{ "id": 5782172, "name": "In re ESTATE OF THORNTON R.L. SEWART, Deceased (Irene B. Popham, Indiv. and as Independent Adm'r of the Estate of Edward J. Popham, Deceased, Plaintiffs-Appellants, v. Virginia Taff et al., Defendants-Appellees)", "name_abbreviation": "Popham v. Taff", "decision_date": "1991-12-27", "docket_number": "No. 1\u201489\u20141946", "first_page": "1", "last_page": "17", "citations": [ { "type": "official", "cite": "236 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "383 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 159", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3318790 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0159-01" ] }, { "cite": "196 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "46 Ill. App. 2d 147", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5265703 ], "weight": 2, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/46/0147-01" ] }, { "cite": "486 N.E.2d 326", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499439 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0629-01" ] }, { "cite": "381 N.E.2d 279", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "72 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443658 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/72/0249-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "180 S.W.2d 877", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "297 Ky. 681", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 2796974 ], "opinion_index": 0, "case_paths": [ "/ky/297/0681-01" ] }, { "cite": "118 P.2d 334", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "47 Cal. App. 2d 494", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 6038945 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/47/0494-01" ] }, { "cite": "251 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "112 Ill. App. 2d 234", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590967 ], "weight": 2, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0234-01" ] }, { "cite": "390 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1969, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 831", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579601 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0831-01" ] }, { "cite": "478 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441826 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/1073-01" ] }, { "cite": "482 N.E.2d 418", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 936", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600567 ], "weight": 4, "pin_cites": [ { "page": "940" }, { "page": "941" }, { "page": "942" }, { "page": "942" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0936-01" ] }, { "cite": "450 N.E.2d 940", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "954" } ], "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 349", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557961 ], "weight": 4, "pin_cites": [ { "page": "355" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0349-01" ] }, { "cite": "469 N.E.2d 1379", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3525764 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0107-01" ] }, { "cite": "183 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 2d 434", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5261861 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/35/0434-01" ] }, { "cite": "107 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "412 Ill. 591", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665232 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill/412/0591-01" ] }, { "cite": "59 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "389 Ill. 425", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2504005 ], "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/ill/389/0425-01" ] }, { "cite": "541 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2648723 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0523-01" ] }, { "cite": "316 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 648", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379893 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0648-01" ] }, { "cite": "381 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3330056 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0495-01" ] }, { "cite": "461 N.E.2d 1075", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521970 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0688-01" ] }, { "cite": "169 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "27 Ill. App. 2d 14", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5786860 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-app-2d/27/0014-01" ] }, { "cite": "222 N.E.2d 576", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "77 Ill. App. 2d 359", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2572151 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/77/0359-01" ] }, { "cite": "50 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "320 Ill. App. 171", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4978657 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/ill-app/320/0171-01" ] }, { "cite": "94 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "341 Ill. App. 454", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4989809 ], "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-app/341/0454-01" ] }, { "cite": "241 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "100 Ill. App. 2d 88", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820656 ], "weight": 6, "pin_cites": [ { "page": "91-92" }, { "page": "92" }, { "page": "92" }, { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0088-01" ] }, { "cite": "396 