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Brummel v. Grossman

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

MARIA BRUMMEL, Executor of the Estate of Bruce Brummel, Deceased, Plaintiff-Appellant,
v.
RICHARD D. GROSSMAN; AGNES E. GROSSMAN; LAW OFFICES OF RICHARD D. GROSSMAN; RICHARD C. DANIELS; DANIELS, LONG & PINSEL, LLC; JASON S. MARKS; and NOONAN, PERILLO, POLENZANI & MARKS, LTD., Defendants Richard D. Grossman; Agnes E. Grossman; Law Offices of Richard D. Grossman; Richard C. Daniels; Daniels, Long & Pinsel, LLC, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No. 14 L 13363 The Honorable John P. Callahan, Jr., Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

          OPINION

          GORDON JUSTICE

         ¶ 1 The instant appeal arises from the trial court's grant of summary judgment against plaintiff Maria Brummel's amended complaint for legal malpractice committed by defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, LLC (collectively, Daniels defendants) and attorneys Richard D. Grossman and Agnes E. Grossman and the Law Offices of Richard D. Grossman (collectively, Grossman defendants).[1] The lawsuit, originally filed by Bruce Brummel[2] (decedent) on December 30, 2014, alleged legal malpractice against defendants for negligently representing him during a case he filed in 2009 against his employer, Nicor Gas, for retaliatory discharge and for a violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), in which he claimed that Nicor terminated his employment because he reported to various government agencies that the drinking water where he worked was contaminated. In the instant case, the trial court entered an order on April 13, 2016, limiting the amount of additional oral discovery sought by plaintiff. On February 3, 2017, the trial court granted defendants' motion for summary judgment, finding that the decedent could not have prevailed in the whistleblower case regardless of defendants' representation, since there was no evidence that the decedent was discharged for a protected activity, and that the doctrine of judicial estoppel barred the decedent's claim that he was able to return to work. Plaintiff appeals, arguing (1) that a genuine issue of material fact existed as to whether Nicor terminated the decedent's employment for reporting toxic work conditions to government authorities, and (2) that the doctrine of judicial estoppel did not bar his claim. Plaintiff also appeals the trial court's April 13, 2016, order limiting the amount of additional oral discovery, arguing that the trial court erred when it allowed her to conduct only one deposition prior to responding to the motion for summary judgment. For the following reasons, we affirm the judgment of the trial court.

         ¶ 2 BACKGROUND

         ¶ 3 The decedent's employer, Nicor Gas (Nicor), is a natural gas distribution company. The decedent began working for Nicor in December 1980 when he was 18 years old, and he remained with the company for over 22 years. The decedent was employed as a distribution technician with job duties that included repairing gas mains, operating machines, and directing and leading members of his crew. His job required physical labor, which he described as heavy, strenuous work. In 2001, the decedent and some of his coworkers at Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and fatigue. The decedent consulted a physician, who opined that the decedent's symptoms were caused by ingestion of chemicals. From 2001 to 2003, the decedent, as well as other employees, informed Nicor about his concerns that its drinking water was contaminated, but Nicor did not take any action to investigate or remedy the problem. The decedent also reported his concerns to the Occupational Safety and Health Administration in 2001 after Nicor did not take remedial action. The decedent conducted his own investigation, designed to discover the source of the chemicals at the Nicor facility where he worked, and he found that the drinking water in the break room connected to the flush line of the boiler, which allowed toxins to be emitted from the boiler into the drinking water consumed by Nicor employees. The decedent informed his union about the contaminated drinking water, but the union also ignored his requests for help. In late 2002, the decedent reported his findings concerning the connection between the boiler and the drinking water to the Occupational Safety and Health Administration for the second time, and he reported his findings to the City of Aurora, the Kane County Health Department, and the Illinois Department of Public Health. Although the decedent continued to consult his physician for gastrointestinal problems, his health continued to deteriorate, and he began a medical leave of absence on October 6, 2003.

         ¶ 4 On October 14, 2003, the City of Aurora's emergency response team and head plumbing inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the facility. The inspection revealed that the drinking water was contaminated with methylene chloride and/or dichloro methane. Nicor later resolved the problem by installing backflow protection devices, which conformed the plumbing to city, state, and federal water safety regulations.

