                                No. 2--05--0619      Filed: 4-25-07
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

JEREMY SOMERS,                         ) Appeal from the Circuit Court
                                       ) of Lake County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 01--L--458
                                       )
MICHAEL J. QUINN,                      ) Honorable
                                       ) Margaret J. Mullen,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the opinion of the court:

       Plaintiff, Jeremy Somers, appeals the judgment of the circuit court that (1) granted defendant

Michael J. Quinn's motion in limine to bar the testimony of plaintiff's expert witness regarding the

standard of care applicable to defendant's medical treatment of plaintiff, and (2) denied plaintiff's

motion for a continuance to find another expert to testify to the standard of care. We affirm.

       Plaintiff filed his complaint on June 11, 2001, alleging that defendant was negligent in his

treatment of plaintiff's broken leg and that his negligence resulted in injury to plaintiff. On July 5,

2002, pursuant to Supreme Court Rule 213 (210 Ill. 2d Rs. 213(f), (g), (h), (i), (j), (k)), plaintiff

disclosed that Dr. Mark Benson would describe at trial the treatment he provided plaintiff in the

months following plaintiff's treatment by defendant and would opine that defendant's treatment "was

inadequate and below the standard of care."
No. 2--05--0619


       Dr. Benson sat for a discovery deposition on June 2, 2003. Dr. Benson testified that he

acquired medical licenses from Colorado and Wisconsin in 1979. He let his Colorado license expire

after one year but retained his Wisconsin license. In 1993, Dr. Benson suffered a cervical spine

fracture in an automobile accident. He took hydrocordone for pain relief and became addicted to it.

In 1996, the Wisconsin medical licensing board suspended Dr. Benson's medical license after finding

that he had taken hydrocordone samples from his office. Dr. Benson testified that he secured

periodic stays of the suspension between 1996 and 2002. He further testified that he was twice

convicted of attempting to obtain a prescription by fraud, once in May 2000 and again in October

2002. In the spring of 2002, Dr. Benson surrendered his medical license due to vision problems

caused by eye ulcerations. Dr. Benson testified that he intended to return to the practice of medicine

in August 2003.

       In October 2004, the trial court entered an order setting the case for jury trial on May 23,

2005. The order also set April 1, 2005, as the deadline for all motions for involuntary dismissal or

summary judgment.

       Dr. Benson sat for an evidence deposition on May 20, 2005, three days before trial. He

testified that, on August 20, 2003, he petitioned the Wisconsin medical licensing board for

reinstatement of his license. On August 29, 2003, the board granted Dr. Benson a limited medical

license with the opportunities to apply for consecutive three-month extensions of that limited license.

In October 2004, the board found that Dr. Benson had obtained medication by forging prescriptions.

Subsequently, Dr. Benson surrendered his license, effective December 15, 2004.




                                                 -2-
No. 2--05--0619


       Dr. Benson testified that the board's findings that he had forged prescriptions were false, but

acknowledged that he stipulated to those findings in the board's written order accepting the surrender

of his license. Dr. Benson admitted that he held no medical license at the time of the deposition.

       On May 23, 2005, the day of trial, defendant filed a motion in limine to exclude from

evidence the portions of Dr. Benson's evidence deposition in which he testified as to the standard

of care applicable to defendant's medical treatment of plaintiff and as to whether defendant's

treatment met that standard. Parenthetically we note that defendant did not challenge the

admissibility of Dr. Benson's descriptions of his or defendant's treatment of plaintiff. Defendant

argued that, because Dr. Benson lacked a medical license at the time of his evidence deposition, his

qualifications did not meet the standards for expert medical witnesses set forth in section 8--2501

of the Code of Civil Procedure (the Code) (735 ILCS 5/8--2501 (West 2004)). Defendant attached

to his motion a copy of a December 15, 2004, decision of the Wisconsin medical licensing board

finding that Dr. Benson "committed unprofessional conduct" by forging prescriptions on two

occasions in October 2004. The decision noted that Dr. Benson had voluntarily surrendered his

Wisconsin medical license effective immediately.

       The record contains no transcript of the hearing on defendant's motion. The trial court issued

a written order in which it found that section 8--2501 of the Code categorically required that an

expert be licensed to practice medicine at the time he testified to the applicable standard of care in

a medical malpractice case. The trial court also held that, even if it had discretion to decide whether

to allow Dr. Benson's testimony, it would still exclude the testimony. Accordingly, the trial court

granted the motion to bar Dr. Benson's testimony relating to the standard of care applicable to

defendant. Plaintiff then moved for a continuance of the trial for the purpose of retaining another



                                                 -3-
No. 2--05--0619


expert. The trial court denied the motion on the ground that plaintiff "was not duly diligent." The

parties stipulated that, in the absence of Dr. Benson's testimony, plaintiff would present no evidence

on the standard of care. Defendant then moved for a directed verdict, which the trial court granted.

Plaintiff filed this timely appeal.

