                             2018 IL App (2d) 170169 

                                  No. 2-17-0169

                           Opinion filed January 26, 2018 

______________________________________________________________________________

                                              IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

LAWANDA FREEMAN, as Special            ) Appeal from the Circuit Court
Administrator of the Estate of         ) of Winnebago County.
Terrance Freeman, Deceased             )
                                       )
      Plaintiff-Appellant,             )
                                       ) No. 16-L-116
v.                                     )
                                       )
GAYLE R. CRAYS, M.D.,                  ) Honorable
                                       ) J. Edward Prochaska,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Justices Schostok and Birkett concurred in the judgment and opinion.

                                            OPINION


¶1     This appeal arises out of a wrongful-death action brought by plaintiff, Lawanda Freeman,


as special administrator of the estate of her deceased husband, Terrance Freeman, against 


defendant, Gayle R. Crays, M.D. Plaintiff alleged that defendant’s negligent treatment of


Terrance’s cardiovascular disease was the proximate cause of Terrance’s death. Just before the


trial was set to begin, the trial court ruled that plaintiff’s only medical expert witness was


unqualified to offer any opinions on the issue of causation, thus creating an evidentiary gap in


plaintiff’s case. In response to the trial court’s ruling, plaintiff moved to voluntarily dismiss her


complaint. The trial court granted the voluntary dismissal in case No. 12-L-348 without

2018 IL App (2d) 170169


prejudice. Shortly thereafter, plaintiff refiled her complaint in case No. 16-L-116. Upon learning

that plaintiff intended to disclose an additional medical expert witness to offer opinions on the

issue of causation, defendant moved to adopt the rulings from case No. 12-L-348 and to bar any

testimony from plaintiff’s newly disclosed expert witness pursuant to Illinois Supreme Court

Rule 219(e) (eff. July 1, 2002). After the trial court granted defendant’s motion, defendant

moved for summary judgment based on plaintiff’s inability to satisfy the element of causation.

The trial court granted defendant’s motion for summary judgment and plaintiff now appeals.

Plaintiff contends that (1) the trial court abused its discretion by barring her original medical

expert witness from offering any opinions on the issue of causation and (2) the trial court

improperly applied Rule 219(e) in case No. 16-L-116. We affirm in part, reverse in part, and

remand the cause with directions for further proceedings.

¶2                                       I. BACKGROUND

¶3      We note that the record from case No. 12-L-348 is not included in the record on appeal.

Our recitation of the facts from that case is therefore derived from the orders and reports of

proceedings that are attached to the pleadings in case No. 16-L-116. 1

¶4      The record reflects that Terrance suffered a cardiac arrest and died suddenly on

November 23, 2009, at the age of 37. According to plaintiff’s complaint, defendant was

        1
            We note that the record on appeal contains a letter from plaintiff’s appellate counsel to

the clerk of the circuit court of Winnebago County. The letter contains a request that the record on

appeal include all filings from both cases. When asked about this discrepancy at oral argument,

plaintiff’s appellate counsel implied that he never received the record from case No. 12-L-348. It

was the responsibility of appellate counsel to follow up and secure said record if he wanted this

court to take it into consideration in our ruling.



                                                 -2­
2018 IL App (2d) 170169


practicing in the field of family medicine when she provided Terrance with medical care and

prescribed him medication for the treatment of hypertension. Plaintiff generally alleged that

defendant had breached the standard of care applicable to family practitioners by failing to

diagnose Terrance’s enlarged heart or his severe coronary artery disease and by failing to refer

him to a cardiologist. These allegations were supported by the opinion letter of Finley W. Brown

Jr., M.D., a board certified family practitioner.

¶5                                        A. No. 12-L-348

¶6     As the case proceeded toward trial, plaintiff determined that Dr. Brown would be her

only medical expert witness. During the final pretrial conference, conducted on March 9, 2016,

the trial court ruled on numerous motions in limine filed by both parties. Two of these rulings are

relevant here. First, the trial court granted plaintiff’s motion in limine No. 14, which sought to

bar testimony from any undisclosed witnesses. Second, defendant’s motion in limine No. 16

sought to bar Dr. Brown from offering any opinions as to the standard of care for a cardiologist

or as to any treatment modalities that a cardiologist would have recommended. When plaintiff’s

counsel made no objection to the motion, the following colloquy took place:

               “THE COURT: *** 16, bar Plaintiff’s expert Dr. Brown from offering opinions to

       what a reasonably careful cardiologist would have done. You have no objection to that?

               MR. GUNZBURG [(PLAINTIFF’S COUNSEL)]: Right, because [Dr. Brown] is

       not a cardiologist, so—

               THE COURT: So tell me again what he’s going to say on proximate cause? He

       can’t say what a reasonably careful cardiologist would do. What’s he going to say?

               MR. GUNZBURG: Well, he’s going to say that, you know, had the blood

       pressure medications—the blood pressure medications should have been tweaked, he



                                                    -3­
2018 IL App (2d) 170169


      should have been treated with cholesterol reducing medications, he should have been

      referred to a cardiologist, he should have—

               THE COURT: And had all of those things been done, he would still be alive

      today?

               MR. GUNZBURG: Yes.

               THE COURT: Without going into what the cardiologist would have done?

               MR. GUNZBURG: That’s right. I mean, that—what he’s saying is you could

      have ordered an echo, you could have ordered an EKG, or you could have just avoided

      that and sent him straight to a cardiologist. Now, Dr.—you know, Dr. Sorrentino [(the

      defense’s cardiology expert)] is going to testify to—

               THE COURT: Right, what a cardiologist would or wouldn’t have done.

               MR. GUNZBURG: Right.

               THE COURT: But you don’t have a cardiologist to do that?

               MR. GUNZBURG: That’s right.

               THE COURT: Okay.

               MR. GUSTAFSON [(DEFENSE COUNSEL)]: If I can weigh in just for a

      moment, the comment that meds should have been tweaked is not a disclosed opinion

      from Dr. Brown. I guess we can fight that at another time. Maybe the elephant in the

      room here is that all of the opinions that Dr. Brown has given point to [a] cardiologist,

      and they don’t have a cardiologist, so I’m—

               THE COURT: I haven’t seen any motions for summary judgment filed based on

      defendant’s—the plaintiff’s inability to prove up a case. You know, that would have




                                             -4­
2018 IL App (2d) 170169


       possibly been something to raise at the motion in limine level, too. I’m just

       saying—that’s why I’m asking these questions.