         ¶ 5 Once the decedent was on medical leave, Nicor placed him in its short-term disability plan governed by the company's Employee Benefit Association. In order to receive benefits, the Employee Benefit Association rules required the decedent to provide proof of his short-term disability.

         ¶ 6 On December 26, 2003, Nicor's senior labor and employee relations consultant, Jean Smolios, sent a letter to the decedent, advising him that Nicor had not received medical documentation to support his leave of absence, and that, since the Employee Benefit Association rules required the decedent to provide proof of his disability claim within 18 days of his absence, failure to provide the documentation could result in the suspension of his Employee Benefit Association benefits.

         ¶ 7 Smolios sent the decedent another letter on December 29, 2003, advising him that his Employee Benefit Association benefits would be suspended on January 12, 2004, if he did not provide medical documentation supporting his leave of absence.

         ¶ 8 On January 13, 2004, Nicor's medical services administrator, Eileen Boedigheimer, sent the decedent a letter, advising him that, since Nicor never received medical documentation supporting his leave of absence, his Employee Benefit Association benefits were suspended as of January 12, 2004, and that the suspension would be in effect until Nicor were to receive the appropriate documentation in the future. Boedigheimer also offered to fax another copy of the required form to the decedent's physician, as she previously discussed with the decedent on the telephone.

         ¶ 9 Three days later, on January 16, 2004, the decedent's physician, Dr. J. David Siegfried, faxed an "Employee Benefit Association Proof of Claim Form" and "Family and Medical Leave Act of 1993 Certification of Health Care Provider" form to Nicor, which stated that he diagnosed the decedent with chronic reflux disease and esophagitis. In the certification of health care provider form, Dr. Siegfried opined that the decedent was indefinitely disabled as of October 6, 2003, and that his disability was still "ongoing." Dr. Siegfried also answered in response to question 5.b that, from October 3, 2003, to October 3, 2004, the decedent would be "off intermittently when exacerbations occur or treatment is necessary." In response to question 5.c, Dr. Siegfried opined that the decedent "is unable to work from 10/6/03 thru indefinite." In response to question 7.a, which asked whether the decedent was able to perform work of any kind, Dr. Siegfried answered that the decedent "is able to work unless exacerbations occur, which is intermittently." Despite submitting these documents, Nicor never lifted the suspension of his Employee Benefit Association benefits.

         ¶ 10 Three months later, on March 16, 2004, Smolios mailed the decedent another letter, advising him that Nicor had not received medical documentation to support his October 6, 2003, leave of absence, and that Nicor would terminate his employment if he did not provide a medical certification in support of his leave of absence by April 2, 2004. Smolios noted that, in late December, Nicor "again requested that you provide documentation to support your absence and again you failed to provide evidence in support of your continued absence." In response, on March 26, 2004, the decedent sent Nicor copies of the same two forms that Dr. Siegfried faxed to Nicor on January 16, 2004, but provided Nicor no new information.

         ¶ 11 On April 2, 2004, Smolios mailed the decedent another letter, explaining that the documentation he provided on March 26, 2004, was the same information from October of 2003, and that Nicor had not received any documentation concerning his treatment or condition since that time. Smolios enclosed a blank proof of claim form to be completed by the decedent's physician, and she advised the decedent that, "[i]n order for the company to maintain you as an employee it is imperative that you supply the company's Medical Department with information regarding your current health status and treatment program." She further advised the decedent that, "[i]f this information is not received by the company as of Monday, April 12, [2004, ] your employment with Nicor Gas will be terminated." Despite Smolios' letter, the decedent never submitted any additional medical documentation.

         ¶ 12 On April 15, 2004, Smolios sent the decedent another letter, advising him that his right to a leave of absence under the Family and Medical Leave Act of 1993 had expired and that Nicor was terminating his employment since he had not provided appropriate medical documentation to support his leave of absence despite numerous requests.

         ¶ 13 Later that year, on December 17, 2004, the decedent applied for disability benefits from the Social Security Administration, representing that he was disabled and unable to work since he began his leave of absence. The Social Security Administration denied his application, but an administrative law judge reversed the denial on appeal in a written decision on January 9, 2007. The administrative law judge determined that the decedent had been disabled and was "not able to engage in any substantial gainful activity" since October 6, 2003, that he was unable to perform his job as a distribution technician, and that his job skills did not transfer to other occupations within a residual functional capacity. Attorney George Weber represented the decedent in those proceedings.

