                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




       Colburn v. Mario Tricoci Hair Salon & Day Spas, Inc., 2012 IL App (2d) 110624




Appellate Court            VIRGINIA COLBURN, Plaintiff-Appellant, v. MARIO TRICOCI HAIR
Caption                    SALONS AND DAY SPAS, INC., Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-11-0624


Rule 23 Order filed        April 30, 2012
Rule 23 Order
withdrawn                  June 26, 2012
Opinion filed              June 26, 2012


Held                       In an action alleging defendant hair salon and spa negligently
(Note: This syllabus       recommended and performed a “Vitamin C facial” on plaintiff following
constitutes no part of     a “seaweed facial” that irritated her skin, the entry of summary judgment
the opinion of the court   for defendant was upheld on appeal where plaintiff failed to present
but has been prepared      evidence by way of an expert qualified to render an opinion on the
by the Reporter of         standard of care applicable to an esthetician at the time of the occurrence
Decisions for the          in 2004.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-L-1305; the
Review                     Hon. John T. Elsner, Judge, presiding.



Judgment                   Affirmed.
Counsel on                    Robert K. Leyshon, of Evins & Sklare, Ltd., of Chicago, for appellant.
Appeal
                              Robert Marc Chemers, Suzanne M. Crowley, and Richard M. Burgland,
                              all of Pretzel & Stouffer, Chtrd., of Chicago, for appellee.


Panel                         JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                              Justices Hutchinson and Burke concurred in the judgment and opinion.




                                                  OPINION

¶1          Plaintiff, Virginia Colburn, sued defendant, Mario Tricoci Hair Salons & Day Spas, Inc.,
        alleging that she sustained injuries when defendant negligently recommended and performed
        a “Vitamin C facial” on January 13, 2004, following a “seaweed facial” that had irritated her
        skin on January 9, 2004. Plaintiff appeals from the trial court’s order barring her esthetician1
        expert witness’s opinion testimony and granting summary judgment in favor of defendant
        on the basis that plaintiff had presented no evidence of the standard of care applicable to an
        esthetician at the time of the occurrence. For the following reasons, we affirm.

¶2                                         BACKGROUND
¶3          Plaintiff originally initiated an action against defendant in 2006, but voluntarily
        dismissed the action in September 2009 pursuant to section 2-1009 of the Code of Civil
        Procedure (Code) (735 ILCS 5/2-1009 (West 2010)). The record on appeal begins with the
        commencement of plaintiff’s refiled action in October 2009.
¶4          Plaintiff’s first amended complaint in the refiled action alleged the following. On January
        9, 2004, plaintiff was a business invitee of defendant and received a seaweed facial.
        “[I]mmediately thereafter the very area where the facial had been applied turned red.”
        Plaintiff called defendant, and a manager instructed her “to come back to get a Vitamin C
        facial.” Plaintiff received a second facial, “which worsened the condition.” Defendant owed
        plaintiff a duty “to exercise ordinary and reasonable care and caution *** so as not to cause
        harm and injury to its patrons.” Defendant violated that duty in various ways, including that
        defendant “improperly applied chemicals and/or products to [p]laintiff’s face causing
        permanent burns to [p]laintiff’s face” and “[c]arelessly and negligently recommended and
        applied a second facial when [defendant] knew or should have known, based on the reaction
        to the first facial, that it was not safe to do so.” As a result of defendant’s negligence,


                1
                 The parties spell this word “aesthetician,” but the Illinois legislature, in the licensing statute
        for estheticians, has used the spelling “esthetician.” See 225 ILCS 410/3A-1(B) (West 2010).

