                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Smith v. Murphy, 2013 IL App (1st) 121839




Appellate Court            BOZENA SMITH, Plaintiff-Appellant, v. BRIAN MURPHY, M.D. and
Caption                    JAMES McFADDEN, M.D. Defendants-Appellees.



District & No.             First District, Second Division
                           Docket No. 1-12-1839


Filed                      July 16, 2013


Held                       The trial court did not abuse its discretion and properly followed its prior
(Note: This syllabus       orders, the discovery rules and the standards of the Illinois Supreme
constitutes no part of     Court when it refused to admit the affidavit of plaintiff’s previously
the opinion of the court   undisclosed expert which plaintiff attached to her response to defendants’
but has been prepared      motion for summary judgment in her medical malpractice action, and the
by the Reporter of         judgment entered for defendants was affirmed.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-L-007113; the
Review                     Hon. Brigid Mary McGrath, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Dean J. Caras, P.C., of Chicago (Tara C. Meadows, of counsel), for
Appeal                       appellant.

                             Lowis & Gellen, LLP, of Chicago (Deborah M.R. O’Brien, Michael A.
                             Code, and Brad E. Wolven, of counsel), for appellees.



Panel                        JUSTICE QUINN delivered the judgment of the court, with opinion.
                             Justices Connors and Fitzgerald-Smith* concurred in the judgment and
                             opinion.




                                                OPINION

¶1                                       I. INTRODUCTION
¶2          Plaintiff appeals the entry of judgment in favor of the defendants claiming the trial court
        abused its discretion when, as a sanction for plaintiff’s violation of discovery rules and court
        orders entered regarding discovery, it did not allow plaintiff to utilize an affidavit of a new,
        undisclosed expert well after discovery closed and the case was set for trial. Plaintiff never
        sought an extension of discovery and only submitted her undisclosed expert’s affidavit in
        response to defendants’ timely motion for summary judgment and without leave of court. For
        the reasons that follow, we hold that the trial court did not abuse its discretion and affirm the
        entry of judgment in favor of defendants.

¶3                                        II. BACKGROUND
¶4          In 2007, plaintiff, Bozena Smith, filed a medical professional negligence complaint
        concerning the 2006 postsurgical treatment she received. Plaintiff named the two doctors,
        Drs. Murphy and McFadden, who are the defendants-appellees and were employed as
        residents back in 2006, as well as two other doctors.
¶5          After all fact discovery was completed by the parties, the trial court entered the deadline
        of September 13, 2010 for plaintiff to disclose any experts pursuant to Rule 213(f)(3). Ill. S.
        Ct. R. 213(f)(3) (eff. Jan, 1, 2007). Plaintiff disclosed one expert she had hired to render an

