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Valdovinos v. Luna-Manalac Medical Center

February 21, 2002


The opinion of the court was delivered by: Presiding Justice Hoffman


Appeal from the Circuit Court of Cook County Honorable John V. Virgilio and Susan Zwick Judges Presiding.

The defendants, Luna-Manalac Medical Center, Ltd. (Luna) and Dr. Julietta Luna Joson (Joson) appeal from a circuit court order allowing the plaintiffs, Marta Valdovinos (Valdovinos), as parent, guardian, and next friend of Daniel Valdovinos (Daniel), and Chicago Title and Trust Company (Chicago Title), as guardian of the Estate of Daniel Valdovinos, a disabled minor, to voluntarily dismiss the instant action pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 1996)). The plaintiffs cross-appeal from the portion of the trial court's order requiring that they pay the defendants' costs and expenses. They also seek review of various pre-trial rulings. For the reasons which follow, we affirm.

This action commenced in the circuit court some 10 years ago and, despite the fact that it has never proceeded to trial, is before this court for the second time. The record consists of 105 volumes, and, needless to say, the procedural history of the case is complex. We will attempt to limit our recitation of the facts to those necessary for an adequate understanding of the case and resolution of the issues presented.

On June 6, 1991, Valdovinos, as parent and next friend of Daniel, filed the initial complaint in this action, asserting causes of action for medical negligence against various doctors and hospitals involved in her pre-natal care and Daniel's birth and post-delivery care. During the course of the litigation, Valdovinos filed multiple amended complaints adding new defendants and new claims. The seventh amended complaint, the final one filed, lists as plaintiffs not only Valdovinos, in her representative capacity, but also Chicago Title, as the guardian of Daniel's estate. In that complaint, the plaintiffs alleged that, during Valdovinos' pregnancy, Joson had given her an injection of a drug manufactured by Parke Davis and that, as a result of the injection, Daniel had suffered severe neurological damage. The plaintiffs asserted, inter alia, a negligence claim against Luna, the medical clinic where Joson worked, and Joson, individually and as an agent of Luna, and a product liability claim against Parke Davis, which is not a party to this appeal.

On June 21, 1997, counsel for Luna and Joson issued a subpoena to Dr. Tanadori Tomita, one of the doctors who treated Daniel shortly after his birth, requiring him to appear for an evidence deposition. On July 28, 1997, the plaintiffs brought a motion to compel Dr. Tomita to speak with their attorney prior to his deposition. In that motion, the plaintiffs alleged that, in June 1997, before Dr. Tomita had retained counsel, he agreed to speak to the plaintiffs' counsel prior to his deposition but that, after retaining attorney Pamela Gellen, he refused to do so. The plaintiffs further alleged that Gellen had "engaged in discussions with counsel for Parke Davis." The plaintiffs expressed concern that the discussions between Parke Davis' counsel and Gellen were "effectively subverting prohibitions against discussions with treating physicians" in violation of the rule pronounced in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 588, 499 N.E.2d 952 (1986). The plaintiffs sought orders prohibiting "indirect communications" between Gellen and counsel for Parke Davis and requiring Dr. Tomita to meet with their attorneys. Judge Susan Zwick denied the plaintiffs' motion that same day. Dr. Tomita's deposition was taken on July 29, 1997. Gellen represented Dr. Tomita at the deposition.

On August 18, 1997, the case was assigned to Judge Denise O'Malley for trial. Thereafter, the case was subject to extensive motion practice as the parties, in combination, filed a total of more than 100 motions in limine. Also, on August 19, 1997, the plaintiffs filed their fifth and sixth supplements to their answers to Supreme Court Rule 213 (177 Ill. 2d R. 213) interrogatories, in which they disclosed new witnesses and new opinions of previously disclosed witnesses.

