{ "id": 2467266, "name": "JACOB H. SHAPIRA, Plaintiff-Appellee, v. LUTHERAN GENERAL HOSPITAL et al., Defendants-Appellants", "name_abbreviation": "Shapira v. Lutheran General Hospital", "decision_date": "1990-05-22", "docket_number": "Nos. 1\u201489\u20141035, 1\u201489\u20141036 cons.", "first_page": "479", "last_page": "487", "citations": [ { "type": "official", "cite": "199 Ill. App. 3d 479" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "508 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3591286 ], "pin_cites": [ { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0835-01" ] }, { "cite": "499 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "220" }, { "page": "221" }, { "page": "228-29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "529 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "124 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217866 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/124/0226-01" ] } ], "analysis": { "cardinality": 896, "char_count": 19176, "ocr_confidence": 0.766, "pagerank": { "raw": 1.0742253751063193e-07, "percentile": 0.5605263086766835 }, "sha256": "ea874f37b9cae7b3e286a010c65f89d3ff1fa8f124f52ea024e035520fb08509", "simhash": "1:e3b43f8fecc68d19", "word_count": 3130 }, "last_updated": "2023-07-14T15:10:12.040900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JACOB H. SHAPIRA, Plaintiff-Appellee, v. LUTHERAN GENERAL HOSPITAL et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nThis consolidated defendants\u2019 appeal is from the circuit court\u2019s order granting plaintiff\u2019s section 2\u20141401 (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141401) (section 2\u20141401) petition to vacate the dismissal of his medical malpractice suit with prejudice, claiming that the circuit court abused its discretion in allowing the vacatur.\nThe alleged malpractice took place on November 7, 1980. On November 8, 1982, plaintiff, Jacob H. Shapira, filed an eight-count negligence and medical malpractice complaint against defendant Lutheran General Hospital (Lutheran General) and defendants Dr. Khushroo Patel, Dr. T.K. Raghunath and Dr. Robert Gordon (sometimes collectively defendant doctors). On November 5, 1984, following a pretrial conference, the circuit court entered orders for taking depositions of parties and nonparties, and identification and depositions of experts, within certain time limits. February 10, 1985, was the time limit set for disclosing and deposing experts. Plaintiff failed to comply. On May 20, the court again ordered plaintiff to disclose any experts\u2019 names by October 18, 1985, who also were to be deposed by that date. Once again, plaintiff did nothing. Another court order, entered October 18, extended plaintiff\u2019s disclosure date to July 10, 1986, stating that any expert not so disclosed and deposed by that date would be barred under Supreme Court Rule 220 (107 Ill. 2d R. 220). All discovery was to have been closed by that date. This order, too, was ignored by plaintiff. The final order, addressing discovery and expert disclosure and deposing, gave plaintiff until October 1, 1986, to comply. This order also set March 11, 1987, as the parties\u2019 final pretrial conference date. Plaintiff, therefore, was given over one year to disclose and depose his expert, but failed to do so. Nothing was filed of record advising the court, either before or after entry of any of the foregoing orders, that plaintiff did not intend to utilize the services of an expert.\nDefendant doctors, on October 14, 1986, sent plaintiff a notice of motion to dismiss the cause of action for failure to obey discovery orders. In the motion, defendants argued that plaintiff had repeatedly disregarded the court\u2019s orders to identify his expert and that dismissal was warranted because defendants were unable to properly prepare their case for trial. In the alternative, they asked that any expert later produced by plaintiff be barred if dismissal was not appropriate. On October 31, 1986, the circuit court continued the hearing on the motion until November 25, 1986. On that date, more than four years after plaintiff\u2019s complaint had been filed, the court dismissed plaintiff\u2019s cause of action with prejudice. No one from plaintiff\u2019s law firm attended this hearing; significantly, one of plaintiff\u2019s counsel had drafted the order setting the hearing date. One of plaintiff\u2019s counsel also attended a November 3, 1986, pretrial conference, when the forthcoming motion hearing date was discussed. In the record are copies of two letters sent by defense counsel on December 1 and 3, 1986, enclosing copies of the November 25, 1986, dismissal order. The second letter was sent in response to a telephone request initiated by one of plaintiff\u2019s counsel who asked about the result of the dismissal motion, and also asked that another copy of the order be sent to him. Defense counsel\u2019s assertions in this regard are supported by an affidavit filed with the court. No countervailing affidavit was filed on plaintiff\u2019s behalf.