                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Levine v. EBI, LLC, 2013 IL App (1st) 121049




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



District & No.              First District, Third Division
                            Docket No. 1-12-1049


Rule 23 Order filed         January 23, 2013
Rule 23 Order
withdrawn                   February 28, 2013
Opinion filed               March 6, 2013


Held                        In an action for the injuries plaintiff suffered when her surgeon was not
(Note: This syllabus        supplied with the instruments necessary to repair her back, the record was
constitutes no part of      sufficient to establish that defendant, the party responsible for providing
the opinion of the court    the instruments, was estopped from asserting the statute of limitations as
but has been prepared       a defense because of the false responses it made to plaintiffs’ discovery
by the Reporter of          requests.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 09-L-2006; the Hon.
Review                      Marcia Maras, Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                 Lane & Lane, LLC, of Chicago (Stephen I. Lane, of counsel), for
Appeal                     appellants.

                           Freeborn & Peters LLP, of Chicago (William N. Howard and Garry L.
                           Wills, of counsel), for appellee.


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



                                             OPINION

¶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) 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.

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¶5         After Dr. Shapiro cut into Susan’s back and stripped the muscle away from the 1996
       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. Second, they asked the respondents to identify the persons or corporations
       responsible for bringing “the missing instruments/tools/drivers” to the operation Dr. Shapiro
       performed on March 5, 2007.
¶8         EBI submitted a response in which it claimed it did not know who bore responsibility for
       bringing the missing instruments to the operation, and it did not know to which entity Dr.
       Shapiro referred in his report. Other respondents in discovery produced similarly unhelpful
       answers. The Levines converted Dr. Shapiro to a defendant in July 2009, but they identified
       EBI only as a respondent in discovery.
¶9         The Levines took Dr. Shapiro’s deposition in April 2011. Dr. Shapiro said that in his
       many years as a surgeon, he had never before or since encountered a failure of a medical
       supplier to provide the instruments necessary for an operation. Dr. Shapiro testified that a
       representative of the company that should have brought the drivers attended the surgery.
       When time came to remove the 1996 device from Susan’s back, Dr. Shapiro asked the
       representative, “[W]here’s the driver for the screw?” According to Dr. Shapiro, the
       representative answered, “[O]h, well, it wasn’t in the box, but we figured you could make
       do without it.” Dr. Shapiro said that much later, after discussions with the Levines’ lawyer,
       he realized that EBI was responsible for bringing the drivers to the operation, and the
       representative who attended the operation worked for EBI. Dr. Shapiro said that he and the
       Levines’ lawyer discussed the identity of the company at fault back in 2009, before the
       Levines named Dr. Shapiro as a defendant.
¶ 10       In April 2011, a few days after Dr. Shapiro’s deposition, the Levines filed an amended
       complaint that named EBI as a defendant. The Levines alleged that EBI negligently shipped
       to the hospital an instrument kit that did not include the drivers needed to complete the
       surgery on Susan’s back.
¶ 11       EBI invoked section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619
       (West 2010)) as the basis for its motion to strike the amended complaint as untimely. In

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       response, the Levines relied on section 13-215 of the Code (735 ILCS 5/13-215 (West
       2010)), which allows a plaintiff more time to file a claim if a defendant fraudulently conceals
       the cause of action.
¶ 12       The trial court dismissed the claim against EBI as untimely, and the court added a finding
       of no just cause to delay enforcement or appeal. The Levines now appeal.

¶ 13                                       ANALYSIS
¶ 14                                    Record on Appeal
¶ 15       As a preliminary matter, EBI asks us to strike certain documents from the certified record
       on appeal. Supreme Court Rule 329 establishes procedures for correcting an inaccurate or
       improperly authenticated record. Ill. S. Ct. R. 329 (eff. Jan. 1, 2006); see Wieser v. Missouri
       Pacific R.R. Co., 98 Ill. 2d 359, 364 (1983). EBI has presented no record showing that it
       made the necessary motion in the trial court for correcting the record. See Ill. S. Ct. R. 329
       (eff. Jan. 1, 2006). Because EBI has not followed the procedures prescribed in the rules for
       correcting the record, we deny its motion. See Wieser, 98 Ill. 2d at 364.

