{ "id": 3576147, "name": "EDWARD MALEK III, a Minor by his Mother and Next Friend, Sherry Malek, Plaintiff and Petitioner-Appellee, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant and Respondent-Appellant", "name_abbreviation": "Malek v. Lederle Laboratories", "decision_date": "1987-02-09", "docket_number": "No. 85\u20143447", "first_page": "493", "last_page": "502", "citations": [ { "type": "official", "cite": "152 Ill. App. 3d 493" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "253 N.E.2d 114", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 2d 471", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588958 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/114/0471-01" ] }, { "cite": "472 N.E.2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5500707 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/1074-01" ] }, { "cite": "129 N.E.2d 279", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill. App. 2d 201", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5142995 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/7/0201-01" ] }, { "cite": "89 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "454 N.E.2d 1186", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5661948 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0705-01" ] }, { "cite": "433 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "89 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493996 ], "weight": 2, "pin_cites": [ { "page": "284-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0273-01" ] }, { "cite": "272 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 293", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2471783 ], "weight": 4, "pin_cites": [ { "page": "296" }, { "page": "296-97" }, { "page": "296-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0293-01" ] }, { "cite": "224 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "79 Ill. App. 2d 447", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2565156 ], "weight": 2, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0447-01" ] }, { "cite": "399 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3232655 ], "pin_cites": [ { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0032-01" ] }, { "cite": "473 N.E.2d 955", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "opinion_index": 0 }, { "cite": "105 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141430 ], "weight": 5, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0201-01" ] }, { "cite": "466 N.E.2d 1038", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 870", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633591 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0870-01" ] } ], "analysis": { "cardinality": 853, "char_count": 22885, "ocr_confidence": 0.763, "pagerank": { "raw": 1.7906481559325345e-07, "percentile": 0.714942647235418 }, "sha256": "7d1d3a43083735c1f45c2a3fd4428d77fa008c41eb65f723fe1b61a4cdca161c", "simhash": "1:76ea58cb5cd6ae8f", "word_count": 3618 }, "last_updated": "2023-07-14T16:53:41.650258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD MALEK III, a Minor by his Mother and Next Friend, Sherry Malek, Plaintiff and Petitioner-Appellee, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant and Respondent-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE QUINLAN\ndelivered the opinion of the court:\nPlaintiff, Sherry Malek, as mother and next friend of the minor plaintiff, Edward Malek III, brought a personal injury action to recover damages against several defendants, including Lederle Laboratories (Lederle). In December 1982, the case proceeded to trial against Lederle only, and at the conclusion of the trial, the jury found in favor of defendant and against plaintiff on all counts. Judgment was subsequently entered on that verdict. Thereafter, plaintiff filed a petition pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401) requesting that the judgment be vacated and a new trial ordered. Following a hearing, the trial court granted plaintiff\u2019s petition. Defendant\u2019s motion for reconsideration was subsequently denied, and the defendant now appeals.\nWe reverse.\nThe facts pertinent to this appeal are as follows. The plaintiff filed a two-count complaint directed against defendant Lederle which included a count for strict products liability and a count for negligence. The complaint alleged that the minor plaintiff had been given vaccinations of diphtheria tetanus pertussis (DTP) manufactured and marketed by Lederle under the brand name Tri-Immunol. The complaint further alleged that the Tri-Immunol vaccine manufactured by Lederle was unreasonably dangerous in that it was not accompanied by adequate warnings and that Lederle was negligent in failing to properly test the vaccine. Following the entry of the jury\u2019s verdict in favor of defendant, plaintiff\u2019s post-trial motion was denied, and, thereafter, the verdict was affirmed on appeal. (Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 466 N.E.2d 1038.) However, prior to this court\u2019s affirmance of the trial court\u2019s judgment, plaintiff had filed a section 2\u2014 1401 petition (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401), asserting as the basis for her petition that there was newly discovered evidence.