\nPlaintiff\u2019s counsel nevertheless appeared before the pretrial judge on March 11, 1987. There he was again informed of the November 25, 1986, dismissal, this time by the judge who, counsel admits, also showed him a copy of the dismissal order. Another order noting the previous dismissal was entered by the pretrial judge on November 11, 1987. More than seven months later, on October 29, 1987, plaintiff filed an untitled and unsupported motion to vacate the dismissal, arguing that he never violated any orders because he was not going to call any experts, but only plaintiff\u2019s treating doctor. Plaintiff asserted that defendants knew of this intention.\nOn January 5, 1988, the court struck plaintiff\u2019s motion, but granted him leave to file a section 2 \u2014 1401 petition within 30 days. Several days after the petition was to have been filed, on February 10, 1988, plaintiff filed a motion to extend time. The reason given for the newly requested extension was the \u201cfpjress of other business and shortage of personnel.\u201d No order was entered as to this motion. Nine months thereafter, on October 19, 1988, plaintiff filed the instant section 2\u20141401 petition, alleging that he did not need to identify any expert since plaintiff did not intend to use an expert witness, but would rely on the testimony of treating doctors. Plaintiff claimed to have relied on Tzystuek v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525. Plaintiff\u2019s asserted intent not to call an expert was not made a matter of record, however, until after dismissal of his complaint. Further, plaintiff argued that one of his attorneys could not locate the court file at the Daley Center in order to ascertain the status of the case. Although the court\u2019s computer system confirmed that the dismissal was entered, plaintiff\u2019s counsel asserted he had never seen copies of the order itself. Plaintiff\u2019s counsel conceded that due diligence was a requirement in section 2\u2014 1401 petition evaluation, but that the court, in its equitable power, could vacate the order if \u201cunfair.\u201d\nAfter two additional continuances, the circuit court conducted a hearing on plaintiff\u2019s section 2\u20141401 petition on January 5, 1989. The court specifically found that (1) plaintiff had failed to show proper diligence in bringing the petition; (2) the order dismissing the case, entered by another judge, was too extreme a sanction for the discovery violation in the court\u2019s opinion; and (3) plaintiff had to show the court that it had the jurisdiction \u201cto remedy this *** either under 1401, *** or under some other doctrine.\u201d The matter was again continued.\nOn March 17, 1989, the court granted plaintiff\u2019s petition, stating that the order dismissing the cause because plaintiff failed to identify an expert was erroneous since plaintiff planned to rely on his treating doctor\u2019s testimony. By timely notice of appeal, both defendant doctors and Lutheran General appeal the order.\nDefendants contend that the circuit court erred in granting plaintiff\u2019s petition for relief from a final judgment pursuant to section 2\u20141401, because it failed to meet the statutory requirements and failed to allege proper grounds for section 2\u2014 401 relief. We agree.\nSection 2\u20141401 provides a statutory mechanism by which a final order or judgment may be vacated more than 30 days after its entry. (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141401; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381; Manning v. Meier (1983), 114 Ill. App. 3d 835, 837, 449 N.E.2d 560.) The petitioner must affirmatively set forth four elements under section 2\u20141401 to be entitled to relief: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; (3) due diligence in presenting the section 2\u20141401 petition; and (4) misapprehension of the circuit court with regard to the facts, the valid defense or claim through no fault or negligence of petitioner, at the time the challenged order or judgment was entered. (Gayton v. Levi (1986), 146 Ill. App. 3d 142, 148, 496 N.E.2d 1045.) A petition seeking to reinstate a claim dismissed for failure to comply with discovery also \u201cmust set forth due diligence, both prior to the dismissal and in the subsequent pursuit of the section [2\u20141401] remedy.\u201d Lohja v. Checker Taxi Co. (1980), 92 Ill. App. 3d 491, 493, 416 N.E.2d 32.\nSection 2\u20141401 is not a substitute for an appeal (Eldorado Towers by Shaf, Inc. v. Chicago Title & Trust Co. (1989), 182 Ill. App. 3d 263, 266, 537 N.E.2d 1042), nor can it be used to shield a litigant from the consequences of his own mistakes or his counsel\u2019s negligence. (Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719; Fabian v. Norman (1985), 138 Ill. App. 3d 507, 486 N.E.2d 335.) Relief should not be granted \u201cin the face of inexcusable neglect in complying with rules and orders of court designed to ameliorate this burgeoning problem [of backlogged calendars].\u201d (Emphasis added.) (Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 495.) The section 2\u20141401 remedy was not intended to put in issue matters that previously could have been adjudicated. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 223, 527 N.E.2d 474.) The question of whether a section 2\u20141401 petition should be granted lies within the discretion of the circuit court; its judgment will not be disturbed absent an abuse of that discretion. Smith v. Airoom, Inc., 114 Ill. 2d at 221.