, inter alia, that defendants completed the abortion without Lewis' informed consent.

Plaintiffs deposed the Center's former nursing supervisor, Dolly Barnet, and its nurse practitioner, Rita Wollenshchlager. Each answered all questions regarding education, social security number, and residence address. Subsequently, defendants filed a motion seeking a protective order. Defendants' proposed protective order would have allowed defendants and all of the Center's employees, including Diana Maracich, Kathy McLean, Yvette Johnson, Geneva Harris, and Renee Kraj, to refrain from providing certain personal information such as their residential addresses, social security numbers, and educational background. On September 23, 1997, the trial court denied defendants' motion but entered its own protective order. It provided that all discovery materials would be restricted to the parties, their attorneys, retained opinion witnesses, and consultants.

Subsequent to the trial court's ruling, plaintiffs took additional depositions, including those of defendants Dr. E. Steven Lichtenberg, Kathy Fitch, and Colleen Hammond and employees Diana Maracich, Kathy McLean, Yvette Johnson, Geneva Harris, and Renee Kraj. At the depositions, each deponent was asked to provide age, date of birth, educational background, residential address, and social security number, and each refused to provide some or most of the requested information. Those questions were certified.

Plaintiffs filed a combined motion to compel answers to the certified questions and motion for sanctions, arguing that deponents had engaged in a contumacious disregard for the trial court's September 23, 1997, order. On February 20, 1998, the trial court granted the motion to compel, giving the deponents 14 days to provide answers to the certified questions by affidavit. The trial court further provided that "[a]ny party not in compliance with this order after the expiration of the [14]-day period will be assessed a cost of $100 per day." The order was devoid of any type of contempt finding.

The deponents filed their notice of appeal, citing both the September and February orders for its basis. Plaintiffs filed a motion to dismiss this appeal, which was denied by another division of this court. Sanctions were also stayed pending the outcome of this appeal.

Initially upon review of the briefs and the record we questioned whether the requirements of Supreme Court Rule 304(b)(5) were met to establish our jurisdiction over this appeal. As such, we issued an order on April 6, 1999, drawing the parties' attention to our concern and requesting them to be prepared at oral argument to discuss the issue. We also granted the parties, at their discretion, an opportunity to supplement the record or provide any other materials that would aid the court in determining whether the instant appeal should be dismissed for want of jurisdiction. Deponents filed a memorandum of law regarding jurisdiction, and all parties were prepared to address the issue at oral argument.

II. Analysis

The dispositive issue is whether we have jurisdiction to review the propriety of two interlocutory orders made in the course of discovery. For the following reasons, we conclude that we do not.

Article VI, section 6, of the 1970 Illinois Constitution provides that "[a]ppeals from final judgments of a Circuit Court are a matter of right to the Appellate Court." Ill. Const. 1970, art. VI, §6. While article VI, section 6, vests with the Supreme Court of Illinois the general authority to promulgate rules governing appeals to the appellate court, section 16 of that article specifically grants the supreme court the authority to provide rules for appeals to the appellate court from non-final judgments. Ill. Const. 1970, art. VI, §§6, 16. Pursuant to this constitutional authority, our supreme court maintains rules governing appeals from final judgments under Rules 301, 302, 303, and 304. 134 Ill. 2d R. 302; 155 Ill. 2d Rs. 301, 303, 304. In particular, Rules 301 and 304 provide the jurisdictional basis for appealing final judgments, while Rule 303 provides the guidelines for effectuating such appeals. 155 Ill. 2d Rs. 301, 303, 304. Rule 302 provides for direct appeals of final judgments to the supreme court. 134 Ill. 2d R. 302. As to rules governing appeals of interlocutory orders, Rules 306 and 307 specify certain specified interlocutory, non-final orders that are appealable, and Rule 308 allows appeals from interlocutory, non-final orders that the circuit and appellate courts decide are necessary to expedite the case. 155 Ill. 2d R. 308.

"A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment." People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981). Accordingly, discovery orders are not appealable under Rule 301 nor are they directly appealable under Rule 304 since they are interlocutory in nature. See Silverstein, 87 Ill. 2d at 171; In re Marriage of Young, 244 Ill. App. 3d 313, 316 (1993); Kmoch v.Klein, 214 Ill. App. 3d 185, 190-91 (1991); 4 R. Michael, Illinois Practice §35.6 (1989) (hereinafter Illinois Practice). Moreover, discovery orders are not within the class of appealable interlocutory orders delineated under Supreme Court Rules 306 or 307. 155 Ill. 2d Rs. 306, 307. Rule 308(a) may provide a means to appeal a discovery order where both the circuit court and appellate court agree that "the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 155 Ill. 2d R. 308(a). This rule, however, has not been invoked in this case.

One definite but indirect method of securing review of a discovery order does exist. It is well settled that a party or witness may test a discovery order by refusing to comply, thereby forcing the trial court to find that party or witness in contempt and to assign an appropriate punishment. Silverstein, 87 Ill. 2d at 171; People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180, 189 (1967); In re Marriage of Young, 244 Ill. App. 3d at 316; Kmoch, 214 Ill. App. 3d at 190-91. "[A]n order cast in terms of a contempt proceeding imposing sanctions is *** final and appealable" (Silverstein, 87 Ill. 2d at 171) because it necessarily stems from an "original special proceeding, collateral to and independent of, the case in which the contempt arises" (Silverstein, 87 Ill. 2d at 172). See also Kmoch, 214 Ill. App. 3d at 190-91. Appeal of a contempt order "presents to the court for review the propriety of the order of the court claimed to have been violated." Silverstein, 87 Ill. 2d at 174. See People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 756 (1997) (contempt finding imposing a ...

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