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                               Appellate Court                            Date: 2017.10.17
                                                                          09:24:03 -05'00'




                  Sandler v. Sweet, 2017 IL App (1st) 163313



Appellate Court   PHILIP W. SANDLER, Plaintiff-Appellant, v. JERRY J. SWEET,
Caption           Ph.D., NORTH SHORE MEDICAL GROUP, and NORTH SHORE
                  UNIVERSITY HEALTH SYSTEM, Defendants-Appellees.



District & No.    First District, Sixth Division
                  Docket No. 1-16-3313



Filed             August 4, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 16-L-62008; the
Review            Hon. Roger G. Fein, Judge, presiding.



Judgment          Affirmed.


Counsel on        Ronald L. Bell, of Ronald L. Bell & Associates, P.C., of Libertyville,
Appeal            for appellant.

                  Kevin J. Clancy, Andrea H. Kott, and Joseph E. Comer, of Lowis &
                  Gellen LLP, of Chicago, for appellees.



Panel             PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                  court, with opinion.
                  Justices Rochford and Delort concurred in the judgment and opinion.
                                               OPINION

¶1       The plaintiff, Philip W. Sandler, brought this action against the defendants, Jerry J. Sweet,
     Ph.D., North Shore Medical Group, and North Shore University Health System, alleging
     medical negligence, common law fraud, and breach of fiduciary duty. The circuit court granted
     the defendants’ motion to dismiss, finding that no physician-patient relationship existed and,
     therefore, no duty of care was owed to the plaintiff. The court subsequently denied the
     plaintiff’s motion for leave to file a second amended complaint. For the reasons that follow, we
     affirm.
¶2       The following facts are derived from the various pleadings, which we accept as true in the
     context of a motion to dismiss. See Wackrow v. Niemi, 231 Ill. 2d 418, 420 (2008).
¶3       This case arises directly out of a medical negligence action that the plaintiff filed in the
     circuit court of Cook County (case No. 09 L 08290) against Advocate Good Samaritan
     Hospital (Advocate). In that case, the plaintiff sought damages for a brain injury he allegedly
     sustained after attempting suicide while receiving inpatient psychiatric treatment at Advocate.
     During the course of that litigation, Advocate retained Dr. Sweet, a board certified clinical
     psychologist and neuropsychologist, as a controlled expert under Illinois Supreme Court Rule
     213(f)(3) (eff. Jan. 1, 2007).
¶4       In February 2012, Dr. Sweet conducted a neuropsychological evaluation of the plaintiff to
     determine the nature and extent of his alleged brain injury. Dr. Sweet prepared a written report
     of his findings and opined that the plaintiff did not suffer a brain injury as a result of his suicide
     attempt at Advocate. Two years later, in February 2014, Dr. Sweet issued a supplemental
     report based upon his review of additional medical records. The doctor acknowledged that the
     additional medical records noted “consideration of brain dysfunction in the form of hypoxic
     ischemic encephalopathy,” but stated that his opinion remained the same. Specifically, he
     stated that the plaintiff “does not have a cognitive disability, does not have acquired brain
     dysfunction[,] *** [and] does not show evidence of executive dysfunction.”
¶5       On February 4, 2016, the plaintiff filed the instant action against Dr. Sweet and his
     employers, North Shore Medical Group and North Shore University Health System. The
     plaintiff’s amended complaint sought recovery on theories of medical negligence (count I),
     common law fraud (count II), and breach of fiduciary duty (count III), all of which are based
     exclusively upon Dr. Sweet’s original and supplemental reports provided in conjunction with
     the plaintiff’s underlying litigation against Advocate. The plaintiff alleged that Dr. Sweet
     failed to correctly diagnose his brain injury, which caused him harm because he failed to seek
     “treatment and rehabilitation, which could have enhanced his quality of life.”
¶6       In June 2016, the defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of
     the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)), contending that
     Dr. Sweet enjoys an absolute privilege from civil liability for any statements he made during
     the course of the underlying judicial proceedings. Alternatively, the defendants argued that no
     physician-patient relationship exists between Dr. Sweet and the plaintiff and, therefore, Dr.
     Sweet owed no duty of care to the plaintiff. In support of their motion, the defendants attached
     as Exhibit B, a transcript of Dr. Sweet’s deposition testimony in the underlying case, in which
     he stated that he was retained as an expert witness by counsel for Advocate.