                *This decision was initially issued as an unpublished order on May 28, 2013, with Justice
        John Simon as a concurring judge. That unpublished order was withdrawn by the court and Justice
        Simon recused himself. Justice Fitzgerald-Smith has reviewed the briefs, the record, the petition for
        rehearing and the motion to publish.
                                                    -2-
       opinion in this case, Dr. Robert Henry Quinn.1 Plaintiff stated she expected that Dr. Quinn,
       in part, would provide an expert opinion that both residents deviated from the standard of
       care in treating the plaintiff.
¶6          On November 8, 2010, plaintiff presented Dr. Quinn to opposing parties for deposition
       testimony at which time Dr. Quinn withdrew all adverse opinions he previously rendered
       against the residents and testified that he now held no opinions that implicated the residents
       in any substandard medical care of the plaintiff. Specifically, plaintiff’s expert testified, as
       follows: “[I]t’s my opinion that residents in training should not be held accountable for these
       kinds of decisions, and, ultimately, actions of a resident *** are the responsibility of the
       attending physician. *** I would like to scratch the two paragraphs [in my report] that
       implicate the residents.” Dr. Quinn was then asked if it was fair to say that he had no
       criticisms of the residents. He testified that statement was true. To completely clarify
       plaintiff’s expert’s withdrawal of his written report on the residents’ professional conduct,
       Dr. Quinn testified that it was fair to say that he held “no opinions that any of the residents
       involved in Ms. Smith’s care deviated from the standard of care.”
¶7          Plaintiff had numerous opportunities to bring the issue of her only expert, Dr. Quinn, and
       his deposition testimony to the trial court’s attention, with the first opportunity coming nine
       days after Dr. Quinn’s deposition testimony. Plaintiff was silent on the issue and the court
       issued its order setting a January 14, 2011 deadline for defendants to disclose their experts
       in rebuttal to the opinions held by plaintiff’s only expert, Dr. Quinn. Defendants complied
       with this deadline.
¶8          On May 2, 2011, the trial court ordered all discovery closed on May 19, 2011. A final
       case management conference was held on May 24, 2011 at which time the trial court and the
       parties agreed upon a jury trial date of October 17, 2011. The trial court emphasized in that
       order that all discovery was closed as of the date of its order entered May 24, 2011.
¶9          Defendants filed timely motions for summary judgment on August 9, 2011. Between the
       November 8, 2010 deposition testimony of plaintiff’s expert, Dr. Quinn, and the August 9,
       2011 filing date of defendants’ motions for summary judgment, there is no evidence in the
       record that plaintiff brought Dr. Quinn’s withdrawal of his opinion that the two residents
       provided any substandard care to the court’s attention.
¶ 10        On August 23, 2011, the trial court issued an order requiring plaintiff to respond to the
       defendants’ motions for summary judgment by October 14, 2011, and struck the upcoming
       October 17, 2011 trial date. On October 12, 2011, plaintiff filed her response to defendants’
       motion for summary judgment, in part, by attaching an unsigned, proposed affidavit of a
       previously undisclosed retained expert, Dr. Salem El-Attrache. Plaintiff filed this affidavit,
       as well as a pleading entitled “Plaintiff’s Supplemental Answers to Rule 213(f)(3)
       Interrogatories” without leave of court and well outside the discovery cutoff date of May 24,
       2011. That same day plaintiff filed a motion requesting time to file a signed affidavit of Dr.
       Salem El-Attrache. The trial court ordered a briefing schedule on this motion. Defendants


               1
               The author of this opinion, Justice Patrick J. Quinn, is not related to plaintiff’s expert, Dr.
       Robert Quinn.

                                                    -3-
       opposed the untimely disclosure of a completely new expert by plaintiff at this stage of the
       litigation.
¶ 11        A hearing was held on the issue of plaintiff’s untimely disclosure of a new expert on
       February 17, 2012. The trial court ruled as follows:
            “[S]ince the affiant would not be entitled to testify at trial, [the court] can’t consider the
            affiant’s affidavit for purposes of a motion for summary judgment. *** [Plaintiff] waited
            until the motion was filed, until the conclusion of expert discovery, until Defendants
            ha[d] already incurred the cost of an expert witness and presented them for deposition.
            [Plaintiff] waited until that point to *** backdoor a reopening of discovery which ***
            is too late at this juncture. *** We were set to go to trial. Discovery was closed. *** [I]f
            [plaintiff] had stated ...we need an extension of time to disclose an additional witness,
            that’s an issue we could have taken up [right after Dr. Quinn’s deposition] but we didn’t.
            Instead, no objection was raised. *** [I]t would be awfully prejudicial at this juncture to
            say okay, [plaintiff] get[s] this new expert [that plaintiff] can use at trial and [plaintiff]
            can change now the facts of the case and [plaintiff] can supplement [her] 213s. I think
            its prejudicial and untimely.”
¶ 12        Having barred plaintiff’s expert’s opinion from consideration in the case, the court
       proceeded with the defendants’ motions for summary judgment. On May 23, 2012, the trial
       court granted defendants’ motions for summary judgment. On June 12, 2012, the trial court
       made the ruling final pursuant to Rule 304(a). Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).
       Plaintiff filed a timely notice of appeal on June 26, 2012.