\nIn her petition under section 2 \u2014 1401, plaintiff alleged that evidence had been withheld by the defendant which would have caused a different result at the trial of this case. In particular, the plaintiff set forth the following basis for her contentions. On March 31, 1981, during the course of discovery, plaintiff\u2019s attorney filed the following request for production:\n\u201c(f) Any and all correspondence, pamphlets, brochures, advertisements, promotional materials, displays, doctor\u2019s letters, newsletters, reports, articles, labels and inserts containing the drug DTP and/or Pertussis.\u201d\nPlaintiff asserted that in response to this request, defendant made certain documents available for inspection at its headquarters at Pearl River, New York, on October 22 and 23, 1981, and that one of plaintiff\u2019s attorneys, Boyd McDowell, visited defendant\u2019s headquarters and inspected all documents for reproduction and delivery to the office of plaintiff\u2019s attorneys. Attached to plaintiff\u2019s complaint was Boyd McDowell\u2019s affidavit, which contended that certain documents that fell within the purview of the above request were withheld by the defendant.\nPlaintiff further alleged in her petition that on March 26, 1982, by letter to counsel for defendant Lederle, plaintiff requested that Lederle produce:\n\u201cAny and all reported pertussis vaccine reaction claims, including but not limited to convulsions, seizures, shock and paralysis, in the possession of Dr. Szumski, as indicated in his deposition, or in the possession of the Professional Services Department.\u201d\nPlaintiff said that in response to this request, defendant did produce 31 product complaints, but only 14 of those complaints had been received by defendant prior to December 5, 1978, the date on which plaintiff was vaccinated with Tri-Immunol. In support of this allegation, plaintiff attached the affidavit of Allen McDowell, another of plaintiff\u2019s attorneys.\nPlaintiff also contended in her petition that the defendant had \u201cfraudulently\u201d failed to disclose and produce all the documents that fell within the purview of the above discovery requests. Plaintiff later amended her petition to specifically contend that defendant \u201cfraudulently, wrongfully, and/or mistakenly failed to fully disclose and produce all the documents.\u201d In support of these allegations of fraud, plaintiff alleged that in the case of Yankovich v. Lederle Laboratories, which was then pending in the circuit court of Cook County, plaintiff\u2019s attorneys there (plaintiff\u2019s attorneys in the instant case also served as plaintiff\u2019s attorneys in Yankovich), filed a request for production substantially identical to the request for production filed in the Malek case. However, the plaintiff contended that during an inspection of documents at defendant\u2019s New York headquarters, which was similar to the inspection that took place in the Malek case, defendant Lederle produced over 60 additional complaints of severe reactions to Tri-Immunol, as well as additional correspondence which had not been produced by Lederle in the Malek case. Plaintiff claimed that these additional documents disclosed in the Yankovich case fell within the scope of the request for production filed in the Malek case. The additional complaints and correspondence produced in Yankovich were attached to plaintiff\u2019s petition as exhibits 1 through 71. Also, the plaintiff specifically asserted that the failure to discover these documents was not due to any negligence or lack of diligence on her part or on the part of her attorneys and that had these documents been produced in the Malek case and had the documents been determined to be admissible and received into evidence, the jury would have necessarily reached a verdict for plaintiff.\nAdditionally, the plaintiff also filed her section 2 \u2014 1401 petition with this court during her original appeal from the judgment entered against her and requested an order staying the judgment of the trial court. This court denied plaintiff\u2019s request for a stay, and, as stated previously, subsequently affirmed the trial court\u2019s judgment. Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 466 N.E.2d 1038.\nFollowing the affirmance by this court, defendant Lederle filed a response to plaintiff\u2019s petition and amended petition in the trial court which essentially denied the allegations of both. On July 16, 1985, the trial court granted plaintiff\u2019s petition, vacated the original verdict in favor of defendant, and ordered a new trial. As stated earlier, Lederle then filed a motion for rehearing which was denied on October 25, 1985, and on November 21,1985, Lederle filed its notice of appeal.\nSection 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401) provides a procedure whereby final orders and decrees may be vacated after 30 days. To prevail on a section 2 \u2014 1401 petition, a plaintiff must prove first that if the grounds for relief had been known at trial, it would have prevented the entry of judgment against the petitioner, and second, that the failure to discover and present the ground for relief was not the result of the petitioner\u2019s own lack of diligence. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 210, 473 N.E.2d 955.) Consistent with the strong judicial policy favoring the finality and stability of judgments, courts have long held that a section 2 \u2014 1401 petition is not to be used as a device to relitigate issues already decided or to put in issue matters which have previously been or could have been adjudicated. (Union National Bank & Trust Co. v. Green (1979), 80 Ill. App. 3d 32, 34-35, 399 N.E.2d 313.) A section 2 \u2014 1401 petition was not intended as a procedure whereby a litigant may be relieved of the consequences of his own mistake or negligence, and the burden is on the petitioner to rebut the presumption that the verdict is correct and to demonstrate that there has been no lack of due diligence. (Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 454, 224 N.E.2d 581.) While section 2 \u2014 1401 has been developed to provide trial courts with the equitable powers necessary to grant relief and prevent injustice, it was never intended to give a party a new opportunity to do that which should have been done at an earlier proceeding. Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296, 272 N.E.2d 805.\nDefendant Lederle, in its brief, submits that there exists a third requirement that a litigant seeking relief under section 2 \u2014 1401 must prove. Specifically, it contends that the petitioner must affirmatively prove that the party against whom the relief is sought fraudulently or intentionally withheld documents or evidence. In support of its contention, the defendant has cited the cases of Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955, as well as Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.\nHowever, the defendant has misinterpreted the holdings in those cases. The issue concerning whether the party against whom relief is sought fraudulently or intentionally withheld documents is not a separate and distinct requirement, but, rather, it is an element necessarily subsumed into the determination of whether the petitioner has exercised due diligence in discovering and presenting the ground for relief. See Lubbers v. Norfolk & Western Ry. Co. (1983), 118 Ill. App. 3d 705, 454 N.E.2d 1186, aff\u2019d (1985), 105 Ill. 2d 201, 473 N.E.2d 955.\nTo adequately consider the merits of plaintiff\u2019s section 2 \u2014 1401 petition here, it is necessary to review the history of the discovery in this case. Prior to trial, on or about May 21, 1981, plaintiff served defendant Lederle with a \u201crequest for production of documents,\u201d which included paragraph (f), the substance of which was set forth earlier in this opinion. On August 3, 1981, in a supplemental response to plaintiff\u2019s \u201crequest for production of documents,\u201d defendant Lederle advised plaintiff that it objected to providing any records prior to 1977 since its product, Tri-Immunol, only had an 18-month shelf life, thus making any data prior to 1977, defendant contended, irrelevant to plaintiff\u2019s case.\nOn August 27, 1981, the trial judge who had been supervising the discovery in this case entered an order concerning some of defendant Lederle's objections to plaintiff's interrogatories and directed the production of certain documents and files for plaintiff\u2019s inspection at defendant\u2019s Pearl River, New York, facility. While the exact details of the order are unclear, it does appear from the record that the trial court failed to consider plaintiff\u2019s request in paragraph (f) or defendant\u2019s objections to it. On September 28, 1981, defendant wrote to plaintiff to advise her that the documents ordered produced by the trial judge would be available at Lederle\u2019s Pearl River, New York, facility on October 22 and 23, 1981. In its letter, however, defendant made it clear that this inspection would only be permitted according to the terms that defendant had set forth in its supplemental response to plaintiff\u2019s request (f), on August 3, 1981. Plaintiff did not respond to the letter, nor did she challenge defendant\u2019s statements concerning plaintiff\u2019s request (f).\nOn October 27, 1981, following the inspection of the documents at defendant\u2019s New York facility, counsel for Lederle again wrote to all counsel of record, including plaintiff\u2019s counsel, and set out in detail the documents that had been requested by the parties as a result of the inspection. This letter also made it quite clear that it was defendant\u2019s position that it would only produce complaints and correspondence relating to neurological symptoms for the years 1977 and 1978. The defendant further indicated in the letter that the documents it had produced were, thus, in full compliance with the plaintiff\u2019s discovery requests, as modified by its August 3, 1981, supplemental response. Again, the plaintiff failed to indicate any objections to the defendant\u2019s assertions or its productions.\nWe find, based on this record, that the plaintiff has failed to meet her burden of establishing that she is entitled to relief pursuant to section 2 \u2014 1401. Clearly the plaintiff was guilty of a lack of due diligence by failing to object to defendant\u2019s modification of plaintiff\u2019s request (f), which the defendant restated on several occasions, and also by failing to object to the documents produced by the defendant. The plaintiff could have refused defendant\u2019s limited production offer and requested the trial court to order the defendant to comply with its original production request. However, for whatever reason, the plaintiff failed to do so and instead accepted the defendant\u2019s limited production and proceeded to trial. Furthermore, the plaintiff can hardly contend that she was unaware of defendant\u2019s position or was deceived by the defendant since the defendant had filed a written objection to the plaintiff\u2019s production request and, as noted above, restated this position in writing on several occasions.