N.E.2d 1197", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 562", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5602883 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0562-01" ] }, { "cite": "416 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 813", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535640 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0813-01" ] }, { "cite": "313 N.E.2d 457", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407090 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0376-01" ] }, { "cite": "468 N.E.2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 19", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563568 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0019-01" ] }, { "cite": "566 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553736 ], "pin_cites": [ { "page": "957" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0954-01" ] }, { "cite": "468 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 31", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564115 ], "weight": 3, "pin_cites": [ { "page": "33" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0031-01" ] }, { "cite": "489 N.E.2d 467", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 3, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 1368, "char_count": 38543, "ocr_confidence": 0.783, "pagerank": { "raw": 8.026556816298749e-08, "percentile": 0.4651278896954996 }, "sha256": "8cc091f5ba1dc0aeaeb58fbd7f55c08af21d028fd819662a0ba41d482c3749a2", "simhash": "1:22564cd3294287cd", "word_count": 6408 }, "last_updated": "2023-07-14T15:50:05.842880+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF THORNTON R.L. SEWART, Deceased (Irene B. Popham, Indiv. and as Independent Adm\u2019r of the Estate of Edward J. Popham, Deceased, Plaintiffs-Appellants, v. Virginia Taff et al., Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiff, Irene Popham, individually and as administrator of the estate of her late husband, Edward Popham, filed a two-count complaint for declaratory relief, naming as defendants Virginia Taff, the administrator of the estate of Thornton R.L. Sewart, the beneficiaries under Sewart\u2019s will, and several other relatives of Sewart. Both parties filed motions for summary judgment, although plaintiff withdrew her motion. Defendants\u2019 motion was granted as to both counts of the complaint, and plaintiff now appeals. For the reasons set forth below; we reverse the grant of summary judgment as to count I, and affirm as to count II.\nThe testator, Thornton R.L. Sewart, was hospitalized in late April 1985 and pronounced dead in a death certificate on May 6, 1985. As discussed below, the exact date of Sewart\u2019s death is disputed by the parties. Edward Popham died on May 4, 1985. Sewart left a will which provided for $1,000 bequests to three specified charities. He also left $1 each to his sister and brother. The remainder of his estate was left to \u201cmy good friend, EDVARD J. POPHAM.\u201d There was no provision in Sewart\u2019s will for the disposition of his residuary estate should Edward Popham predecease Sewart.\nPlaintiff in this action is the widow of Edward Popham. Defendants are the administrator of Sewart\u2019s will, the named beneficiaries under the will (excluding Mr. Popham) and Sewart\u2019s heirs at law.\nIn count I of the complaint, plaintiff alleged that she and her husband rendered various services for the testator, Thornton Sewart, after Sewart became unable to fully care for himself. In return, Sewart orally agreed that he would devise and give his property to Edward Popham. As a result, plaintiff contended, there was a valid contract between plaintiff, her husband and Sewart, which has been fully performed by the Pophams. Accordingly, she sought a declaration that a valid contract existed between plaintiff, her husband, and Sewart, and that she and her husband\u2019s estate are entitled to all of the property owned by Sewart at the time of his death, and that the defendant, the administrator of Sewart\u2019s estate, is holding that property as trustee for plaintiff and her husband\u2019s estate.\nCount II sought a declaration that Sewart predeceased Edward Popham. Plaintiff alleged that Sewart fell and sustained a fatal head injury on April 29, 1985. Sewart was in a coma when he was taken to St. Elizabeth\u2019s Hospital and placed on life support systems. Plaintiff alleged upon information and belief that although a mechanical life support system was able to cause a heartbeat in Sewart, he in fact suffered a total and irreversible cessation of all functions of his brain and was legally dead prior to May 6, 1985.\nPlaintiff filed a motion for summary judgment on count II, in support of which she submitted her own affidavit. In that affidavit, plaintiff stated that she had discussed Sewart\u2019s condition with Dr. Leslie Schaffer; Sewart\u2019s treating physician, and that on May 3, 1985, Dr. Schaffer told her that he thought a test for brain activity, scheduled for May 6, would probably show no such activity.\nPlaintiff also submitted the deposition testimony of Dr. Schaffer. In that deposition, plaintiff\u2019s attorney stated for the record that Dr. Schaffer was not being deposed by the plaintiff as an expert, but as an occurrence witness.\nBriefly summarizing the relevant portions of that deposition, Dr. Schaffer testified that when first seen by him on April 29, 1985, Se-wart was deeply comatose. Schaffer performed a craniotomy and \u201cremoved a hemorrage\u201d from Sewart\u2019s head. Following the surgery, Se-wart\u2019s vital signs were stable, and he was placed on a mechanical ventilator.