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                                  Appellate Court                           Date: 2019.03.18
                                                                            10:28:15 -05'00'




                  Brummel v. Grossman, 2018 IL App (1st) 170516



Appellate Court      MARIA BRUMMEL, Executor of the Estate of Bruce Brummel,
Caption              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).



District & No.       First District, Fourth Division
                     Docket No. 1-17-0516


Filed                June 28, 2018



Decision Under       Appeal from the Circuit Court of Cook County, No. 14-L-13363, the
Review               Hon. John P. Callahan Jr., Judge, presiding.



Judgment             Affirmed.


Counsel on           Julie A. Boynton and Donald L. Johnson, of Yorkville, for appellant.
Appeal
                     James J. Sipchen and Thomas V.P. Draths, of Pretzel & Stouffer,
                     Chtrd., of Chicago, for appellees Richard D. Grossman, Agnes E.
                     Grossman, and Law Offices of Richard D. Grossman.

                     Joseph R. Marconi, David M. Macksey, and Brian C. Langs, of
                     Johnson & Bell, Ltd., of Chicago, for other appellees.
     Panel                       JUSTICE GORDON delivered the judgment of the court, with
                                 opinion.
                                 Presiding Justice Burke and Justice Ellis concurred in the judgment
                                 and opinion.


                                                    OPINION

¶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

             1
             Plaintiff also alleged a separate count of legal malpractice against the Daniels defendants, attorney
       Jason S. Marks, and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively, Marks
       defendants) for their handling of a separate related worker’s compensation and/or occupational diseases
       claim, but those counts are not at issue in this appeal.
           2
             Bruce Brummel passed away on June 3, 2015, during the pendency of his legal malpractice
       lawsuit. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6,
       2015.

                                                       -2-
     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.


                                                -3-
¶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.


                                                    -4-
¶ 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 Shriners.
       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


                                                  -5-
       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

                                                   -6-
       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


                                                   -7-
       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 nonexistent 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.

                                                   -8-
¶ 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 claiming otherwise, since he previously
       admitted he was totally disabled and unable to work in proceedings before the Social Security
       Administration and Illinois Workers’ Compensation Commission.
¶ 32       On March 3, 2016, after the Grossman defendants filed their motion for summary
       judgment, plaintiff filed a motion to take additional oral discovery, which attached an affidavit
       from her counsel, Julie Boynton, naming at least 32 witnesses whom plaintiff argued needed to
       be deposed before plaintiff could respond to the motion for summary judgment. Plaintiff later
       amended the motion by substituting her attorney’s affidavit with her own affidavit. In the
       motion, plaintiff claimed that, at the time defendants filed their motion for summary judgment
       motion, the parties had neither completed written discovery nor taken depositions.
¶ 33       In response to plaintiff’s motion for additional discovery, the Grossman defendants filed a
       motion to strike plaintiff’s Illinois Supreme Court Rule 191(b) affidavit and for entry of a
       protective order, arguing that the affidavit was defective, since it did not aver that the witnesses
       plaintiff sought to depose were the only people with knowledge of material facts necessary to
       respond to the motion for summary judgment. See Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013). The
       Grossman defendants further argued that all material facts relating to their summary judgment
       motion were contained in the decedent’s deposition testimony in the whistleblower case and
       that the decedent’s testimony demonstrated that he is the only person with knowledge of facts
       relevant to the motion, rather than Nicor employees or other witnesses named by plaintiff.
¶ 34       At oral argument on the motion for additional discovery on April 13, 2016, counsel for the
       Grossman defendants claimed that the motion for summary judgment was straightforward and
       narrow in scope, arguing that it was based entirely on the admissions the decedent made in his
       deposition in the whistleblower case, as well as admissions the decedent made before the
       Social Security Administration and Illinois Workers Compensation Commission. The
       Grossman defendants further argued that no amount of discovery could undo the decedent’s
       binding admissions, which were dispositive of plaintiff’s legal malpractice case. The trial court
       then granted plaintiff’s motion for additional discovery in part and denied it in part, allowing
       plaintiff one deposition before responding to the Grossman defendants’ motion for summary
       judgment. The trial court recommended that plaintiff depose Jean Smolios, finding that
       deposing her would make the most sense, since she was a former human resources vice
       president who authored the letter to the decedent advising him that if they did not receive the
       medical verification of his present condition of ill-being, his employment would be terminated.
¶ 35       The trial court that day also granted plaintiff leave to file an amended complaint
       concerning the legal malpractice claims against the Daniels and Marks defendants concerning

                                                    -9-
       the workers’ compensation and/or occupational diseases case only. The order further stated
       that plaintiff was not given leave to amend the pleadings concerning the Daniels and Grossman
       defendants’ handling of the whistleblower case. On April 22, 2016, plaintiff filed an amended
       complaint in the instant lawsuit, with the counts concerning the whistleblower case remaining
       the same. On August 25, 2016, the trial granted defendants’ motion to dismiss the counts
       concerning the workers’ compensation and/or occupational diseases claim, finding that the
       decedent did not raise those counts within the two-year statute of limitations governing legal
       malpractice actions (735 ILCS 5/13-214.3 (West 2014)), and we later affirmed the trial court’s
       dismissal on appeal (see Brummel v. Grossman, 2018 IL App (1st) 162540, ¶ 44).
¶ 36       Smolios was deposed on October 17, 2016, and she testified that she had terminated the
       decedent’s employment because the Employee Benefit Association medical department
       advised her that he did not provide medical documentation to support his leave of absence. She
       testified that the Employee Benefit Association rules require claims to be current every 30 days
       and that the decedent only submitted medical documentation concerning an examination
       during the first month of his leave of absence. However, Smolios admitted that the proof of
       claim form did not explain the 30-day requirement.
¶ 37       Plaintiff responded to the Grossman defendants’ motion for summary judgment on
       November 30, 2016, arguing that the evidence showed that the decedent was discharged for
       reporting toxic work conditions to various government agencies and that he was not discharged
       for his failing to provide medical documentation to support his continuing leave of absence.
       Plaintiff further claimed that the evidence showed that, after the decedent reported the toxic
       work conditions, Nicor engaged in a calculated course of retaliation against him, which
       culminated in the termination of his employment. Plaintiff also argued that judicial estoppel
       did not bar the decedent’s claims in either the whistleblower case or the instant case.
       Concerning the trial court’s ruling on her motion for additional discovery, plaintiff stated she
       had been prejudiced by not being allowed to undertake discovery before responding to the
       summary judgment motion, and she renewed her request for additional discovery.
¶ 38       After arguments on February 3, 2017, the trial court granted the Grossman defendants’
       motion for summary judgment, finding (1) that the decedent’s prior admissions established
       that he was disabled and unable to work, (2) that there was no evidence that Nicor terminated
       the decedent’s employment in retaliation for a protected activity, and (3) that the doctrine of
       judicial estoppel barred the decedent’s claim that he was able to return to work. The trial court
       found that the whistleblower case was “unwinnable” for the decedent and that the “die was cast
       in this particular matter by [the decedent] even before the time the Grossman Defendants were
       in play and had proceedings involving this matter.” The trial court also determined that there
       was no evidence that the decedent could have produced to prevail in the whistleblower case
       that could have overcome his failure to produce the current medical evidence of his disability.
       Plaintiff now appeals the trial court’s granting summary judgment in favor of the defendants.