               MR. GUSTAFSON: No, I understand.

               THE COURT: Because I—you know, you’ve got a cardiologist and he doesn’t.

               MR. GUSTAFSON: Yes.

               THE COURT: So—

               MR. GUSTAFSON: Judge, can I ask: Are we granted leave to file that kind of

       motion this late?

               THE COURT: Well, probably not. I mean, it is, you know, the Wednesday before

       trial, but your motion in limine to bar Dr. Brown from commenting on what a reasonably

       careful cardiologist would have done had [Terrance] been referred is granted, so he’s not

       going to testify as to cardiology standard of care opinions.

               MR. GUSTAFSON: Or treatment modalities?

               THE COURT: Or treatment modalities that the cardiologist would have done.”

¶7     Dr. Brown’s evidence deposition was conducted on March 11, 2016, just two days after

the final pretrial conference. Dr. Brown testified that he had a duty to refer patients to specialists

for problems that were outside of his “skill set” as a family practitioner. He explained, “for

instance, if they have cardiovascular issues, I can do the work-up, I can try to make a diagnosis.

But 100 percent of the time, I need to call in a cardiologist to complete the evaluation of the

patient and—and often, to complete the treatment of the patient.” After reviewing Terrance’s

autopsy report, Dr. Brown testified that Terrance had suffered from cardiomegaly, or an enlarged

heart, and severe coronary artery disease. This meant that Terrance had an increased risk of

sudden cardiac death. Despite the trial court’s ruling on defendant’s motion in limine No. 16,



                                                -5­
2018 IL App (2d) 170169


plaintiff’s counsel asked Dr. Brown whether defendant’s failure to refer Terrance to a

cardiologist deprived him of a chance to survive. Dr. Brown answered that it did, explaining that

a cardiologist would have taken steps to improve Terrance’s cardiac circulation. Dr. Brown

admitted that he was not certain how a cardiologist would have treated Terrance. However, he

stated that he had worked closely with cardiologists and was familiar with the different

treatments that might have been administered. These included bypass surgery, angioplasty, stent

placement, or medications for lowering blood fats. Dr. Brown added that he had taken a special

interest in the field of advanced lipidology. He had attended several lectures and completed a

two-day course. These experiences made him “quite skilled” at evaluating and treating patients

with high blood fats. Dr. Brown acknowledged, however, that it was still necessary for a

cardiologist to determine whether it was safe to administer lipid-lowering drugs.

¶8     During the course of Dr. Brown’s evidence deposition, defendant objected several times

on the basis that plaintiff’s questions violated the restrictions set forth in defendant’s motion

in limine No. 16. Many of these objections were sustained when the parties appeared in court on

March 14, 2016. As a result, Dr. Brown was barred from opining that a cardiologist would have

prevented Terrance’s sudden death, through the use of lipid-lowering medications or otherwise.

In so ruling, the trial court noted Dr. Brown’s opinion at one point during the deposition that a

cardiologist would have initiated lipid-lowering therapy to improve Terrance’s circulation,

thereby preventing his sudden death. However, Dr. Brown repeatedly admitted elsewhere during

the deposition that he could not say precisely what a cardiologist would have done. The trial

court commented in relevant part:

               “I’ve read and reread these pages over and over again, and I’ve come to the

       conclusion that, as the defendants already stated and argued, all roads in this case lead to



                                               -6­
2018 IL App (2d) 170169


       a cardiologist. There is simply no way for [Dr. Brown], a family doctor, to testify as to

       causation without the qualified testimony of a cardiologist because every single thing that

       he testifies is a deviation of the standard of care for [defendant] results in a referral to a

       cardiologist. Every single one. Even the—you know, the treatment with lipid lowering

       drugs would result in a referral to a cardiologist.”

¶9     The next day, on March 15, 2016, plaintiff moved to voluntarily dismiss her complaint

without prejudice. As averred in defendant’s brief, plaintiff’s motion was made after the jury was

selected, but before it was sworn. The trial court granted plaintiff’s motion to voluntarily dismiss

her complaint, without prejudice, and “with the parties to bear their own costs.” Defendant

neither objected to the voluntary dismissal nor requested that plaintiff be sanctioned pursuant to

Rule 219(e).

¶ 10                                     B. No. 16-L-116

¶ 11   Plaintiff refiled her complaint on March 22, 2016. When it was revealed that plaintiff

intended to disclose an expert witness in the field of cardiology, defendant responded by filing a

motion to adopt the discovery orders and in limine rulings from case No. 12-L-348. This

included a request that the trial court bar additional expert witness disclosures pursuant to Rule

219(e). Defendant argued that plaintiff, “in refiling and in clear violation of Rule 219(e), is

attempting to cure her unreasonable noncompliance with discovery rules (untimely opinions and

disregard for the motion in limine ruling) and avoid the Court’s barring of causation opinions by

attempting to disclose a new expert witness, a cardiologist.” In that regard, defendant argued that

the issue was controlled by Jones v. Chicago Cycle Center, 391 Ill. App. 3d 101 (2009). In

response, plaintiff argued that defendant was asking for an improper sanction under Rule 219(e),

as she had not violated any discovery orders or missed any discovery deadlines in case No.



                                                -7­
2018 IL App (2d) 170169


12-L-348. Plaintiff also argued that the case at bar was distinguishable from Jones, as Jones

involved factual findings of unreasonable noncompliance and misconduct. See id. at 115.

¶ 12   On September 12, 2016, after hearing arguments, the trial court granted defendant’s

motion to adopt the discovery orders and in limine rulings from case No. 12-L-348. These

included the ruling on plaintiff’s motion in limine No. 14, which effectively barred any testimony

from plaintiff’s newly disclosed cardiologist. In announcing its ruling, the trial court stated that

plaintiff had an “absolute right” to voluntarily dismiss and refile her case. The trial court also

agreed with plaintiff that there had been no discovery sanctions in case No. 12-L-348. However,

the trial court agreed with defendant that this case was similar to Jones, stating, “[i]t is exactly

what we have here.” After commenting that plaintiff was clearly attempting to cure the

evidentiary gap created by its adverse rulings with regard to Dr. Brown, the trial court

concluded:

               “When I consider Supreme Court Rule 219(e), I believe this is exactly the type of

       refiling that should be barred under Supreme Court Rule 219(e). All the rulings were made,

       the cards were on the table, the plaintiff was facing a very likely motion for directed

       verdict, and they voluntarily dismissed to avoid that. They voluntarily dismissed the case to

       avoid the consequences of the Court’s rulings on the proximate cause issue.”