                                                   -2-
¶7         In response, the plaintiff maintained that the doctrine of absolute privilege applies only to
       experts appointed by the court pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28,
       2011), and is limited to statements the expert made while testifying at a deposition or at trial.
       According to the plaintiff, because his claims are based upon statements made in Dr. Sweet’s
       written reports, and because Dr. Sweet authored those reports before Advocate disclosed him
       as a “controlled expert” under Illinois Supreme Court Rule 213(f)(3), Dr. Sweet is not immune
       from civil liability. The plaintiff also disputed the defendants’ assertion that no
       physician-patient relationship existed between himself and Dr. Sweet.
¶8         On August 4, 2016, the circuit court entered a written order, dismissing the plaintiff’s
       amended complaint with prejudice. The court observed that Dr. Sweet was retained by
       Advocate, the plaintiff’s adversary in the underlying medical malpractice case, and his role
       was limited to evaluating the nature and extent of the plaintiff’s alleged brain injury. The court
       further noted that Dr. Sweet was not sought out by the plaintiff or by any other physician caring
       for the plaintiff, did not report to the plaintiff, and was not involved in the plaintiff’s care or
       treatment. The court concluded, therefore, that no physician-patient relationship existed and
       Dr. Sweet owed no duty of care to the plaintiff.1 On September 1, 2016, the plaintiff filed a
       motion for reconsideration and a motion for leave to file a second amended complaint, which
       the circuit court denied. This timely appeal followed.
¶9         A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff’s claim but
       asserts that certain defects or defenses exist outside of the pleadings which defeat the claim.
       Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. In reviewing a section 2-619 motion, the court is
       obligated to construe the pleadings and supporting documents in the light most favorable to the
       nonmoving party, and to accept as true all well-pleaded facts in the plaintiff’s complaint. Bjork
       v. O’Meara, 2013 IL 114044, ¶ 21. We review an order granting a section 2-619 motion
       de novo. Id.
¶ 10       The plaintiff’s first contention on appeal is that the circuit court erred in dismissing count I
       of his amended complaint, which alleged that Dr. Sweet was medically negligent for failing to
       diagnose him with a brain injury. We disagree.
¶ 11       In a negligence action for medical malpractice, the plaintiff’s complaint must allege facts
       that are sufficient to show “the existence of a duty owed by the defendant to the plaintiff, a
       breach of that duty, and an injury proximately caused by that breach.” Kirk v. Michael Reese
       Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987). Whether a duty exists is a question of
       law to be determined by the court. Id. In determining whether a duty exists in a particular case,
       a court will consider “the foreseeability of the plaintiff’s injury, the likelihood of the
       occurrence, the magnitude of the burden of guarding against it, and the consequences of
       placing that burden on the defendant.” Doe v. McKay, 183 Ill. 2d 272, 278 (1998). Our
       supreme court has stated that a physician’s duty is limited to situations in which a direct
       physician-patient relationship exists or there is a special relationship between the patient and
       the plaintiff. Id. at 279 (citing Kirk, 117 Ill. 2d at 529-32).


           1
             Although the circuit court agreed with the defendants’ assertion that Dr. Sweet’s
       neuropsychological examination of the plaintiff was conducted “during judicial proceedings,” the court
       nevertheless stated that it was not granting the defendants’ motion to dismiss on the basis of absolute
       privilege.