        Plaintiff challenges the trial court's decision barring Dr. Benson's testimony on the ground

that he lacked a medical license at the time he gave his evidence deposition. The plaintiff in a

medical malpractice action must prove: (1) the proper standard of care against which the defendant's

conduct is measured; (2) a negligent failure to comply with the applicable standard; and (3) a

resulting injury proximately caused by the defendant's want of skill or care. Jinkins v. Evangelical

Hospitals Corp., 336 Ill. App. 3d 377, 382 (2002). " 'Unless the physician's negligence is so grossly

apparent or the treatment so common as to be within the everyday knowledge of a layperson, expert

medical testimony is required to establish the standard of care and the defendant physician's

deviation from that standard.' " Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004), quoting

Purtill v. Hess, 111 Ill. 2d 229, 242 (1986).

        At the time of this case, section 8--2501 of the Code contained four factors for the trial court

to consider in qualifying an expert witness, including whether the witness was licensed in the same

profession as the defendant. 735 ILCS 5/8--2501(c) (West 2004). This section provides in relevant

part:

                "Expert Witness Standards. In any case in which the standard of care applicable to

        a medical professional is at issue, the court shall apply the following standards to determine

        if a witness qualifies as an expert witness and can testify on the issue of the appropriate

        standard of care.



                                                  -4-
No. 2--05--0619


               (a) Whether the witness is board certified or board eligible in the same specialties as

       the defendant and is familiar with the same medical problem or problems or the type of

       treatment administered in the case;

               (b) Whether the witness has devoted 75% of his or her time to the practice of

       medicine, teaching or University based research in relation to the medical care and type of

       treatment at issue which gave rise to the medical problem of which the plaintiff complains;

               (c) whether the witness is licensed by any state or the District of Columbia in the

       same profession as the defendant; and

               (d) whether, in the case against a nonspecialist, the witness can demonstrate a

       sufficient familiarity with the standard of care practiced in this State." 735 ILCS 5/8--2501

       (West 2004).

       As to plaintiff's first contention, our standard of review is de novo because the construction

of a statute is a question of law. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006), citing In re Estate

of Dierkes, 191 Ill. 2d 326, 330 (2000). Our primary objective is to ascertain and give effect to the

intention of the legislature. DeLuna, 223 Ill. 2d at 59, citing Southern Illinoisan v. Illinois

Department of Public Health, 218 Ill. 2d 390, 415 (2006). When the language of a statute is clear

and unambiguous, a court must give effect to the plain and ordinary meaning of the language without

resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove, 209

Ill. 2d 248, 255 (2004), citing Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,

504 (2000). " 'One of the fundamental principles of statutory construction is to view all provisions

of an enactment as a whole. Words and phrases should not be construed in isolation, but must be




                                                 -5-
No. 2--05--0619


interpreted in light of other relevant provisions of the statute.' " Raintree Homes, Inc., 209 Ill. 2d at

255-56, quoting Michigan Avenue National Bank, 191 Ill. 2d at 504.

        Section 8--2501 of the Code provides standards that the trial court shall apply in medical

malpractice cases "to determine if a witness qualifies as an expert witness and can testify on the issue

of the appropriate standard of care." 735 ILCS 5/8--2501 (West 2004); see also Thompson v.

Gordon, 221 Ill. 2d 414, 433 (2006). The plain language of section 8--2501 does not impose a

mandatory licensure requirement. Instead, the statute leaves the admission of the expert's testimony

to the determination and discretion of the trial court. The legislature could have imposed a

mandatory licensure requirement had it wished to do so, and we will not read such a requirement into

the statute. See Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 398-99 (2004) (noting

that the appellate court may not read into a statute exceptions, limitations, or conditions not

expressed by the legislature).

        Plaintiff argues that subsections (a) through (d) are not "necessarily mandatory," but instead

are "factors *** to be applied by the court in making its determination." We find plaintiff's argument

persuasive and determine that the plain language of the statute is controlling. We determine that it

is inappropriate to disregard statutory authority governing the admission of expert testimony in

medical malpractice cases and to instead decide the case based upon other common-law

requirements for the competency of a medical expert. See 735 ILCS 5/1--104 (West 2004)

(providing that supreme court may not make rules governing civil practice and procedure that are

inconsistent with the provisions of the Code). This court should also not ignore section 8--2501 of

the Code simply because our supreme court has not yet had occasion to address its meaning or effect

as it would specifically apply to the circumstances presented in this case.



                                                  -6-
No. 2--05--0619


       Furthermore, the special concurrence applies Sullivan beyond its facts to determine that

Sullivan is controlling and requires that licensure must exist at the time the witness testifies. The

special concurrence states:

       "The supreme court held in Sullivan that ' "in order to testify as an expert on the standard of

       care in a given school of medicine, the witness must be licensed therein." ' (Emphasis

       added.) Sullivan, 209 Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. *** Sullivan can be

       read but one way: the testimony of a witness cannot be considered competent medical

       opinion testimony unless the witness holds a medical license at the time of the testimony."

       Slip op. at 21.

       There is nothing in Sullivan or common experience that implies or concludes that expertise

exists solely and dependently on the existence of a license and that, upon termination of the license,

regardless of cause, the expertise fades to black and is lost until the license is renewed. Such an

interpretation does violence to the concept of memory.