\nReferring to his physician\u2019s progress notes to refresh his recollection, Schaffer testified that as shown in his notes, on May 1, Sewart responded to painful stimuli. On May 2, his response to painful stimuli was decreased, and on May 4, Sewart was \u201cunresponsive.\u201d There was no notation for May 3. According to his records, the last indicated response of Sewart\u2019s pupils to light stimulus was on April 30. When asked Sewart\u2019s condition on May 6, Schaffer replied \u201che died on May 6.\u201d\nOn May 4, an electroencephalogram (EEG) was ordered, to be performed on May 6. The test was never performed, however, since Sewart was pronounced dead on the 6th.\nWhen questioned by defense counsel, Schaffer said that based on the entire hospital record, he could not tell whether Sewart\u2019s brain stem was dead (at any time prior to May 6).\nDefendants filed a response to plaintiff\u2019s motion for summary judgment. Included with that response were the affidavit and medical report of Dr. Michael J. Caron, a neurosurgeon at Loyola University Medical Center, retained by defendants as an expert for purposes of the litigation to review the medical records of Sewart, \u201cspecifically to delineate evidence which would indicate brain death prior to his demise on May 6,1985.\u201d In his report, Dr. Caron stated:\n\u201cIn summary, there is no evidence of a physical examination of Mr. Sewart, by a physician, which unquestionably establishes the presence of brain death.\u201d\nCaron went on to discuss the elements of brain death, using the criteria established by the ad hoc committee of the Harvard Medical School, with specific references to Sewart\u2019s medical records including the records of his treating physician, Dr. Schaffer. He concluded that only one element, unresponsive coma, was clearly evident in the Se-wart case. The second element, apnea, or the absence of spontaneous breathing, was inconclusive. Sewart was on a ventilator which would have suppressed the stimulus for spontaneous breathing. No test for apnea was made.\nIn regard to the third element, the absence of cephalic reflexes, Caron noted that the only cephalic reflex mentioned in Sewart\u2019s record was the lack of pupillary reaction to light. Other cranial nerves which would indicate brain activity may have been functional.\nAbsence of spinal reflexes is the fourth criterion, and is tested by movement of the extremities in response to pain. Although Dr. Schaffer noted that there was no response on May 4, a nursing note the same day indicated occasional movement of arms, legs, and the body. Thus, Caron concluded, it was unclear when spinal cord activity was truly lost.\nThe fifth requirement is an isoelectric EEC. This test was never performed.\nAbsence of drug intoxication and hypothermia is the sixth criterion. Sewart was in a state of persistent hypothermia, and was also on the drug phenytoin, a nervous system depressant used to prevent seizures. Caron stated that in seriously ill patients phenytoin may build to levels which will confuse a determination of brain death. No tests were made to determine the level of this drug in Sewart. In addition, an EEC to determine brain death done while a patient was on phenytoin would be invalid.\nThe final Harvard criterion is persistence of these conditions for at least 24 hours. Caron stated that \u201cconditions unquestionably consistent with brain death were never really established in the record.\u201d\nDr. Caron concluded that \u201cit is impossible from the medical record to establish the unquestionable presence of brain death prior to his death from cardiopulmonary arrest, secondary to pneumonia, on May 6, 1985.\u201d\nPlaintiff later withdrew her motion for summary judgment on count II. Defendants then submitted their motion, later amended, for summary judgment on both counts. In regard to count I, defendants submitted excerpts from a deposition they had taken of the plaintiff. By her statements, defendants contended, plaintiff conceded that there was no agreement between Sewart and the Pophams, but rather mere declarations of testamentary intent based on affection.\nAs to count II, defendants relied on the affidavit and medical report of their expert, Dr. Caron, originally submitted in response to plaintiff\u2019s summary judgment motion.\nIn plaintiff\u2019s response to defendants\u2019 summary judgment motion on count I, she submitted additional excerpts from her deposition, arguing that defendants had taken her statements out of context. Regarding count II, plaintiff argued that the deposition of Dr. Schaffer, submitted earlier in connection with plaintiff\u2019s summary judgment motion, provided substantial support to the allegation that Sewart suffered brain death prior to May 4.\nIn addition, plaintiff submitted the discovery deposition of defendants\u2019 expert, Dr. Caron. In that deposition, taken by plaintiff\u2019s attorney, Dr. Caron was presented with the following hypothetical question:\n\u201cYou have evidence on Friday from all of your observations of pain tests, all the standard things that you can do without a more sophisticated test and you conclude on a Friday there is probably no brain activity here and you order these tests to be done on Monday.\nNow, Monday, you have the test done and everything is negative; there is no evidence whatsoever, or perhaps, over the weekend, he terminates himself, just all functions fail, regardless.\nNow, what I am saying is: isn\u2019t it possible that on Friday when you made the observations, that he was in fact dead?