¶ 13                                      III. ANALYSIS
¶ 14                                   A. Standard of Review
¶ 15       On appeal, plaintiff argues that the trial court erred when it barred the affidavit of her
       previously undisclosed expert witness. The decision whether or not to impose sanctions for
       a party’s failure to comply with the rules or court orders on discovery lies within the sound
       discretion of the trial court. The trial court’s imposition of sanctions will not be reversed
       absent an abuse of discretion. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110 (2004).
       Plaintiff relies on Jackson v. Graham, 323 Ill. App. 3d 766, 773 (2001), when she argues that
       this court should apply the de novo standard of review because her affidavit of an
       undisclosed expert was attached to her response to defendants’ motion for summary
       judgment. This court will follow the Sullivan standard of review. However, we would still
       affirm the trial court’s imposition of the discovery sanction under a de novo review of its
       decision.

¶ 16                    B. Illinois Supreme Court Rules on Discovery
¶ 17      Supreme Court Rule 213(f) requires a party answering an interrogatory to disclose,
       among other things, the following information:
             “Upon written interrogatory, a party must furnish the identities and addresses of
          witnesses who will testify at trial and must provide the following information:


                                                  -4-
                                                    ***
                 Controlled Expert Witnesses. A ‘controlled expert witness’ is a person giving expert
            testimony who is the party, *** or the party’s retained expert. For each controlled expert
            witness, the party must identify: (i) the subject matter on which the witness will testify;
            (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the
            qualifications of the witness; and (iv) any reports prepared by the witness about the case.”
            Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007).
¶ 18        Supreme Court Rule 213(d) requires a party to answer or object to an interrogatory within
       28 days after service of the interrogatory. Ill. S. Ct. R. 213(d) (eff. Jan. 1, 2007).
       Additionally, pursuant to Rule 213(i), each party has a duty to “seasonally supplement or
       amend any prior answer or response whenever new or additional information subsequently
       becomes known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007).
¶ 19        All Rule 213 disclosure requirements are mandatory and subject to strict compliance by
       the parties. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004); Zickuhr v. Ericsson,
       Inc., 2011 IL App (1st) 103430, ¶ 79. Our supreme court has stated that “[t]o allow either
       side to ignore Rule 213’s plain language defeats its purpose and encourages tactical
       gamesmanship.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109-10 (2004). The Sullivan
       court also explained that the procedures for disclosure now contained in Rule 213 establish
       more exacting, precise standards than the predecessor Rule 220, which formerly governed
       the expert witnesses’ disclosure requirements. Id. at 110. The Sullivan court further advised
       that the trial courts should be more reluctant under Rule 213 than they were under former
       Rule 220 “(1) to permit the parties to deviate from the strict disclosure requirements, or (2)
       not to impose severe sanctions when such deviations occur.” Id. The main reason for the
       amendment to expert discovery duties now contained in Rule 213 was to require stricter
       adherence to disclosure requirements. Department of Transportation v. Crull, 294 Ill. App.
       3d 531, 538-39 (1998).
¶ 20        The plaintiff disclosed her new expert, Dr. Salem El-Attrache, for the first time on
       October 14, 2011, almost a year after plaintiff’s own expert, Dr. Quinn, exonerated the two
       defendants and testified that they were not guilty of medical professional negligence and
       almost five months after discovery closed. Plaintiff’s disclosure violated Rule 213(f) because
       plaintiff failed to disclose this expert witness within 28 days after being served with
       defendants’ interrogatories. Plaintiff never sought leave of court to extend her time for
       answering defendants’ interrogatories when alerted to her own expert’s testimony at his
       deposition on November 8, 2010, when Dr. Quinn absolved the two doctors’ professional
       actions.
¶ 21        The Committee Comments to Rule 213(i) state that the definition of “seasonally
       supplement” varies with the facts of the case and with the type of case, but in no event should
       it allow a party to fail to comply with the spirit of the rule by either negligent or willful
       noncompliance. Ill. S. Ct. R. 213(i), Committee Comments (revised June 1, 1995).
¶ 22        In addition to the trial court’s order establishing a discovery cutoff date of May 24, 2011,
       Rule 218(c) provides that all discovery must be completed no later than 60 days before the
       trial date, which in this case was previously set for October 17, 2011. Ill. S. Ct. R. 218(c)


                                                 -5-
       (eff. Oct. 4, 2002). The belated disclosure attempt by plaintiff came on October 14, 2011.