                                                       -2-
       “[p]laintiff’s face has been permanently disfigured, discolored, and scarred, [and] the
       [p]laintiff has developed an allergic and sensitive condition to contaminants in the air and
       a good number of smells and presently cannot go into the sun.”
¶5         According to plaintiff’s brief, she disclosed Natalia Doran pursuant to Illinois Supreme
       Court Rule 213(f)(3) (eff. Jan. 1, 2007) as her retained esthetician expert witness in the
       original action. However, nothing in the record indicates that the parties completed any
       further expert discovery before plaintiff voluntarily dismissed the action.
¶6         After plaintiff commenced her refiled action, the trial court ordered plaintiff to disclose
       her retained expert witnesses pursuant to Rule 213(f)(3) on or before June 1, 2010. The trial
       court subsequently extended that deadline to August 1, 2010, and then to October 7, 2010.
       On November 1, 2010, plaintiff disclosed Dr. Jeffrey Coe as her retained expert witness.
       Plaintiff’s witness disclosure stated that Dr. Coe would testify to his opinion that the January
       13, 2004, facial caused plaintiff to suffer various specified injuries. According to defendant’s
       brief, when defendant took Dr. Coe’s deposition on March 10, 2011, Dr. Coe testified that
       he had no opinion on the standard of care applicable to an esthetician. The record does not
       contain a transcript of Dr. Coe’s deposition.
¶7         On April 18, 2011, plaintiff filed her “Motion to Disclose New (f)(3) Standard of Care
       Witness.” Plaintiff alleged the following. She had previously disclosed an esthetician expert
       witness2 who would testify to her opinion that defendant did not meet the applicable standard
       of care. Plaintiff’s relationship with her expert had broken down to the extent that she could
       not continue with her as an expert. Plaintiff’s medical causation expert3 would remain the
       same and had been deposed. Plaintiff requested until April 29, 2011, to disclose a new
       esthetician expert witness.
¶8         The same day, the trial court entered an order directing plaintiff to disclose her new
       expert witness and corresponding report by April 29, 2011, at 4:30 p.m. or plaintiff would
       be barred from disclosing an esthetician expert.
¶9         On April 29, 2011, plaintiff sent a letter to defendant, purporting to enclose the Rule
       213(f)(3) report of Pamela Stieber. Plaintiff stated that Stieber had e-mailed the report the
       night before and that it was therefore unsigned. The report consisted of a letter from Stieber
       to plaintiff’s counsel and an attached one-page document. The letter stated the following.
       Stieber was an esthetician licensed in the state of Illinois since 2006. She had attended Pivot
       Point International Academy. She had experience with various skin and facial treatments and
       techniques, including microdermabrasion, chemical peels, facials, and laser treatments for
       rosacea, sun damage, acne, wrinkles, and scars.
¶ 10       The one-page document attached to the letter stated that Stieber had reviewed the
       depositions of plaintiff, Dr. Coe, defendant’s spa coordinator and manager, defendant’s
       corporate spa director, and one of defendant’s estheticians. She had also reviewed plaintiff’s
       handwritten summary of the incident, photographs of plaintiff, a book entitled Milady’s


              2
                  We infer that plaintiff was referring to Natalia Doran.
              3
                  We infer that plaintiff was referring to Dr. Jeffrey Coe.