¶ 39                                            ANALYSIS
¶ 40       On appeal, plaintiff claims that the trial court erred when it granted defendants’ motion for
       summary judgment in the legal malpractice case, arguing (1) that a genuine issue of material
       fact existed in the whistleblower case as to whether Nicor discharged the decedent for
       reporting toxic work conditions to governmental authorities and (2) that the doctrine of judicial
       estoppel did not bar his claims. Alternatively, plaintiff argues that the trial court in the legal

                                                   - 10 -
       malpractice case 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.

¶ 41                                          I. Summary Judgment
¶ 42       Plaintiff first argues that the trial court erred when it granted summary judgment in favor of
       defendants in the legal malpractice case, arguing that there existed a genuine issue of material
       fact that Nicor terminated the decedent’s employment for toxic work conditions to
       governmental authorities. Defendants argue that, due to the decedent’s deposition testimony in
       the whistleblower case, plaintiff could not prove a claim for legal malpractice since the
       decedent would not have prevailed in the whistleblower case regardless of the alleged conduct
       of his attorneys. In that case, the trial court found that the decedent could not establish a causal
       relation between the termination of his employment and his whistleblowing activities due to
       his own admissions in his deposition testimony, which established that (1) Nicor terminated
       his employment for his failure to provide required medical documentation to support his
       continuing leave of absence after numerous requests from his employer and (2) he was
       permanently disabled and unable to perform the essential functions of his job at Nicor.
       Defendants also argue that the decedent was judicially estopped from claiming in the
       whistleblower case that he was not totally disabled and unable to work, since he previously
       admitted otherwise in proceedings before the Social Security Administration and Illinois
       Workers’ Compensation Commission. For the following reasons, we affirm the trial court’s
       award of summary judgment in favor of defendants.
¶ 43       A trial court is permitted to grant summary judgment only “if the pleadings, depositions,
       and admissions on file, together with the affidavits, if any, show that there is no genuine issue
       as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
       735 ILCS 5/2-1005(c) (West 2014). The trial court must view these documents and exhibits in
       the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance
       Co., 213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to grant a motion for
       summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.
       2d 90, 102 (1992). De novo consideration means we perform the same analysis that a trial
       judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 44       “Summary judgment is a drastic measure and should only be granted if the movant’s right
       to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.
       However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary
       judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party
       moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.
       App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively
       showing that some element of the case must be resolved in his favor or by establishing “ ‘that
       there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.
       App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose of
       summary judgment is not to try an issue of fact but *** to determine whether a triable issue of
       fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting
       Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis appearing in the
       record, whether or not the trial court relied on that basis or its reasoning was correct. Ray
       Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

                                                    - 11 -
¶ 45        In the instant case, the trial court granted defendants’ motion for summary judgment on
       plaintiff’s legal malpractice claim. The elements of a legal malpractice claim are well
       established. To prevail on a cause of action for legal malpractice, a plaintiff must plead and
       prove sufficient facts to establish (1) that the defendant attorney owed the plaintiff client a duty
       of due care arising from an attorney-client relationship, (2) that the attorney breached that
       duty, (3) that the client suffered an injury in the form of actual damages, and (4) that the
       attorney’s breach was the proximate cause of those actual damages. Fox v. Seiden, 382 Ill.
       App. 3d 288, 294 (2008) (citing Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d
       195, 199 (2006)); Cedeno v. Gumbiner, 347 Ill. App. 3d 169, 174 (2004); Serafin v. Seith, 284
       Ill. App. 3d 577, 586-87 (1996)).
¶ 46        The fact that an attorney owed a duty of care and breached it is not enough to sustain a
       cause of action. Fox, 382 Ill. App. 3d at 295 (citing Northern Illinois Emergency Physicians v.
       Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005)). Even if an attorney was
       negligent, a plaintiff cannot recover unless that negligence proximately caused actual
       damages. Fox, 382 Ill. App. 3d at 295 (citing Northern Illinois, 216 Ill. 2d at 306-07). Thus,
       both proximate cause and actual damages are essential to a viable cause of action. Fox, 382 Ill.
       App. 3d at 295 (citing Northern Illinois, 216 Ill. 2d at 306-07). “To satisfy the proximate cause
       aspect of a malpractice action, the plaintiff must essentially plead and prove a ‘case within a
       case,’ meaning that the malpractice complaint is dependent on the underlying lawsuit.”
       Fabricare Equipment Credit Corp. v. Bell, Boyd & Lloyd, 328 Ill. App. 3d 784, 788 (2002)
       (citing Sharpenter v. Lynch, 233 Ill. App. 3d 319, 323 (1992)). The plaintiff must plead
       sufficient facts to establish that, “but for” the negligence of the attorney, the client would have
       succeeded in the underlying suit. Fox, 382 Ill. App. 3d at 299; Cedeno, 347 Ill. App. 3d at 174;
       Serafin, 284 Ill. App. 3d at 587. “Because legal malpractice claims must be predicated upon an
       unfavorable result in the underlying suit, no malpractice exists unless counsel’s negligence has
       resulted in the loss of the underlying action.” Ignarski v. Norbut, 271 Ill. App. 3d 522, 525
       (1995) (citing Claire Associates v. Pontikes, 151 Ill. App. 3d 116, 122 (1986)).
¶ 47        Plaintiff claims that the decedent had defenses in the whistleblower case that would have
       defeated Nicor’s motion for summary judgment, but that neither the Grossman defendants nor
       the Daniels defendants told him about the motion and that neither filed a response. Plaintiff
       further claims that the trial court granted the summary judgment motion and dismissed the
       case, since the Grossman and Daniels defendants (1) did not fully develop evidence by
       deposing witnesses who could have supported the decedent’s claims, (2) did not respond to the
       motion for summary judgment, (3) did not request additional time to respond to the motion,
       (4) did not advise the decedent that he would need to retain new counsel to respond to the
       motion, and (5) did not appear at the hearing on the motion. Plaintiff argued that the decedent
       personally attended the hearing on the motion for summary judgment and requested the trial
       court to grant him time to hire a new attorney to 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.
¶ 48        To determine whether the actions of the Grossman and Daniels defendants amounted to
       legal malpractice, we must consider whether their actions were the proximate cause of the
       dismissal of the whistleblower case. Fox, 382 Ill. App. 3d at 299. The whistleblower case
       raised claims of common law retaliatory discharge and violation of the Whistleblower Act
       (740 ILCS 174/1 et seq. (West 2004)). In Illinois, a noncontracted employee is one who serves