       Our supreme court explained in Sullivan that licensure in the school of medicine about which

the expert proposes to testify is required because:

       "[T]here are different systems or schools of medicine with varying tenets and practices, and

       *** testing the care and skill of a practitioner of one school of medicine by the opinion of

       a practitioner of another school would result in inequities. The practitioner of a particular

       school of medicine is entitled to have his or her conduct tested by the standards of that

       school. Dolan, 77 Ill. 2d at 283 (and authorities cited therein)." Sullivan, 209 Ill. 2d at 113.

Thus, the licensure requirement serves to protect practitioners of one school of medicine from the

imposition of standards followed in other schools of medicine. Preventing the testimony of someone



                                                 -7-
No. 2--05--0619


who had never been licensed in the school of medicine at issue or, especially, someone licensed in

a different school of medicine clearly would tend to prevent the imposition of an improper standard.

We fail to see how allowing the testimony of an expert who had been licensed in the appropriate

school of medicine, but who was no longer so licensed, would result in the harm that Sullivan

identified.

        The issue then becomes what effect the witness's lack of current licensure has on his or her

ability to opine on the current state of the standards in a school of medicine. The legislature touched

on this issue in the recent amendment to section 8--2501 contained in Public Act 94--677, eff.

August 25, 2005. Though this amendment cannot be used to dispose of this case, because it was

passed after the trial court's ruling in this case, its terms are instructive in this situation.

        Section 8--2501 of the Code now allows for testimony from a retired expert if the expert

provides:

        "[E]vidence of attendance and completion of continuing education courses for 3 years

        previous to giving testimony. An expert who has not actively practiced, taught, or been

        engaged in university-based research, or any combination thereof, during the preceding 5

        years may not be qualified as an expert witness." 735 ILCS Ann. 5/8--2501 (West Supp.

        2005).

Accordingly, the legislature has now found fit to allow testimony from experts who have retired or

have not been in active practice for up to five years.

        Here, Dr. Benson had surrendered his license only five months before trial was scheduled.

While his lack of a current license was certainly a factor that the trial court should have considered




                                                    -8-
No. 2--05--0619


in determining whether Dr. Benson qualified as an expert, we do not find that his lack of a current

license is a basis for an automatic disqualification.

       We also believe that the special concurrence fails to examine Sullivan in context. In

Sullivan, the expert was never licensed in the area in which he was presented to opine; he was,

however, licensed in another area of medicine. Furthermore, we have not discovered another

reported case wherein the issue of a prior licensure has been considered. Therefore, neither Sullivan

nor any other reported case is controlling or precedential.

       "A judicial precedent attaches a specific legal consequence to a detailed set of facts in an

       adjudged case or judicial decision, which is then considered as furnishing the rule for the

       determination of a subsequent case involving identical or similar material facts and arising

       in the same court or a lower court in the judicial hierarchy." Allegheny General Hospital v.

       National Labor Relations Board, 608 F.2d 965, 969-70 (3rd Cir. 1979).

Chief Justice Marshall examined the purpose of this principle of law in 1821 when he wrote:

               " 'It "is a maxim not to be disregarded, that general expressions, in every opinion, are

       to be taken in connection with the case in which those expressions are used. If they go

       beyond the case, they may be respected, but ought not to control the judgment in a

       subsequent suit when the very point is presented for decision. The reason of this maxim is

       obvious. The question *** before the [c]ourt is investigated with care, and considered in its

       full extent. Other principles, which may serve to illustrate it, are considered in their relation

       to the case decided, but their possible bearing on all other cases is seldom completely

       investigated." [Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400, 5 L. Ed. 257, 290




                                                 -9-
No. 2--05--0619


       (1821).]' R. Aldisert, The Judicial Process 314 [(1996)]." People v. Trimarco, 364 Ill. App.

       3d 549, 555 (2006) (McLaren, J., dissenting).

       We submit that Sullivan is logical and sound only as it applies to the particular facts in

Sullivan. The witness in that case was a licensed physician but never obtained a license in the area

of medicine at issue and thus patently was not certified as a knowledgeable expert. Applying

Sullivan retrogressively, as the special concurrence has, is counterintuitive. Among other things,

licenses expire, are suspended, are revoked, and are even voluntarily surrendered. However, the

underlying skills that the license certified do not mystically or automatically disappear when the

license is no longer legally valid. The termination of a license to operate a motor vehicle does not

cause the driver to lose the mental or physical ability to control and maneuver a vehicle. Rather, the

driver loses only the legal ability to operate a motor vehicle. The unlicensed driver can still opine

as to the cause of an accident he or she witnesses while a pedestrian, a passenger, or the driver of a

vehicle. There is no logical reason to conclude that never having had a license is the same thing as

having had a license but not at the time of testifying.

       In a recent decision, our supreme court held that a witness's compliance with an engineering

licensing requirement was not a prerequisite to admissibility of the witness's expert testimony;

instead, it was merely a factor to be weighed in considering whether the witness was qualified as an

expert, thereby overruling People v. West, 264 Ill. App. 3d 176 (1994). Thompson, 221 Ill. 2d at

429. The Thompson court further provided that, "[t]o the extent that West may be read as holding

that licensing is a prerequisite to the admissibility of expert testimony rather than a factor to be

weighed in considering expert qualifications, we overrule that portion of the West decision and reject




                                                 -10-
No. 2--05--0619


defendants' argument that West controls the disposition of this case." Thompson, 221 Ill. 2d at 432-33.