         ¶ 14 In late 2005 or early 2006, the decedent discussed his health and work issues with defendant attorney Richard C. Daniels, a friend that the decedent had met through the Shriner's. Defendant Daniels agreed to represent decedent in a workers' compensation and/or occupational diseases case and an action against Nicor for retaliatory discharge and violating the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). The decedent and defendant Daniels entered into a retainer agreement that defendant Daniels would receive a contingency fee of one-third of any recovery and that the decedent would pay all costs. Defendant Daniels also agreed to be paid his fee on the workers' compensation and/or occupational diseases action in accordance with the provisions of the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2004)) and the Workers' Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2004)). After the decedent retained defendant Daniels as counsel, defendant Daniels recommended that the decedent also retain defendant attorney Jason S. Marks as cocounsel for the Workers' Compensation Act and/or Workers' Occupational Diseases Act claim, since defendant Marks represented that he had experience in handling those cases. Defendant Marks agreed, defendants Daniels and Marks entered into a fee sharing agreement, and the decedent agreed. Defendant Daniels also recommended that the decedent retain defendant attorneys Richard and Agnes Grossman, who represented that they specialized in litigating "whistleblower" cases. The decedent agreed, and the Grossman defendants entered into an oral contingency agreement with the decedent. Defendant Daniels continued to supervise and participate in the whistleblower case on a regular basis.

         ¶ 15 In 2006, defendant Marks filed a workers' compensation and/or occupational diseases claim against Nicor on the decedent's behalf, claiming that the decedent was permanently disabled as a result of exposure to contaminated water while working at Nicor. Five years later, while the workers' compensation and/or occupational diseases claim was still pending, Nicor offered the decedent a lump sum settlement of $125, 000, and decedent accepted it on October 20, 2011. An arbitrator approved the settlement five days later on October 25, 2011. The settlement order stated that the decedent claimed that he was "unable to work" and had an injury to his "whole body," which rendered him "permanently and totally disabled for any employment."

         ¶ 16 On April 13, 2009, after the decedent filed his workers' compensation and/or occupational diseases claim but before it settled, the Grossman defendants filed a lawsuit on the decedent's behalf against Nicor for retaliatory discharge and violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), alleging that Nicor unlawfully terminated his employment in retaliation for him reporting to various government officials that he suspected the drinking water at the Nicor facility where he worked was contaminated. In the complaint, the decedent claimed that, after he reported the water contamination to various government agencies, Nicor began a course of conduct calculated to result in the termination of his employment, which included claims that his supervisors (1) did not respond to his requests for adequate staffing and then blamed him for alleged work deficiencies, (2) failed to process his medical leave documentation and deliberately frustrated his attempts to obtain disability benefits, and (3) told other employees that he was a "troublemaker," that they were going to "get" him, and to report his minor infractions so that negative information be placed in his file.

         ¶ 17 On January 30, 2013, the decedent was deposed in the whistleblower case. At his deposition, he testified that he had not worked or looked for work in the nine years since he began his leave of absence on October 6, 2003. He further testified that he had been unable to work since he began his leave of absence and that he was physically incapable of performing his prior job at Nicor. He also testified that he was "very sick" and "on the ground sick" from the beginning of his leave of absence through at least 2007, when an administrative judge reversed the denial of his application for Social Security Administration benefits on appeal, and that he "had no idea" when he would have been able to return to any kind of employment.

         ¶ 18 The decedent testified that, after Smolios's letter of April 2, 2004, he never provided Nicor any further medical documentation to support his continuing leave of absence. The decedent also did not recall sending between October of 2003 and April 15, 2004, any other medical documentation to support his leave of absence to Nicor, other than the two forms signed by Dr. Siegfried. The decedent admitted that, other than the two forms faxed by Dr. Siegfried, he was unaware of any additional medical documentation in support of his leave of absence sent to Nicor prior to faxing those forms on January 16, 2004. The decedent further admitted that, although Dr. Siegfried signed the two forms in January of 2004, Dr. Siegfried had not examined or treated him since October 31, 2003. The decedent also testified that he did not recall if he tried to schedule an appointment with Dr. Siegfried to obtain the medical documentation or if he spoke with anyone at Nicor to ask for more time to obtain the documentation after receiving Smolios' April 2, 2004, letter.