On August 21, 1997, Judge O'Malley granted Pamela Gellen's emergency motions to quash subpoenas which the plaintiffs had issued requiring that she appear for discovery and evidence depositions and at trial. The plaintiffs contend that they issued the subpoenas in question to Gellen because, due to certain testimony Dr. Tomita gave at his deposition, they believed that Dr. Tomita had engaged in ex parte communications with counsel for Luna and Joson, either personally or through Gellen.

On August 28, 1997, the plaintiffs sought leave to file a seventh amended complaint. Judge O'Malley allowed the plaintiffs leave to file the complaint but subsequently ordered certain paragraphs stricken from the complaint, some with prejudice and others with leave to replead, which the plaintiffs did not do. She also ordered stricken from the complaint any reference to Warner-Lambert Company, which was named for the first time in that complaint.

On September 3, 1997, Judge O'Malley entered rulings on the objections raised during the evidence depositions of several of Daniel's treating physicians, including Dr. Tomita. The plaintiffs' counsel objected to certain of Gellen's comments being stricken from Dr. Tomita's deposition, asserting that the comments suggested Gellen had engaged in ex parte communications with defense counsel. Judge O'Malley stated: "We have had a ruling on this before based on Petrillo, I said your suspicion that Petrillo is violated by conversations between two lawyers and you have nothing, no real evidence whatever to support it."

On September 9, 1997, the plaintiffs first disclosed the existence of a computer animated videotape which, they alleged, depicted the opinions of their expert witnesses. Judge O'Malley expressed doubt as to whether she would allow the tape to be presented at trial but stated she would consider the matter overnight. On September 10, 1997, the plaintiffs filed an emergency petition for substitution of judge for cause pursuant to section 2-1001(a)(3) of the Code (735 ILCS 5/2-1001(a)(3) (West 1996)). Judge Jacqueline Cox heard and denied the petition that same day. When the parties returned to Judge O'Malley's courtroom, the plaintiffs indicated their intent to file another motion for substitution of judge for cause the following day, containing more specific allegations of bias, ill will, and prejudice. Judge O'Malley stated that she believed the plaintiffs' motions for substitution were attempts at forum shopping because they were unhappy with her rulings. She informed the parties that she was, nonetheless, contemplating recusing herself from the case but that she would consider the matter overnight. In urging Judge O'Malley not to recuse herself from the case due to the plaintiffs' tactics, counsel for Luna and Joson expressed his belief that the plaintiffs would next "pull a voluntary dismissal." The plaintiffs' counsel responded: "I guarantee that's not going to happen."

On September 11, 1997, Judge O'Malley issued over 100 written orders regarding various of the parties' motions on which she had already heard argument and ruled. By way of these orders, Judge O'Malley, inter alia, barred the plaintiffs from calling certain witnesses at all and from eliciting certain testimony or opinions from other witnesses due to untimely or inadequate disclosures and/or the cumulative nature of the proposed testimony. Also on September 11, 1997, the plaintiffs filed another motion for substitution of judge for cause. That motion, however, was rendered moot when Judge O'Malley recused herself from the case that same day for medical reasons. Judge O'Malley specifically declined to rule on the admissibility of the plaintiffs' videotape as demonstrative evidence, leaving the matter to be decided by the judge to whom the case was next assigned.

On September 12, 1997, the plaintiffs filed a motion for a mistrial. Judge Donald O'Connell heard and denied the motion, noting that trial had not yet commenced.

