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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.

Held [*]

The trial court did not abuse its discretion and properly followed its prior orders, the discovery rules and the standards of the Illinois Supreme Court when it refused to admit the affidavit of plaintiff’s previously undisclosed expert which plaintiff attached to her response to defendants’ motion for summary judgment in her medical malpractice action, and the judgment entered for defendants was affirmed.

Appeal from the Circuit Court of Cook County, No. 07-L-007113; Hon. Brigid Mary McGrath, Judge, presiding.

Dean J. Caras, P.C., of Chicago (Tara C. Meadows, of counsel), for appellant.

Lowis & Gellen, LLP, of Chicago (Deborah M.R. O’Brien, Michael A. Code, and Brad E. Wolven, of counsel), for appellees.

Panel JUSTICE QUINN delivered the judgment of the court, with opinion. 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."

ΒΆ 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 ...


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