        Thus, it would appear here that the supreme court has effectively overruled sub silencio the

special concurrence's interpretation of Sullivan. From Thompson, it is clear that whether an expert

witness has a license or does not have a license is a factor to be considered, and that the lack of a

license does not inevitably lead to the conclusion that the witness has also lost all the knowledge that

he or she previously possessed or that any diminution occurred in the amount of knowledge

previously possessed. Interestingly, the witness in this case apparently lost his license because of

improper acts related to substance addiction and not because of an established deficiency based upon

a loss of memory or some other mental disability that sapped his knowledge in the area of his

claimed expertise.

        Because current licensure is a factor to be considered by the trial court, we believe that the

appropriate analysis in this case deals with whether the trial court abused its discretion based upon

the totality of the circumstances. As our supreme court has stated:

                "With regard to expert testimony, it is well settled that the decision whether to admit

        expert testimony is within the sound discretion of the trial court. Snelson v. Kamm, 204 Ill.

        2d 1, 24 (2003). A person will be allowed to testify as an expert if his experience and

        qualifications afford him knowledge that is not common to laypersons and where his

        testimony will aid the trier of fact in reaching its conclusions. People v. Miller, 173 Ill. 2d

        167, 186 (1996). 'There is no predetermined formula for how an expert acquires specialized

        knowledge or experience and the expert can gain such through practical experience, scientific

        study, education, training or research.' Miller, 173 Ill. 2d at 186. Thus, '[f]ormal academic

        training or specific degrees are not required to qualify a person as an expert; practical



                                                 -11-
No. 2--05--0619


       experience in a field may serve just as well to qualify him.' Lee v. Chicago Transit

       Authority, 152 Ill. 2d 432, 459 (1992)." Thompson, 221 Ill. 2d at 428-29.

       In the present case, the trial court initially held that it had no discretion to allow the witness

to testify. However, the trial court also mentioned that it would not have allowed the witness to

testify even if it had the discretion to do so. This court will find an abuse of discretion only when

no reasonable person would take the position adopted by the lower court. McKenzie Dredging Co.

v. Deneen River Co., 249 Ill. App. 3d 694, 700 (1993). The test is not whether the reviewing court

agrees with the trial court's decision, but whether the lower court " ' "acted arbitrarily without the

employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds

of reason and ignored recognized principles of law so that substantial prejudice resulted." ' "

American Federation of State, County & Municipal Employees, Council 31 v. Schwartz, 343 Ill.

App. 3d 553, 559 (2003), quoting Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d

591, 595 (1991), quoting In re Marriage of Aud, 142 Ill. App. 3d 320, 326 (1986). Here, the trial

court could have reasonably concluded that Dr. Benson was not qualified to testify as an expert due

to the surrender of his medical license and due to the other findings made by the Wisconsin board

of medical examiners. Considering the totality of the circumstances, we cannot conclude the trial

court abused its discretion.

       Plaintiff's next contention is that the trial court erred in refusing to grant him a continuance

to retain another expert witness. Litigants do not have an absolute right to a continuance, and the

grant or denial of a motion for a continuance lies in the sound discretion of the trial court. Williams

v. Covenant Medical Center, 316 Ill. App. 3d 682, 692 (2000). The decisive factor in assessing the




                                                 -12-
No. 2--05--0619


merits of a motion for a continuance is whether the moving party has exercised due diligence in

proceeding with the case. Williams, 316 Ill. App. 3d at 692.

        Plaintiff claims that he acted with due diligence at all stages of the proceedings and criticizes

defendant for not bringing his motion to exclude Dr. Benson's testimony before the day of trial.

Plaintiffs asserts that "due diligence can scarcely require the Plaintiff to anticipate as-yet-unregistered

objections by the Defendant, or to make such objections in the Defendant's stead." Plaintiff's protests

do not ring true. Due diligence required plaintiff to stay abreast of the status of his own witness's

medical license, which plaintiff knew or should have known had been in a precarious state for years.

Though defendant did learn at Dr. Benson's June 2003 discovery deposition that he was not currently

licensed, defendant had no duty to file what at that point would have been a possibly premature

motion in limine, especially in light of Dr. Benson's stated intention to seek reinstatement of his

license in the next two months. Nor did defendant have a duty to monitor Dr. Benson's credentials

in the intervening months to determine whether he had regained his license before his evidence

deposition. When the evidence deposition finally transpired on May 20, 2005, plaintiff should have

expected that Dr. Benson's lack of a medical license at that time would draw a motion to exclude his

testimony. Defendant, we recognize, could have filed that motion on May 20 rather than three days

later on May 23, but the diligence at issue here is not defendant's, but plaintiff's. Since the supreme

court's 2004 decision in Sullivan, there has been no question that licensure is an absolute requirement

of a witness who would testify to the standard of care in a medical malpractice case. Plaintiff's

counsel at the time of the motion in limine had been in the case since January 24, 2002. At least

since June 2003, counsel was aware that Dr. Benson had suffered physical ailments and committed

misdeeds that negatively impacted the viability of his license, leading first to the licensing board's



                                                   -13-
No. 2--05--0619


suspension of that license and, later, in the spring of 2002, to his outright surrender of it. This

knowledge obligated plaintiff's counsel to stay current on the status of this witness's license. If

counsel did not know well before May 2005 that Dr. Benson had again surrendered his license in

December 2004, counsel certainly should have known. Plaintiff has no excuse for failing to secure

an expert with adequate credentials before the May 20, 2005, deposition.