                                                     -3-
       Standard Esthetics Fundamentals Manual, defendant’s esthetics training manual, defendant’s
       written discovery responses, material safety data sheets, a “Repechage review summary
       sheet,” and a product ingredient listing sheet. None of these documents were attached to the
       report, and none are contained in the record.
¶ 11       The document then stated the following under the heading “Personal Opinion of Pamela
       Stieber”:
                “When [p]laintiff, Virginia Colburn returned for her SECOND treatment on January
           13, 2004, with demarcation from treatment dated January 9, 2004, I would have refused
           to treat Ms. Colburn. Upon reviewing the documents stated above, it is in my opinion
           when Ms. Colburn returned to Mario Tricoci on January 13, 2004, she should not have
           been treated. I feel this second treatment to Ms. Colburn, which included a steam
           treatment, exasperated [sic] her condition. As stated: MILADY’S Standard Esthetics
           Fundamentals Manual, Part 3 ‘The Skin Sciences’ page 216, under
           CONTRAINDICATIONS, it states that a skin disorder or skin irritation can all
           contraindicate a service. Also, contraindications indicator shown in MARIO TRICOCI
           AESTHETIC TRAINING MANUAL, Facial Training–Sec. 2: Skin Analysis, Part B,
           Page 1, first bullet point asks:
                    Question[:] ‘Do you use vaporizers’?
                    Answer: Yes, we do use vaporizers in every Facial Treatment, unless a condition
                is present in which heat is a contraindication.
                In Virginia Colburn’s deposition transcript, she stated that her skin was irritated and
           blotchy, page 98, line number 23 and in her personal diary, dated Friday, January 9, 2004,
           she stated she experienced pain and redness of her face.
                It is my personal opinion when Virginia Colburn returned for her second
           treatment on January 13, 2004 upon consulting and viewing client’s skin, she
           should not have been treated, and she should have immediately been referred for
           medical attention.” (Emphases in original.)
¶ 12       Defendant then filed its “Motion to Bar and for Summary Judgment.” Defendant asked
       the court to strike Stieber’s purported Rule 213(f)(3) report on the following grounds: (1)
       Stieber was not a licensed esthetician in 2004 when the incident occurred; (2) Stieber did not
       identify the standard of care for an esthetician in 2004; (3) Stieber gave her “personal
       opinion” rather than her professional opinion; and (4) Stieber did not identify the specific
       actions that violated a standard of care. Defendant then asked the court to enter summary
       judgment in its favor because “absent a properly disclosed expert to establish and address
       standard of care issues, plaintiff is unable to proceed with her alleged cause of action against
       the defendant.”
¶ 13       In response to defendant’s motion, plaintiff argued that her disclosure was sufficient to
       qualify Stieber as an expert. Plaintiff contended that Stieber need not have been licensed in
       2004 to be qualified to give her opinion as to the “conduct and standard” of an esthetician.
       Plaintiff maintained that Stieber’s references to Milady’s Standard Esthetics Fundamentals
       Manual and to defendant’s own esthetics training manual established that she was giving her
       opinion on the standard of care applicable to defendant.

                                                 -4-
¶ 14       Plaintiff further argued that summary judgment would be improper because this was a
       “standard negligence case” in which the standard of care was that of a reasonable person, not
       a “medical arts” case. Plaintiff contended that defendant had “not demonstrated that there
       was not negligence under a general negligence standard.”
¶ 15       Plaintiff attached Stieber’s affidavit to her response. The affidavit largely repeated the
       disclosures contained in Stieber’s letter and one-page report, but included the following
       revised paragraph:
               “In my professional opinion, when Virginia Colburn returned for her second
           treatment on January 13, 2004 with demarcation from treatment on January 9, [s]he
           should have been refused any treatment and referred to a physician. This demarcation
           was also described as painful, irritated, and blotchy skin. Refusal of treatment and
           referral was the appropriate standard of care under with [sic] the skin conditions present.
           When Ms. Colburn was treated on January 13, 2004, this violated the standard of care
           and exacerbated and aggravated her skin condition.”
       Stieber also stated in the affidavit that both Milady’s Standard Esthetics Fundamentals
       Manual and defendant’s esthetics training manual “support the opinion that treatment should
       not have been provided since there was pain, redness and irritated and blotchy skin present
       when [plaintiff] presented for treatment on January 13, 2004.”
¶ 16       The record does not contain a transcript of the hearing on defendant’s motion. On June
       16, 2011, the trial court entered a written order in which it barred Stieber from testifying as
       an expert and entered summary judgment in defendant’s favor. The court first concluded that
       it did “not have the discretion to not consider the [Stieber] affidavit as the [plaintiff’s]
       213(f)(3) disclosure.” The court went on:
               “The next issue is whether Ms. Steiber [sic] can give an opinion. The affiant attended
           Pivot Point International Academy and graduated in 2006. She then received training
           from a doctor. The incident occurred on January 13, 2004[,] more than two years prior
           to this person graduating from school. The affiant was not licensed in 2004. The affiant
           does not state she has knowledge as to the standard for aestheticians in 2004; nor does
           she state a basis for her knowledge of standards that existed in 2004. Finally, the opinions
           reached are based upon her schooling, training, licensing and experience. All of the basis
           [sic] for her ability to give an opinion occurred more than 2 years after the incident. As
           the defendant points out, the affiant does not show that she has knowledge of the
           standard of care a professional aesthetician with the same knowledge skill and ability
           would have used under similar circumstances in January, 2004. The motion in limine to
           bar this witness from giving opinion testimony is granted.
               The final issue is whether there is a genuine issue of material fact and if not whether
           the defendant is entitled to judgment as a matter of law. Since there is no evidence of the
           standard of care in January, 2004 or an opinion as to the breach of that standard, then the
           defendant is entitled to judgment as a matter of law.
               The motion for summary judgment is granted.”
¶ 17       This timely appeal followed.