¶ 23                     C. Sanctions for Failure to Comply With Discovery
¶ 24       As a sanction for plaintiff’s use of an undisclosed expert witness’s affidavit in response
       to defendants’ motion for summary judgment, the trial court did not allow plaintiff to use this
       untimely evidence to attempt to defeat the motion. Rule 219 empowers a trial court to impose
       appropriate sanctions, including barring a witness from testifying, for a party’s failure to
       comply with the rules or court orders regarding discovery. Ill. S. Ct. R. 219(c) (eff. July 1,
       2002). The decision whether or not to impose sanctions lies within the sound discretion of
       the trial court and the trial court’s decision will not be reversed absent an abuse of discretion.
       Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110 (2004).
¶ 25       In determining whether exclusion of a witness’s testimony in court or by affidavit is an
       appropriate sanction for nondisclosure, this court examines the following factors: (1) the
       surprise to the adverse party; (2) the prejudicial effect of the witness’s testimony; (3) the
       nature of the testimony; (4) the diligence of the adverse party; (5) the timeliness of the
       objection to the witness’s testimony; and (6) the good faith of the party seeking to offer the
       testimony. Id.
¶ 26       The first factor is met as the defendants were first informed of this previously
       undisclosed plaintiff’s expert witness when plaintiff attached the expert’s affidavit to
       plaintiff’s response to defendants’ motion for summary judgment well after discovery had
       closed and the case was set for trial. Therefore, we agree that defendants were clearly
       surprised when plaintiff disclosed this new expert for the first time in this manner, months
       after discovery was closed by court order, and just four days before the previously agreed-
       upon trial date which dictated when a timely summary judgment motion could be filed.
¶ 27       With regard to the second and third factors, the disclosure of a new expert would be
       prejudicial to defendants’ case because it would be unlikely that the defendants would be
       able to depose the new expert and retain their own expert to rebut the plaintiff’s new expert
       so close to trial. It would require starting expert discovery all over again for a case that was
       filed in 2007.
¶ 28       Regarding the fourth factor, the record reflects that defendants were diligent in their
       discovery obligations to both the plaintiff and the court and immediately brought any minor
       difficulties to their attention, such as their expert’s illness when his deposition was first
       scheduled.
¶ 29       Regarding the fifth factor, defendants’ objections to plaintiff’s attempt to use this new
       expert were immediate and without delay. Regarding the sixth factor, the trial court felt that
       the manner in which plaintiff revealed this new, previously undisclosed expert indicated that
       she was attempting to “backdoor a reopening of discovery.” Based on the record before us,
       coupled with the comments made by the trial court during its ruling on the matter, we are
       unable to find any evidence that plaintiff’s untimely disclosure of a new expert was in good
       faith. Plaintiff proffered no reason why she never sought an extension of time to name a new
       expert immediately after Dr. Quinn’s deposition or why her disclosure of Dr. El-Attrache as
       a new expert was so untimely.

                                                  -6-
¶ 30       The trial court appropriately weighed all the factors when issuing its decision to bar the
       testimony of plaintiff’s expert witness. Therefore, the trial court did not abuse its discretion.