       Plaintiff argues that defendant waived his objection to Dr. Benson's testimony by failing to

raise it at the May 2003 evidence deposition. Plaintiff cites three cases, Lundell v. Citrano, 129 Ill.

App. 3d 390 (1984), Banwart v. Okesson, 83 Ill. App. 3d 222 (1980), and Bireline v. Espenscheid,

15 Ill. App. 3d 368 (1973), all of which rely on Supreme Court Rule 211(c)(1) (134 Ill. 2d R.

211(c)(1)). That rule provides:

               "Grounds of objection to the competency of the deponent or admissibility of

       testimony which might have been corrected if presented during the taking of the deposition

       are waived by failure to make them at that time; otherwise objections to the competency of

       the deponent or admissibility of testimony may be made when the testimony is offered in

       evidence." 134 Ill. 2d R. 211(c)(1).

The crucial phrase here is, "might have been corrected if presented during the taking of the

deposition." 134 Ill. 2d R. 211(c)(1). Dr. Benson admitted at the deposition that he was not

currently licensed in medicine. As plaintiff was powerless to remedy Dr. Benson's lack of a medical

license during the deposition, defendant was not required to raise that lack in an objection to Dr.

Benson's opinion.

       Lundell, Banwart, and Bireline do not help plaintiff. In Lundell, the plaintiff sued the

defendant for lower-back injuries that the plaintiff claimed were caused when the defendant's



                                                 -14-
No. 2--05--0619


automobile struck the plaintiff's. At trial, the defendant sought to exclude from evidence the portions

of a chiropractor's deposition testimony in which he opined that the plaintiff's injuries were caused

by a certain type of neck strain. The defendant argued that the chiropractor "lacked a history of the

plaintiff's lower-back problems" and that, therefore, any opinion he rendered about the cause of those

problems was speculative and lacking in foundation. Lundell, 129 Ill. App. 3d at 397. The

reviewing court held that the defendant waived the argument because "objections to deposition

testimony of an expert witness which assumes facts without evidentiary support must be made at the

time the deposition is taken." Lundell, 129 Ill. App. 3d at 398. The reviewing court explained that

"[t]he lack of foundation for [the chiropractor's] testimony was evident at the time of the deposition

and should have been pointed out to afford the plaintiff a chance to remedy the defect." Lundell, 129

Ill. App. 3d at 398.

       In Banwart, the defendant moved to exclude the deposition testimony of a physician who

treated the plaintiff following an accident involving scaffolding owned by the defendant. The

defendant argued that the physician's opinions were based on facts contained in hospital records and

thus were inadmissible as hearsay. Citing Rule 211(c)(1), but providing no discussion, the reviewing

court held that the defendant's hearsay objection was waived for his failure to raise it at trial.

Banwart, 83 Ill. App. 3d at 227-28.

       In Bireline, the defendants objected at trial to leading questions asked by the plaintiff during

his witness's evidence deposition. Citing Rule 211, the reviewing court summarily found the

defendants' objection waived. Bireline, 15 Ill. App. 3d at 371.

       The bases for the objections in Lundell, Banwart, and Bireline differed fundamentally from

the grounds for the objection in the present case. Where a deponent's testimony is based on hearsay



                                                 -15-
No. 2--05--0619


or lacks proper foundation, or where the deponent is asked an improper leading question, the

impropriety may potentially be remedied on the spot. In Lundell, Banwart, and Bireline, defects such

as these were found curable at the depositions. By contrast, Dr. Benson's lack of a medical license

could not be remedied during the deposition. See Schultz v. Richie, 148 Ill. App. 3d 903, 908 (1986)

(objection to "the competency of the deponent and [the] relevancy of the subject matter of the

testimony in whole" was not waived under Rule 211); Peterson v. Henning, 116 Ill. App. 3d 305, 310

(1983) (objection to deponent's expression of an opinion about the veracity of plaintiff's prior

statement to her was not waived, because "[t]he defect of [the witness] interjecting her opinion could

not have been 'corrected' at the time her deposition was taken").

        Next, plaintiff argues that, because Dr. Benson's testimony was the lynchpin of his case,

defendant's motion in limine to exclude that testimony was "essentially equivalent" to a motion for

involuntary dismissal and, therefore, should have been brought before the April 1, 2005, deadline

for motions to dismiss. Plaintiff also complains that the trial court did not give him "an opportunity

to file or otherwise prepare a response" to defendant's motion in limine. The record contains no

indication that plaintiff asked the trial court to deny the motion in limine as untimely or allow him

a response to it. Therefore, plaintiff has not shown us that he properly preserved these arguments

for appellate review. See Morgan v. Richardson, 343 Ill. App. 3d 733, 742 (2003) (failure to object

at trial and to raise the issue in a posttrial motion results in waiver).