                                                 -5-
¶ 18                                         ANALYSIS
¶ 19       We begin by clarifying what is not at issue in this appeal. Both parties spend significant
       time in their briefs arguing over whether plaintiff’s disclosure of Pamela Stieber on April 29,
       2011, satisfied the requirements of Rule 213(f)(3). However, the trial court explicitly stated
       that it was considering Stieber’s affidavit as plaintiff’s Rule 213(f)(3) disclosure. The court’s
       order stated that “[t]he court does not have the discretion to not consider the affidavit as the
       213(f)(3) disclosure.” (Emphasis added.) A double negative is “a reiterated denial that equals
       an affirmative.” Webster’s Third New International Dictionary 678 (1993). Plaintiff’s
       compliance with Rule 213(f)(3) is not at issue on appeal.

¶ 20                                  Defendant’s Motion to Bar
¶ 21        The first issue on appeal is whether it was proper for the trial court to bar Stieber from
       giving her opinion on the standard of care applicable to an esthetician at the time of the
       occurrence. “[I]t is well settled that the decision whether to admit expert testimony is within
       the sound discretion of the trial court.” Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006)
       (Thompson I). “ ‘The burden of establishing the qualifications of an expert witness is on the
       proponent of his testimony ***.’ ” Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111,
       123 (2000) (quoting People v. Jordan, 103 Ill. 2d 192, 208 (1984)). “A person will be
       allowed to testify as an expert if his experience and qualifications afford him knowledge that
       is not common to laypersons, and where his testimony will aid the trier of fact in reaching
       its conclusions.” Thompson I, 221 Ill. 2d at 428. “ ‘There is no predetermined formula for
       how an expert acquires specialized knowledge or experience and the expert can gain such
       through practical experience, scientific study, education, training or research.’ ” Thompson
       I, 221 Ill. 2d at 428-29 (quoting People v. Miller, 173 Ill. 2d 167, 186 (1996)). An expert
       need not have formal academic training or specific degrees, but only “knowledge and
       experience beyond that of an average citizen.” Thompson I, 221 Ill. 2d at 429.
¶ 22        We review for an abuse of discretion a trial court’s decision not to allow a witness to
       testify as an expert. Somers v. Quinn, 373 Ill. App. 3d 87, 95-96 (2007). A trial court abuses
       its discretion only where no reasonable person would take the position adopted by the court.
       Somers, 373 Ill. App. 3d at 95-96. “The test is not whether the reviewing court agreed with
       the trial court’s decision, but whether the lower court ‘acted arbitrarily without the
       employment of conscientious judgment or, in view of all the circumstances, exceeded the
       bounds of reason and ignored recognized principles of law so that substantial prejudice
       resulted.’ ” (Internal quotation marks omitted.) Somers, 373 Ill. App. 3d at 96 (quoting
       American Federation of State, County & Municipal Employees, Council 31 v. Schwartz, 343
       Ill. App. 3d 553, 559 (2003)).
¶ 23        Our supreme court held in Thompson I that the lack of an Illinois engineering license
       alone was an insufficient basis on which to bar a witness from testifying as an expert to the
       standard of care for professional engineers in Illinois. Thompson I, 221 Ill. 2d at 429. The
       court held that, while licensing may be one factor to consider in determining whether a
       witness is qualified to testify as an expert, it is not a prerequisite and must be considered
       along with other relevant factors. Thompson I, 221 Ill. 2d at 429. The court remanded to the


