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Smith v. Murphy

Court of Appeals of Illinois, First District, Second Division

July 16, 2013

BOZENA SMITH, Plaintiff-Appellant,
v.
BRIAN MURPHY, M.D. and JAMES McFADDEN, M.D. Defendants- Appellees.

Appeal from the Circuit Court of Cook County. No. 07 L 007113, Honorable Brigid Mary McGrath, Judge Presiding.

Justices Connors and Fitzgerald-Smith [*] concurred in the judgment and opinion.

OPINION

QUINN, JUSTICE

¶ 1 I. INTRODUCTION

¶ 2 Plaintiff appeals the entry of judgment in favor of the defendants claiming the trial court abused its discretion when, as a sanction for plaintiff's violation of discovery rules and court orders entered regarding discovery, it did not allow plaintiff to utilize an affidavit of a new, undisclosed expert well after discovery closed and the case was set for trial. Plaintiff never sought an extension of discovery and only submitted her undisclosed expert's affidavit in response to defendants' timely motion for summary judgment and without leave of court. For the reasons that follow, we hold that the trial court did not abuse its discretion and affirm the entry of judgment in favor of defendants.

¶ 3 II. BACKGROUND

¶ 4 In 2007, plaintiff, Bozena Smith, filed a medical professional negligence complaint concerning the 2006 postsurgical treatment she received. Plaintiff named the two doctors, Drs. Murphy and McFadden, who are the defendants-appellees and were employed as residents back in 2006, as well as two other doctors.

¶ 5 After all fact discovery was completed by the parties, the trial court entered the deadline of September 13, 2010 for plaintiff to disclose any experts pursuant to Rule 213(f)(3). Ill. S.Ct. R. 213(f)(3) (eff. Jan, 1, 2007). Plaintiff disclosed one expert she had hired to render an opinion in this case, Dr. Robert Henry Quinn.[1] Plaintiff stated she expected that Dr. Quinn, in part, would provide an expert opinion that both residents deviated from the standard of care in treating the plaintiff.

¶ 6 On November 8, 2010, plaintiff presented Dr. Quinn to opposing parties for deposition testimony at which time Dr. Quinn withdrew all adverse opinions he previously rendered against the residents and testified that he now held no opinions that implicated the residents in any substandard medical care of the plaintiff. Specifically, plaintiff's expert testified, as follows: "[I]t's my opinion that residents in training should not be held accountable for these kinds of decisions, and, ultimately, actions of a resident are the responsibility of the attending physician. I would like to scratch the two paragraphs [in my report] that implicate the residents." Dr. Quinn was then asked if it was fair to say that he had no criticisms of the residents. He testified that statement was true. To completely clarify plaintiff's expert's withdrawal of his written report on the residents' professional conduct, Dr. Quinn testified that it was fair to say that he held "no opinions that any of the residents involved in Ms. Smith's care deviated from the standard of care."

¶ 7 Plaintiff had numerous opportunities to bring the issue of her only expert, Dr. Quinn, and his deposition testimony to the trial court's attention, with the first opportunity coming nine days after Dr. Quinn's deposition testimony. Plaintiff was silent on the issue and the court issued its order setting a January 14, 2011 deadline for defendants to disclose their experts in rebuttal to the opinions held by plaintiff's only expert, Dr. Quinn. Defendants complied with this deadline.

¶ 8 On May 2, 2011, the trial court ordered all discovery closed on May 19, 2011. A final case management conference was held on May 24, 2011 at which time the trial court and the parties agreed upon a jury trial date of October 17, 2011. The trial court emphasized in that order that all discovery was closed as of the date of its order entered May 24, 2011.

¶ 9 Defendants filed timely motions for summary judgment on August 9, 2011. Between the November 8, 2010 deposition testimony of plaintiff's expert, Dr. Quinn, and the August 9, 2011 filing date of defendants' motions for summary judgment, there is no evidence in the record that plaintiff brought Dr. Quinn's withdrawal of his opinion that the two residents provided any substandard care to the court's attention.

¶ 10 On August 23, 2011, the trial court issued an order requiring plaintiff to respond to the defendants' motions for summary judgment by October 14, 2011, and struck the upcoming October 17, 2011 trial date. On October 12, 2011, plaintiff filed her response to defendants' motion for summary judgment, in part, by attaching an unsigned, proposed affidavit of a previously undisclosed retained expert, Dr. Salem El-Attrache. Plaintiff filed this affidavit, as well as a pleading entitled "Plaintiff's Supplemental Answers to Rule 213(f)(3) Interrogatories" without leave of court and well outside the discovery cutoff date of May 24, 2011. That same day plaintiff filed a motion requesting time to file a signed affidavit of Dr. Salem El-Attrache. The trial court ordered a briefing schedule on this motion. Defendants opposed the untimely disclosure of a completely new expert by plaintiff at this stage of the litigation.

ΒΆ 11 A hearing was held on the issue of plaintiff's untimely disclosure of a new expert on February 17, 2012. ...


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