Although the trial court ruled that plaintiff was barred from presenting an expert witness in the

field of cardiology, it noted that plaintiff was free to seek a reconsideration of the rulings with

regard to the scope of Dr. Brown’s testimony.

¶ 13   Defendant later moved for summary judgment, arguing that the lack of proximate

causation testimony rendered plaintiff unable to prove an essential element of her case. In turn,




                                                -8­
2018 IL App (2d) 170169


plaintiff filed a motion to reconsider the trial court’s rulings that barred Dr. Brown from offering

causation opinions.

¶ 14   On January 30, 2017, following arguments, the trial court denied plaintiff’s motion to

reconsider, granted defendant’s motion for summary judgment, and dismissed plaintiff’s

complaint with prejudice. Plaintiff filed a timely notice of appeal identifying the orders entered

on September 12, 2016, and January 30, 2017.

¶ 15                                      II. ANALYSIS

¶ 16   Plaintiff raises two issues on appeal. First, she contends that the trial court abused its

discretion by barring Dr. Brown from offering any opinions regarding the proximate cause of

Terrance’s death. Second, she contends that the trial court “misconstrued and misapplied” Rule

219(e) by barring her from disclosing an expert witness in the field of cardiology in case No.

16-L-116. We will address these issues in turn.

¶ 17                                      A. Dr. Brown

¶ 18   We begin with the trial court’s ruling that Dr. Brown was unqualified to opine that

defendant’s alleged negligence proximately caused Terrance’s death. “An expert’s opinion is

only as valid as the bases and reasons for the opinion.” Soto v. Gaytan, 313 Ill. App. 3d 137, 146

(2000); see Ill. R. Evid. 703 (eff. Jan. 1, 2011). For expert testimony to be admissible, the

proffered expert must be qualified by knowledge, skill, experience, training, or education and the

testimony must assist the trier of fact in understanding the evidence. Snelson v. Kamm, 204 Ill. 2d

1, 24 (2003). There is no requirement of formal academic training or specific degrees for a

witness to qualify as an expert; rather, practical experience in a particular field may suffice.

Thompson v. Gordon, 221 Ill. 2d 414, 428-29 (2006). However, “[t]he proponent must lay an

adequate foundation establishing the reliability of the information on which the expert’s opinion is



                                               -9­
2018 IL App (2d) 170169


based.” Caldwell v. Advocate Condell Medical Center, 2017 IL App (2d) 160456, ¶ 52. If an

expert’s opinion is based on varying or uncertain factors to the extent that the expert is required

to guess or surmise, the opinion should be barred as speculative and unreliable. Id.

¶ 19   It is well settled that the decision whether to admit expert testimony is within the sound

discretion of the trial court. Thompson, 221 Ill. 2d at 428; Snelson, 204 Ill. 2d at 24. “A trial court

abuses its discretion only where no reasonable person would take the position adopted by the

court.” Colburn v. Mario Tricoci Hair Salons & Day Spas, Inc., 2012 IL App (2d) 110624, ¶ 22.

¶ 20   Here, plaintiff first notes that she was proceeding under the “lost chance” theory of

recovery. On that basis, she argues that the trial court applied an erroneously high threshold to the

admission of Dr. Brown’s causation opinions. We disagree with plaintiff.

¶ 21   A plaintiff in a medical malpractice case must prove (1) the standard of care against which

the medical professional’s conduct must be measured, (2) that the defendant was negligent by

failing to comply with that standard, and (3) that the defendant’s negligence proximately caused

the injuries for which the plaintiff seeks redress. Walton v. Dirkes, 388 Ill. App. 3d 58, 60 (2009).

“The proximate cause element of a medical malpractice case must be established by expert

testimony to a reasonable degree of medical certainty.” Krivanec v. Abramowitz, 366 Ill. App. 3d

350, 356-57 (2006).

¶ 22   In Illinois, a plaintiff in a medical malpractice action may proceed under the lost-chance

theory of recovery to satisfy the proximate cause element. Perkey v. Portes-Jarol, 2013 IL App

(2d) 120470, ¶ 61. This theory applies where medical providers are alleged to have negligently

deprived the plaintiff of a chance to survive or recover from a health problem or where the alleged

malpractice has lessened the effectiveness of treatment or increased the risk of an unfavorable

outcome to the plaintiff. Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶ 16. Accordingly,



                                                - 10 ­
2018 IL App (2d) 170169


plaintiffs seeking to recover for medical malpractice are not required to prove that they would have

enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice. Holton

v. Memorial Hospital, 176 Ill. 2d 95, 119 (1997).

¶ 23   Plaintiff argues that, because she was proceeding under the lost-chance theory of recovery,

Dr. Brown was not required to have sufficient knowledge of the precise treatment that a

cardiologist would have employed to obtain a better outcome for Terrance. According to

plaintiff, the trial court incorrectly required Dr. Brown to establish what a cardiologist would have

done for Terrance and how that treatment would have affected Terrance. Plaintiff’s reasoning is

taken from Hemminger, where the appellate court held that the plaintiff (who was proceeding

under the lost-chance theory of recovery) “only needed to show that [the defendant doctor’s]

negligence deprived [the patient] of the opportunity to undergo treatment that could have been

more effective if given earlier, not that such treatment would have been effective.” (Emphases in

original.) Hemminger, 2014 IL App (3d) 120392, ¶ 23.