                                                 -6-
       trial court to properly determine the witness’s qualifications based on all of the relevant
       criteria. Thompson I, 221 Ill. 2d at 430.
¶ 24        In Somers, the appellate court similarly held that the trial court erred in concluding that
       a witness who had lost his license to practice medicine was automatically barred from
       testifying as an expert to the standard of care for a physician. Somers, 373 Ill. App. 3d at 93.
       The court in Somers did not remand for further proceedings, however, because, although the
       trial court had erroneously concluded that the witness’s lack of a license automatically
       disqualified him from testifying as an expert, the trial court had also stated that “even if it
       had discretion to decide to allow [the witness’s] testimony, it would still exclude the
       testimony.” Somers, 373 Ill. App. 3d at 90, 95-96. The Somers court held that the trial court
       could have reasonably concluded that the witness was not qualified to testify as an expert
       based on the loss of his license and other factors. Somers, 373 Ill. App. 3d at 96.
¶ 25        Plaintiff would have us interpret the trial court’s June 16, 2011, order as erroneously
       concluding that Stieber was automatically barred from testifying as an expert because she
       received her esthetician’s license in 2006, two years after the occurrence. Plaintiff asserts that
       the trial court “ruled that since Ms. Steiber [sic] was first licensed in 2006 and the conduct
       occurred in 2004, [p]laintiff could not establish the standard of care in 2004.” Plaintiff argues
       that “[j]ust because Ms. Steiber [sic] was not licensed in 2004 does not mean that she cannot
       testify to a standard of care that she is familiar with that existed at that time.”
¶ 26        While we agree with plaintiff that Stieber’s lack of a license or a specialized degree in
       2004 did not automatically disqualify her from testifying as an expert to the standard of care
       in 2004, we decline to interpret the trial court’s order as applying such an absolute rule. The
       trial court considered Stieber’s education and experience in making its decision–the court
       acknowledged that “the opinions reached are based upon her schooling, training, licensing
       and experience”–but the court nevertheless concluded that she was unqualified as an expert
       because she did not “state a basis for her knowledge of standards that existed in 2004” and
       because she did “not show that she had knowledge of the standard of care a professional
       aesthetician with the same knowledge skill and ability would have used under similar
       circumstances in January, 2004.”
¶ 27        While it is conceivable that, despite her lack of a specialized degree or an esthetician’s
       license in 2004, Stieber could have been qualified to testify as an expert to the standard of
       care applicable to an esthetician in 2004, it was plaintiff’s burden to present sufficient
       evidence to the court to establish her qualifications. See Lombardo, 315 Ill. App. 3d at 123
       (the burden of establishing an expert witness’s qualifications is on the proponent of the
       testimony). Again, there is not a “ ‘predetermined formula’ ” for acquiring specialized
       knowledge or experience that will qualify a witness as an expert. Thompson I, 221 Ill. 2d at
       428-29 (quoting Miller, 173 Ill. 2d at 186). An expert can acquire specialized knowledge in
       a number of ways, including “ ‘through practical experience, scientific study, education,
       training or research.’ ” Thompson I, 221 Ill. 2d at 428-29 (quoting Miller, 173 Ill. 2d at 186).
       Plaintiff simply did not present sufficient information to satisfy the court that Stieber was
       qualified to give her opinion on the standard of care for an esthetician in 2004.
¶ 28        The shortfalls in plaintiff’s disclosure and in Stieber’s affidavit were apparent. Although