                                                    - 12 -
       at the employer’s will, and the employer may discharge such an employee for any reason or no
       reason. Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009). “The accepted
       general rule is that in an employment at will there is no limitation on the right of an employer to
       discharge an employee.” Price v. Carmack Datsun, Inc., 109 Ill. 2d 65, 67 (1985). However, an
       exception to the general rule of at-will employment arises when there has been a retaliatory
       discharge of the employee. Turner, 233 Ill. 2d at 500 (citing Price, 109 Ill. 2d at 67). To prove
       a valid cause of action for retaliatory discharge, an employee must prove that “(1) the employer
       discharged the employee, (2) in retaliation for the employee’s activities, and (3) that the
       discharge violates a clear mandate of public policy.” Turner, 233 Ill. 2d at 500. Similarly, to
       establish a claim under the Whistleblower Act, an employee must demonstrate that his or her
       employer retaliated against the employee for disclosing information to a government or law
       enforcement agency that he or she had reasonable cause to believe disclosed a violation of a
       state or federal law, rule, or regulation. Zuccolo v. Hannah Marine Corp., 387 Ill. App. 3d 561,
       566 (2008); 740 ILCS 174/15(b) (West 2008).
¶ 49        The requirement that the discharge be in retaliation for an employee’s activities requires
       that a plaintiff establish a causal relationship between the employee’s activities and the
       discharge. Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31. The employer’s
       motive in discharging the employee is the ultimate issue when deciding the element of
       causation. Michael, 2014 IL 117376, ¶ 31. “The element of causation is not met if the
       employer has a valid basis, which is not pretextual, for discharging the employee.” Hartlein v.
       Illinois Power Co., 151 Ill. 2d 142, 160 (1992).
¶ 50        We find that the actions of the Grossman defendants were not the proximate cause of the
       trial court dismissing the whistleblower case because the decedent would not have prevailed in
       that case. The element of causation was not met because the employer had a valid basis to
       terminate the decedent’s employment when he failed to provide the current medical
       documentation of his claimed disability. The evidence before the trial court showed that Nicor
       repeatedly requested the decedent to provide medical documentation to support his continuing
       leave of absence and that it terminated his employment after he failed to provide current
       documentation as required.
¶ 51        The evidence shows that, once the decedent was on medical leave, Nicor placed him in its
       short-term disability plan governed by the company’s Employee Benefit Association, which
       required the decedent to provide proof of his short-term disability in order to receive benefits.
       On December 26, 2003, Smolios sent the decedent a letter, advising him that Nicor had not
       received medical documentation to support his medical leave, 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. 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. On January 13, 2004, 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 until Nicor received the proper
       documentation, effective as of January 12, 2004. Boedigheimer also offered to fax another
       copy of the required form to the decedent’s physician, as she previously told the decedent on
       the telephone.

                                                   - 13 -
¶ 52       Three days later, on January 16, 2004, Dr. 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 or 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 opined that, from October 3, 2003, to October
       3, 2004, the decedent would be “off intermittently when exacerbations occur or treatment is
       necessary,” and that the decedent was “unable to work from 10/6/03 thru indefinite.” In
       response to a question on the form asking 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.”
¶ 53       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 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 in the letter
       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, and provided Nicor no new information. 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.” 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 continuing leave of absence
       despite numerous requests.
¶ 54       At his deposition in the whistleblower case, 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 he was
       unaware of any additional medical documentation in support of his leave of absence sent to
       Nicor prior to faxing those two forms. 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.



                                                  - 14 -
¶ 55        Illinois courts have found that “medical inability to work was a ‘legitimate
       nondiscriminatory reason’ for discharge.” LaPorte v. Jostens, Inc., 213 Ill. App. 3d 1089, 1093
       (1991) (quoting Horton v. Miller Chemical Co., 776 F.2d 1351, 1359 n.11 (7th Cir. 1985)).
       “Illinois law does not obligate an employer to retain an at-will employee who is medically
       unable to return to his assigned position.” Hartlein, 151 Ill. 2d at 159-60 (citing Horton, 776
       F.2d 1351). Also, an employer is not obligated to reassign a disabled employee to another
       position rather than terminate his or her employment. See LaPorte, 213 Ill. App. 3d at 1093.
       An employer may also discharge an employee for excess absenteeism caused by a
       compensable injury. Slover v. Brown, 140 Ill. App. 3d 618, 621 (1986). Furthermore, courts
       have previously affirmed summary judgment in favor of an employer in retaliatory discharge
       cases where an employee could not prove causation. See Wright v. St. John’s Hospital of the
       Hospital Sisters of the Third Order of St. Francis, 229 Ill. App. 3d 680, 688 (1992) (finding no
       issue of material fact concerning the employee’s medical inability to return to work, which was
       a legitimate nondiscriminatory reason for discharge); LaPorte, 213 Ill. App. 3d at 1094 (same);
       McCoy v. Maytag Corp., 495 F.3d 515, 523-24 (7th Cir. 2007) (affirming summary judgment
       in favor of the employer on a retaliatory discharge claim where the employee failed to provide
       current medical documentation to support his absence from work in accordance with company
       policy).
¶ 56        At the time of his discharge, the decedent had been on a leave of absence for over seven
       months and had not provided Nicor with any current medical documentation other than the
       forms from Dr. Siegfried that were based on his examination of the decedent during the first
       month of his leave of absence. In light of this evidence, the trial court in the whistleblower case
       found that there was no genuine issue of material fact that the decedent failed to provide Nicor
       support for his medical leave and that they terminated his employment as a result. Since Nicor
       had a valid basis for discharging the decedent, the trial court found that he could not prevail as
       a matter of law and granted summary judgment in favor of Nicor.
¶ 57        In the instant legal malpractice case, plaintiff argues that defendants mishandled the
       decedent’s case by failing to develop evidence, take depositions, or respond to the motion for
       summary judgment; however, even if defendants had done all of this, the record shows that it
       would not have been enough to create a genuine issue of material fact that Nicor terminated the
       decedent’s employment because he failed to provide current medical documentation to support
       his leave of absence as it required. As a result, defendants did not proximately cause actual
       damages to the decedent, and the trial court did not err when it granted defendants’ motion for
       summary judgment dismissing the legal malpractice case.
¶ 58        Additionally, defendants were not the proximate cause of actual damages to the decedent
       in the whistleblower case, since the evidence shows that he was totally disabled and unable to
       work due to his health, and he could not recover compensatory damages as a result. “Damages
       for an injury to the plaintiff are an essential element of any tort cause of action.” Reuter v.
       MasterCard International, Inc., 397 Ill. App. 3d 915, 928 (2010). “[A] plaintiff is not entitled
       to retaliatory discharge damages during the time of his total incapacity to work.” Kritzen v.
       Flender Corp., 226 Ill. App. 3d 541, 559 (1992). “[T]ime when an employee is away from
       work because of his own infirmity, rather than as a consequence of his employer’s tortious
       conduct, does not qualify for retaliatory discharge damages.” Kritzen, 226 Ill. App. 3d at
       559-60. “Lost wages attributable solely to one’s infirmity do not naturally flow from the
       commission of retaliatory discharge.” Kritzen, 226 Ill. App. 3d at 560.