                                                      -3-
¶ 12        In this case, the major point of contention on the plaintiff’s medical negligence claim is
       whether Dr. Sweet, an expert witness retained by the plaintiff’s adversary in pending litigation,
       owed a legal duty to the plaintiff. In resolving the question of duty, we consider the readily
       analogous cases of Cook v. Optimum/Ideal Managers Inc., 130 Ill. App. 3d 180 (1984), and
       In re Detention of Duke, 2013 IL App (1st) 121722.
¶ 13        In Cook, 130 Ill. App. 3d at 182, the plaintiff, a claimant in a workers’ compensation case,
       was examined by a physician retained by his employer. When the physician refused to furnish
       the plaintiff with a report of the medical examination, the plaintiff filed suit, alleging that the
       withholding of the report damaged him because his treating physicians did not have access to
       it. Id. at 187-88. On appeal, the court held that the physician did not owe a duty of care to the
       plaintiff, including a duty to disclose medical information. Id. at 189. The court explained that
       the physician did not agree to see the plaintiff for purposes of care and treatment, but rather for
       purposes of an examination on behalf of the plaintiff’s adversary in pending litigation. The
       court further noted that the plaintiff had other treating physicians and determined the
       foreseeability and likelihood of injury resulting from withholding the examination report was
       “insubstantial.” Id. Although the magnitude of the burden in guarding against such injury was
       “slight,” the court nonetheless concluded that a duty of care should not be recognized under
       these circumstances. Id. at 189-90.
¶ 14        In Duke, 2013 IL App (1st) 121722, ¶¶ 1, 7, the plaintiff filed a medical negligence
       counterclaim against a court-appointed forensic psychiatrist, alleging that she improperly
       diagnosed and treated him as a sexual sadist. Affirming the dismissal of the plaintiff’s medical
       negligence counterclaim, the appellate court held that no physician-patient relationship existed
       between the plaintiff and the forensic psychiatrist. We reasoned that:
                 “The relationship between Dr. Buck and plaintiff is not a therapeutic relationship.
                 Rather, Dr. Buck is a medical expert for the State, a forensic psychiatrist who
                 interviewed plaintiff for purposes of the petition under the [Sexually Violent Persons
                 Commitment] Act. During oral argument, it was elicited from plaintiff’s counsel that
                 Dr. Buck is not a treating doctor for plaintiff. Plaintiff also admits this in his notice of
                 appeal ***. Without such a therapeutic relationship, Dr. Buck has no duty of care to
                 plaintiff; she is an expert for the State without a duty to plaintiff and plaintiff’s
                 counterclaim was properly dismissed.” Id. ¶ 19.
¶ 15        Similarly here, it is clear from the pleadings that the plaintiff was not Dr. Sweet’s patient.
       As the circuit court correctly noted, Dr. Sweet was not sought out by the plaintiff or by any
       other physician caring for the plaintiff, did not report to the plaintiff, and was not involved in
       the plaintiff’s care or treatment. Rather, Dr. Sweet was retained as an expert witness by
       Advocate, the plaintiff’s adversary in pending litigation, and his role was limited to evaluating
       the nature and extent of the plaintiff’s alleged brain injury. Although Dr. Sweet may have
       employed medical techniques in examining the plaintiff, it is plain that no medical treatment
       was intended or in fact provided. The neuropsychological exam was conducted simply as a
       disclosure device in litigation and, indeed, one whose benefit inured not to the plaintiff but to
       the plaintiff’s adversary. Because physicians conducting medical examinations at the request
       of third parties assume a fundamentally different role from treating physicians (see Johnston v.
       Weil, 396 Ill. App. 3d 781, 787 (2009)), no physician-patient relationship exists between Dr.
       Sweet and the plaintiff and, therefore, Dr. Sweet owed no duty of care to the plaintiff.


                                                     -4-
¶ 16       In so holding, we decline the plaintiff’s invitation to follow case law from other
       jurisdictions, which recognize that a “limited physician-patient relationship” exists where a
       physician performs an independent medical examination at the request of a third party. See
       Ritchie v. Krasner, 211 P.3d 1272, 1280 (Ariz. Ct. App. 2009); Greenberg v. Perkins, 845 P.2d
       530, 533 (Colo. 1993) (en banc) (a physician conducting an independent medical examination
       has a duty to perform the examination in a manner that does not cause physical harm to the
       examinee).
¶ 17       As discussed above, the Illinois Supreme Court has clearly stated that a plaintiff cannot
       maintain a medical negligence cause of action absent a direct physician-patient relationship
       with the defendant unless a special relationship exists between a patient and the plaintiff. Kirk,
       117 Ill. 2d at 531; Doe, 183 Ill. 2d at 279. Indeed, our supreme court reaffirmed the
       “long-established principles in Kirk and Doe” and declined to expand the scope of the
       physician-patient relationship to nonpatient third parties. See Tedrick v. Community Resource
       Center, Inc., 235 Ill. 2d 155, 172 (2009). Given the Illinois Supreme Court’s reluctance to
       expand the scope of physician-patient relationship to nonpatient third parties, we similarly
       decline the plaintiff’s invitation to recognize a “limited physician-patient relationship” in this
       case.
¶ 18       We note that this conclusion is in accord with the majority of other courts that have
       considered this issue and held that an independent medical examination performed at the
       behest of a third party does not give rise to a physician-patient relationship or to medical
       malpractice liability. See, e.g., Smith v. Radecki, 238 P.3d 111, 117 (Alaska 2010) (citing cases
       and concluding that the vast majority of courts have not found a duty); Felton v. Schaeffer, 279
       Cal. Rptr. 713, 716-17 (Ct. App. 1991) (citing cases); Martinez v. Lewis, 969 P.2d 213, 219-20
       (Colo. 1998) (en banc) (citing cases).
¶ 19       In further support of his argument that Dr. Sweet owed him a duty of care, the plaintiff cites
       to the American Medical Association’s Code of Ethics as well as journal articles authored by
       Dr. Sweet in which he purportedly concedes that a psychiatrist owes a duty of care when
       performing a psychological exam as a retained expert. We are not persuaded. The
       determination of whether Dr. Sweet owed a duty of care to the plaintiff is a question of law, not
       a question of medical ethics. Moreover, the plaintiff’s reliance on Dr. Sweet’s opinions about
       duty of care—as expressed in his journal articles—transcends the bounds of his competence
       and intrudes on the exclusive province of the court. See Reynolds v. Decatur Memorial
       Hospital, 277 Ill. App. 3d 80, 86 (1996) (“Plaintiffs may not, in the guise of offering expert
       medical opinion, arrogate to themselves a judicial function and obviate a ruling on the
       existence of or extent of a legal duty which might be owed by a physician to a patient.”). As a
       consequence, the secondary sources cited by the plaintiff are not dispositive of this case.
¶ 20       In sum, we conclude that no physician-patient relationship exists, and thus, no duty of care
       could have extended from Dr. Sweet to the plaintiff. As a consequence, the circuit court
       properly dismissed count I of the amended complaint alleging medical negligence against Dr.
       Sweet.
¶ 21       We next consider the plaintiff’s argument that the circuit court erred in dismissing his
       breach of fiduciary duty claim as pled in count III of his amended complaint. In response, the
       defendants maintain that the plaintiff’s claim was properly dismissed because it is duplicative
       of his medical negligence claim. We agree with the defendants.