                                                  -7-
       Stieber stated that she had experience using various products and techniques, she did not
       state whether the same products and techniques were used in 2004. Stieber also stated that
       both Milady’s Standard Esthetics Fundamentals Manual and defendant’s esthetics training
       manual supported her opinions, but she did not state whether those materials had been
       published prior to 2004 or that they established the standard of care in 2004. In her brief,
       plaintiff conclusively states that “Mario Tricoci’s policies and the industry treatise were in
       existence on the date of the alleged negligence,” but plaintiff offers no citation to the record
       to establish this, and the materials are not included in the record. Given that Stieber was not
       licensed until 2006, it was critical for plaintiff to establish how Stieber became an expert on
       the standard of care as it existed in 2004. Simply stating in her affidavit that “[r]efusal of
       treatment and referral was the appropriate standard of care” was not enough.
¶ 29        At oral argument, plaintiff asked this court to infer that, because defendant tendered its
       esthetics training manual in response to plaintiff’s discovery requests, the training manual
       was the one in effect at the time of the occurrence. We decline to do so. It was plaintiff’s
       burden to present a sufficiently complete record on appeal to support a claim of error, and
       any doubts that arise from the incompleteness of the record will be resolved against her.
       Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Moreover, plaintiff conceded at oral
       argument that she did not present a copy of the training manual to the trial court, and a
       reviewing court cannot consider evidence that was not before the trial court when it rendered
       its decision. Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852 (2010).
¶ 30        Based on the foregoing, we cannot say that the trial court abused its discretion in barring
       Stieber from giving her opinion on the standard of care applicable to an esthetician at the
       time of the occurrence. The trial court did not apply an erroneous categorical rule, but
       exercised its discretion by assessing the various bases for Stieber’s opinion and concluding
       that those bases were insufficient to qualify her as an expert. The court did not act
       “ ‘arbitrarily without the employment of conscientious judgment or, in view of all the
       circumstances, exceed[ ] the bounds of reason and ignore[ ] recognized principles of law.’ ”
       (Internal quotation marks omitted.) Somers, 373 Ill. App. 3d at 96 (quoting Schwartz, 343
       Ill. App. 3d at 559).

¶ 31                       Defendant’s Motion for Summary Judgment
¶ 32       The next issue is whether the trial court erred in granting summary judgment in favor of
       defendant. Summary judgment is proper where “the pleadings, depositions, and admissions
       on file, together with the affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to judgment as a matter of law.” 735 ILCS
       5/2-1005(c) (West 2010); Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011) (Thompson II).
       The purpose of summary judgment is not to try a question of fact, but to determine whether
       any genuine issue of fact exists to be tried. Thompson II, 241 Ill. 2d at 438. In determining
       this, the court must construe the pleadings, depositions, admissions, and affidavits strictly
       against the movant and liberally in favor of the opponent. Williams v. Manchester, 228 Ill.
       2d 404, 417 (2008). “Summary judgment should be granted only when the right of the
       moving party is clear and free from doubt.” Thompson II, 241 Ill. 2d at 438. We review de