\u201d\nDr. Caron responded that it might be possible, but such a determination would have to be made on a case-by-case basis. Until confirmatory tests are made, however, all the doctors would have is a clinical suspicion, and the patient is not considered dead.\nDr. Caron reemphasized the statement he had made in his affidavit that, from the entire hospital record, in his opinion it was impossible to know when brain death occurred in Sewart, or in fact if brain death occurred prior to May 6 when Sewart was removed from mechanical life support systems following his cardiac arrest. Based on the record, Dr. Caron said that he could not have pronounced Sewart dead prior to May 6 when he suffered cardiac arrest.\nCounsel for the plaintiff later asked Dr. Caron whether he could \u201ctestify, to a reasonable degree of medical certainty, that this patient was not dead until the death certificate was issued, not brain dead? Is there a way to tell that he was not brain dead?\u201d The doctor responded that the documentation was not there to make such a determination, and went on to note several entries in the medical records which suggested that Sewart in fact was not brain dead. On May 3, the anesthesiologist saw one of his pupils react to light. On May 4, a nursing note indicated \u201coccasional movements of arms and legs and body.\u201d On May 5, nurses saw his arms and legs move. On May 5, the entry said \u201cneuro status unchanged,\u201d which Dr. Caron interpreted as meaning that his arms were seen to move. Also on the 5th, the notes included \u201cbody movement noted\u201d and \u201ccomatose with jerky movement of left leg, when stimulated.\u201d Regarding the \u201cjerky movement\u201d of Sewart\u2019s leg, Dr. Caron conceded that such movement could be caused by spinal cord reflexes rather than brain activity, although it was impossible to tell which caused the movement.\nThe trial court, after consideration of the parties\u2019 memoranda, the depositions and affidavits of the doctors and oral argument, found that there were no genuine issues of material fact, and therefore granted defendants\u2019 motion. Plaintiff now appeals.\nOpinion\nSection 2 \u2014 1005(c) of the Code of Civil Procedure provides that summary judgment \u201cshall be rendered without delay if 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 a judgment as a matter of law.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1005(c).) In determining the existence of a genuine issue of material fact, courts must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 467.) A genuine issue of material fact exists if, where the facts are undisputed, \u201ca fair-minded person may draw different inferences from those undisputed facts.\u201d (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 33, 468 N.E.2d 422.) The inference drawn must be a reasonable one, and the amount of evidence required to draw such an inference \u201cwill depend entirely upon the nature of the evidence offered in the case at hand.\u201d (Consolino, 127 Ill. App. 3d at 33.) The primary issue on appeal from a summary judgment is whether \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of law.\u201d West v. Kirkham (1991), 207 Ill. App. 3d 954, 957, 566 N.E.2d 523.\nThe party seeking summary judgment may meet its initial burden of persuasion by presenting facts which, if uncontradicted, would entitle it to judgment as a matter of law. (Venus v. O\u2019Hara (1984), 127 Ill. App. 3d 19, 468 N.E.2d 405.) Once the party seeking the summary judgment produces such evidence, the burden of production shifts to the party opposing the motion, who may not rely solely on allegations in the complaint, but is required to come forth with some facts which create a material issue of fact. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Although a plaintiff opposing a motion for summary judgment need not prove her case at this point, she must provide some factual basis which would arguably entitle her to a judgment under the applicable law. (Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328; Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.) If the respondent fails to produce such evidence, summary judgment is properly granted. Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 416 N.E.2d 328.\n' As to count I, defendants contend that there was no evidence of a contract to make a will between Sewart and Mr. Popham, and that if such a contract existed, it was satisfied when Sewart named Edward Popham as beneficiary in his will. They contend that the testator, Se-wart, said only that, due to friendship and gratitude, he would\u2019name Mr. Popham the beneficiary under his will, and that such statements are insufficient to create an enforceable oral contract to make a will. In support of this argument, defendants quote portions of Mrs. Pop-ham\u2019s deposition:\n\u201cQ. So, as far as you know, there was no agreement that he would get anything out of Thornton\u2019s property if he helped Thornton out?\nA. That wasn\u2019t the agreement. There was no agreement, no, sir.\nQ. I see. It was just expressions by Mr. Thornton Sewart?\nA. Right, gratitude.\nQ. That is what he\u2019s going to do out of gratitude; is that correct?\nA. Yes, and friendship.\u201d\nAccordingly, defendants argue, plaintiff herself admitted that there was no contract and therefore there are no genuine issues of material fact as to count I, and they were properly granted summary judgment on that count.