                                                   - 15 -
¶ 59       The decedent testified at his deposition that, since he began his medical leave of absence on
       October 6, 2003, he was medically unable to perform his job as a distribution technician at
       Nicor. At the time of the deposition in 2013, the decedent testified that he had not worked or
       searched for work in the nine years since he began his leave of absence on October 6, 2003.
       Additionally, 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. Although the Social Security Administration initially denied his application, an
       administrative law judge reversed the denial on appeal, finding that the decedent had been
       disabled since October 6, 2003, and that he was unable to perform his job at Nicor. The
       decedent testified at his deposition that he agreed with the administrative law judge’s findings
       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 relevant task work.” In addition, the decedent settled his workers’ compensation
       and/or occupational diseases claim with Nicor in 2011, and 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.”
¶ 60       In light of this overwhelming evidence, there existed no genuine issue of material fact that
       the decedent was disabled and unable to return to his job at Nicor. Since the decedent was
       unable to work, he could not recover compensatory damages in the whistleblower case. As a
       result, defendants in the instant case did not proximately cause an actual injury to the decedent
       when the trial court dismissed the whistleblower case, since he could not recover
       compensatory damages in that case, and the trial court did not err when it granted summary
       judgment in the legal malpractice case in favor of defendants.
¶ 61       Plaintiff claims that defendants could have proven the element of causation because the
       decedent could have shown that Nicor subjected him to a course of adverse treatment after he
       reported the water contamination to governmental authorities, which culminated in the
       termination of his employment. Plaintiff argues that the evidence could have shown that
       Nicor’s supervisors significantly increased the number of assignments the decedent was
       expected to accomplish, significantly increased quality control inspection, sent him home
       without pay for non-existent offenses, took amenities from him and his team that other teams
       were allowed to have such as microwaves and water coolers, singled him out and acted angrily
       towards him, ordered him to report his time in a certain fashion and then accused him of
       stealing time when he followed management directions, provided written reprimands for his
       minor work infractions when in the past he was issued only verbal warnings, withdrew a
       promotion that was offered to him, and singled out his team by preparing photographic records
       of the work his team performed. Plaintiff claims that Nicor’s course of conduct continued after
       the decedent began his leave of absence when it refused to acknowledge his injury was
       work-related, refused to accept the medical documentation he provided, failed to explain to
       him how the documentation he provided was insufficient, and misled him when Boedigheimer
       told him that she was contacting his physician and that he did not need to worry about
       obtaining the medical documentation. Plaintiff also argues that, in essence, Nicor required that
       the decedent consult a physician for medical documentation and then refused to authorize
       treatment when he tried to visit Dr. Duvall.



                                                  - 16 -
¶ 62       However, the elements of retaliatory discharge require the decedent to show that he was
       discharged (Turner, 233 Ill. 2d at 500), and alleged adverse treatment is not actionable under a
       theory of retaliatory discharge (see Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 148,
       153 (1999)). As a result, plaintiff cannot recover for retaliatory discharge solely based on
       Nicor’s actions that fell short of discharging the decedent.
¶ 63       Also, as stated, there was no genuine issue of material fact that Nicor terminated the
       decedent’s employment as a result of his failure to provide current medical documentation of
       his continuing leave of absence. The overwhelming evidence shows that Smolios repeatedly
       advised the decedent that he needed to provide current medical documentation, which he failed
       to provide before the noticed deadline. As a result, the allegations that Nicor treated the
       decedent adversely prior to his leave of absence does not create a genuine issue of fact that
       Nicor’s stated reason for discharging him was fabricated pretext for another illegitimate
       reason. Furthermore, whether Nicor subjected the decedent to adverse treatment is immaterial,
       since he testified that he was disabled and unable to work at the time of his leave of absence.
       Since he could not work, he could not have proven damages, which is an essential element of
       his retaliatory discharge claim. Reuter, 397 Ill. App. 3d at 928; Kritzen, 226 Ill. App. 3d at 559.
¶ 64       Plaintiff argues that the decedent still could have prevailed on a claim for violation of the
       Whistleblower Act since that statute provides for damages for “any action against an
       employee.” 740 ILCS 174/30 (West 2004). However, the Whistleblower Act did not become
       effective until January 1, 2004, so the decedent could not have prevailed on a claim concerning
       Nicor’s conduct prior to the statute’s enactment. Plaintiff cites Feltmeier v. Feltmeier, 207 Ill.
       2d 263 (2003), in support of her argument that Nicor’s prior conduct should be considered
       under the doctrine of a continuing tort. Plaintiff points to the Feltmeier court’s finding that “[a]
       pattern, course, and accumulation of acts can make an individual’s conduct ‘sufficiently
       extreme to be actionable, whereas one instance of such behavior might not be.’ ” Feltmeier,
       207 Ill. 2d at 274 (quoting Pavlik v. Kornhaber, 326 Ill. App. 3d 731, 746 (2001)). However,
       the continuing tort doctrine explained in Feltmeier concerned the applicability of the statute of
       limitations in a claim for intentional infliction of emotional distress. Feltmeier, 207 Ill. 2d at
       279. The Feltmeier court found that, “under the ‘continuing tort’ or ‘continuing violation’ rule,
       ‘where a tort involves a continuing or repeated injury, the limitations period does not begin to
       run until the date of the last injury or the date the tortious acts cease.’ ” Feltmeier, 207 Ill. 2d at
       278 (quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 345
       (2002)). In the instant case, plaintiff argues entirely different circumstances by claiming that
       the principles of the continuing tort doctrine extend to finding liability for actions that would
       have violated a statute prior to that statute’s enforcement. The Whistleblower Act does not
       state that its provisions apply retroactively, and we cannot say that Nicor’s conduct prior to the
       enactment of the statute was actionable. See First of America Bank, Rockford, N.A. v. Netsch,
       166 Ill. 2d 165, 182 (1995) (“statutes are presumed to apply prospectively only and will not be
       given retroactive effect absent clear language within the statute indicating that the legislature
       intended such effect”).
¶ 65       Plaintiff additionally argues that Nicor violated the collective bargaining agreement with
       the union by not attempting to place the decedent in a less-strenuous job that he could perform.
       Plaintiff cite to a provision of the collective bargaining agreement, which states that:
                “In the case of a regular employee or part-time regular employee who has given long
                and faithful service and who is unable to carry on his/her regular work to advantage,

                                                     - 17 -
                [Nicor] will attempt to place such employee on work, which he/she is able to perform.
                In such cases, the other provisions of this Article shall not apply.”
       The collective bargaining agreement further stated that, “[i]f a regular employee or part-time
       regular employee becomes disabled and is unable to perform his/her regular work to
       advantage, [Nicor] will attempt to place the employee on work within the employee’s
       capabilities.” Plaintiff argues that the evidence shows that Nicor acted in bad faith and
       intended to discharge the decedent for reporting toxic work conditions, since it did not attempt
       to accommodate his disability by placing him in a less-strenuous job.
¶ 66        However, whether Nicor attempted to place the decedent in another job position is
       immaterial where he testified and represented to the Social Security Administration and
       Illinois Workers’ Compensation Commission that he was disabled and unable to work during
       his leave of absence. It follows that, if the decedent could not work, then Nicor could not
       possibly place him in a job that he could perform. Also, the collective bargaining agreement
       further provides that Nicor retained the right to discharge employees for proper cause. The
       collective bargaining agreement stated that “[t]he management of [Nicor] and the direction of
       the working forces herein, including the right to hire, suspend, or discharge for proper cause,
       promote, demote, transfer and layoff because of lack of work or for other reasons, are vested in
       [Nicor], except as otherwise specifically provided in this Agreement.” Although the collective
       bargaining agreement provided that Nicor would attempt to place a disabled employee on work
       within the employee’s capabilities, the agreement provided no guarantee of a new job
       placement or an absolute right to such placement.
¶ 67        Additionally, even if Nicor did not attempt to place the decedent another job position, that
       would not have raised a genuine issue of fact that it had another illegitimate motive to
       discharge him. As stated, the evidence overwhelmingly shows that Nicor terminated the
       decedent’s employment, since he failed to provide current medical documentation to support
       his continuing leave of absence, despite numerous requests. Since there existed no genuine
       issue of material fact that Nicor discharged the decedent for failing to provide support for his
       medical leave, defendants in the legal malpractice case did not proximately cause actual
       damages to the decedent. Additionally, defendants in the legal malpractice case did not
       proximately cause actual damages, since the decedent could not recover compensatory
       damages in the whistleblower case due to his inability to work during his leave of absence. As
       a result, the trial court did not err when it granted defendants’ motion for summary judgment
       dismissing the legal malpractice case.