¶ 16                                   Rule 304(a) Finding
¶ 17       The Levines argue first that the trial court should not have added language to the order
       making the dismissal of EBI immediately appealable under Rule 304(a). Ill. S. Ct. R. 304(a)
       (eff. Feb. 26, 2010). When a judgment finally disposes of one or more separate claims, or all
       of the claims against one or more parties, the trial court has discretion to make a Rule 304(a)
       finding. Bastas v. Vicere, 196 Ill. App. 3d 624, 628 (1990). The trial court should consider
       whether allowing an immediate appeal “would have the effect of expediting the resolution
       of the controversy, would be fair to the parties, and would conserve judicial resources.”
       Matson v. Department of Human Rights, 322 Ill. App. 3d 932, 938 (2001). Because of the
       importance of EBI’s role in this case, and the difficulty of proceeding on the claims against
       other defendants without considering the effect of EBI’s actions, we find that the trial court
       did not abuse its discretion when it found no grounds for delaying this appeal.

¶ 18                                   Fraudulent Concealment
¶ 19        We review de novo an order dismissing a lawsuit under section 2-619 of the Code.
       Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). We must
       construe the pleadings and supporting documents in the light most favorable to the Levines.
       Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). An appeal from a dismissal under section 2-
       619 “is the same in nature as one following a grant of summary judgment” (Kedzie, 156 Ill.
       2d at 116), which “is a drastic means of disposing of litigation and *** should be allowed
       only when the right of the moving party is clear and free from doubt.” Adams v. Northern
       Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
¶ 20        Section 13-215 of the Code provides:
            “If a person liable to an action fraudulently conceals the cause of such action from the
            knowledge of the person entitled thereto, the action may be commenced at any time

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           within 5 years after the person entitled to bring the same discovers that he or she has such
           cause of action, and not afterwards.” 735 ILCS 5/13-215 (West 2010).
¶ 21       Illinois courts have consistently interpreted section 13-215 to apply only to fraudulent
       concealment of causes of action. Pratt v. Sears Roebuck & Co., 71 Ill. App. 3d 825, 830
       (1979); Guebard v. Jabaay, 65 Ill. App. 3d 255, 260 (1978). The Pratt court held that the
       fraudulent concealment statute “applies to fraudulent concealment of causes of action; it does
       not apply to fraudulent concealment of the identity of tort-feasors.” Pratt, 71 Ill. App. 3d at
       830. When the tortfeasor fraudulently conceals the identity of the tortfeasors, and the
       tortfeasor does not conceal the fact that the plaintiff suffered an injury, section 13-215 does
       not allow the plaintiff an extension of the limitations period for filing his claim. Pratt, 71 Ill.
       App. 3d at 830; Guebard, 65 Ill. App. 3d at 260.
¶ 22       Here, the Levines knew on March 5, 2007, that a tortfeasor had injured them by failing
       to bring necessary instruments to the operation on Susan’s back. The Levines had two years
       to sue the tortfeasors for negligence. 735 ILCS 5/13-202 (West 2006). Section 13-215 does
       not extend their limitations period beyond March 2009. The trial court correctly rejected the
       Levines’ argument that EBI’s dishonest answers to discovery operated as fraudulent
       concealment of the cause of action that could make the complaint against EBI timely.

¶ 23                                      Equitable Estoppel
¶ 24        Next, the Levines argue that we should find EBI equitably estopped from asserting the
       statute of limitations as a defense to their claim. The Levines rely on EBI’s answers to
       discovery as the basis for the estoppel. EBI counters that the Levines waived the equitable
       estoppel issue by failing to raise it in the trial court. However, we note that “the waiver rule
       is a limitation on the parties and not the jurisdiction of this court, which has the responsibility
       of achieving a just result and maintaining a sound and uniform body of precedent.” Michigan
       Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 518 (2000). This court should not
       “aid a perpetration of a fraud” (Mother Earth, Ltd. v. Strawberry Camel, Ltd., 72 Ill. App.
       3d 37, 53 (1979)), and “equity will not aid any person who *** is seeking to take advantage
       of his own wrong” (Mother Earth, 72 Ill. App. 3d at 53). We choose to address the argument
       despite the waiver.
¶ 25        In Vaughn v. Speaker, 126 Ill. 2d 150 (1988), our supreme court said that for equitable
       estoppel to apply:
            “First, there must be words or conduct by the party against whom the estoppel is alleged
            amounting to a misrepresentation or concealment of material facts. Second, the party
            against whom the estoppel is alleged must have had knowledge at the time the
            representations were made that the representations were untrue. This knowledge need not
            be actual but may be implied; misrepresentations made with gross negligence can form
            a basis for equitable estoppel. [Citation.] Third, the truth respecting the representations
            so made must be unknown to the party claiming the benefit of the estoppel at the time
            that the representations were made and at the time that they were acted on by him.
            Fourth, the party estopped must intend or reasonably expect that his conduct or
            representations will be acted upon by the party asserting the estoppel or the public