                                                   -5-
¶ 22        In Neade v. Portes, 193 Ill. 2d 433, 444-45 (2000), our supreme court stated that the
       elements of breach of fiduciary duty overlap with those of medical negligence to such an extent
       that the former claim would “boil down” to the latter in any case arising out of the same
       operative facts. Because the elements are closely related, the court held that, if both claims are
       derived from the same operative facts and result in the same injury, the breach of fiduciary duty
       claim should be dismissed as duplicative. Id.
¶ 23        In this case, the operative facts of both the plaintiff’s medical negligence claim and his
       breach of fiduciary duty claim are based exclusively upon statements made in Dr. Sweet’s
       original and supplemental reports. Both claims allege that Dr. Sweet failed to correctly
       diagnose the plaintiff’s brain injury and that the plaintiff was harmed because he failed to seek
       “treatment and rehabilitation, which could have enhanced his quality of life.” Distilled to their
       essence, both counts are based upon the same operative facts and the breach of fiduciary duty
       claim alleges no facts and no injury beyond those alleged in the medical negligence claim.
       Accordingly, the plaintiff’s breach of fiduciary duty claim is duplicative of his medical
       negligence claim and was properly dismissed by the circuit court.
¶ 24        Lastly, the plaintiff argues that the circuit court erred by dismissing count II of his amended
       complaint, which alleged common law fraud.
¶ 25        Before proceeding to the merits, we note that the circuit court dismissed the plaintiff’s
       amended complaint based upon its finding that Dr. Sweet owed no duty of care to the plaintiff.
       While this may have been a proper basis to dismiss the medical negligence and breach of
       fiduciary duty claims, it was not a proper basis to dismiss the plaintiff’s common law fraud
       claim, since duty of care is not an element of the cause of action. See Connick v. Suzuki Motor
       Co., 174 Ill. 2d 482, 496 (1996) (setting forth the five elements of common law fraud).
       Nevertheless, because our review is de novo, we may affirm the circuit court’s judgment on
       any basis in the record, regardless of the circuit court’s reasoning. Beacham v. Walker, 231 Ill.
       2d 51, 60-61 (2008). We, therefore, address the parties’ disagreement as to whether Dr. Sweet
       is immune from civil liability.
¶ 26        As a general rule, witnesses enjoy an absolute privilege from civil suit for statements made
       during judicial proceedings. Ritchey v. Maksin, 71 Ill. 2d 470, 476 (1978). The purpose of the
       rule is to preserve the integrity of the judicial process by encouraging full and frank testimony.
       Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 969 (1991). In Jurgensen v.
       Haslinger, 295 Ill. App. 3d 139, 141-42 (1998), the court explained:
                    “The doctrine of absolute privilege rests upon the idea that conduct that otherwise
                would be actionable is permitted to escape liability because the defendant is acting in
                furtherance of some interest of social importance, which is entitled to protection even
                at the expense of uncompensated harm to an injured party. [Citation.] Absolute
                privilege provides complete immunity from civil action, even though the statements
                are made with malice, because public policy favors the free and unhindered flow of
                information. [Citations.] In the absence of such a privilege, a witness might be reluctant
                to come forward to testify, or, once on the stand, the witness’s testimony might be
                distorted by the fear of subsequent liability. [Citation.]”
       Not all statements, however, are encompassed by the doctrine of absolute privilege. Rather,
       only statements that are “pertinent and material to the matter in controversy” are entitled to
       absolute privilege. Spaids v. Barrett, 57 Ill. 289, 291 (1870); Macie v. Clark Equipment Co., 8
       Ill. App. 3d 613, 615 (1972).