¶ 68                                           II. Judicial Estoppel
¶ 69        Plaintiff next argues that the trial court erred when it granted summary judgment in favor of
       defendants in the legal malpractice case, since judicial estoppel did not bar the decedent’s
       claim. Defendants argue that, even if the decedent did not testify in his deposition testimony
       that he was unable to return to work during his leave of absence, judicial estoppel bars him
       from claiming otherwise due to his prior admissions to the Social Security Administration and
       the Illinois Workers’ Compensation Commission. For the following reasons, we affirm the
       trial court’s award of summary judgment in favor of defendants.
¶ 70        The doctrine of judicial estoppel provides that “ ‘a party who assumes a particular position
       in a legal proceeding is estopped from assuming a contrary position in a subsequent legal
       proceeding.’ ” Barack Ferrazzano Kirschbaum Perlman & Nagelberg v. Loffredi, 342 Ill.

                                                   - 18 -
       App. 3d 453, 460 (2003) (quoting Bidani v. Lewis, 285 Ill. App. 3d 545, 550 (1996)). The
       purpose of the doctrine is “ ‘to promote the truth and to protect the integrity of the court system
       by preventing litigants from deliberately shifting positions to suit the exigencies of the
       moment.’ ” Loffredi, 342 Ill. App. 3d at 460 (quoting Bidani, 285 Ill. App. 3d at 550). The five
       elements necessary for the application of judicial estoppel include the following: “ ‘the party to
       be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in
       separate judicial or quasi-judicial administrative proceedings, (4) intended for the trier of fact
       to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and
       received some benefit from it.’ ” Loffredi, 342 Ill. App. 3d at 460 (quoting People v.
       Caballero, 206 Ill. 2d 65, 80 (2002)). Judicial estoppel must be proved by clear and convincing
       evidence. Seymour v. Collins, 2015 IL 118432, ¶ 39. Since judicial estoppel is an equitable
       doctrine invoked by the court at its discretion, we review a trial court’s invocation of the
       doctrine under the abuse-of-discretion standard. Seymour, 2015 IL 118432, ¶ 41. A trial court
       abuses its discretion “only where its ruling is arbitrary, fanciful, or unreasonable or where no
       reasonable person would take the view adopted by the trial court.” Crichton v. Golden Rule
       Insurance Co., 358 Ill. App. 3d 1137, 1150 (2005) (citing People v. Hall, 195 Ill. 2d 1, 20
       (2000)).
¶ 71        Prior to the instant legal malpractice case, the decedent applied for disability benefits from
       the Social Security Administration, where he represented that he was disabled and unable to
       work since he began his leave of absence. An administrative law judge reversed the denial of
       his application on appeal, finding that the decedent had been disabled since October 6, 2003,
       and that he was unable to perform his job at Nicor. The decedent also settled his workers’
       compensation and/or occupational diseases claim with Nicor, and he signed the settlement
       order, which stated that he claimed injury to his “whole body,” rendering him “permanently
       and totally disabled for any employment.” In the instant case, the decedent claimed that he
       desperately wanted to return to work but Nicor would not accommodate him by placing him in
       a “less physically stressful job.”
¶ 72        The decedent’s prior position that he was totally disabled and unable to work is factually
       inconsistent with the position that he was able to return to a different job at Nicor. The
       decedent’s statements were also made in judicial or quasi-judicial proceedings, and he
       intended the trier of fact to accept the fact of the truth of the facts he alleged so that he would
       receive benefits as a result. An administrative law judge accepted the decedent’s statements
       that he was disabled and reversed the denial of his application for Social Security
       Administration disability benefits, and an arbitrator accepted the decedent’s representations
       when it approved the settlement of his workers’ compensation and/or occupational diseases
       case, for which the decedent received $125,000 in compensation. We cannot say that the trial
       court’s finding that judicial estoppel applies is arbitrary, fanciful, or unreasonable, or that no
       reasonable person would make that finding. As a result, the trial court did not abuse its
       discretion when it found that the doctrine of judicial estoppel applies, and the decedent was
       barred from claiming that he was able to return to work at Nicor. Since he could not claim that
       he was able to return to work, he could not recover compensatory damages in the
       whistleblower case and, as a result, the defendants in the instant legal malpractice case did not
       proximately cause an actual injury to the decedent. As a result, the trial court did not err when
       it granted summary judgment in the legal malpractice case in favor of defendants.



                                                   - 19 -
¶ 73       Plaintiff argues that, “for judicial estoppel to apply, the two positions taken must be ‘totally
       inconsistent’ ” (emphasis omitted) (Wolfe v. Wolf, 375 Ill. App. 3d 702, 705 (2007) (quoting
       Bidani, 285 Ill. App. 3d at 550)), and that the decedent’s representations to the Social Security
       Administration and the Illinois Workers’ Compensation Commission were not inconsistent
       with his claims in the whistleblower case. As to the decedent’s representations to the Social
       Security Administration, plaintiff argues that the administrative law judge found that, although
       the decedent could not perform his job at Nicor as a distribution technician, he was able to
       perform some type of sedentary work. Plaintiff claims that judicial estoppel does not apply,
       since the administrative law judge’s findings were not inconsistent with the decedent’s claim
       that he was able to return to work in a “less physically stressful job” at Nicor.
¶ 74       However, the position that the decedent was able to work in a less-physically stressful job
       during his leave of absence is totally inconsistent with the administrative law judge’s findings
       that the decedent was “not able to engage in any substantial gainful activity” since October 6,
       2003. Although the judge found that the decedent had the “residual functional capacity to
       perform sedentary work,” he determined that the decedent “is unable to perform any past
       relevant work,” that his “job skills do not transfer to other occupations within the residual
       functional capacity,” and that his “limitations so narrow the range of work that [he] might
       otherwise perform that a finding of ‘disabled’ is appropriate.” The judge’s order notes that, to
       support a finding that the decedent is not disabled, the Social Security Administration had the
       burden to demonstrate “that other work exists in significant numbers in the national economy
       that [the decedent] can do.” In other words, the administrative judge’s findings show that the
       decedent’s disability was so significant that, not only was he unable to perform any past
       relevant work, but that he did not even have the ability to perform any job that existed in
       significant numbers in the national economy. As a result, the representations set forth in the
       judge’s findings are totally inconsistent with the claim that the decedent could have worked in
       a less-physically stressful job at Nicor.
¶ 75       Plaintiff claims that the decedent did not argue inconsistent positions, since he always
       claimed that he could have performed a different job at Nicor, pointing to his deposition
       testimony that he could perform a less-physically stressful job at Nicor. However, that
       deposition was taken in 2013, where the decedent answered the question of what job he would
       be able to perform at that time, not during his leave of absence, which began nearly 10 years
       prior. Instead, the decedent testified that he was “very sick” and “on the ground sick” from the
       time of his leave of absence through at least 2007 and that he “had no idea” when he would
       have been able to return to any kind of employment. To argue now that he could have worked
       in a different job at Nicor while he was on medical leave is not only inconsistent with the
       administrative law judge’s finding but also with the decedent’s own testimony.
¶ 76       Plaintiff also argues that the claim that decedent could work during his leave of absence is
       not inconsistent with the findings in the workers’ compensation and/or occupational diseases
       settlement since, in that case, he merely sought compensation from Nicor for exposing him to
       toxins that impaired his ability to do his job. Plaintiff argues that position was also not
       inconsistent with his claims in the whistleblower case, since in that case, the decedent claimed
       Nicor treated him adversely and discharged him for reporting toxic work conditions to
       governmental authorities. However, 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.” Additionally, the decedent