        Last, plaintiff argues that, because his complaint stated all the elements of a cause of action

for medical malpractice, the dismissal of his case was a "palpable injustice." In support, plaintiff

cites cases that set forth the elements of medical malpractice. Our concern, however, is not whether

plaintiff's complaint was sufficient, but whether he diligently sought an expert with the proper



                                                  -16-
No. 2--05--0619


credentials. We find that he did not. We conclude, therefore, that the trial court did not abuse its

discretion in denying plaintiff's motion for a continuance.

       For the reasons stated above, we affirm the judgment of the circuit court of Lake County.

       Affirmed.

       McLAREN, J., concurs.

       JUSTICE O'MALLEY, specially concurring:

       The majority states that following our supreme court's decision in Sullivan, as I would do in

this case, is "retrogressive" because Sullivan is not "logical and sound" beyond its particular facts.

Slip op. at 10. Thus, the majority apparently takes a retrogressive view of judicial hierarchy, wherein

the appellate court decides the soundness of a supreme court decision and then decides whether it

should be precedential or limited to its particular facts. If the supreme court's decisions are meant

to be limited to their facts, then it has squandered considerable time and paper detailing the policy

ramifications of rulings that affect only the parties to each case the supreme court reviews, and, if

the supreme court's function is one of error correction confined to a particular case rather than policy

determination to guide lower courts such as ours, then the supreme court's practice of straining

through myriad petitions for leave to appeal to sift out the cases worthy of its review is arbitrarily

cruel. Despite what may the wisdom of the majority's belief that licensure alone should not be

dispositive in determining whether an expert healthcare witness is qualified, I must admit that I lack

the temerity to declare a supreme court decision illogical and unsound and on those grounds decline

to follow it. For the reasons I detail below, I believe our supreme court was clear in stating in

Sullivan that licensure is a " 'foundational requirement[]' " (Sullivan, 209 Ill. 2d at 114, quoting




                                                 -17-
No. 2--05--0619


Jones v. Young, 154 Ill. 2d 39, 43 (1992)) for the admission of expert healthcare testimony, and I

would follow that supreme court precedent in this case.

       Plaintiff challenges the trial court's decision barring Dr. Benson's testimony on the ground

that he lacked a medical license at the time he gave his evidence deposition.

       Our supreme court has developed common-law requirements for the competency of a medical

expert. In Dolan v. Galluzzo, 77 Ill. 2d 279, 285 (1979), the supreme court held:

               "[I]n order to testify as an expert on the standard of care in a given school of

       medicine, the witness must be licensed therein. Once the fact of such license has been

       established, it lies within the sound discretion of the trial court to determine if the witness

       is qualified to testify as an expert regarding the standard of care. [Citation.]"

The supreme court reaffirmed the common-law licensure requirement in Purtill v. Hess, 111 Ill. 2d

229, 243 (1986) ("It must be established that the expert is a licensed member of the school of

medicine about which he proposes to express an opinion"). Recently, in Sullivan, the supreme court

dismissed the notion that its decisions since Dolan and Purtill eroded the requirement "that a health

professional expert witness must always be a licensed member of the school of medicine about

which the expert proposes to testify." Sullivan, 209 Ill. 2d at 114. The plaintiff in Sullivan argued

that the supreme court's prior decision in Jones "retreat[ed] from any rigid, formalistic rule" on

licensure. Sullivan, 209 Ill. 2d at 114. Surveying its past decisions on the qualifications of expert

medical witnesses, the court responded:

               "We cannot accept this argument. Jones clearly reaffirms this court's decision in

       Purtill describing two foundational requirements: that the health-care expert witness must

       be a licensed member of the school of medicine about which the expert proposes to testify;



                                                -18-
No. 2--05--0619


       and that the expert must be familiar with the methods, procedures, and treatments ordinarily

       observed by other health-care providers in either the defendant's community or a similar

       community. *** It is only after determining that both foundational requirements are

       satisfied that the court proceeds to evaluate whether the allegations of negligence concern

       matters within the expert's knowledge and observation." (Emphasis in original.) Sullivan,

       209 Ill. 2d at 114-15.

       Plaintiff cites Witherell v. Weimer, 118 Ill. 2d 321 (1987), a pre-Sullivan medical

malpractice case where the supreme court applied a "prejudice" test to the admission of opinion

testimony from an unlicensed physician. In Witherell, the court wrote:

       "Language in Dolan, which was criticized in a dissenting opinion, suggested *** that an

       expert must actually hold a license in order to testify. (See also Purtill v. Hess (1986), 111

       Ill. 2d 229, 243; cf. Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282.) Whether

       or not a license is in fact required, we are unable to perceive how the fact that [the physician]

       did not hold such a license prejudiced the defendant here." Witherell, 118 Ill. 2d at 334.

       Although Sullivan did not include Witherell in its survey of prior decisions, I consider

Witherell's approach no longer valid after Sullivan. The supreme court in Sullivan reaffirms as

unexceptionable the requirement that a medical expert hold a license in the school of medicine about

which the expert proposes to give opinion testimony. Sullivan forecloses the notion that the

admission of opinion testimony from a witness unlicensed in the relevant school of medicine can be

considered harmless error, as was held in Witherell. Plaintiff, in fact, fully admits that Sullivan

conflicts with Witherell, acknowledging that Sullivan "overlook[s] the commonsensical and

equitable considerations that actuated the [Witherell] court[] to permit medically expert testimony



                                                 -19-
No. 2--05--0619


from unlicensed individuals who were nevertheless astute and competent expert witnesses." Plaintiff

urges us to follow Witherell, but our allegiance should be to Sullivan.