¶ 24   Here, plaintiff attempts a distorted application of the reasoning in Hemminger. Plaintiff

insinuates that, because she did not have to prove that Terrance would have enjoyed a greater than

50% chance of survival absent defendant’s alleged negligence, the bar was lowered for the

foundational requirements underlying Dr. Brown’s causation opinions. However, our supreme

court has held that the lost-chance theory of recovery “does not relax or lower a plaintiff’s burden

of proving causation.” Holton, 176 Ill. 2d at 120. To the contrary, the requirement that causation

must be shown to a reasonable degree of medical certainty “conforms to traditional principles of

proximate cause.” Id. at 115. Therefore, “[t]o the extent a plaintiff’s chance of recovery or survival

is lessened by the malpractice, he or she should be able to present evidence to a jury that the




                                                - 11 ­
2018 IL App (2d) 170169


defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the

increased risk of harm or lost chance of recovery.” (Emphasis added.) Id. at 119.

¶ 25   In Hemminger, the plaintiff’s medical expert opined to a reasonable degree of medical

certainty as to the patient’s lost chance of recovery from cervical cancer. Specifically, the expert

testified that the patient’s five-year survival rate had dropped to 32%—a reduction between 26%

and 58%—by the time she was diagnosed with stage 3B cervical cancer. Hemminger, 2014 IL App

(3d) 120392, ¶ 22. The expert also identified the “specific treatment procedures” that were delayed

by the defendant doctor’s failure to diagnose the patient earlier. Id. ¶ 24. The appellate court held

that, pursuant to Holton, these opinions were sufficient to establish a prima facie case of causation

under a lost-chance theory of recovery. Id.

¶ 26   Contrary to plaintiff’s argument in this case, Hemminger did not signal that a medical

expert’s testimony under a lost-chance theory of recovery is subject to a lower threshold for

admissibility. The door is not opened for speculation as to whether a defendant doctor’s negligence

deprived the patient of the opportunity to undergo treatment that could have been effective if given

earlier. See id. ¶ 23. Rather, such testimony must still be offered to a reasonable degree of

medical certainty. Holton, 176 Ill. 2d at 115-20. We will apply that threshold here as we address

the foundation for Dr. Brown’s causation opinions.

¶ 27   Moving on, despite the acknowledgment by plaintiff’s counsel that Dr. Brown was

unqualified to testify to the standard of care for a cardiologist, plaintiff now attempts to argue

otherwise. She repeatedly emphasizes Dr. Brown’s testimony that he worked closely with

cardiologists in his own practice and that he was familiar the methods, procedures, and

treatments that a cardiologist might have recommended for Terrance. Plaintiff notes that

“[w]hether the expert is qualified to testify is not dependent on whether he is a member of the same



                                               - 12 ­
2018 IL App (2d) 170169


specialty or subspecialty as the defendant but, rather, whether the allegations of negligence

concern matters within his knowledge and observation.” Jones v. O’Young, 154 Ill. 2d 39, 43

(1992). Plaintiff cites cases applying this principle in support of her argument that the trial court

abused its discretion by barring Dr. Brown’s causation opinions.

¶ 28   In Gill v. Foster, 157 Ill. 2d 304, 315-16 (1993), the trial court barred the plaintiff’s expert,

a general surgeon, from testifying that the defendant, a radiologist, had deviated from the standard

of care. This ruling was based on the general surgeon’s admission that he had relied on

radiologists’ interpretations of X-rays in complicated cases. Id. at 317. In concluding that the trial

court abused its discretion, our supreme court held, “[t]he fact that [the general surgeon] would

rely on a radiologist’s opinion does not indicate that he lacks the qualifications to testify. The fact

that [the general surgeon] relied on the opinion of radiologists in some cases goes only to the

weight of his opinion, not to the admissibility of it.” Id.

¶ 29   In Silverstein v. Brander, 317 Ill. App. 3d 1000, 1003 (2000), the trial court ruled that the

plaintiff’s medical expert, an internist, was unqualified to testify that the defendant, a physiatrist,

had violated the standard of care in managing the plaintiff during his rehabilitation from a hip

replacement. The appellate court reversed the trial court’s ruling, first observing that the internist

had criticized the physiatrist’s medical management of the plaintiff, rather than the physiatrist’s

work on the plaintiff’s physical therapy. This was noteworthy because the internist testified that he

had worked on the medical management of more than 100 patients while they underwent physical

rehabilitation following hip-replacement surgery. Id. at 1007. On that basis, the appellate court

directed the trial court to allow the internist to testify on remand as to the standards governing the

medical management of postoperative patients. Id. at 1008.




                                                 - 13 ­
2018 IL App (2d) 170169


¶ 30     Finally, in Ayala v. Murad, 367 Ill. App. 3d 591, 592 (2006), the plaintiff alleged that the

defendant pathologist had failed to properly diagnose the patient’s tumor. The trial court barred

one of the plaintiff’s medical experts, an obstetrician and gynecologist, from offering opinions as

to what the course of treatment would have been for the patient and how the patient would have

responded had she received the treatment sooner. Id. at 600. Relying on Gill and Silverstein, the

appellate court reversed the trial court’s ruling, noting that the plaintiff’s expert was a licensed

doctor with extensive experience in the management and treatment of cancer patients. Specifically,

the plaintiff’s expert had testified that he collaborated on a weekly basis with the hospital’s

medical oncologists, was familiar with the standard course of treatment for ovarian cancer

patients, monitored his patients’ reactions to cancer therapies, would question a medical

oncologist if an unusual course of therapy were suggested for one of his patients, and would be a

joint decision-maker in deciding whether something experimental, or a second line of therapy,

should be administered to a cancer patient. Id.

¶ 31    We agree with defendant that these cases are distinguishable from the case at bar. Of

course, the first point of distinction is plaintiff’s initial acknowledgment that Dr. Brown was

unqualified to testify to a cardiologist’s standard of care. But aside from that, unlike Dr. Brown,

the experts in the cases discussed above provided adequate foundations establishing the reliability

of the information on which their opinions were based. See Caldwell, 2017 IL App (2d) 160456,

¶ 52.

¶ 32    For instance, the general surgeon in Gill testified that he had training and experience in

interpreting X-rays, that he had instructed medical students on the subject of radiology, and that he

was familiar with the standard of care for a reasonably qualified radiologist. Gill, 157 Ill. 2d at

315-16. In Silverstein, the issue was whether the defendant physiatrist had negligently prescribed



                                                  - 14 ­
2018 IL App (2d) 170169


the drug Indocin, which allegedly caused the plaintiff to develop an ulcer. Silverstein, 317 Ill. App.