¶ 31                    D. Improper Use of an Undisclosed Expert’s Affidavit
¶ 32        Plaintiff, while tacitly admitting that the disclosure of her new expert was both untimely
       and occurred after the court-ordered discovery cutoff date and only in response to
       defendants’ motion for summary judgment, still argues that the affidavit of the new expert
       should be allowed to defeat the motion for summary judgment because section 2-1005 of the
       Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2010)), governing summary
       judgment, allows a party to file affidavits in opposition to such motions. Defendants respond
       that section 2-1005(e) provides that “[t]he form and contents of and procedure relating to
       affidavits under this Section shall be as provided by Rule.” 735 ILCS 5/2-1005(e) (West
       2010). Plaintiff argues that the procedure which allows for affidavits to defend against entry
       of summary judgment trumps any discovery sanctions imposed by a trial court on an
       offending party. We disagree. If we were to accept plaintiff’s argument that there are no
       circumstances where a trial court can strike an undisclosed expert’s affidavit attached to a
       party’s response to their adversary’s motion for summary judgment, plaintiff may defeat the
       motion but would ultimately find herself in the same position she is in now.
¶ 33        If the affidavit were procedurally allowed to defeat summary judgment, plaintiff would
       still be without trial testimony from an expert witness to prove her medical malpractice
       action against these two doctors. The court’s discovery sanction barred the newly disclosed
       expert’s opinion as admissible evidence due to plaintiff’s disregard of the discovery rules and
       orders entered in this case. Plaintiff is, in effect, requesting that we require the trial court to
       allow the parties to proceed to trial, only to then grant a directed verdict for the two
       defendant-doctors as there would be no admissible evidence to show any medical
       professional negligence against them. This would result in wasting the court’s and all the
       parties’ time, incur costs and expend energy on what everyone knows is a useless proceeding.
       “[T]he law does not require the doing of a useless act.” Stone v. La Salle National Bank, 118
       Ill. App. 3d 39, 45 (1983).
¶ 34        Plaintiff cites Cometo v. Foster McGaw Hospital, 167 Ill. App. 3d 1023 (1988), in
       support of her argument that the trial court should have accepted an undisclosed expert’s
       affidavit in an attempt to defeat a motion for summary judgment. However, Cometo dealt
       with an expert who was disclosed during discovery but became reluctant to provide
       testimony. In Cometo, it was not the plaintiff who disregarded any discovery rules or court
       orders but the expert’s unwillingness to testify, consequently, the appellate court held that
       consideration of the disclosed expert’s affidavit was warranted. Id. at 1029-30.
¶ 35        Similarly, the case of Smock v. Hale, 197 Ill. App. 3d 732 (1990), cited by the plaintiff,
       involved a plaintiff who encountered some difficult and unpredictable discovery problems
       while acting in a diligent manner. Therefore, the Smock court reversed the trial court’s
       rulings that struck plaintiff’s only expert, denied plaintiff the opportunity to amend his
       witness list to add plaintiff’s treating physicians and entered summary judgment in favor of
       defendants. Id. at 737-42. The Smock case has no application to the facts of this case where


                                                  -7-
       plaintiff took no action to rectify her expert’s withdrawal of his opinions that the residents
       provided plaintiff with substandard medical care despite ample time and many court
       appearances to do so.
¶ 36       Plaintiff’s attachment of a previously undisclosed expert opinion in an affidavit in
       response to a motion for summary judgment was nothing more than a thinly veiled attempt
       to circumvent the trial court’s discovery orders and its authority to reasonably regulate the
       parties’ discovery process in the interests of justice during litigation. Ill. S. Ct. R. 201 (eff.
       July 1, 2002).
¶ 37       Accordingly, because the trial court adhered to both its prior court orders and the
       supreme court rules on discovery, as well as the standards set forth by our supreme court, it
       did not abuse its discretion when it barred the testimony of plaintiff’s previously undisclosed
       expert witness to defeat summary judgment. Plaintiff’s arguments are devoid of merit.

¶ 38                                    IV. CONCLUSION
¶ 39       The decision of the trial court was not in error when it barred the affidavit of plaintiff’s
       previously undisclosed expert witness which was attached to plaintiff’s response to
       defendants’ motion for summary judgment and then entered judgment in favor of the
       defendants and against the plaintiff in this action.

¶ 40       Affirmed.




                                                  -8-