       The majority discounts the above precedent in favor of the statutory factors enumerated in

section 8--2501 of the Code. There is no case from our supreme court employing section 8--2501

to determine whether a witness is a proper medical expert. However, though Dolan, decided in

1979, predated section 8--2501, which was enacted in 1985 (Pub. Act 84--7, eff. August 15, 1985),

the remaining supreme court cases discussed above were decided after the enactment of section 8--

2501. We are not free to depart from an unequivocal holding of our supreme court that licensure in

the relevant school of medicine is an absolute requirement of a medical expert giving opinion

testimony. The majority claims that I "disregard" section 8--2501 (slip op. at 6). To the contrary,

I have duly noted section 8--2501 and its import. However, "[i]t is fundamental to our judicial

system that once our supreme court declares the law on any point, its decision is binding on all

Illinois courts, and we cannot refuse to follow it, because we have no authority to overrule or modify

supreme court decisions" (Du Page County Airport Authority v. Department of Revenue, 358 Ill.

App. 3d 476, 486 (2005)). Thus, I cannot choose whom to follow here. The majority is exactly

wrong when it says that I "inappropriate[ly] *** disregard statutory authority governing the

admission of expert testimony." Slip op. at 6. On the contrary, it is the majority that inappropriately

holds that supreme court precedent is unsound.

       The majority states that I fail to "examine Sullivan in context." Slip op. at 9. It further

claims that my position would inappropriately expand Sullivan beyond its facts in that the witness

in Sullivan "was never licensed in the area [of medicine] in which he was presented to opine" (slip

op. at 9), but Dr. Benson was licensed in this area of medicine up to approximately five months



                                                 -20-
No. 2--05--0619


before he gave his opinion testimony. The majority states that "[t]here is nothing in Sullivan or

common experience that implies or concludes that expertise exists solely and dependently on the

existence of a license and that, upon termination of the license, regardless of cause, the expertise

fades to black and is lost until the license is renewed." Slip. op. at 7. The first clause of this

sentence may accurately state what "common experience" holds, but it does not accurately state what

Sullivan holds. Sullivan holds that a "health-care expert witness must be a licensed member of the

school of medicine about which the expert proposes to testify." Sullivan, 209 Ill. 2d at 114. Thus,

for the supreme court, a witness's competence to testify in a given school of medicine is indeed

dependent on the witness's licensure in that school. As for the second clause of the sentence, I see

no warrant for reading into Sullivan's licensure requirement an exception for a witness who, though

not licensed in the relevant school of medicine when he gives his testimony, had such a license at

some prior time and is otherwise qualified to offer an opinion in light of his skill and knowledge.

The supreme court held in Sullivan that " ' in order to testify as an expert on the standard of care in

a given school of medicine, the witness must be licensed therein.' " (Emphasis added.) Sullivan, 209

Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. If the supreme court did not intend to require that the

licensure be concurrent with the testimony, it would have said that the witness "must be or have been

licensed therein." Regardless of "common experience," Sullivan can be read but one way: the

testimony of a witness cannot be considered competent medical opinion testimony unless the witness

holds a medical license at the time of the testimony.

        In fact, if ever there was a situation in which the supreme court would favor "common

experience" over a per se rule requiring licensure for a medical witness, the particular facts of

Sullivan itself presented it. The proposed witness in Sullivan was a doctor who sought to testify



                                                  -21-
No. 2--05--0619


regarding the standard of care for nurses. "Common experience" tells us that there will be at least

some doctors who have enough experience with the duties of nurses (which would be uncommon

experience for the common person) to opine on the duties of nurses, since "common experience" tells

us that, in no small measure, nurses do what doctors tell them to do. Nevertheless, even under its

particular facts, Sullivan lays out a per se rule that, irrespective of a doctor's experience, including

for example his having been previously licensed as a nurse, the doctor is unqualified to testify

regarding the standard of care for a nurse due to the lack of a current license in that school of

medicine.

       The majority persists that neither "Sullivan nor any other reported case is controlling or

precedential" (slip op. at 9), and in support of this approach the majority cites reflections on the

nature of precedent by federal judges, including no less a figure than Chief Justice Marshall. Slip

op. at 9-10. If we were equals with our supreme court I might consider reading Sullivan as sharply

as these authorities could be construed to warrant, but given our subordinate posture it is best that

we hew to a more narrow path. The supreme court may revise and limit Sullivan if it sees fit to do

so, but we exceed our prerogative in doing the same.

       The majority's approach to precedent is strikingly reminiscent of the view vigorously

advanced by the majority in People v. Luedemann, 357 Ill. App. 3d 411 (2005). The majority in

Luedemann claimed that "every case like this one is sui generis in that no two factual situations are

identical," and so, though "[p]recedent may provide some insight ***, common sense must be our

main guide." (Emphasis added.) Luedemann, 357 Ill. App. 3d at 421. Similarly, the majority states

that "Sullivan is logical and sound only as it applies to the particular facts in Sullivan" (slip op. at

10). Where the majority in Luedemann invoked "common sense" as a guide in determining which



                                                 -22-
No. 2--05--0619


cases were controlling, the majority here invokes "common experience" as the reason Sullivan does

not control. Slip op. at 7.