3d at 1002. The plaintiff’s expert, an internist, testified that he had considerable experience with

Indocin and that all physicians should recognize that a patient with a history of peptic ulcers is

especially vulnerable to the side effects of Indocin. Id. at 1007-08. The plaintiff’s expert in Ayala,

an obstetrician and gynecologist, testified that the standard primary treatment for ovarian cancer

consisted of two specific drugs and that the normal cycle for administration of the drugs would

initially be six treatments at three-week intervals. Ayala, 367 Ill. App. 3d at 601-02.

¶ 33   Here, Dr. Brown testified that he referred 100% of his patients with cardiovascular issues

to a cardiologist. He explained, “I don’t have the skill, or the training, or the knowledge to

complete a detailed and comprehensive cardiac work-up.” Although Dr. Brown testified that he

was generally aware of the treatments a cardiologist might have recommended for

Terrance—such      as   bypass   surgery,    angioplasty,   stent   placement,    or   lipid-lowering

medications—he made it clear that the choice of which procedure to implement is always left to

a cardiologist. Dr. Brown admitted that he would need to consult with a cardiologist even to

determine whether it was safe for him to administer lipid-lowering drugs. Thus, although Dr.

Brown might have had some degree of familiarity with the standard of care for a cardiologist, he

was still unable to testify to a reasonable degree of medical certainty as to how a cardiologist

would have effectively treated Terrance. In this regard, Dr. Brown’s testimony was similar to that

of the medical experts in the cases cited by defendant, where the evidence was insufficient to

establish that a doctor’s negligence was the proximate cause of a patient’s injury.

¶ 34   In Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967 (1997), the

appellate court affirmed the trial court’s entry of a judgment notwithstanding the verdict for the

defendant, based on a gap in the evidence of proximate cause. Several hours after being admitted



                                                - 15 ­
2018 IL App (2d) 170169


to the emergency room, the patient lapsed into a coma and eventually died. The plaintiff alleged

that the emergency-room physician had deviated from the standard of care by failing to order an

earlier CT scan. To that end, the plaintiff’s expert witnesses, a physician and a neurologist, both

opined that an earlier CT scan would have led to a surgical intervention that would likely have

saved the patient’s life. However, both experts admitted that they would have deferred to a

neurosurgeon to decide whether surgical intervention was appropriate. Id. at 968-70. In affirming

the trial court’s ruling, the appellate court noted that the only two neurosurgeons who testified had

agreed that surgery would not have been appropriate or ordered, because the patient’s bleed was

deep within his brain. Thus, “[w]ithout supporting testimony from a neurosurgeon, plaintiff’s

experts’ testimony was insufficient to show that neurosurgery, much less effective neurosurgery,

should have occurred absent defendants’ negligence.” Id. at 975. This created a gap in the evidence

of proximate cause that was fatal to the plaintiff’s case. Id.

¶ 35   In Weidenbeck v Searle, 385 Ill. App. 3d 289, 290 (2008), the trial court granted the

defendant’s motion for summary judgment after finding that there was insufficient evidence of

proximate cause for the case to proceed to a trial. The issue there was whether an urgent-care

doctor had violated the standard of care by failing to order a CT scan or neurological

consultation. The plaintiff’s medical expert, a family physician, admitted that he could not

interpret the standard of care for a neurologist or neurosurgeon. However, the expert nonetheless

claimed to have knowledge of what a neurologist or neurosurgeon would have done for a patient

presenting similar symptoms. 2 He testified during a deposition that the urgent-care doctor’s

failures had “directly caused the delay in diagnosis and all the pain, suffering, and neurological

       2
           Plaintiff acknowledges in her reply brief that Dr. Brown was also the plaintiff’s medical

expert in Wiedenbeck.



                                                - 16 ­
2018 IL App (2d) 170169


disease that poor [decedent] suffered.” (Internal quotation marks omitted.) Id. at 295. Citing

Aguilera, the appellate court affirmed the trial court’s ruling, finding that the expert’s testimony

was not offered to a reasonable degree of medical certainty to satisfy the element of proximate

cause. Id. at 299.

¶ 36   We agree with defendant that the facts in this case warrant an outcome similar to those

reached in Aguilera and Weidenbeck. “Proximate cause in a medical malpractice case must be

established by expert testimony to a reasonable degree of medical certainty, and the causal

connection must not be contingent, speculative, or merely possible.” Ayala, 367 Ill. App. 3d at

601. Like the opinions at issue in Aguilera and Weidenbeck, Dr. Brown’s causation opinions in

this case were contingent and speculative. It was not enough for Dr. Brown to simply testify that,

if defendant had referred Terrance to a cardiologist, a cardiologist could have administered a

treatment plan that could have prolonged Terrance’s life. Because Dr. Brown could not testify to a

reasonable degree of medical certainty as to how a cardiologist could have effectively treated

Terrance, he lacked the necessary foundation to offer an opinion that defendant’s negligence was

the proximate cause of Terrance’s death. Therefore, the trial court did not abuse its discretion in

barring Dr. Brown’s causation opinions.

¶ 37                                      B. Rule 219(e)

¶ 38   We now turn to the trial court’s decision to bar plaintiff from disclosing an expert witness

in the field of cardiology in case No. 16-L-116. The trial court’s ruling was based on its

application of Rule 219(e), which prevents discovery abuses by encouraging compliance with the

entire discovery process. Jones, 391 Ill. App. 3d at 111. Rather than acting to bar a plaintiff’s

statutory right to a voluntary dismissal, Rule 219(e) curtails a plaintiff’s use of the voluntary




                                               - 17 ­
2018 IL App (2d) 170169


dismissal as a dilatory tactic. Scattered Corp. v. Midwest Clearing Corp., 299 Ill. App. 3d 653, 660

(1998).

¶ 39      As with other pretrial discovery rulings, we review a trial court’s decision to bar evidence

in a refiled action for an abuse of discretion. Hayward v. C.H. Robinson Co., 2014 IL App (3d)

130530, ¶ 45; Smith v. P.A.C.E., 323 Ill. App. 3d 1067, 1075 (2001).