\nTherefore, the evidence contained in exhibits 1 through 71 was not newly discovered within the meaning of the statute, since, if plaintiff had acted with due diligence she could have discovered the evidence and, if relevant and admissible, used it at the trial. As stated earlier, section 2 \u2014 1401 was not intended to give a party a second opportunity to do that which should have been done at prior proceedings. See Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 272 N.E.2d 805.\nWe also believe the cases cited by the plaintiff are distinguishable from the present situation. In fact, these cases support the defendant\u2019s position and actually warrant a result contrary to the decision of the trial court.\nIn Ostendorf, the court there noted:\n\u201c[A] litigant exercises ordinary diligence in pretrial discovery when he poses interrogatories reasonably calculated to elicit the information important to his case. If his opponent then suppresses information within the scope of the interrogatories in such a way as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the former\u2019s fault, not the latter\u2019s negligence.\u201d (Emphasis added.) Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 284-85, 433 N.E.2d 253.\nWhile the supreme court in Ostendorf did grant the plaintiffs\u2019 petition, the court specifically found there that the defendant knowingly gave false answers to interrogatories and intentionally withheld, without filing an objection to plaintiffs\u2019 production request, test reports and other information demanded by the interrogatories. Such action, under the circumstances, the court concluded, inevitably tended to mislead opposing counsel into the belief that further inquiry was not needed and that he had received all that was available.\nSimilarly, in Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955, the defendant there introduced affirmative evidence at trial that a railroad crossing had been checked at two-week intervals for each of the 12 months preceding the accident and the signals were found to have been in working order. Later, a new trial was granted on the basis of newly discovered evidence when it was disclosed that the crossing had not, in fact, been checked during any of the six weeks prior to the accident and that the defendant there had deliberately falsified records to indicate that the crossing had been checked.\nClearly the situations presented in Ostendorf and Lubbers are substantially different from the situation presented in the instant case. The record here is void of any evidence that defendant attempted to mislead the plaintiff or to affirmatively conceal any of the information sought in plaintiff\u2019s request (f). Rather, as previously indicated, defendant openly told plaintiff on at least two occasions that it was refusing to provide information and records prior to 1977 because such information was, in its judgment, irrelevant to the issues in this case. Plaintiff\u2019s failure to challenge defendant\u2019s objections to production if she deemed that particular information necessary to a suitable disposition of her case, demonstrated a lack of due diligence on her part, which could not be attributed to any inappropriate action on the part of the defendant.\nFurthermore, we find that contrary to plaintiff\u2019s assertions here, the discovery request in Yankovich was not, under the circumstances, identical to the discovery request in Malek even though it included the same paragraph (f). The discovery request in Yankovich was, we believe, broader than the discovery request in Malek, since the discovery in Yankovich was not subject to the objection that defendant filed in the Malek case. Also in the Yankovich case, subsequent to the inspection of documents at Lederle\u2019s Pearl River, New York, facility, plaintiff specifically requested Lederle\u2019s complaint files for the years 1957 through 1982 inclusive. No such similar request was made in Malek, and the defendant in Yankovich made no objection to this request. Thus, the documents that plaintiff requested and received in Yankovich, and which now form the basis for her section 2 \u2014 1401 petition (exhibits 1 though 71), were not, contrary to her claims, the result of the same production request because of the different circumstances surrounding the request in the two cases, i.e., defendant Lederle\u2019s objection in Malek and plaintiff\u2019s specific request in Yankovich.\nWe further note that the trial court in its ruling improperly described the requirement of diligence that a petitioner must demonstrate under a section 2 \u2014 1401 petition and, thus, applied an incorrect test when it found that the plaintiff had been diligent. The court erroneously concluded that there was no issue concerning the petitioner\u2019s diligence, stating:\n\u201cThe question of diligence is not [present] *** here, the record shows that petitioner acted diligently in filing its [2 \u2014 1401] petition.