                                                 -8-
       novo an order granting summary judgment. Thompson II, 241 Ill. 2d at 438.
¶ 33       The party moving for summary judgment bears the burden of proof and the initial burden
       of production. Pecora v. County of Cook, 323 Ill. App. 3d 917, 933 (2001). The moving party
       can meet the initial burden of production either “(1) by affirmatively disproving the
       plaintiff’s case by introducing evidence that, if uncontroverted, would entitle the movant to
       judgment as a matter of law (traditional test) [citation], or (2) by establishing that the
       nonmovant lacks sufficient evidence to prove an essential element of the cause of action
       (Celotex[4] test) [citations].” Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-
       89 (2000). If the moving party meets the initial burden of production, then the burden of
       production shifts to the nonmoving party, who must then present some factual basis that
       would arguably entitle it to judgment as a matter of law. Pecora, 323 Ill. App. 3d at 933;
       Williams, 316 Ill. App. 3d at 689. A court should grant summary judgment on a Celotex-type
       motion “only when the record indicates that a plaintiff has had extensive opportunities to
       establish her case but has failed in any way to demonstrate that she could [do so].” Williams,
       316 Ill. App. 3d at 694.
¶ 34       Defendant’s motion for summary judgment was a Celotex-type motion based on the
       argument that (1) plaintiff was required to prove the applicable standard of care through
       expert testimony, (2) plaintiff had failed to disclose an expert who was qualified to give an
       opinion on the standard of care, and (3) plaintiff was barred from doing so because the
       deadline for disclosure of plaintiff’s experts had passed. Plaintiff does not argue on appeal
       that defendant failed to meet its initial burden of production. The sole issue is whether, once
       the burden of production shifted to her, plaintiff presented a sufficient factual basis that
       would arguably entitle her to judgment as a matter of law.
¶ 35       Plaintiff alleged that defendant was negligent in recommending and performing a
       “Vitamin C facial” four days after defendant had performed a “seaweed facial” that irritated
       plaintiff’s skin. The elements of a cause of action for negligence are (1) a duty owed to the
       plaintiff by the defendant, (2) a breach of that duty, and (3) an injury proximately caused by
       the breach. Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1051 (2010). “The
       standard of care, also known as the standard of conduct, falls within the duty element.” Jones
       v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 294 (2000).
¶ 36       “In an ordinary negligence case, the standard of care required of a defendant is to act as
       would an ‘ordinary careful person’ or a ‘reasonably prudent’ person.” Jones, 191 Ill. 2d at
       295 (quoting Advincula v. United Blood Services, 176 Ill. 2d 1, 22 (1996)). Generally, no
       expert testimony is necessary to prove the standard of care in an ordinary negligence case.
       Jones, 191 Ill. 2d at 295 (citing Advincula, 176 Ill. 2d at 24).
¶ 37       “In contrast, in a professional negligence case, the standard of care required of a
       defendant is to act as would an ‘ordinarily careful professional.’ ” Jones, 191 Ill. 2d at 295


               4
               In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the United States Supreme Court
       recognized that a defendant moving for summary judgment could meet its initial burden of
       production by “ ‘pointing out to the *** court *** that there is an absence of evidence to support the
       nonmoving party’s case.’ ” Pecora, 323 Ill. App. 3d at 934 (quoting Celotex, 477 U.S. at 325).

                                                    -9-
       (quoting Advincula, 176 Ill. 2d at 23). “Pursuant to this standard of care, professionals are
       expected to use the same degree of knowledge, skill and ability as an ordinarily careful
       professional would exercise under similar circumstances.” Jones, 191 Ill. 2d at 295.
       Generally, expert testimony is necessary to prove the standard of care in a professional
       negligence case. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 20; Jones, 191 Ill. 2d
       at 295. “This requirement is based on the simple fact that without expert testimony, jurors,
       not skilled in the profession, are not equipped to judge the professional’s conduct.” Studt,
       2011 IL 108182, ¶ 20. “Courts have recognized two exceptions to this rule: where the
       professional’s conduct is so grossly negligent, or the procedure so common, that the jury can
       readily appraise it without the need for expert testimony.” Studt, 2011 IL 108182, ¶ 20 (citing
       Jones, 191 Ill. 2d at 278).
¶ 38        We have already determined that plaintiff failed to present competent expert testimony
       on the standard of care applicable to an esthetician in 2004. Our decision on that issue is
       supported by the consideration that plaintiff “had extensive opportunities to establish her
       case” (Williams, 316 Ill. App. 3d at 694), but nevertheless failed to disclose a qualified expert
       witness. This was not a situation in which granting a Celotex-type motion was improper
       because the nonmoving party had not yet had an opportunity to complete necessary
       discovery. See Williams, 316 Ill. App. 3d at 690 (Celotex-type motion filed only 13 months
       following filing of complaint was premature); Hansbrough v. Kosyak, 141 Ill. App. 3d 538,
       549 (1986) (motion filed only 10 months after complaint was filed). Plaintiff filed her initial
       action in 2006, and defendant did not move for summary judgment until 2011, after the court
       had given plaintiff numerous opportunities to disclose an expert. The court even gave
       plaintiff one more opportunity when it considered Stieber’s affidavit as her Rule 213(f)(3)
       disclosure.
¶ 39        Although plaintiff argued in her response to defendant’s summary judgment motion in
       the trial court that this was a “standard negligence case” in which the standard of care was
       that of a reasonable person, not a “medical arts” case, plaintiff has forfeited this argument
       on appeal. Nowhere in plaintiff’s brief does she suggest that this is an ordinary negligence
       case, rather than a professional negligence case, or that expert testimony was not necessary
       to prove the standard of care. Points not argued in an appellant’s brief are forfeited. Ill. S. Ct.
       R. 341(h)(7) (eff. July 1, 2008) (“Points not argued are waived and shall not be raised in the
       reply brief, in oral argument, or on petition for rehearing.”); People v. Evans, 405 Ill. App.
       3d 1005, 1007 (2010) (applying Rule 341(h)(7) to an argument not raised in the appellant’s
       brief). We decline to overlook plaintiff’s forfeiture of the issue and to sua sponte research
       the issues, formulate arguments, and then decide the issues. See Skidis v. Industrial Comm’n,
       309 Ill. App. 3d 720, 724 (1999) (stating that “this court will not become the advocate for,
       as well as the judge of, points an appellant seeks to raise”).
¶ 40        At oral argument, plaintiff maintained that she had structured her brief in such a way that
       it effectively raised the argument that this is an ordinary negligence case. She contended, for
       example, that she chose to cite Van Holt v. National R.R. Passenger Corp., 283 Ill. App. 3d
       62 (1996), specifically because it involved an expert testifying in an ordinary negligence
       case. However, as discussed below, plaintiff’s brief gave the impression that she was
       conceding that this is a professional negligence case. Moreover, the court in Van Holt simply