¶ 40      Rule 219 is titled “Consequences of Refusal to Comply with Rules or Order Relating to

Discovery or Pretrial Conferences.” Ill. S. Ct. R. 219 (eff. July 1, 2002). Rule 219(e) is titled

“Voluntary Dismissals and Prior Litigation.” Rule 219(e) provides as follows:

          “A party shall not be permitted to avoid compliance with discovery deadlines, orders or

          applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines

          and ruling on permissible discovery and testimony, the court shall consider discovery

          undertaken (or the absence of same), any misconduct, and orders entered in prior litigation

          involving a party. The court may, in addition to the assessment of costs, require the party

          voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses

          incurred in defending the action including but not limited to discovery expenses, expert

          witness fees, reproduction costs, travel expenses, postage, and phone charges.” Ill. S. Ct.

          R. 219(e) (eff. July 1, 2002).

The relevant committee comment provides:

                 “Paragraph (e) addresses the use of voluntary dismissals to avoid compliance with

          discovery rules or deadlines, or to avoid the consequences of discovery failures, or orders

          barring witnesses or evidence. This paragraph does not change existing law regarding the

          right of a party to seek or obtain a voluntary dismissal. However, this paragraph does

          clearly dictate that when a case is refiled, the court shall consider the prior litigation in



                                                 - 18 ­
2018 IL App (2d) 170169


       determining what discovery will be permitted, and what witnesses and evidence may be

       barred. The consequences of noncompliance with discovery deadlines, rules or orders

       cannot be eliminated by taking a voluntary dismissal. Paragraph (e) further authorizes the

       court to require the party taking the dismissal to pay the out-of-pocket expenses actually

       incurred by the adverse party or parties. *** Paragraph (e) does not provide for the

       payment of attorney fees when an action is voluntarily dismissed.” Ill. S. Ct. R. 219(e),

       Committee Comments (adopted June 1, 1995).

¶ 41   Here, plaintiff first argues that defendant’s motion to adopt the discovery orders and

in limine rulings from case No. 12-L-348 constituted an untimely attack on the propriety of the

trial court’s order granting her motion to voluntarily dismiss her complaint. She notes that

defendant never requested any Rule 219(e) sanctions when she moved for a voluntary dismissal.

Furthermore, once her motion was granted, the voluntary dismissal was final and appealable by

defendant. See Kahle v. John Deere Co., 104 Ill. 2d 302, 307 (1984). According to plaintiff,

defendant could have properly requested Rule 219(e) sanctions by moving to vacate the

voluntary dismissal within 30 days. Because defendant took no such action, plaintiff argues that

the trial court lacked jurisdiction to review the propriety of the voluntary dismissal when the

discovery issue arose in case No. 16-L-116. This argument has no merit.

¶ 42   In Morrison v. Wagner, 191 Ill. 2d 162 (2000), our supreme court held that Rule 219(e)

“prevents voluntary dismissals from being used as an artifice for evading discovery requirements

through two entirely different mechanisms.” Id. at 166. First, the rule enhances the monetary

burden associated with voluntary dismissals by providing that the party seeking dismissal may be

required to pay the opposing party or parties their reasonable expenses incurred in defending the

action. Id. at 166-67. Second, the rule discourages the abuse of voluntary dismissals by attaching



                                              - 19 ­
2018 IL App (2d) 170169


additional adverse consequences later, when the party who obtained the dismissal seeks to refile.

“When a case is refiled, the rule requires the court to consider the prior litigation in determining

what discovery will be permitted, and what witnesses and evidence may be barred.” (Emphasis

added.) Id. at 167.

¶ 43   Here, the trial court was not reviewing the propriety of the voluntary dismissal in case No.

12-L-348 when it considered defendant’s motion to adopt the prior discovery orders and

in limine rulings. Regardless of whether defendant filed any such motion, Rule 219(e) required the

trial court to consider the prior litigation in determining what discovery would be permitted and

whether any witnesses or evidence would be barred in case No. 16-L-116. Id. We therefore reject

plaintiff’s argument that the trial court lacked jurisdiction to bar the disclosure of additional

witnesses in case No. 16-L-116.

¶ 44   On the merits, the parties dispute the application of Jones, which the trial court cited in

support of its ruling. Plaintiff argues that the holding in Jones should not apply here, picking up on

the statement in Jones that, “[i]n order for Rule 219(e) to apply, there must be some misconduct on

the plaintiff’s part.” Jones, 391 Ill. App. 3d at 111. Plaintiff argues that, because she was not

sanctioned or found to have committed misconduct, it was improper for the trial court to apply

Rule 219(e) in her refiled action. Defendant disagrees. Although defendant argues that the

reasoning in Jones is applicable here, defendant discounts the quoted language cited by plaintiff,

observing that it is derived from Scattered Corp. and this court’s holding in In re Marriage of

Webb, 333 Ill. App. 3d 1104 (2002). Unlike the present case, Scattered Corp., Webb, and Jones

each involved the imposition of expenses associated with a voluntary dismissal. Those cases did

not address the application of Rule 219(e) in a refiled case. Defendant’s point is well taken.




                                                - 20 ­
2018 IL App (2d) 170169


¶ 45      In Scattered Corp., the appellate court looked to the plain language of Rule 219(e) and the

committee comment in determining that a trial court is required to make a preliminary finding of

misconduct before imposing expenses pursuant to Rule 219(e). Scattered Corp., 299 Ill. App. 3d at

659. In Webb, this court stated its agreement with Scattered Corp. “[B]efore imposing expenses

pursuant to Rule 219(e), a trial court must make a preliminary finding as to whether the plaintiff

engaged in discovery misconduct.” Webb, 333 Ill. App. 3d at 1112.

¶ 46      Here, we disagree with Jones to the extent that it would require finding misconduct before

applying Rule 219(e) in a refiled action. Our holding in this regard is supported by P.A.C.E., 323

Ill. App. 3d 1067, which is the only published opinion identified by the parties that deals with the

barring of witnesses in a refiled action pursuant to Rule 219(e). Our research has revealed no

others.

¶ 47      The plaintiff in P.A.C.E. filed a negligence action relating to a car accident. Thereafter, he

failed to provide adequate responses to several of the defendant’s interrogatories. He similarly

failed to comply with the trial court’s order that he provide the defendant’s requested documents.