\u201d\nHowever, the law is clear that the diligence required of a petitioner relates both to the discovery of the evidence as well as to the timeliness of plaintiff\u2019s post-trial petition. (See Lubbers v. Norfolk & Western Ry. Co. (1983), 118 Ill. App. 3d 705, 454 N.E.2d 1186.) In the context of a section 2 \u2014 1401 petition based on the discovery of new evidence, diligence requires that a party be free from fault or negligence relating to the evidence claimed to have been withheld or not presented. (See Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 173, 433 N.E.2d 253.) Accordingly, the relevant inquiry in such circumstances is not whether the petitioner was diligent in filing its petition, but, rather, whether the petitioner lacked diligence in failing to discover or present the evidence or documents. In other words, as we have stated previously, the failure to present the evidence must not have been the result of the petitioner\u2019s own lack of diligence.\nHere, the trial court erred by failing to address defendant\u2019s contention that petitioner\u2019s failure to discover the documents was the direct result of petitioner\u2019s own lack of diligence. Contrary to the trial court\u2019s observation, due diligence was an issue here and was not satisfied by the plaintiff\u2019s diligence in filing her 2 \u2014 1401 petition in apt time.\nThe second requirement that the petitioner here was required to meet in order for her to succeed on her section 2 \u2014 1401 petition was that if the grounds allegedly entitling her to relief under section 2\u2014 1401 had been made known at the trial, it would have prevented the entry of the judgment against her. (See Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955.) While consideration of this second requirement is not necessary to our decision here, we further believe that the petitioner in the present case has also failed to meet this requirement as well as the due diligence requirement.\nIn reviewing the alleged \u201cnewly discovered\u201d evidence set forth in exhibits 1 through 71, which is the basis upon which plaintiff seeks a new trial, we find that evidence concerning the issues involved in exhibits 1 through 71 was, in fact, introduced at the trial. Exhibits 1 through 71 are merely cumulative evidence and are not of a conclusive or controlling character and, therefore, would not have prevented entry of the judgment in this case. See Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 224 N.E.2d 581; Kirchoff v. Tzinberg\u2019s Park \u201cN\u201d Shop Food Stores, Inc. (1955), 7 Ill. App. 2d 201, 129 N.E.2d 279.\nAlthough, as plaintiff correctly asserts, a section 2 \u2014 1401 petition is addressed to the sound discretion of the trial court, a reviewing court is, nevertheless, justified in disturbing the judgment of the trial court where, as here, there has been an abuse of discretion. (Beverly Bank v. Pentagon Investment Co. (1981), 100 Ill. App. 3d 1074, 472 N.E.2d 835.) Plaintiff argues that she is entitled to a new trial to insure that justice is done in this case. However, as this court held in Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296-97, 272 N.E.2d 805, the interests of justice in these circumstances are more compelling than the personal interests of either party:\n\u201cPrompt disposition of litigation already backlogged many years on our crowded court calendars compels the exercise of restraint in granting new trials in cases where available facts could have been discovered by diligent investigation. That which would best serve the interests of the dilatory party is not the only factor to be considered. Danforth v. Checker Taxi Co., Inc. (1969), 114 Ill. App. 2d 471, 253 N.E.2d 114.\u201d 133 Ill. App. 2d 293, 296-97, 272 N.E.2d 805.\nThus, we find that based on the record and consistent with the policy of preventing the relitigation of matters that should have been properly litigated in the original trial, the plaintiff failed to meet the requirements for the granting of a section 2 \u2014 1401 motion, and the trial court here improperly granted the petition.\nAccordingly, for all the foregoing reasons, the judgment of the circuit court of Cook County granting plaintiff\u2019s section 2 \u2014 1401 petition is reversed, and the original judgment in favor of defendant Lederle is hereby reinstated.\nJudgment reversed.\nCAMPBELL and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE QUINLAN" } ], "attorneys": [ "Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Bridgman, Miles J. Seyk, and John C. Filosa, of counsel), for appellant.", "McDowell & Colantoni, Ltd., of Chicago (Anthony M. Colantoni, of counsel), for appellee." ], "corrections": "", "head_matter": "EDWARD MALEK III, a Minor by his Mother and Next Friend, Sherry Malek, Plaintiff and Petitioner-Appellee, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant and Respondent-Appellant.\nFirst District (1st Division)\nNo. 85\u20143447\nOpinion filed February 9, 1987.\nBaker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Bridgman, Miles J. Seyk, and John C. Filosa, of counsel), for appellant.\nMcDowell & Colantoni, Ltd., of Chicago (Anthony M. Colantoni, of counsel), for appellee." }, "file_name": "0493-01", "first_page_order": 515, "last_page_order": 524 }