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       rejected the defendants’ argument on appeal that the trial court had erred in allowing the
       plaintiffs’ expert to give opinions that related to matters within jurors’ common knowledge.
       Van Holt, 283 Ill. App. 3d at 70. The court in Van Holt placed no significance on the
       consideration that the case, which involved a slip and fall, was governed by an ordinary
       negligence standard. See Van Holt, 283 Ill. App. 3d at 70. An appellant’s brief must contain
       “the contentions of the appellant and the reasons therefor, with citation of the authorities and
       the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008). Citing a case and
       hoping that the court infers from its facts the appellant’s contentions is not adequate.
¶ 41        Our decision not to overlook plaintiff’s forfeiture is supported by the consideration that
       plaintiff seems to concede that this is a professional negligence case. In her brief, she refers
       to esthetics as a “profession.” She asserts that Stieber’s “[p]rofessional [o]pinion” established
       the standard of care. In arguing that the trial court should have qualified Stieber as an expert,
       plaintiff points out that “Ms. Stieber had to go to school to become an aesthetician,” that
       “[t]he State of Illinois has decided to impose a licensing requirement for aestheticians,” and
       that “[t]here are products involved which have ingredients which an average person might
       not have any knowledge of or understand.” None of plaintiff’s arguments suggests that
       estheticians are not professionals subject to a professional negligence standard.
¶ 42        Additionally, although plaintiff argues that she could establish the standard of care either
       through Milady’s Standard Esthetics Fundamentals Manual or through defendant’s training
       manual, she refers to these materials as being admissible only through Stieber’s expert
       testimony. For example, plaintiff asserts that she can “prove the 2004 standard of care
       through Ms. Stieber’s statement of the standard of care as created by the [d]efendant’s own
       policies.” As we have mentioned, plaintiff did not attach copies of the publication or the
       training manual to her response to defendant’s summary judgment motion, and the materials
       are not contained in the record on appeal. Plaintiff effectively concedes the necessity of
       Stieber’s testimony to prove her case.
¶ 43        Based on the foregoing, we conclude that, once the burden of production shifted to her,
       plaintiff did not meet her burden of presenting a sufficient factual basis that would arguably
       entitle her to judgment as a matter of law. We therefore conclude that it was proper for the
       trial court to grant defendant’s motion for summary judgment.

¶ 44                                    CONCLUSION
¶ 45       For the above reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 46       Affirmed.




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