                                                    -6-
¶ 27        In this case, the plaintiff contends that his claims are premised on the reports that Dr. Sweet
       prepared prior to his testimony and, as a consequence, the statements were not made in a
       “judicial proceeding.” He also argues, as he did before the circuit court, that the doctrine of
       absolute privilege is limited to “court appointed or court mandated” experts and that Dr. Sweet
       was not a court-appointed expert at the time he authored the reports. We find that none of these
       arguments have merit.
¶ 28        To begin with, courts in Illinois recognize that the doctrine of absolute privilege is not
       limited to what a witness may say under oath while on the witness stand. McNall v. Frus, 336
       Ill. App. 3d 904, 907 (2002) (stating that “nontestimonial acts performed outside the
       courtroom have been protected in Illinois”). The privilege has been extended to statements
       made prior to initiation of judicial proceedings (Parrillo, Weiss & Moss v. Cashion, 181 Ill.
       App. 3d 920 (1989)), to out-of-court communications between attorney and client related to
       pending litigation (Weiler v. Stern, 67 Ill. App. 3d 179 (1978)), and to postlitigation statements
       an attorney made to a client (Golden v. Mullen, 295 Ill. App. 3d 865, 870-71 (1997)).
¶ 29        In our view, absolute privilege must extend to reports prepared by an expert witness that
       form the basis of the witness’s testimony. If we held otherwise, the policies underlying such
       immunity would be undermined. Indeed, an expert’s courtroom testimony is the last act in a
       long, complex process of evaluation and consultation with the litigant. There is no way to
       distinguish the testimony from the acts and communications on which it is based. See Kahn v.
       Burman, 673 F. Supp. 210, 212 (E.D. Mich. 1987) (“Physicians’ reports are so inextricably
       intertwined with medical malpractice actions that it would be illogical to hold that such reports
       are not ‘relevant’ to the underlying judicial proceedings.”). Unless the whole, integral
       enterprise falls within the scope of immunity, the chilling effect of threatened litigation will
       result in the adverse effects described above, regardless of the immunity shielding the
       courtroom testimony. As a consequence, the absolute privilege of an expert witness extends
       not only to his or her testimony, but also to acts and communications that occur in connection
       with the preparation of that testimony. Any other rule would be unrealistically narrow, would
       not reflect the realities of litigation, and would undermine the gains in forthrightness on which
       the rule of absolute privilege rests.
¶ 30        The plaintiff also asserts that “[i]t is abundantly clear only court appointed or court
       mandated experts in Illinois enjoy absolute immunity.” He cites Davidson v. Gurewitz, 2015
       IL App (2d) 150171, in support of his contention. Davidson, however, does not stand for such
       a proposition. In fact, the court in Davidson found that the defendant, an attorney, was
       absolutely immune from liability related to his services as a child representative in a child
       custody proceeding. Id. ¶¶ 10, 16. Nowhere in Davidson did the court state that absolute
       immunity was limited to “court appointed” or “court mandated” experts.
¶ 31        In any case, we find the decision in McNall, 336 Ill. App. 3d at 906-07, to be instructive. In
       that case, the plaintiff filed a negligence action against the defendant, an expert witness, who
       testified in a child custody proceeding that the plaintiff suffered from alcoholism and was a
       neglectful parent. Id. at 905. On appeal, the court held that the defendant was immune from
       civil liability on grounds of absolute privilege. Id. at 906-07. In so holding, the court rejected
       the plaintiff’s assertion that an exception should be made for experts retained by an adverse
       party pursuant to Rule 213. The court noted that the doctrine of absolute privilege is broad in
       scope, that the doctrine has been “liberally protected” by Illinois courts, and that an
       expert-witness exception to the doctrine would require the court to “break with Illinois