\nPlaintiff does not take issue with the circuit court\u2019s express finding that due diligence in bringing the section 2\u20141401 petition was not met, but maintains that the circuit court granted the petition pursuant to its equitable powers to achieve justice. In Smith v. Airoom, Inc. (114 Ill. 2d at 228-29), the supreme court described the type of conduct which entitled a defaulted party to equitable relief as fraud, fundamental unfairness, deception and unconscionable behavior on the part of the party seeking the default. Plaintiff here does not allege deception, fraud or unconscionable behavior by defendants which would entitle him to equitable relief.\nPlaintiff\u2019s motion asserts that defendants were aware of plaintiff\u2019s intention of calling only the treating doctor instead of an expert. This claim lacks credible support. The motion baldly states that \u201c[i]t was made known to the defendants that plaintiff intended to call no experts, but only to use treating doctors,\u201d and that \u201c[t]his matter had been discussed with one or more of the defendants\u2019 attorneys.\u201d The supporting affidavit sets forth that counsel announced before one pretrial judge, or another, that \u201cwe would use the treating doctors or secure a surgeon if necessary who would qualify as an expert in this matter,\u201d which was \u201cmade known\u201d to defense attorneys. No date or identity of the alleged discussants is set forth. In contrast, the affidavit of John MacRae, one of defendant\u2019s attorneys, was filed by defendants in which MacRae swore that at a pretrial hearing before Judge Passarella on November 3, 1986, which was the last hearing prior to the ruling on defendants\u2019 motion to dismiss, plaintiff\u2019s counsel David Poindexter represented to the court that the matter was being reviewed for plaintiff by an expert and plaintiff would be able to reveal that expert\u2019s identity in two weeks. Poindexter also then allegedly stated that if the expert was not supportive of plaintiff\u2019s case, defendants\u2019 pending motion to dismiss might be well taken. No countervailing affidavit was filed by plaintiff.\nMore importantly, plaintiff\u2019s contention mocks the bases for four orders entered by the circuit court extending over and over again the time for plaintiff to identify and depose his expert, when not one continuance for this purpose would have been necessary. Plaintiff\u2019s counsel thereby had four separate and distinct opportunities to advise the court of his intentions. Two years afterwards, he claims that he did so; yet why did the court on each occasion enter an order directing that plaintiff name its expert, without corrective action by counsel, in particular on November 3, 1986? This record, therefore, reveals no basis to contend that defendants secured the dismissal order through the use of fraud, fundamental unfairness, or unconscionable behavior; rather, the dismissal order was the result of contradictory, inexcusable and unexplained conduct on plaintiff\u2019s behalf. None of the recognized equitable principles are implicated in the case sub judice.\nNevertheless, plaintiff insists that this court should overlook the due diligence requirement and evaluate the propriety of the circuit court\u2019s original order dismissing the case, citing Hardware Wholesalers, Inc. v. Clemenic (1984), 124 Ill. App. 3d 304, 464 N.E.2d 700. Plaintiff\u2019s reliance upon Hardware Wholesalers, Inc., is entirely misplaced. There, a default judgment against defendant was obtained as a discovery sanction for failure to comply with plaintiff\u2019s requests for discovery. Plaintiff in Hardware Wholesalers, Inc., never sought or secured any orders of court directing compliance with discovery requests. Here, four court orders were ignored by plaintiff, which led to the instant dismissal.\nPlaintiff\u2019s reliance upon Saeed v. Bank of Ravenswood (1981), 101 Ill. App. 3d 20, 427 N.E.2d 858, is also unavailing. There, a dismissal order was based upon plaintiff\u2019s failure to appear for a court-ordered deposition due to his absence from the country. (Saeed, 101 Ill. App. 3d at 28.) There are no factual or legal similarities between that case and the case sub judice.\nPlaintiff correctly argues that sanctions should not be imposed as punishment, but to compel cooperation between the parties and promote the flow of discovery. (Conover v. Smith (1974), 20 Ill. App. 3d 258, 314 N.E.2d 638.) Discovery is a serious aspect of litigation and careful attention must be given to prompt and orderly handling of these matters. (Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 884, 412 N.E.2d 608.) Illinois courts are becoming less tolerant of violations of discovery rules and orders, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation. (See Harris v. Harris (1990), 196 Ill. App. 3d 815, 820-21.) The imposition of Rule 219(c) sanctions is a matter within the discretion of the circuit court, and its decision will not be changed absent abuse of such discretion. (Gayton v. Levi, 146 Ill. App. 3d at 152.) Dismissal of a complaint for failure to comply with discovery is a drastic sanction (Price v. Grefco, Inc. (1989), 187 Ill. App. 3d 514, 518, 543 N.E.2d 521; Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307); however, such an action is authorized where the conduct of the offending party is characterized by a deliberate and contumacious disregard of the court\u2019s power. (Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 495; Gayton v. Levi, 146 Ill. App. 3d at 152; Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 361 N.E.2d 36; Conover v. Smith (1974), 20 Ill. App. 3d 258, 260, 314 N.E.2d 638.) Dismissal of this case was not an inappropriate remedy for the repeated and contumacious disregard of the multiple discovery orders entered by the circuit court. The conjectural assertion that a second judge might have ruled otherwise does not authorize the latter to overrule the former. Balciunas v. Duff (1983), 94 Ill. 2d 176, 188, 446 N.E.2d 242; People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 257, 357 N.E.2d 534.