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Mann v. Unjohn Co.

June 29, 2001

BEVERLY B. MANN, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
THE UPJOHN COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



The opinion of the court was delivered by: Justice Burke

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Susan Zwick, Jacqueline Cox, Robert Bastone, Lynn Egan, Donald O'Connell, Judges Presiding.

Plaintiff Beverly Mann appeals from numerous orders of the circuit court granting summary judgment to defendant The Upjohn Company on counts I and II of plaintiff's complaint, granting summary judgment to defendant on count IV of plaintiff's amendments to her complaint, granting defendant's motion to dismiss count VII of plaintiff's amendments to her complaint, denying plaintiff's motion to amend her complaint, denying plaintiff's motions for continuance of the trial date, and denying plaintiff's motion to vacate the dismissal of her complaint for want of prosecution (DWP). Defendant cross-appeals from orders of the circuit court granting plaintiff's motion to amend her complaint following summary judgment on counts I and II, denying defendant's motion for summary judgment based on lack of expert testimony on causation, and denying defendant's motion for summary judgment on plaintiff's economic loss claims. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

Plaintiff, an attorney, filed a pro se complaint against defendant alleging that she suffered physical and psychological injuries as a result of her ingestion of a prescription drug, Halcion, from January 1988 to January 1990. Halcion, also known as triazolam, is a member of the benzodiazepine drug class and is a sleep aid used to treat insomnia. Defendant manufactures Halcion and the drug received the Food and Drug Administration's (FDA) approval and licensing in 1982. Numerous complaints similar to plaintiff's were filed against defendant across the country following various news magazine and newspaper articles, as well as a "20/20 Report" detailing adverse side effects of Halcion.

Plaintiff's complaint against defendant was based on claims of negligence (count I) and products liability (count II), and alleged that defendant failed to adequately warn her of the detrimental effects of Halcion. Plaintiff's complaint was subsequently removed to the federal district court based on diversity jurisdiction. Plaintiff was ordered two times by the district court to answer outstanding discovery and to sign medical authorizations. In August 1992, plaintiff voluntarily dismissed her federal complaint, but plaintiff was granted leave to refile it in state court. In October 1992, plaintiff retained an attorney who refiled plaintiff's complaint in the circuit court of Cook County. In addition to the claims against defendant, plaintiff added as defendants Dr. John Karesh, the doctor who prescribed Halcion for her, and NorthCare Medical Group, where Karesh worked, alleging medical malpractice (count III). In February 1996, the court granted summary judgment in favor of Karesh and NorthCare based on its determination that the claims against them were time barred by the applicable statute of limitations, and they are not parties to this appeal.

In early 1993, the trial court ordered plaintiff to answer interrogatories on two occasions. In November 1993, defendant filed a motion for sanctions based on plaintiff's failure to comply with discovery. Although the trial court denied the motion for sanctions, the court ordered plaintiff to answer discovery. In the summer or autumn of 1994, defendant filed a motion to compel answers to interrogatories. The trial court's ruling on this motion is not contained in the record.

In May 1996, defendant filed three motions for summary judgment with respect to counts I and II of plaintiff's complaint; one based on lack of evidence of causation, one based on lack of evidence of loss of income claim, and one based on adequacy of warnings. On June 18, plaintiff's attorney was granted leave to withdraw as plaintiff's counsel. During the summer of 1996, defendant filed a motion for relief from plaintiff's personal attacks on counsel. Neither the motion itself, nor the trial court's decision, is in the record.

Plaintiff filed her first motion for a continuance of the trial date on October 22 in order to retain new counsel and to obtain defendant's Halcion database. Plaintiff was ordered on this date to answer Supreme Court Rule 213 interrogatories. 177 Ill. 2d R. 213. Thereafter, the trial court denied plaintiff's motion for continuance. At the hearing on this motion, the court questioned plaintiff about her discovery efforts and expressed its concern with respect to her diligence in prosecuting the case. The court stated that it had serious problems with whether plaintiff had done discovery and advised plaintiff that this was her "last chance." At this hearing, plaintiff accused defense counsel of being notorious for harassing plaintiffs. Plaintiff filed a motion to reconsider, which the trial court granted. The trial was continued from December 9, 1996, to August 21, 1997. Plaintiff was also ordered to answer Rule 213(g) interrogatories by January 3, 1997.

In December 1996, plaintiff replied to defendant's motions for summary judgment, relying on various documentary evidence. In January 1997, defendant filed a motion to bar plaintiff from presenting expert testimony based on her failure to comply with the court's order requiring her to answer Rule 213(g) interrogatories. On February 25, the trial court granted defendant's motion for summary judgment on counts I and II, and on March 25, it denied plaintiff's motion to reconsider its February 25 order granting summary judgment.

On April 22, the trial court granted plaintiff's motion to amend her complaint, allowing her to add claims for fraud (count IV), negligence (count V), products liability (count VI), and battery (count VII) based on alleged misrepresentations made by defendant. Defendant's subsequent motion to reconsider the order allowing plaintiff to amend her complaint was denied. Defendant thereafter filed a motion to dismiss plaintiff's amendments to her complaint.

On June 18, the trial court granted defendant's motion to require plaintiff to submit to an independent medical examination (IME). This motion had apparently been pending for over a year. On June 20, plaintiff filed a motion to continue the trial date, contending that the case had been in suspension from February 25 (when summary judgment was granted on counts I and II of her complaint) until April 22 (when she was allowed to amend her complaint). In June, plaintiff filed a motion to compel production of the Halcion database, which the trial court subsequently granted on September 23. On July 1, plaintiff filed a motion to continue the trial date to retain counsel, which the trial court denied based on its determination that plaintiff had not been diligent in prosecuting her case and had not demonstrated good cause for a continuance. At the hearing, the court expressed to plaintiff its concern with her discovery efforts over the previous five years. Rather than answer the court's questions with respect to what discovery remained, plaintiff engaged in an outburst and verbally attacked defendant. The court admonished plaintiff that it would not tolerate such conduct. Because of plaintiff's outburst, the court continued the matter to later that day. When the hearing resumed, the court indicated to plaintiff that her case was in jeopardy and that she had not answered Rule 213 interrogatories even though she had been ordered to do so. It then denied plaintiff's motion to continue.

Sometime during the summer of 1997, the FDA commissioned the National Academy of Sciences' Institute of Medicine (IOM) to conduct an independent review of Halcion. On July 9, the trial court granted defendant's motion to dismiss plaintiff's battery claim, but denied its motion to dismiss the negligence, fraud, and products liability claims. On July 10, the trial court granted plaintiff's motion to reconsider its order of June 18, requiring plaintiff to submit to an IME. However, on July 22, the trial court again granted defendant's motion for an IME. Plaintiff's motion to reconsider was denied and she underwent psychiatric and psychological examinations in August 1997. Thereafter, in an emergency motion for an extension of time to file a brief on her motion to compel production, plaintiff accused one of defendant's counsel of faking surgery for the purpose of delay.

On July 23, the trial court continued the trial date from August 21 to October 21, 1997, although the court did question plaintiff as to what discovery she had done and admonished her to answer the court's questions and cease being unresponsive. The court further indicated that plaintiff was in the position she was in with respect to discovery of defendant's documents due to her "own doings," e.g., her failure to review the documents when they were produced in 1992. The court struck those portions of plaintiff's motion for an extension of time that dealt with attacks upon defense counsel. During the hearing, plaintiff also ...


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