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Levine v. EBI, LLC

Court of Appeals of Illinois, First District, Third Division

March 6, 2013

SUSAN LEVINE and MARC LEVINE, Plaintiffs-Appellants,
v.
EBI, LLC, f/k/a EBI, LP, d/b/a Biomet Spine, Defendant-Appellee

Appeal from the Circuit Court of Cook County. 09 L 2006. Honorable Marcia Maras, Judge Presiding.

Reversed and remanded.

FOR PLAINTIFFS-APPELLANTS: Stephen I. Lane, Lane & Lane, LLC, Chicago, IL.

FOR DEFENDANT-APPELLEE: William N. Howard, Garry L. Willis, Freeborn & Peters LLP, Chicago, IL.

PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Sterba and Hyman concurred in the judgment and opinion.

OPINION

NEVILLE, PRESIDING JUSTICE

[¶1] Susan and Marc Levine sued Interpore Cross International in 2009 to recover for injuries Susan suffered because her surgeon did not have the instruments he needed to complete an operation Susan underwent in March 2007. The Levines named EBI and others as respondents in discovery, and the Levines asked all the respondents questions about the parties responsible for providing the instruments needed for Susan's operation. EBI responded that it did not know who bore responsibility for providing the instruments. In 2011, when the Levines learned that EBI should have supplied the instruments, they filed an amended complaint naming EBI as a defendant. The trial court dismissed the claim in the complaint against EBI as untimely and found no cause to delay appeal under Supreme Court Rule 304(a) (Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010)).

[¶2] In this appeal, the Levines argue that the trial court should not have added the Rule 304(a)

Page 2

language, that EBI's fraudulent concealment made the claim timely, and that the court should have found EBI equitably estopped from raising the statute of limitations as a defense. We hold that the trial court did not abuse its discretion in adding Rule 304(a) language and that EBI's fraudulent concealment does not make the complaint timely. However, we hold that the Levines have stated adequate grounds for application of equitable estoppel. Therefore, we reverse the judgment and remand for further proceedings on the amended complaint.

[¶3] BACKGROUND

[¶4] Dr. David Shapiro fused part of Susan's spine in 1996. He inserted medical screws into Susan's back as part of the 1996 operation. Susan's severe lower back pain returned in 2007, and Dr. Shapiro realized that he needed to replace the 1996 screws. Dr. Shapiro's secretary contacted the makers of the 1996 device and the new device and both brought packages of hardware to the operation on March 5, 2007. Dr. Shapiro needed instruments called drivers, which functioned like screwdrivers to fit the screws in Susan's back, to allow him to safely remove the 1996 device.

[¶5] After Dr. Shapiro cut into Susan's back and stripped the muscle away from the 1996

Page 3

device, Dr. Shapiro closed Susan's back without replacing the device. In his report of the operation, written shortly after the operation, Dr. Shapiro said:

" The company had brought the instrumentation in, but unfortunately the proper driver was not available. The company representative admitted that many of the drivers were simply not in the set and he was hoping that this would work. Several different options were tried and finally it was decided to abandon the procedure."

[¶6] As a prophylactic measure, the hospital administered antibiotics to Susan pending a second operation with all of the necessary instruments. Two days after the initial operation, Dr. Shapiro performed a second operation in which he successfully replaced the device in Susan's back. Susan later developed an infection of a kind that usually results from antibiotics.

[¶7] Susan and her husband, Marc, sued Interpore Cross International in February 2009. They added 17 other parties, including Dr. Shapiro and EBI, as respondents in discovery. The Levines sent Dr. Shapiro's report and the same questions to all of the respondents in discovery. First, they asked the respondents to identify " The company" to which Dr. Shapiro referred.

Page 4

Second, they asked the respondents to identify the persons or corporations responsible for bringing " the missing instruments/tools/drivers" to the operation Dr. ...


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