As a result, the trial court barred the plaintiff from introducing any evidence at trial in support of

his claims for lost time, lost income, lost profits, and lost business. The trial court later barred the

plaintiff from calling any witnesses at trial. This prompted the plaintiff to file a motion to

voluntarily dismiss the action. The trial court granted the motion and dismissed the action without

prejudice. When the plaintiff refiled his complaint, the trial court granted the defendant’s motion

to adopt both of the orders from the original action. In turn, the trial court granted summary

judgment in favor of the defendant. Id. at 1069-72.

¶ 48      On appeal, the P.A.C.E. court rejected the plaintiff’s argument that the sanction orders

entered in the original action were reviewable because they constituted a procedural step leading to



                                                  - 21 ­
2018 IL App (2d) 170169


the entry of summary judgment in the defendant’s favor. After noting that the refiled action was a

“ ‘separate cause of action’ ” (id. at 1074 (quoting Kahle, 104 Ill. 2d at 306)), the court held as

follows:

       “Supreme Court Rule 219(e) [citation] does mandate that when the trial court rules upon

       permissible discovery and testimony in a refiled action it ‘shall consider’ a party’s

       misconduct in the original action and any orders entered therein. The rule does not,

       however, require the court to reimpose the sanctions that were entered against the party in

       the earlier case. Rather, the misconduct of a party in the original action and any sanctions

       entered against him therein are merely facts to be considered by the court in the refiled

       action when it determines what witnesses and evidence will be permitted.” Id.

¶ 49   We will return to P.A.C.E. in a moment. For now, we briefly state our agreement with

P.A.C.E. that the misconduct of a party in the original action is merely a factor to be considered

by the trial court in the refiled action when it determines what witnesses and evidence will be

permitted. The plain language of Rule 219(e) states: “[i]n establishing discovery deadlines and

ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or

the absence of same), any misconduct, and orders entered in prior litigation involving a party.” Ill.

S. Ct. R. 219(e) (eff. July 1, 2002). As noted, our supreme court has characterized this as the

second mechanism provided in Rule 219(e) for preventing the abuse of voluntary dismissals.

“When a case is refiled, the rule requires the court to consider the prior litigation in determining

what discovery will be permitted, and what witnesses and evidence may be barred.” Morrison, 191

Ill. 2d at 167. It is therefore clear that the trial court’s duty to consider the prior litigation in a

refiled action applies regardless of whether there has been a finding of misconduct.




                                                - 22 ­
2018 IL App (2d) 170169


¶ 50   For these reasons, we reject plaintiff’s argument that the trial court was precluded from

applying Rule 219(e) in her refiled action by the lack of any sanctions or findings of misconduct.

Having resolved that issue, we must now consider what standards should be applied in addressing

the propriety of a trial court’s decision to bar witnesses or evidence in a refiled action. For

guidance, we return to P.A.C.E.

¶ 51   As we discussed, P.A.C.E. involved the imposition of two sanctions in a refiled action.

The first sanction barred the plaintiff from introducing any evidence at trial in support of his

claims for lost time, lost income, lost profits, and lost business. The P.A.C.E. court applied

traditional standards to determine whether this was an abuse of discretion. “In fashioning a

sanction, the court must weigh the competing interests of the offending party’s right to maintain a

lawsuit against the need to accomplish the objectives of discovery and promote the unimpeded

flow of litigation. [Citation.] In considering whether a particular sanction is appropriate, a court

must consider the conduct of the offending party and the effect of that conduct upon the adverse

party. [Citation.] That is to say, the sanction imposed should bear some reasonable relationship to

the information withheld in defiance of the discovery request.” P.A.C.E., 323 Ill. App. 3d at

1075-76. The P.A.C.E. court found no abuse of discretion in the trial court’s decision to bar the

evidence in question, holding that the prejudice to the defendant was manifest. Id. at 1076.

¶ 52   However, the result was different with regard to the second sanction imposed in P.A.C.E.

Relevant here, in considering the application of Rule 219(e) to bar witnesses in a refiled action,

the P.A.C.E. court looked to the same factors that are used to determine whether the exclusion of a

witness is an appropriate sanction in an original action. Id. These factors include (1) surprise to the

adverse party, (2) the prejudicial effect of the witness’s testimony, (3) the nature of the witness’s

testimony, (4) the diligence of the adverse party, (5) whether objection to the witness’s testimony



                                                - 23 ­
2018 IL App (2d) 170169


was timely, and (6) the good faith of the party calling the witness. Id.; see also Sullivan v. Edward

Hospital, 209 Ill. 2d 100, 110 (2004); Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d

305, 314 (1993). Because it was clear from the record that the defendant would not have been

surprised or prejudiced by the testimony of the witnesses whom the defendant intended to present

in the refiled action, the P.A.C.E. court held that the trial court had abused its discretion by

imposing a sanction that effectively denied the plaintiff a trial on the merits of his claims. P.A.C.E.,

323 Ill. App. 3d at 1076-77.

¶ 53    Without expressing any opinion as to the propriety of the outcome in P.A.C.E., we

believe that P.A.C.E. applied the proper framework for analyzing the application of Rule 219(e) to

bar evidence and witnesses in a refiled action. This includes a consideration of “the misconduct of

a party in the original action and any sanctions entered against him therein.” Id. at 1074.

¶ 54   With these principles in mind, we now consider whether the trial court’s decision in this

case was in conformity with the framework applied in P.A.C.E. After hearing arguments, the trial

court agreed with defendant that the holding in Jones applied to bar plaintiff from disclosing

additional expert witnesses.

¶ 55   In Jones, just before the trial was set to begin, the plaintiffs disclosed that the injured

victim’s condition had deteriorated over the past two months and that one of their medical experts

was in the process of examining recent test results to determine what additional treatments and

expenses the plaintiffs might incur. Jones, 391 Ill. App. 3d at 103. Although the plaintiffs’ medical

expert had been disclosed, it had not been disclosed that he would testify regarding future medical

expenses. Id. at 103-04. The trial court questioned why this issue had not been raised at a hearing

during the previous week and ruled that it was too late to disclose additional opinion testimony. In

turn, the plaintiffs filed a motion to voluntarily dismiss the action. Id. at 104. In granting the



                                                 - 24 ­
2018 IL App (2d) 170169


plaintiffs’ motion to voluntarily dismiss, the trial court conditioned their right to refile on proof of

payment to the defendants of $181,256.52 in expenses incurred in defending the original action.

