DAYTON B. SMITH, JR., Individually and as Special Administrator of the Estate of Leanne Johnson, Deceased, Plaintiff-Appellant,
SUMOULINDRA T. BHATTACHARYA, M.D., and ROCKFORD HEALTH PHYSICIANS, Defendants-Appellees
Appeal from the Circuit Court of Winnebago County. No. 10-L-399. Honorable J. Edward Prochaska, Judge, Presiding.
In a medical malpractice action where six years had passed since the death of plaintiff's decedent, four years had passed since the initial suit was filed and then nonsuited and the current suit was over two years old and plaintiff had still failed to disclose his expert witness, the trial court properly granted defendants' motion for summary judgment, even though the overall time for discovery had not passed and the trial date was six months later, since plaintiff failed to show any reasons why fairness would dictate that additional time should be allowed for him to disclose the required expert witness and there was nothing in the record to indicate that plaintiff would be able to do so.
Gregory E. Barrett, of Barrett & Gilbert, P.C., of Rockford, for appellant.
David P. Faulkner, Michelle L. Landon, and Kevin T. Abbott, all of Faulkner Law Firm, LLC, of Rockford, for appellees.
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
[¶1] Plaintiff, Dayton B. Smith, Jr., individually and as special administrator of the estate of Leanne Johnson, appeals the trial court's order granting summary judgment in favor of defendants, Sumoulindra T. Bhattacharya, M.D., and Rockford Health Physicians. He contends that the trial court improperly granted summary judgment based on his lack of an expert when, although he had missed deadlines for disclosure of experts, the overall time for discovery had not passed and trial was still six months away. Because plaintiff did not show any circumstances under which fairness would dictate that he be allowed additional time and the record does not show that he had the ability to obtain an expert, we affirm.
[¶2] I. BACKGROUND
[¶3] On July 14, 2007, Johnson was first seen bye defendants. On August 24, 2007, she died from advanced metastatic uterine and lung cancer. On August 21, 2009, plaintiff filed a medical malpractice suit against defendants. The suit did not include a report from a reviewing physician as required by section 2-622(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-622(a)(1) (West 2008)). That provision provides a 90-day period to provide such a report and, on November 18, 2009, plaintiff voluntarily dismissed the suit without doing so. 735 ILCS 5/2-622(a)(2) (West 2008).
[¶4] On November 18, 2010, plaintiff refiled the suit with a section 2-622 report from Dr. Allison Benthal. At plaintiff's deposition, it was discovered that plaintiff lived with Benthal and that they were engaged to be married.
[¶5] On June 15, 2011, the court issued an emergency order of protection against plaintiff, prohibiting him from contacting or stalking defendants. A permanent order of protection was entered on June 30, 2011. Those orders were based on threats plaintiff made to defendants, requests to the State's Attorney to file manslaughter charges, requests to the Department of Professional Regulation to modify Bhattacharya's medical license, letters written to politicians, the handing out of pamphlets criticizing defendants, and the establishment ...