       In reversing our decision, the supreme court in Luedemann said:

               "The central flaw in the appellate court's opinion was its failure to consider and

       discuss the large body of case law addressing [the relevant issue]. The appellate court freed

       itself from the moorings of precedent by asserting that each of these cases is 'sui generis in

       that no two factual situations are identical' and that, while precedent may provide some

       insight, 'common sense' must be a court's main guide. [Citation.] The court's failure to

       consider the applicable case law resulted in the court's finding a seizure based on factors that

       courts had not previously found to be coercive ***.

               Although it is true that the facts of no two cases are ever exactly the same, that does

       not mean that a court is free simply to ignore an entire body of relevant case law and the

       principles and guidelines articulated therein." (Emphasis added.) People v. Luedemann, 222

       Ill. 2d 530, 551-52 (2006).

       The majority also contends that my position conflicts with Thompson v. Gordon, 221 Ill. 2d

414 (2006). In Thompson, the supreme court held that a witness need not be licensed as an engineer

in order to qualify as an expert on engineering issues. The court applied the general rule that

"[e]xpert testimony *** is admissible 'if the proffered expert is qualified by knowledge, skill,

experience, training, or education, and the testimony will assist the trier of fact in understanding the

evidence.' " Thompson, 221 Ill. 2d at 429, quoting Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). The

court stated that "[w]hile licensing may be a factor to consider in determining whether an engineer

is qualified to testify as an expert witness, this court does not require an engineering license as a



                                                 -23-
No. 2--05--0619


prerequisite to testifying." Thompson, 221 Ill. 2d at 429. The majority contends that Dr. Benson's

qualifications, like those of the witness in Thompson, should be judged by the general principles

governing the admissibility of expert testimony, according to which a witness's licensure in the field

about which he proposes to testify is only a factor in judging his competency as an expert. Slip op.

at 10-11. I cannot follow the majority's recommendation without disregarding Sullivan. The

approach the majority endorses was the very approach urged unsuccessfully by the plaintiff in

Sullivan. The plaintiff asked the supreme court to shun a "rigid, formalistic rule" in judging the

competency of a medical expert and instead hold that the witness's lack of a license in the relevant

school of medicine "should *** [go] only to the weight of his testimony and not its admissibility."

Sullivan, 209 Ill. 2d at 115. Against the plaintiff's urging, the supreme court held that licensure in

the relevant school of medicine is an indispensable requirement for a medical expert. Thus, a

medical witness is subject to a per se rule of licensure in the medical field about which the witness

proposes to give opinions. Accordingly, medical testimony is an exception to the holistic approach

that otherwise governs the admission of expert opinion testimony, including, as Thompson shows,

testimony about the field of engineering.

       I also note that the majority's readings of Sullivan and Thompson cannot be reconciled.

According to the majority, Sullivan at least sets up a per se rule that bars the testimony of "someone

who had never been licensed in the school of medicine at issue." Slip op. at 8. The majority cannot

maintain this interpretation of Sullivan while also believing that the "totality of the circumstances"

approach of Thompson should apply to expert medical testimony, because that holistic approach

does not allow for any per se requirement with respect to licensure.




                                                -24-
No. 2--05--0619


       The majority also relies on an amendment to section 8--2501 to support its position (see slip

op. at 8-9), but I need not dwell long on that topic. The amendment allows medical expert testimony

from retired witnesses who have not engaged in active practice, research, or teaching for up to five

years prior to the testimony. To the extent the amendment overrules any part of Sullivan, it does not

apply here, because Dr. Benson is not a retired expert and did not submit the requisite evidence of

continuing education to be qualified under the amendment.

       Finally, I must note my uncertainty as to why the majority affirms the exclusion of Dr.

Benson's opinion testimony. The majority argues at length that Dr. Benson's testimony could not

properly have been excluded for his lack of a license alone. The majority also derides the idea that

Dr. Benson's lack of licensure affected his expertise. The majority states that it would do "violence

to the concept of memory" to conclude that a lack of licensure, regardless of its cause, affects

expertise. Slip op. at 7. However, when it comes time to consider whether to affirm the trial court's

exclusion of Dr. Benson's testimony, the majority relies on the idea that "the trial court could have

reasonably concluded that Dr. Benson was not qualified to testify as an expert due to the surrender

of his medical license." Slip op. at 12. I am at a loss as to why, under the majority's reasoning,

impugning Dr. Benson's expertise on the ground that his license was withdrawn for personal

problems does not do "violence to the concept of memory" (slip op. at 7) just as much as it would

on the ground of any other loss of license for reasons unrelated to expertise.

       Based on Sullivan's strictures, I would conclude that the trial court did not err in barring the

opinion testimony of Dr. Benson. The supreme court may very well someday revisit its holding in

Sullivan, but it has not done so as of today. It is not our place to concern ourselves with the wisdom




                                                -25-
No. 2--05--0619


of the supreme court's decisions for the purpose of deciding which ones we follow; it is our place

to follow the supreme court's decisions. I would do so in this case.




                                               -26-