         ¶ 19 The decedent further testified that he knew when he applied to the Social Security Administration for disability benefits that he needed to provide medical evidence that he was disabled and unable to perform any gainful activity and that he presented such evidence under penalty of perjury. He also testified that he agreed with the findings of the administrative law judge that he "had been disabled since October 6, 2003," that he was "not able to engage in any substantial gainful activity because of [his] determinable physical or mental impairment," that he had "not engaged in any gainful activity since October 6, 2003," and that he was "unable to perform any task relevant work."

         ¶ 20 On December 13, 2013, Nicor filed a motion for summary judgment, arguing that the decedent could not prove that Nicor discharged him in retaliation for his protected activities because the record showed that Nicor terminated the decedent's employment for failing to provide, after numerous requests, the required medical documentation to support his continuing medical leave of absence. Nicor also argued that the decedent could not prove damages, an essential element of his claims, because the record showed that he repeatedly admitted that he was disabled and unable to work since he began his leave of absence and that judicial estoppel barred him from claiming otherwise.

         ¶ 21 After a hearing on February 5, 2014, the trial court granted the motion for summary judgment, finding that there was no genuine issue of material fact that Nicor terminated the decedent's employment because it had not received medical documentation supporting his continuing leave of absence. The trial court also found that there was no genuine issue of material fact that the decedent was unable to work and that the decedent could not prove damages as a result. After the trial court granted the motion for summary judgment, the decedent retained new counsel, Edmund Moran, Jr., who then filed motion to reconsider the summary judgment finding, which the trial court denied.

         ¶ 22 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and Grossman defendants for legal malpractice for their handling of the whistleblower case against Nicor for retaliatory discharge and violating the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). The decedent claimed that the Grossman defendants did not adequately conduct or respond to discovery, including a failure to respond to requests to admit that resulted in those requests being deemed admitted, which resulted in the trial court granting Nicor's motion for summary judgment. By failing to respond to the requests to admit, the decedent admitted that he did not work for any employer since he began his leave of absence, that he did not seek alternative employment since Nicor discharged him, that he was disabled and unable to perform the essential functions of his former job at Nicor since he began his leave of absence, that he was disabled and unable to perform any gainful employment due to disability since he began his leave of absence, and that he submitted an application to the Social Security Administration for disability benefits in which he represented, under penalty of perjury, that he was disabled and unable to work since October 6, 2003. The decedent also argued that the trial court granted summary judgment in favor of Nicor because the Grossman defendants failed to respond to the motion summary judgment or appear at the hearing on the motion on February 5, 2014. The lawsuit also alleged separate counts of legal malpractice against the Daniels and Grossman defendants for their handling of the decedent's related workers' compensation and/or occupational diseases claim; however, those counts are not at issue in this appeal.

         ¶ 23 In the complaint, the decedent also claimed that the trial court in the whistleblower case granted Nicor's motion to transfer venue and transferred the case from Cook County to Du Page County. The decedent alleged that Nicor served a discovery request on the Grossman defendants in January of 2010, and later that year, the trial court dismissed the case for want of prosecution, since the Grossman defendants failed to appear in court. The decedent alleged that the trial court later reinstated the case, but on November 17, 2010, the Grossman defendants voluntarily non-suited the case without informing the decedent. The decedent argued that the Grossman defendants subsequently refiled the whistleblower case again in an identical complaint on October 28, 2011-three days after the workers' compensation and/or occupational diseases settled-and the trial court ultimately transferred the case from Cook County to Du Page County. The decedent also alleged in the complaint that, in late 2012, he attended a case management conference but the Grossman defendants did not appear and the trial court told him that his attorneys had not appeared in court for some time. The decedent claimed he immediately called the Grossman defendants, who did not respond to his call. The decedent then called defendant Daniels, who assured him everything was fine, that he would call the Grossman defendants, and that the decedent did not need to worry about the handling of his case.

         ¶ 24 The decedent also claimed in the complaint that the trial court granted Nicor's motion to compel answers to discovery and set a deadline for the decedent to produce documents, but that the Grossman defendants only partially responded to the discovery requests, despite the decedent providing the Grossman and Daniels defendants with all the information needed to respond. The decedent alleged that, as a result, the trial court entered a sanction order against the decedent on May 16, 2013, barring him from offering any documents into evidence at trial that had not been produced. The same day, the trial court granted Nicor's motion for the request to admit deemed admitted, since the Grossman defendants failed to respond to the request to admit. The decedent also claimed that the Grossman defendants never served discovery requests on Nicor.