\nPlaintiff responds that the quoted portion of her deposition was taken out of context, and must be read in conjunction with her testimony immediately preceeding the excerpt submitted by defendants. Plaintiff submitted the following additional excerpt from her testimony:\n\u201cQ. Okay. Now, in your Answers to Interrogatories that were given to you and that were actually frame worked, based on your complaint, you have made certain answers concerning this agreement that you talked about; and you said that for all of the services rendered to Thor[n]ton and duly rendered to him, Thor[n]ton had orally agreed that he would devise and give his property to Edward Popham except certain small bequests.\nNow, when did he orally agree to do this, Thor[n]ton, when did he orally agree?\nA. I don\u2019t remember.\nQ. You don\u2019t remember. Obviously it was before his death?\nA. Yes, sir.\nQ. Was it before 1976?\nA. Oh, yes, sir.\n* * *\nQ. And you weren\u2019t there when it was made?\nA. When what was made?\nQ. The oral agreement that you referred to in Paragraph three?\nA. It wasn\u2019t just the one time.\n* * *\nQ. He was talking about it, right?\nA. Oh, yes, sir.\nQ. Thor[n]ton was talking about it?\nA. Yes.\nQ. But your husband wasn\u2019t talking about it?\nA. Talking about what?\nQ. The agreement that he\u2019s going to get everything?\nA. I can\u2019t answer with a yes or no because Edward was not that kind of a man. He wouldn\u2019t do it so he would be in on an\u2014\nQ. So as far as you know, there was no agreement that he would get anything out of Thor[n]ton\u2019s property if he helped Thornton out?\nA. That wasn\u2019t the agreement. There was no agreement, no, sir.\u201d\nAccording to plaintiff, this line of questioning assumed the existence of an agreement, and the questions and answers quoted by defendants in their excerpt pertained to evidence of the agreement. Therefore, plaintiff urges, her testimony when taken as a whole does not negate the existence of a contract despite her apparent disclaimer of an agreement when she said \u201cThere was no agreement, no sir.\u201d\nAs noted earlier, summary judgment should be granted only when there is no issue of material fact and the facts before the court are capable of only one reasonable interpretation. Viewing Mrs. Pop-ham\u2019s statements and the other material before the court liberally in her favor as we must, we find that the trial court erred in granting defendants\u2019 motion. While Mrs. Popham\u2019s statement \u201cThere was no agreement, no sir\u201d may be read as an admission that there was no express agreement between her husband and Sewart, her statements do not appear to be a total abandonment of her position that there was an agreement between Sewart and the Pophams, particularly when defendants\u2019 excerpt and plaintiff\u2019s excerpt of the colloquy are read together as the testimony was given. See In re Estate of Mallas (1968), 100 Ill. App. 2d 88, 241 N.E.2d 482 (discussed below).\nIn response to a question about when the alleged agreement was made, her inability to give a specific date does not necessarily imply that there was no agreement. She did say that the agreement was made before 1976 (the year Sewart\u2019s will was executed). (See In re Estate of Niehaus (1950), 341 Ill. App. 454, 460, 94 N.E.2d 525 (when an agreement exists and is reaffirmed several times over a period of years, the exact date of its origin is not material).) She also testified that the alleged agreement was made on more than one occasion, and that Sewart was talking about the agreement, statements which all affirm rather than recant her contention that there was an agreement. Her statement that \u201cthere was no agreement\u201d was in response to a specific question. When read in context with the rest of her testimony, it can be viewed as a disclaimer by a layperson without demonstrated legal sophistication that there was a business-like agreement in which the quid pro quo was fully expressed and articulated, and not as a negation of her previous statements that there was an understanding reached with the testator.\nIn In re Estate of Mallas (1968), 100 Ill. App. 2d 88, 241 N.E.2d 482, a contract was found on facts almost identical to those in this case. There, Celia Stolpe performed services for the decedent and his wife. Stolpe was not related to the decedent. The decedent had expressed his appreciation, gratitude and intention to pay Stolpe for her efforts. A will was prepared leaving decedent\u2019s home to Stolpe, but it was never executed. Stolpe testified that the decedent never offered or promised to pay for the services she rendered and that he never told her he would reimburse her. Moreover, she never asked for payment.\nThe trial court denied her claim, finding that there was no express contract, and that \u201cthe presumption of an implied contract (to pay for services where there is no relationship between the parties) would not arise because there was \u2018positive testimony by the claimant herself, that there never was, at any time, any ... agreement to pay.\u2019 \u201d (Mallas, 100 Ill. App. 2d at 91-92.) Upon claimant\u2019s motion to vacate the order, the court refused to do so on the grounds that \u201cthe presumption of an implied contract had been overcome by the claimant\u2019s own testimony that Mallas had not promised or offered to pay or reimburse her and that she had not asked him for payment or told him of her expectation of payment.\u201d Mallas, 100 Ill. App. 2d at 92.\nThe appellate court reversed, finding that claimant had established an implied contract. \u201cHer testimony that she had no definite understanding with the decedent did not negate her contention that an agreement was implied by their acts, expressions and conduct. Second, her testimony did not destroy the presumption arising from the acceptance of her services.