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           generally; the conduct and representations must be such as would ordinarily lead to the
           results complained of. [Citations.] Fifth, the party claiming the benefit of the estoppel
           must have in good faith relied upon the misrepresentation to his detriment. It has been
           said that this reliance must be reasonable, and that a party claiming estoppel cannot have
           acted improvidently. [Citation.] While this is true as a general rule, it is also true that if
           the party alleged to be estopped is guilty of actual intentional deceit and he reasonably
           expected his deceptive statements or conduct to be relied upon, he is in no position to
           contend that the party acting upon his deception was negligent in doing so. This is
           consistent with the principle that one guilty of fraudulent misrepresentation cannot assert
           that the person defrauded was negligent in failing to discover the truth. [Citations.] The
           sixth requirement is that the party claiming the benefit of the estoppel must have so
           acted, because of such representations or conduct, that he would be prejudiced if the first
           party is permitted to deny the truth thereof.” Vaughn, 126 Ill. 2d at 162-63.
¶ 26       Because this issue arises on a dismissal under section 2-619 of the Code, we must
       construe the record in the light most favorable to the Levines. Czarobski, 227 Ill. 2d at 369.
       According to Dr. Shapiro, a representative of EBI attended the operation on March 5, 2007.
       When Dr. Shapiro asked for the driver so that he could remove the device he inserted into
       Susan’s back in 1996, the EBI representative said that his employer had not included the
       driver with the set of equipment it sent. From this evidence, a trier of fact could infer that
       EBI’s agent, and therefore EBI, knew that it failed to provide the requisite drivers for the
       March 5, 2007, operation, and that Dr. Shapiro meant to refer to EBI when he wrote in his
       report of the failings of “[t]he company.” See Van Hulle v. State Farm Mutual Automobile
       Insurance Co., 44 Ill. 2d 227, 231 (1969); Kuska v. Folkes, 73 Ill. App. 3d 540, 544 (1979).
       Thus, the Levines have presented evidence that could support a finding that EBI falsely
       stated in its responses to discovery that it did not know who bore responsibility for supplying
       the drivers missing at the surgery on March 5, 2007. The evidence could also support a
       finding that EBI lied when it said that it did not know “[t]he company” to which Dr. Shapiro
       referred in his report of the surgery.
¶ 27       EBI should have expected that its responses to discovery would lead the Levines to
       refrain from suing EBI until they discovered that EBI lied in its discovery responses. The
       record before this court does not show that the Levines acted in bad faith when they refrained
       from suing EBI until long after the expiration of the limitations period. The Levines would
       suffer the prejudice of losing their claim against the party that appears the most negligent if
       this court permits EBI to assert the statute of limitations as a defense to the Levines’ claim.
¶ 28       EBI claims that the Levines knew at the time they received EBI’s answers that EBI lied,
       because the Levines’ attorney helped Dr. Shapiro realize that EBI supplied the deficient
       instrument package. But Dr. Shapiro did not say that the Levines’ attorney knew EBI bore
       responsibility for the injury, only that the conversations with that attorney led Dr. Shapiro
       to ascribe responsibility to EBI. Moreover, the Levines have adduced evidence that could
       support a finding that EBI actually intentionally deceived the Levines, so under the principles
       set out in Vaughn, EBI “is in no position to contend that the party acting upon his deception
       was negligent in doing so” (Vaughn, 126 Ill. 2d at 163), because “one guilty of fraudulent
       misrepresentation cannot assert that the person defrauded was negligent in failing to discover

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       the truth.” Vaughn, 126 Ill. 2d at 163.
¶ 29       Following the reasoning of Vaughn, we find that the Levines have presented adequate
       grounds for equitably estopping EBI from asserting the statute of limitations as a defense to
       the Levines’ claim. Because the Levines did not raise the issue in the trial court, we remand
       the case to permit EBI to present evidence to counter the Levines’ evidence concerning
       equitable estoppel.

¶ 30                                        CONCLUSION
¶ 31        The trial court did not abuse its discretion when it found no just cause to delay appeal of
       the dismissal of EBI as a party from the lawsuit. Because EBI apparently tried to deceive the
       Levines about only the identity of the tortfeasor, and not about whether the Levines had
       suffered an injury due to a tort on March 5, 2007, section 13-215 of the Code does not extend
       the limitations period for the Levines’ claim against EBI. However, the record presents an
       adequate basis for finding that EBI’s false responses to the Levines’ discovery equitably
       estops it from asserting the statute of limitations as a defense to the Levines’ claim against
       it. Accordingly, we reverse the judgment of the trial court and remand for further proceedings
       in accord with this opinion.

¶ 32      Reversed and remanded.




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