\nSection 2\u20141401 also requires diligence on the part of the party seeking post-judgment relief to pursue his remedy. (See Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 493; Chovan v. Floor Covering Associates, Inc. (1987), 159 Ill. App. 3d 447, 449-50, 512 N.E.2d 801.) At bar, the case was dismissed on November 25, 1986. Plaintiff\u2019s counsel, however, although informed about the dismissal by defense counsel in December 1986 and by yet another circuit court judge on March 11, 1987, did nothing until seven months later, October 29, 1987, when he filed an insufficient, untitled and unsupported motion to vacate the dismissal order. On January 5, 1988, the circuit court struck the motion and granted plaintiff leave to file a section 2\u20141401 petition within 30 days. Plaintiff did not comply even with this order, but tardily asked for a further extension of time after the 30-day period had already expired. No order is found which allowed this motion. Nevertheless, plaintiff\u2019s petition ultimately was filed 10 months later, on October 19, 1988. His counsel\u2019s explanation that this delay was the result of his being unaware of the court\u2019s dismissal on November 25, 1986, as previously noted, flies in the face of evidence that counsel was informed twice by letter and once by telephone of the dismissal by defense counsel in early December 1986, as well as plaintiff\u2019s counsel\u2019s admission in court that, by at least March 11, 1987, he knew of the dismissal, when a pretrial judge \u201cshowed [him] a copy of the order that had been entered in November [1986].\u201d Assuming arguendo, plaintiff had first learned of the dismissal on March 11, 1987, no explanation is offered as to why no post-judgment action was taken until October 1987, when the untitled and unsupported motion to vacate the dismissal was filed. Clearly, plaintiff has failed to satisfy the requirement of diligence in seeking the section 2\u20141401 remedy. See Gayton v. Levi, 146 Ill. App. 3d at 152.\nThe decision to vacate a final order or judgment is generally within the discretion of the circuit court; however, a section 2 \u2014 1401 petition is not intended to protect a litigant from his own mistake or negligence, nor to relieve him from inexcusable neglect to comply with the rules and orders of the court. Plaintiff\u2019s representatives here have not followed either the rules or court orders, nor have they shown a credible excuse for failing to do so. In addition, plaintiff failed to follow his case. \u201c[Vjacatur of a dismissal, based upon a petition which does not set forth a sufficient excuse for the noncompliance underlying the dismissal, constitutes an abuse of discretion requiring reversal.\u201d Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 495.\nAccordingly, the circuit court\u2019s order of March 17, 1989, granting section 2\u20141401 relief for plaintiff is reversed, and the circuit court\u2019s order of November 25, 1986, dismissing the action is reinstated.\nReversed.\nDiVITO, P.J., and BILANDIC, J., concur.\nLutheran General apparently orally joined in defendant doctors\u2019 motion at the ensuing hearing. This joinder is not reflected in the record; however, plaintiff does not dispute its propriety.\nAt the time of dismissal in 1986, Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, had not yet been decided. The appellate court decision also came after the dismissal. Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 508 N.E.2d 215.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Cassiday, Schade & Gloor, of Chicago (Rudolf G. Schade, Jr., Timothy J. Ashe, and Steven P. Garmisa, of counsel), for appellant Lutheran General Hospital.", "Lord, Bissell & Brook, of Chicago (M.J. Yardley, Hugh C. Griffin, and Nancy Shaw, of counsel), for other appellants.", "Holstein, Mack & Klein, of Chicago (John M. Mack, of counsel), for appellee." ], "corrections": "", "head_matter": "JACOB H. SHAPIRA, Plaintiff-Appellee, v. LUTHERAN GENERAL HOSPITAL et al., Defendants-Appellants.\nFirst District (2nd Division)\nNos. 1\u201489\u20141035, 1\u201489\u20141036 cons.\nOpinion filed May 22, 1990.\nCassiday, Schade & Gloor, of Chicago (Rudolf G. Schade, Jr., Timothy J. Ashe, and Steven P. Garmisa, of counsel), for appellant Lutheran General Hospital.\nLord, Bissell & Brook, of Chicago (M.J. Yardley, Hugh C. Griffin, and Nancy Shaw, of counsel), for other appellants.\nHolstein, Mack & Klein, of Chicago (John M. Mack, of counsel), for appellee." }, "file_name": "0479-01", "first_page_order": 507, "last_page_order": 515 }