\u201d (Mallas, 100 Ill. App. 2d at 92.) The court went on to set forth the conditions under which a contract will be implied:\n\u201c \u2018Where no kin or family relationship exists between the parties, and one accepts and retains the beneficial results of another\u2019s services, which were rendered at his own insistence and request and which he had no reason to suppose were gratuitous, the law will imply liability for such services in such an amount as they are reasonably worth.\u2019 Floyd v. Smith\u2019s Estate, 320 Ill. App. 171, 50 N.E.2d 254 (1943), cited in In re Estate of McWain, 77 Ill. App. 2d 359, 222 N.E.2d 576 (1966) and In re Estate of Brumshagen, 27 Ill. App. 2d 14, 169 N.E.2d 112 (1960).\u201d Mallas, 100 Ill. App. 2d at 92.\nSee also In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 461 N.E.2d 1075 (when services rendered by one person for another, and are knowingly and voluntarily accepted, law presumes such services were given and received in expectation of payment); Frey v. Belleville News-Democrat, Inc. (1978), 64 Ill. App. 3d 495, 381 N.E.2d 705 (implied in fact contract inferred from circumstances, conduct and acts of parties showing an intention to be bound); In re Estate of Pomeroy (1974), 21 Ill. App. 3d 648, 316 N.E.2d 231 (where no family relationship exists between the parties and one accepts the services of another with no reason to suppose the services to be gratuitous, law implies a contract for those services in the amount they are reasonably worth).\nApplying these principles to the instant case, we find that plaintiff has produced sufficient evidence to create an inference of an implied contract. The Pophams are not related to Sewart. They performed services for him, which he accepted, thus raising the presumption of an agreement to pay for those services. The decedent expressed his gratitude and appreciation for their services, which although not sufficient by itself to prove an oral contract, does not negate the presumption that a contract existed. Although Mrs. Popham disclaimed that there was a specific agreement regarding payment, this should not suffice upon a motion for summary judgment to negate the inference that an agreement was implied by their conduct, acts and expressions.\nAccordingly, we find that sufficient facts have been presented to create an inference that an implied contract existed. It was not necessary for plaintiff to prove her case by a preponderance of the evidence at this stage of the proceedings. Summary judgment may only be granted where the facts are capable of only one reasonable inference, which is not the case here. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.\nDefendants also contend that if there was a contract, it was satisfied when the testator named Edward Popham as a beneficiary under his will. Plaintiff, however, in sworn response to interrogatori\u00e9s filed with the- court and referred to in her deposition, stated that both she and her husband rendered services to Sewart. (See Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 541 N.E.2d 805 (responses to interrogatories may be considered in summary judgment determination). See also Supreme Court Rule 213 (134 Ill. 2d R. 213 (answers to interrogatories may be used in evidence to the same extent as discovery depositions).) She said that in the fall or winter of 1975, Sewart became unable to fully care for himself, was unable to do any physical work, and Edward and Irene Popham rendered various services for Sewart, including cleaning house, making repairs to Sewart\u2019s home, shovelling snow, cutting grass and taking Sewart out for rides. As both Irene and Edward Popham performed these services for Sewart, an inference may be raised that the implied agreement between Sewart and the Pophams was to provide for both Edward and Irene Popham. The naming of Edward Popham alone as beneficiary, without some provision for the benefit of Irene Popham, would not satisfy such an agreement if those were its terms.\nUnder defendants\u2019 argument that the agreement was simply to name Edward Popham in the will and was therefore satisfied, we would reach the incongruous result wherein plaintiff would have been in a better position had her husband been omitted from the will entirely. Had that been the situation, she would have had a claim for damages for breach of contract, instead of a completed contract to make a will under which no property in fact passed. See In re Estate of Johnson (1945), 389 Ill. 425, 429, 59 N.E.2d 825 (\u201cWhere there is a breach of the contract to make the bequest, the remedy is a claim against the estate in the nature of a claim for damages for such breach\u201d). See also In re Estate of Greiner (1952), 412 Ill. 591, 107 N.E.2d 836; In re Guest\u2019s Estate (1962), 35 Ill. App. 2d 434, 183 N.E.2d 194.\nMoreover, the deposition excerpt submitted by defendants as their sole support for summary judgment on count I does not suffice to establish the specific terms of any implied in fact agreement that may by inference be deemed to exist between the testator and the Pophams. If anything it is merely sufficient to establish a disclaimer by Mrs. Popham of an express agreement. As previously noted, the movant for summary judgment has the initial burden of persuasion to present facts which, if uncontradicted, would entitle it to a judgment as a matter of law. (Venus v. O\u2019Hara (1984), 127 Ill. App. 3d 19, 468 N.E.2d 405.) Here defendants\u2019 submissions fail to meet their initial burden of persuasion to establish that the terms of the implied agreement merely require the mechanical designation of Edward Popham in the will as a beneficiary under the will without providing for the contingency of his predeceasing the testator so as to assure an actual transfer of his property to Edward Popham and his wife Irene.