Id. at 106. On appeal, the plaintiffs argued that the order awarding expenses was improper because

there had been no discovery misconduct. Id. at 111. The appellate court disagreed, pointing to the

trial court’s finding that the plaintiffs had waited two months to disclose the victim’s deteriorated

condition. Although there had been no finding that the plaintiffs’ reason for taking the voluntary

dismissal was pretextual, the appellate court held that the “[p]laintiffs’ conduct in using their right

to voluntarily dismiss the action to avoid the consequences of the court’s orders is well within the

ambit of Rule 219(e).” Id. at 114-15.

¶ 56    Here, the trial court held in pertinent part:

                “When I consider Supreme Court Rule 219(e), I believe this is exactly the type of

        re-filing that should be barred under Supreme Court Rule 219(e). All the rulings were

        made, the cards were on the table, the plaintiff was facing a very likely motion for directed

        verdict, and they voluntarily dismissed to avoid that. They voluntarily dismissed the case to

        avoid the consequences of the Court’s rulings on the proximate cause issue.

                To me, this case is actually stronger for the purposes of [Rule] 219 than the Jones

        case that is cited and relied upon by the defense in their motion ***. ***

                ***

                It is exactly what we have here. In this particular case, the Court had made

        significant rulings that were going to lead to, most likely, a motion for directed verdict and,

        arguably, a granting of that. I never got to that point, but that was the road we were heading

        on. And plaintiff’s motion for voluntary dismissal was clearly done in an effort to avoid the

        consequences of the Court’s order, clearly.



                                                 - 25 ­
2018 IL App (2d) 170169


                                                ***

               And in this case, the Court does find that the plaintiff’s conduct in using their right

       to voluntarily dismiss the action to avoid the consequences of the Court’s orders is well

       within the ambit of Supreme Court Rule 219(e), and I am not going to allow it. So for that

       reason, the motion to adopt the Court’s discovery orders and motions in limine rulings in

       the previously filed case, 12 L 348, is heard and granted.”

¶ 57   Contrary to the trial court’s ruling, the facts in Jones are not “exactly what we have here.”

To begin, as we discussed above, the cases are different because Jones considered the imposition

of expenses associated with a voluntary dismissal rather than the application of Rule 219(e) in a

refiled case. Beyond that, plaintiff asserts that the cases are different because she was “essentially

a compliant litigant” who failed to anticipate the trial court’s ruling in the original action that Dr.

Brown lacked the foundational experience and knowledge to render opinions on the issue of

proximate causation. We agree with plaintiff.

¶ 58   The plaintiffs in Jones were aware of the victim’s deteriorated physical condition for two

months before the trial, yet they waited until the trial was set to begin before they disclosed the

need for additional expert opinions. The plaintiffs then moved for a voluntary dismissal to avoid

the consequences of the trial court’s ruling that it was too late to disclose additional opinion

testimony. Id. at 104. Here, the trial court issued an adverse evidentiary ruling against plaintiff in

the original action just before the trial was set to begin. At worst, this was a consequence of

plaintiff’s poor legal judgment. We note that testimony from undisclosed witnesses had been

barred pursuant to plaintiff’s own motion in limine No. 14. It is not as though plaintiff moved to

reopen discovery and then moved for a voluntary dismissal upon the trial court’s denial of her

motion to reopen discovery.



                                                - 26 ­
2018 IL App (2d) 170169


¶ 59   Defendant argued extensively during oral argument, as she does in her brief, that the trial

court’s ruling was justified because plaintiff failed to comply with discovery deadlines in case

No. 12-L-348. Defendant asserts that plaintiff made untimely disclosures of Dr. Brown’s

opinions throughout the discovery process in the original action. Despite the trial court’s

recognition that it never entered any discovery-related sanctions against plaintiff, defendant

nonetheless argues that plaintiff’s untimely disclosures constituted misconduct similar to that of

the plaintiffs in Jones and that we should affirm the trial court’s ruling on that basis. However,

defendant acknowledges that the trial court allowed each of plaintiff’s purportedly untimely

disclosures and, in one instance, granted plaintiff additional time to supplement her disclosures.

We therefore reject defendant’s argument that plaintiff was unreasonably noncompliant with

discovery orders in case No. 12-L-348, as the trial court implicitly ruled otherwise.

¶ 60   For all of these reasons, we agree with plaintiff that the trial court misapplied Rule

219(e). As we have discussed, Rule 219(e) prevents the abuse of a party’s right to a voluntary

dismissal through two entirely separate mechanisms. Morrison, 191 Ill. 2d at 166. The first

provides for monetary sanctions associated with a party’s right to a voluntary dismissal, while the

second requires the trial court to consider the prior litigation in determining the scope of the

permissible discovery and evidence in a refiled action. Id. at 166-67. Here, the trial court relied on

Jones and improperly applied the standards that govern the imposition of monetary sanctions

associated with a voluntary dismissal. This was not in conformity with the standards applied in

P.A.C.E., which established the proper framework for applying Rule 219(e) in a refiled action.

¶ 61   We therefore hold that the trial court abused its discretion by applying the wrong legal

standards. See Rockford Police Benevolent & Protective Ass’n, Unit No. 6 v. Morrissey, 398 Ill.

App. 3d 145, 154 (2010). However, because we lack the full record from case No. 12-L-348, we



                                                - 27 ­
2018 IL App (2d) 170169


are not in a position to rule on the permissible discovery and testimony in case No. 16-L-116.

Accordingly, we reverse the trial court’s order granting summary judgment in favor of defendant

and remand the cause for further proceedings. On remand, the trial court is directed to reconsider

the issue using the standards adopted from P.A.C.E. Beyond our observation of the differences

between plaintiff’s conduct in this case and the plaintiffs’ conduct in Jones, we express no

opinion herein as to whether plaintiff’s conduct in this case constituted an abuse of the discovery

process.

¶ 62                                   III. CONCLUSION

¶ 63   The judgment of the circuit court of Winnebago County is affirmed in part and reversed in

part, and the cause is remanded with directions for further proceedings.

¶ 64   Affirmed in part and reversed in part.

¶ 65   Cause remanded with directions.




                                                - 28 ­