On September 19, 1997, the plaintiffs filed an action in the chancery division (docket number 97 CH 11755) naming as defendants, inter alia, counsel for Joson in the instant case, Dr. Tomita, and Pamela Gellen. The plaintiffs also named the attorneys representing Parke Davis in the instant case as respondents in discovery in the chancery action. The plaintiffs alleged that Dr. Tomita had refused to meet with their attorneys prior to giving his deposition in the instant action and that certain answers he gave at the deposition demonstrated that he had engaged, through Gellen, in prior ex parte communications with defense counsel. In count one of the complaint, the plaintiffs sought a mandatory injunction ordering Dr. Tomita to meet with their attorneys prior to giving his deposition in the instant case. In count two, the plaintiffs alleged a cause of action for conspiracy to commit and the actual commission of "outrageous tortious conduct" against Dr. Tomita, Gellen, counsel for Luna and Joson, and others. In their prayer for relief on count two, the plaintiffs sought orders: prohibiting, inter alia, Gellen and the defendants' attorneys from communicating with Daniel's treating physicians, including Dr. Tomita, either directly or indirectly through counsel; enjoining Dr. Tomita from communicating with anyone regarding Daniel's medical treatment, either directly or indirectly through counsel, without the plaintiffs' consent; impounding the evidence deposition given by Dr. Tomita in the instant case and restraining the parties in this case from offering the deposition; barring Dr. Tomita from testifying in the instant case due to Petrillo violations; and disqualifying certain of the defendants' attorneys in the instant case.

After Judge O'Malley's recusal, the instant case was assigned to Judge Virgilio for trial. The plaintiffs filed a motion seeking de novo review of all the motions in limine upon which Judge O'Malley had ruled, asserting that false statements made to Judge O'Malley by counsel for the defendants had resulted in "patently erroneous" rulings. On September 22, 1997, the plaintiffs filed an emergency motion to stay the proceedings in the instant case so that they could proceed with a motion for a preliminary injunction and discovery on an expedited basis in their newly filed chancery action. The plaintiffs asserted that the allegations in the chancery action provided grounds to disqualify counsel for the defendants in the instant case and to bar certain witnesses from testifying in the instant case. Accordingly, they argued, if the chancery division action proved successful, any judgment in the instant case would have to be set aside as void as it would be "based upon illegally obtained evidence." Also on September 22, 1997, Luna and Joson filed a motion to bar the plaintiffs from using the computer animated videotape. The following day, Parke Davis filed a motion to the same effect.

On September 22, 1997, Judge Virgilio denied the plaintiffs' motion to stay the proceedings. On September 23, 1997, the plaintiffs presented that same motion to Judge O'Connell. Judge O'Connell denied the motion, noting that all of the relevant relief sought in the chancery action could be sought in the instant action. After denying the plaintiffs' motion, Judge O'Connell commented: "I'd say further, the plaintiffs, if you're not ready to try the case, take a voluntary dismissal. Relief is available to you. *** [I]f you're not ready to try this case, you have the tools available." Counsel for the plaintiffs responded: "We're - we're ready. We're ready for trial."

On September 25, 1997, Judge Virgilio reversed Judge O'Malley's denial of one of the plaintiffs' motions in limine but left undisturbed the remainder of Judge O'Malley's rulings, stating that they were not "patently incorrect." Further, Judge Virgilio granted the defendants' motions to bar the plaintiffs from using the videotape as demonstrative evidence at trial. After Judge Virgilio issued these rulings, he asked the parties whether they had any questions they wished him to ask the jurors during voir dire. One of the attorneys for the plaintiffs informed the judge that his co-counsel, who was not present in court at that time, was bringing the questions and should be arriving shortly. Co-counsel arrived shortly thereafter and stated:

"Your Honor, when we appeared before Judge O'Connell earlier this week after we were first with you, then we moved for a - we gave them the motion for a stayed order. He, at that time, said that you could give us that relief.

And since you had already denied the motion, he also suggested that we take a voluntary non-suit since we have a minor, and we're going to do that, your Honor. I have a motion for voluntary non-suit."

Counsel presented Judge Virgilio with a written motion to voluntarily dismiss the case without prejudice. The defendants objected, arguing, among other things, that they had not been given notice of the motion. Judge Virgilio gave the defendants leave to file responses to the motion and continued the matter to the next day, ordering that the plaintiffs make several modifications to their written motion. Later that day, the plaintiffs filed a pleading styled "Plaintiffs' Revised Motion for a Voluntary Dismissal Without Prejudice", reflecting the changes which Judge Virgilio had ordered. In the revised motion, the plaintiffs asserted that they were seeking a voluntary dismissal because both Judge Virgilio and Judge O'Connell ...

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