                                                    - 20 -
       represented to the Social Security Administration that he was disabled and unable to work.
       These representations are inconsistent with the decedent’s claim that he could have performed
       a different job at Nicor during his leave of absence and, as a result, the decedent was judicially
       estopped from claiming otherwise.
¶ 77       This case is similar to Department of Transportation v. Coe, 112 Ill. App. 3d 506 (1983). In
       Coe, the employee suffered an injury during the course of his employment that he claimed
       rendered him 20% permanently disabled and unable to perform his job. Coe, 112 Ill. App. 3d at
       508. The employee began a medical leave of absence and filed a workers’ compensation claim
       against the employer, which the parties settled. Coe, 112 Ill. App. 3d at 508. The settlement
       agreement, which the Illinois Industrial Commission approved, stated that the employee
       received a lump sum representing “ ‘20% man as a whole,’ ” and the employer soon afterwards
       advised the employee that he would be discharged, since he was permanently disabled and
       unable to perform his job and his leave of absence was nearing expiration. Coe, 112 Ill. App.
       3d at 508-09. The employee then attempted to obtain his former job back, telling his employer
       that he was not disabled and that he could work. Coe, 112 Ill. App. 3d at 509. The employer
       then began discharge proceedings before the Civil Service Commission, which ordered the
       employee reinstated in his job. Coe, 112 Ill. App. 3d at 509. The trial court reversed the
       commission, finding that the employee was judicially estopped from claiming that he was no
       longer disabled. Coe, 112 Ill. App. 3d at 509. The appellate court affirmed on appeal, finding
       that the employee was judicially estopped from claiming that he could return to work in his
       former job after previously claiming before the commission that he had a permanent disability
       that rendered him unable to work. Coe, 112 Ill. App. 3d at 511. In the instant case, the decedent
       likewise settled his workers’ compensation and/or occupational diseases case, claiming that he
       was permanently disabled and unable to return to work, and the decedent now claims that he
       could have returned to work during his leave of absence in a less-physically stressful job. As in
       Coe, the decedent is judicially estopped from first claiming for settlement purposes that he was
       disabled and unable to work and now claiming that he could have returned to work had Nicor
       placed him a in different job position.
¶ 78       Plaintiff further argues that judicial estoppel did not bar the decedent’s claim, since he was
       not required to show that he was able to work to prove damages in order to prevail on a
       retaliatory discharge claim. Plaintiff argues that the decedent’s whistleblower complaint
       sought compensatory damages from being discharged, including “back pay, retirement and
       other benefits, aggravation and inconvenience in a sum to be proved at trial.” Plaintiff cites
       Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071, ¶ 27, in support of her argument that
       the decedent’s representations to the Social Security Administration were not a “factually
       inconsistent” position that judicially estopped his retaliatory discharge claim. In Batson, the
       employee developed carpel tunnel syndrome and filed a workers’ compensation claim, after
       which her employer discharged her. Batson, 2013 IL App (1st) 123071, ¶¶ 6, 27. Prior to her
       discharge, the employee sought and received disability benefits from the Social Security
       Administration. Batson, 2013 IL App (1st) 123071, ¶ 27. The employee then sued for
       retaliatory discharge, and the trial court invoked the collateral source rule, which barred the
       employee from asserting judicial estoppel as an affirmative defense. Batson, 2013 IL App (1st)
       123071, ¶ 22. On appeal, the appellate court affirmed, finding that, since the employer never
       presented any evidence of a valid, nonpretextual basis for discharging the employee and the
       employee’s retaliatory discharge action claimed she was discharged solely for filing a


                                                   - 21 -
       workers’ compensation claim, her disability claim with the Social Security Administration that
       she was disabled and unable to work was not a “ ‘factually inconsistent’ ” position that
       judicially estopped her recovering on a retaliatory discharge claim. Batson, 2013 IL App (1st)
       123071, ¶ 27.
¶ 79       However, Batson is distinguishable since, unlike the instant case, Nicor presented
       sufficient evidence that it terminated the decedent’s employment due to his failure to provide
       medical documentation in support of his continuing leave of absence. Furthermore, the
       employee in Batson brought a retaliatory discharge claim under the Workers’ Compensation
       Act, whereas the decedent in the instant case brought a claim of retaliatory discharge and
       violation of the whistleblower statute, which requires proof that the discharge was a result of
       reporting the employer to authorities when the evidence showed the discharge was based on
       the decedent’s failure to provide necessary medical verification. Batson, 2013 IL App (1st)
       123071, ¶ 30. Also, the trial court in Batson invoked the collateral source rule and found under
       its discretion that judicial estoppel did not apply. In the instant case, the trial court did not
       consider the collateral source rule and used its discretion to find that judicial estoppel barred
       the decedent’s claims. Batson, 2013 IL App (1st) 123071, ¶ 22.
¶ 80       In reaching its findings, the Batson court distinguished a federal case, Muellner v. Mars,
       Inc., 714 F. Supp. 351 (N.D. Ill. 1989). In Muellner, the employer placed the employee on
       long-term disability, for which she received benefits. Muellner, 714 F. Supp. at 352. While she
       was on disability leave at work, she applied for and received disability benefits from the Social
       Security Administration, for which she claimed that she was totally disabled and unable to
       work. Muellner, 714 F. Supp. at 352. The employer then terminated the employee per company
       policy, since she had been on long-term disability for two years, and advised her that she would
       continue to receive disability benefits until she recovered, retired, died, or reached age 65,
       whichever comes first. Nevertheless, the employer soon terminated the benefits because the
       employee did not provide medical documentation that she continued to be disabled. Muellner,
       714 F. Supp. at 353. The employee then filed a lawsuit for retaliatory discharge, claiming that
       she was discharged because she refused to accept early retirement. Muellner, 714 F. Supp. at
       353. Applying Illinois law, the district court found that the employee was judicially estopped
       from asserting a claim of retaliatory discharge and granted the employer’s motion for summary
       judgment, since she represented to the Social Security Administration that she was unable to
       work, while the ability to work was a “necessary prerequisite” to her retaliatory discharge
       claim. Muellner, 714 F. Supp. at 360. The Batson court declined to follow Muellner, since it
       found that the employee’s ability to work was not a necessary prerequisite to a retaliatory
       discharge claim under the Workers’ Compensation Act. Batson, 2013 IL App (1st) 123071,
       ¶ 30.
¶ 81       However, in the instant case, the decedent was required to prove actual damages, which is
       an element of a common law tort of retaliatory discharge. As stated, “[d]amages for an injury
       to the plaintiff are an essential element of any tort cause of action” (Reuter, 397 Ill. App. 3d at
       928) and “a plaintiff is not entitled to retaliatory discharge damages during the time of his total
       incapacity to work” (Kritzen, 226 Ill. App. 3d at 559). Plaintiff argues that Muellner (as well as
       Coe) is distinguishable, since the decedent was not an at-will employee claiming that he was
       totally disabled and then attempting to return to his former job claiming he could perform the
       job, and that he instead admitted that he could not perform his old job and he wanted to return
       to Nicor in a role more suitable for his circumstances. However, as stated, the decedent did, in