\nOnly if the movants meet their initial burden does the respondent have a burden to make counter submissions. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107, 469 N.E.2d 1379 (only where party seeking summary judgment had made an evidentiary showing which refutes the allegations in the complaint must the party opposing the motion make counter submissions).) As defendants have not met their initial burden, the issue pertaining to the terms of the implied agreement is still controlled by count I of the pleadings, pursuant to which a viable contract claim, albeit under an implied contract theory, cannot be foreclosed.\nAccordingly, for all the foregoing reasons, the grant of summary judgment as to count I is reversed.\nAs to count II, defendants rely upon the death certificate as evidence that Sewart died on May 6, 1985. A death certificate is prima facie evidence of the facts contained therein. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 73 \u2014 25(6).) They contend, therefore, that they have met their burden as movants for summary judgment, and it was incumbent upon the plaintiff to provide expert medical testimony to raise an inference that Sewart predeceased Mr. Popham.\nPlaintiff\u2019s opposition to defendants\u2019 summary judgment motion is primarily predicated on Dr. Schaffer\u2019s factual testimony in his deposition. Conceding that Dr. Schaffer was \u201chighly averse\u201d to concluding that Sewart died before May 6, plaintiff nevertheless contends that there is sufficient evidence in his deposition to support plaintiff\u2019s position that Sewart died before he was pronounced dead on May 6, and to raise the inference that Sewart predeceased Mr. Popham, notwithstanding the fact that Dr. Schaffer offered no such opinion.\nSpecifically, plaintiff relies on the fact that Dr. Schaffer stated that no EEG was taken, although one had been ordered on May 4, to be performed on May 6. This, plaintiff contends, supports her position that Schaffer thought, or at least suspected, that Sewart was brain dead prior to May 6, and ordered the test to confirm his suspicion. Moreover, plaintiff points to Dr. Schaffer\u2019s testimony regarding Se-wart\u2019s response to painful stimuli. Sewart responded to such stimuli on May 1, had a decreased response on May 2, and was \u201cunresponsive\u201d on May 4, with no indication in the records on May 3. In addition, the last response of the pupils to light stimuli was on April 30.\nIt is plaintiff\u2019s position that these facts in Dr. Schaffer\u2019s deposition are sufficient to raise an inference that Sewart suffered brain death prior to Popham\u2019s death on May 4, and thereby create a genuine issue of material fact sufficient to withstand a motion for summary judgment, without submitting an evaluation by an expert who is qualified to render an opinion as to the time of Sewart\u2019s brain death. Plaintiff contends that expert opinion on this point is not necessary, arguing that laymen should be deemed capable of drawing their own inference on this issue.\nThere are dual standards in this State for determining death. \u201c[A] person is legally dead if he or she had sustained either (1) irreversible cessation of total brain function[s], according to usual and customary standards of medical practice, or (2) irreversible cessation of circulatory and respiratory functions according to usual and customary standards of medical practice.\u201d (In re Haymer (1983), 115 Ill. App. 3d 349, 355, 450 N.E.2d 940, 954.) When circulatory and respiratory functions are mechanically maintained, the \u201cirreversible cessation of total brain function[s]\u201d or brain death standard may be used. (Janus v. Tarasewicz (1985), 135 Ill. App. 3d 936, 940, 482 N.E.2d 418.) Although the courts have refused to establish specific criteria for a diagnosis of brain death due to the changing nature of new technologies which could render any such criteria outdated, they have required that a diagnosis of brain death be made in accordance with the \u201cusual and customary standards of medical practice.\u201d (Janus, 135 Ill. App. 3d at 941, citing Haymer, 115 Ill. App. 3d at 354 n.9.) In Janus, the court considered the criteria established by the ad hoe committee of the Harvard Medical School, the same criteria discussed by Dr. Caron in his affidavit and deposition.\nIn this case, the controlling question was whether Sewart suffered brain death prior to his cardiac arrest on May 6. The issue before this court, therefore, is whether expert opinion is necessary for a trier of fact, under the facts of this case, to form an opinion that Sewart died prior to Mr. Popham\u2019s death. If an expert opinion is necessary, then summary judgment in favor of defendants was proper as plaintiff has not come forth with an expert opinion in support of her position. (Kosten v. St. Anne\u2019s Hospital (1985), 132 Ill. App. 3d 1073, 478 N.E.2d 464; Stevenson v. Naughton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53; Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105.) Although neither party has cited any cases which specifically answer the question of whether expert medical opinion is necessary to a determination of brain death, our analysis of the case law regarding the necessity of expert testimony in other cases convinces us that it is required here.