                                                    -7-
       precedent *** [and] go beyond the most far-reaching precedents in any jurisdiction.” Id. at
       907.
¶ 32       We agree with the decision in McNall and see no reason to depart from its holding. The fact
       that Dr. Sweet was retained by an adverse party, as opposed to being appointed by the court,
       should not deprive him of immunity. Under either circumstance, the fact remains that Dr.
       Sweet is a participant in a judicial proceeding, and it is that status on which absolute privilege
       rests. See Briscoe v. LaHue, 460 U.S. 325, 334 (1983) (the purpose of granting absolute
       privilege to participants in judicial proceedings is to preserve and enhance the judicial
       process). In this light, it is immaterial that an expert witness is retained by a party rather than
       appointed by the court. The basic policy of ensuring frank and objective testimony should
       prevail regardless of how the witness comes to court.2
¶ 33       In this case, the only wrongful conduct alleged in the plaintiff’s amended complaint arose
       out of Dr. Sweet’s written reports, in which he opined that the plaintiff did not suffer a brain
       injury. Because the reports were prepared during the course of the plaintiff’s underlying
       medical malpractice case against Advocate, and since there is no dispute that the statements
       contained in the reports were pertinent and material to the underlying judicial proceeding, such
       statements are absolutely privileged. We conclude, therefore, that Dr. Sweet is immune from
       civil suit based upon the statements made in the written reports prepared during the judicial
       proceedings and the circuit court did not err in dismissing the plaintiff’s common law fraud
       claim.
¶ 34       Having found that the circuit court did not err in dismissing the plaintiff’s medical
       negligence, breach of fiduciary duty, and common law fraud claims against Dr. Sweet, we also
       affirm that portion of the court’s order dismissing the same three claims against North Shore
       Medical Group and North Shore University Health System, since those claims are derivative
       and necessarily dependent upon the claims against Dr. Sweet. See Kirk, 117 Ill. 2d at 533.
¶ 35       Finally, the plaintiff argues that the circuit court abused its discretion when it denied him
       leave to file a second amended complaint. In his proposed pleading, the plaintiff seeks to delete
       the allegation that Dr. Sweet was retained as a controlled expert witness under Rule 213(f)(3).
¶ 36       A circuit court has broad discretion in determining whether to allow an amendment to a
       complaint, and its ruling on the matter will not be disturbed on review absent an abuse of that
       discretion. Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 69. This court applies
       four factors in determining whether the circuit court abused its discretion in denying a party’s
       motion to amend, namely, (1) whether the proposed amendment would cure the defective
       pleading, (2) whether the other parties would sustain prejudice or surprise by virtue of the
       proposed amendment, (3) whether the proposed amendment is timely, and (4) whether the
       moving party had previous opportunities to amend. Id. In this case, our focus is upon the first
       factor.

           2
             The plaintiff devotes a significant portion of his brief to Dr. Sweet’s status at the time he authored
       his reports. While his amended complaint plainly states that Dr. Sweet was retained as a “controlled
       expert witness,” the plaintiff now maintains that Dr. Sweet was merely a “consultant” or “independent
       medical examiner.” These distinctions are irrelevant. Witness immunity exists in order to halt the
       chilling effect of the threat of subsequent litigation. The threat of subsequent litigation is the same
       regardless of whether Dr. Sweet was appointed by the court, retained by the plaintiff’s opponent, or
       whether he served as a “controlled expert,” “independent medical examiner,” or “consultant.”

                                                        -8-
¶ 37       Here, the plaintiff’s proposed amendment does not cure the defect in his pleading. In
       support of their section 2-619 motion to dismiss, the defendants attached a transcript of Dr.
       Sweet’s deposition testimony in which he stated that he was retained as an expert witness by
       Advocate. The plaintiff’s proposed amendment, seeking to remove the allegation that Dr.
       Sweet was retained as a controlled expert witness, cures nothing. Because the plaintiff’s
       proposed amendment adds no facts that would cure defects in the pleading, we cannot say that
       the circuit court abused its discretion in denying the plaintiff’s motion for leave to file a second
       amended complaint. See McNall, 336 Ill. App. 3d at 907-08 (circuit court did not abuse its
       discretion where the proposed amendment simply restated the allegations in the original
       complaint).
¶ 38       For the foregoing reasons, we affirm the judgment of the circuit court, which dismissed the
       plaintiff’s amended complaint with prejudice and denied his motion to file a second amended
       complaint.

¶ 39      Affirmed.




                                                    -9-