                                                   - 22 -
       fact, testify that he was unable to work at the time of his leave of absence through at least 2007,
       when he began to receive social security disability benefits. The decedent did testify that he
       could return to a different job at Nicor in 2013, nearly 10 years after he began his leave of
       absence; however, he never claimed that he was able to work during his leave of absence, and
       he admitted he never attempted to find a less-strenuous job since he was discharged. As a
       result, the trial court did not abuse its discretion when it found judicial estoppel applied as a
       result of the decedent’s prior inconsistent representations to the Social Security Administration
       and the Illinois Workers’ Compensation Commission.
¶ 82       Plaintiff claims that, even if the decedent were too sick to work, he could still recover
       punitive damages under a theory of retaliatory discharge or violation of the Whistleblower Act.
       Plaintiff cites Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978), which found that “[i]t has
       long been established in this State that punitive or exemplary damages may be awarded when
       torts are committed with fraud, actual malice, deliberate violence or oppression, or when the
       defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the
       rights of others.” Plaintiff cites Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th)
       110560, as a case where “an award of $3.6 million in punitive damages comported with due
       process when, among other reasons, the employee’s retaliatory discharge action was based on
       termination for exercise of Worker’s Compensation Act rights.” Holland cites the elements of
       punitive damages as a finding of “ ‘whether: (1) the harm caused was physical as opposed to
       economic; (2) the tortious conduct evinced an indifference to or a reckless disregard of the
       health or safety of others; (3) the target of the conduct had financial vulnerability; (4) the
       conduct involved repeated actions or was an isolated incident; and (5) the harm was the result
       of intentional malice, trickery, or deceit, or mere accident.’ ” Holland, 2013 IL App (5th)
       110560, ¶ 258 (quoting Blount v. Stroud, 395 Ill. App. 3d 8, 24-25 (2009)).
¶ 83       However, as stated, “[d]amages for an injury to the plaintiff are an essential element of any
       tort cause of action” (Reuter, 397 Ill. App. 3d at 928) and “a plaintiff is not entitled to
       retaliatory discharge damages during the time of his total incapacity to work” (Kritzen, 226 Ill.
       App. 3d at 559). In Holland, the jury awarded the plaintiff punitive damages of $3.6 million in
       addition to compensatory damages of $660,400. Holland, 2013 IL App (5th) 110560, ¶ 252. In
       this case, the decedent was unable to work, so he could not show actual damages, which is an
       element of proving the tort of retaliatory discharge. Since the decedent could not prove one of
       the elements of retaliatory discharge, he was not entitled to punitive damages. Illinois does not
       recognize a cause of action for punitive damages alone; punitive damages represent a type of
       relief rather than an independent cause of action. Kemner v. Monsanto Co., 217 Ill. App. 3d
       188, 199 (1991); see Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 146 (a “plaintiff
       cannot assert punitive damages without first properly pleading the underlying claims”).
¶ 84       Plaintiff additionally argues that the Whistleblower Act does not require that the decedent
       be able to return to work and that he could have recovered damages for the loss of Employee
       Benefit Association benefits, loss of a promotion, loss of his ability to work a more sedentary
       job, loss of his health care benefits, and more, and that he could recover damages even if he
       could not perform his former job. The Whistleblower Act states:
                “Damages. If an employer takes any action against an employee in violation of Section
                15 or 20, the employee may bring a civil action against the employer for all relief
                necessary to make the employee whole, including but not limited to the following, as
                appropriate:

                                                   - 23 -
                     (1) reinstatement with the same seniority status that the employee would have had,
                but for the violation;
                     (2) back pay, with interest; and
                     (3) compensation for any damages sustained as a result of the violation, including
                litigation costs, expert witness fees, and reasonable attorney’s fees.” 740 ILCS 174/30
                (West 2004).
¶ 85       Although the Whistleblower Act provides for all relief necessary to make the employee
       whole, in the instant case, there were no actual damages that the decedent could have shown
       that would have made him whole, since he was not able to work when Nicor discharged him.
       As a result, the decedent could not have been reinstated with a job at Nicor, since he could not
       work, and he similarly could not have recovered damages resulting from the termination of his
       employment, such as lost pay or health insurance, since he was not able to work and receive
       those benefits in the first place. Furthermore, the Whistleblower Act does not provide for
       punitive damages. See Averett v. Chicago Patrolmen’s Federal Credit Union, No. 06 C 4606,
       2007 WL 952034, at *4 (N.D. Ill. Mar. 27, 2007) (finding that punitive damages are not
       available under the whistleblower statute where the statute’s inclusion of a damages section
       allowing only for “ ‘make whole’ ” relief revealed the legislature’s intent to exclude the
       availability of other types of damages). As a result, the decedent could not recover damages
       under the whistleblower act where he was unable to work.
¶ 86       Plaintiff also argues that, “[w]hile plaintiff understands that judicial estoppel is to protect
       the integrity of the judicial system, contrary to [Nicor]’s claim, [Nicor] could never have raised
       a judicial estoppel defense” in the whistleblower case because the workers’ compensation
       and/or occupational diseases settlement stated that “[t]he parties hereto acknowledge that the
       [decedent] presently has a lawsuit against [Nicor] pending in the Circuit Court of Du Page
       County, Case No. 2010 L 128, and, notwithstanding any other provision of this Contract and
       Rider, the parties agree that said lawsuit is neither waived nor released by this agreement.”
       However, the settlement terms in this passage merely state that the settlement of the workers’
       compensation and/or occupational diseases case does not extinguish the claims in the
       decedent’s separate whistleblower case, allowing that litigation to proceed. As a result, the
       settlement order does prevent Nicor from raising judicial estoppel in the whistleblower case.
¶ 87       We cannot say that the trial court’s finding that judicial estoppel applies is arbitrary,
       fanciful, or unreasonable, or that no reasonable person would make that finding. As a result,
       the trial court did not abuse its discretion when it found that the doctrine of judicial estoppel
       applies, and the decedent was barred from claiming that he was able to return to work at Nicor.
       Since the decedent could not claim that he was able to return to work, he could not recover
       compensatory damages in the whistleblower case. As a result, defendants in the instant legal
       malpractice case did not proximately cause an actual injury to the decedent, and the trial court
       did not err when it granted summary judgment in the legal malpractice case in favor of
       defendants.