         ¶ 25 The decedent also claimed that, in 2013, Nicor withdrew its motion for summary judgment and began settlement discussions with the decedent. The Grossman defendants initially told the decedent that Nicor offered $240, 000 to settle all claims, then later told him that Nicor reduced the amount to $50, 000, and again later reduced the offer to $20, 000. Nicor then refiled its motion for summary judgment, since it was unable to settle the whistleblower case with the decedent.

         ¶ 26 The decedent also alleged that he had defenses that would have defeated Nicor's motion for summary judgment, but neither the Grossman defendants nor the Daniels defendants told him about the motion and the consequences of not responding to it. The decedent alleged that, for unknown reasons, neither the Grossman defendants nor the Daniels defendants responded to Nicor's motion for summary judgment. The decedent argued that, since the Grossman and Daniels defendants (1) did not develop evidence, including taking the deposition of persons who could support the decedent's claim that he was adversely treated and wrongfully discharged; (2) did not respond to the motion for summary judgment; (3) did not request additional time to respond to the motion; (4) did not tell the decedent that he would need to retain new counsel to respond the motion; and (5) did not appear at the hearing on the motion, the trial court granted the summary judgment motion and dismissed the decedent's case. The decedent claimed that he personally attended the hearing on the motion for summary judgment and requested the trial court to grant him time to find a new attorney and respond to the motion, but he claimed that the trial court denied his request due in part to the Grossman defendants' dilatory tactics and lack of attention to the case throughout the litigation.

         ¶ 27 The decedent's legal malpractice complaint also alleged new information that did not appear in the whistleblower complaint. The decedent claimed that Nicor's course of adverse conduct against him included significantly increasing the number of assignments he was expected to accomplish, significantly increasing quality control inspection, sending him home without pay for non-existent offenses, taking amenities from him and his team that other teams were allowed to have such as microwaves and water coolers, singling him out and acting angrily towards him, ordering him to report his time in a certain fashion and then accusing him of stealing time when he followed management directions, providing written reprimands for his minor work infractions when in the past he was issued only verbal warnings, withdrawing a promotion that was offered to him, and singling out his team by preparing photographic records of the work his team performed.

         ¶ 28 The decedent also newly alleged in the legal malpractice complaint that he had asked Nicor to assign him to a less-physically stressful job but Nicor did not accommodate him, despite the provisions of his union's contract with Nicor, which provided that Nicor had an obligation to attempt to locate a different job to accommodate an employee's disability. The decedent claimed that he also sought a referral to Dr. Katherine Duvall, a physician who specializes in work-related injuries, but he could not obtain a medical referral. The decedent claimed that he told Nicor personnel that he was having difficulty obtaining additional medical documentation due to his poor health and that Nicor's nurse told him that he should not worry because she would take care of following up on the documentation, which never happened.

         ¶ 29 On May 15, 2015, the decedent filed a motion to expedite discovery and advance trial, since his physician diagnosed that his medical condition was terminable. On May 19, 2015, the trial court granted the motion except for his request to advance the trial. Defendants submitted written discovery, and the decedent answered on May 28, 2015. The trial court scheduled the decedent's deposition for June 3, 2015, but the decedent passed away that day before he was deposed. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015.

         ¶ 30 Neither the decedent nor plaintiff submitted written discovery until January 7, 2016, and the Grossman defendants answered. Plaintiff also did not notice any depositions, other than the decedent's, before the Grossman defendants filed their motion for summary judgment.

         ¶ 31 On February 1, 2016, the Grossman defendants filed a motion for summary judgment, and the Daniels defendants joined. In the motion, the Grossman defendants argued they were entitled to entry of summary judgment because the decedent's deposition testimony in the whistleblower case alleged foreclosed plaintiff's ability to prove a "case within a case." Specifically, the Grossman defendants argued the decedent's deposition testimony established that (1) Nicor terminated his employment, since he failed to provide required medical documentation to support his leave of absence despite numerous requests from his employer, (2) he was permanently and totally disabled and unable to perform the essential functions of his job at Nicor, and (3) he is judicially estopped from ...


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