¶ 88                                            III. Discovery
¶ 89       In the alternative, plaintiff argues that the trial court erred when it limited oral discovery
       prior to hearing defendants’ motion for summary judgment. Specifically, plaintiff claims that it
       was “fundamentally unfair” for the trial court to refuse her request to depose at least 32
       witnesses, since she could have obtained evidence in those depositions that could defeat

                                                   - 24 -
       defendants’ motion for summary judgment, especially where defendants’ failure to conduct
       discovery in the whistleblower case is a key allegation of legal malpractice in the instant case.
       For the following reasons, we affirm the trial court’s order limiting the scope of discovery.
¶ 90        “A trial court is afforded considerable discretion in ruling on matters pertaining to
       discovery, and thus its rulings on discovery matters will not be reversed absent an abuse of that
       discretion.” Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392
       Ill. App. 3d 1, 11 (2009) (citing Wisniewski v. Kownacki, 221 Ill. 2d 453, 457 (2006), and
       Crichton , 358 Ill. App. 3d at 1150). As stated, a trial court abuses its discretion “only where its
       ruling is arbitrary, fanciful, or unreasonable or where no reasonable person would take the
       view adopted by the trial court.” Crichton, 358 Ill. App. 3d at 1150 (citing Hall, 195 Ill. 2d at
       20).
¶ 91        “[Illinois] Supreme Court Rule 191(b) specifies the procedure to be followed where
       additional discovery is needed in regard to summary judgment proceedings.” Giannoble v.
       P&M Heating & Air Conditioning, Inc., 233 Ill. App. 3d 1051, 1064 (1992). Illinois Supreme
       Court Rule 191(b) (eff. Jan. 4, 2013) provides:
                “If the affidavit of either party contains a statement that any of the material facts which
                ought to appear in the affidavit are known only to persons whose affidavits affiant is
                unable to procure by reason of hostility or otherwise, naming the persons and showing
                why their affidavits cannot be procured and what affiant believes they would testify to
                if sworn, with his reasons for his belief, the court may make any order that may be just,
                either granting or refusing the motion, or granting a continuance to permit affidavits to
                be obtained, or for submitting interrogatories to or taking the depositions of any of the
                persons so named, or for producing documents in the possession of those persons or
                furnishing sworn copies thereof.”
¶ 92        After the Grossman defendants filed their motion for summary judgment in the instant
       legal malpractice case, plaintiff filed a motion to take additional oral discovery and attached an
       affidavit naming at least 32 witnesses whom plaintiff argued needed to be deposed before
       responding to the Grossman defendants’ motion for summary judgment. However, plaintiff’s
       affidavit did not meet the requirements of Illinois Supreme Court Rule 191(b) (eff. Jan. 4,
       2013) since she did not aver what she believed each prospective witness would testify to and
       the reasons for her beliefs. “ ‘The affidavit must state specifically what the affiant believes the
       prospective witness would testify to if sworn and reasons for the affiant’s belief.’ ” Olive
       Portfolio Alpha, LLC v. 116 W. Hubbard Street, LLC, 2017 IL App (1st) 160357, ¶ 29 (quoting
       Giannoble, 233 Ill. App. 3d at 1065 (“Rule 191(b) requires facts, not conclusions.”)). Instead,
       plaintiff’s affidavit sets forth a long list of potential witnesses, including doctors who may
       know more information concerning the decedent’s medical condition and current and former
       Nicor employees who may know more information concerning testing the drinking water for
       contamination, the failure to remediate the problem, and the harassment the decedent may have
       received after reporting it. However, allegations in a “general sense” of what relevant
       information proposed witnesses would provide for the plaintiff’s claim is not sufficient to
       show compliance with Rule 191(b). Wynne v. Loyola University of Chicago, 318 Ill. App. 3d
       443, 456 (2000) (finding that “[f]ailure to comply with Rule 191(b) defeats an objection on
       appeal that insufficient time for discovery was allowed”). It would appear that the decedent
       was on a “fishing excursion” and had no idea what, if anything, the witnesses would provide in
       the manner of useful evidence. As a result, plaintiff’s affidavit did not comply with the

                                                    - 25 -
       requirements of Rule 191(b), since she did not state specifically what she believed the
       prospective witness would testify to if sworn and the reasons for her belief.
¶ 93       Also, as explained earlier, the decedent’s claim that he was not totally disabled and that he
       could return to work in a different job at the time of his leave of absence was barred by the
       doctrine of judicial estoppel. None of the testimony sought by plaintiff could have changed the
       fact that the decedent represented to the Social Security Administration and the Illinois
       Workers’ Compensation Commission that he was totally disabled and unable to work. As a
       result, the testimony sought by plaintiff would not have prevented judicial estoppel from
       barring the decedent’s claims as a matter of law, and the trial court did not need extensive
       deposition testimony to consider defendants’ motion for summary judgment.
¶ 94       Additionally, plaintiff did not aver that any of the 32 witnesses would raise an issue of
       material fact by testifying that the decedent was not totally disabled during his leave of absence
       and could return to work. Plaintiff lists only one physician as a potential witness, Dr. Siegfried,
       who she avers “will have information about [the decedent]’s medical condition,” without
       explaining what he would reveal about the decedent’s health or his ability to work. The proof
       of claim forms completed by Dr. Siegfried were already in the record in the whistleblower
       case, and the trial court determined that they did not raise a genuine issue of material fact that
       the decedent was not totally disabled and able to work in some job. Since plaintiff’s affidavit
       did not aver that any of the 32 witnesses would testify that the decedent was not totally
       disabled and was able to return to work, the depositions sought by plaintiff would not have
       raised a genuine issue of material fact.
¶ 95       Furthermore, the legal malpractice case had been pending for more than a year at the time
       plaintiff filed her motion for additional discovery, and both parties had exchanged written
       discovery, including answers to interrogatories and production of thousands of pages of
       documents. At the time plaintiff filed her motion, she had not conducted any depositions,
       despite her claim that she needed to depose at least 32 witnesses to respond to the motion for
       summary judgment. As a result, we cannot say that the trial court abused its discretion when it
       denied plaintiff’s motion in part and granted her leave to depose one additional witness.
¶ 96       Plaintiff argues that strict compliance with Rule 191(b) is not required where a motion for
       summary judgment is made by the party who does not have the burden of proof on an issue
       asserting that the nonmovant cannot prove a prima facie case, and the respondent has not been
       provided a reasonable opportunity to conduct discovery before summary judgment. Jiotis v.
       Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 26. However, Jiotis further explained
       that, “to demand strict compliance with Rule 191(b) before adequate discovery—before a
       party even knows the identity of witnesses who can provide material facts—turns Rule 191(b)
       from a procedural safeguard for the nonmovant into a tactical weapon for the movant.”
       (Emphasis added.) Jiotis, 2014 IL App (2d) 121293, ¶ 29. In the instant case, we cannot say
       that plaintiff did not have an adequate opportunity to conduct discovery. At the time of
       plaintiff’s motion, the parties had exchanged written discovery, including answers to
       interrogatories and production of thousands of pages of documents, and plaintiff was able to
       name at least 32 potential witnesses that she wanted to depose who she claimed had knowledge
       of material facts, yet no depositions other than the decedent’s were noticed during the 14
       months that the case was pending. As a result, we cannot say that the trial court abused its
       discretion when it limited plaintiff to one additional deposition, and we affirm.


                                                   - 26 -
¶ 97                                           CONCLUSION
¶ 98        For the foregoing reasons, we affirm the judgment of the trial court. The trial court did not
       err when it granted defendants’ motion for summary judgment, and it did not abuse its
       discretion when it found that judicial estoppel barred the decedent’s claims. Additionally, the
       trial court did not abuse its discretion when it limited the scope of discovery prior to ruling on
       the motion for summary judgment. However, we cannot condone the claimed conduct of
       defendants in the handling of the decedent’s case. If defendants had no defense to the motion
       for summary judgment, they had an obligation to inform the decedent, and this court has no
       knowledge whether they did or did not do so. In addition, they have an obligation to appear at
       the hearing on the motion for summary judgment. Unfortunately for plaintiff, notwithstanding
       the decedent’s representations, plaintiff cannot prove the underlying case against defendants.

¶ 99      Affirmed.




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