\nExpert opinion testimony is required where more than common knowledge and experience are needed to understand the issues and to form an opinion. (Stevenson v. Naughton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53. See, e.g., Pacific Employers Insurance Co. v. Industrial Accident Comm\u2019n (1941), 47 Cal. App. 2d 494, 118 P.2d 334 (pathological cause of physical condition (ulcer) is scientific question which requires expert testimony); Lincoln Income Life Insurance Co. v. Mann (1944), 297 Ky. 681, 180 S.W.2d 877 (expert testimony required to establish existence of heart disease).) Moreover, expert testimony is generally needed to establish the benchmark standard of care because jurors are unskilled in the practice of medicine and would be unable without medical evidence to determine any lack of necessary scientific skill. See, e.g., Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867 (negligent diagnosis and treatment of rectovaginal fistulae); Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279 (failure to identify left recurrent laryngeal nerve during surgery); Thompson v. Webb (1985), 138 Ill. App. 3d 629, 486 N.E.2d 326 (negligent diagnosis of cancer).\nExpert testimony is not required when a layman will have no difficulty appraising the situation. (Graham v. St. Luke\u2019s Hospital (1964), 46 Ill. App. 2d 147, 196 N.E.2d 355.) \u201c \u2018The rule is that expert testimony is not required if the negligence is so grossly apparent or the treatment is of such a common occurrence that a layman would have no difficulty appraising it. [Citations.] The rule has been applied to cases involving anesthesia, tonsillectomy, X rays and in some cases injections.\u2019 \u201d Sanders v. Frost (1969), 112 Ill. App. 2d 234, 240, 251 N.E.2d 105, quoting Graham v. St. Luke\u2019s Hospital (1964), 46 Ill. App. 2d 147, 158, 196 N.E.2d 355.\nA diagnosis of brain death requires that several factors be evaluated, as discussed by Dr. Caron in his affidavit and by the courts in Janus and Haymer. These include unresponsive coma, apnea, absence of cephalic reflexes, absence of spinal reflexes, isoelectric EEC and absence of drug intoxication, factors which are clearly beyond the scope of the lay person\u2019s knowledge. How can a lay person, whether judge or juror, be expected to reach a cogent and reliable conclusion from technically complex symptoms such as these without the assistance of an expert\u2019s knowledge of the brain\u2019s function and pathology? Clearly, more than common knowledge and experience is necessary to form a correct judgment on the question of brain death. See generally M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7702 (5th ed. 1990).\nOur conclusion here that expert testimony is required to establish a diagnosis of brain death is further supported by Janus and Haymer. In Haymer, the court held that a determination of irreversible cessation of total brain function is to be made \u201caccording to usual and customary standards of medical practice.\u201d (Haymer, 115 Ill. App. 3d at 355.) As previously noted, expert testimony is necessary to establish such standards since they are beyond the ken of the average layman. (Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867; Walski v. Tiesinga, 72 Ill. 2d 249, 381 N.E.2d 279.) In Janus, the court said that \u201cwhere the death process is monitored by medical professionals, their testimony as to the \u2018usual and customary standards of medical practice\u2019 will be highly relevant when considering what constitutes a positive sign of life and what constitutes a criteria for determining death.\u201d (Janus, 135 Ill. App. 3d at 942, citing Haymer, 115 Ill. App. 3d 349, 450 N.E.2d 940.) The fact that a determination of brain death is to be made according to the standards of medical practice, and that testimony from medical professionals regarding those standards is highly relevant in that determination, further supports our conclusion that expert testimony is required in a case such as this.\nIt is true that lay testimony may meet a party\u2019s burden of proving survivorship by showing \u201cevidence of a positive sign of life in one body and the absence of any such sign in the other.\u201d (Janus, 135 Ill. App. 3d at 942, citing In re Estate of Lowrance (1978), 66 Ill. App. 3d 159, 383 N.E.2d 703.) Where such lay testimony is presented, it would logically follow that a jury could determine when death occurred without the assistance of expert testimony. However, there is no evidence in this case which would indicate that there were no positive signs of life in Sewart prior to the death of Mr. Popham on May 4. Had there been no positive signs of life in Sewart prior to May 4, we would not be concerned with the question of brain death, since the alternative standard of establishing death, the cessation of circulatory and respiratory function, would be satisfied. Sewart still had circulatory and respiratory function. Although these functions were artificially maintained, there is no evidence that he lacked these functions. Moreover, Dr. Caron stated that on May 4, nursing notes indicate that arm and leg movements were observed. On May 5, the entry was \u201cneuro status unchanged,\u201d which Dr. Caron interpreted to mean further arm movement. Also on the 5th, body movement was noted, as well as jerky movement of the leg when stimulated. Accordingly, there was no lay testimony here which would enable a trier of fact to determine that Sewart had died prior to Mr. Popham, without the benefit of an expert opinion to that effect.\nPlaintiff has had the opportunity to obtain an expert to support her position, and was apparently unable to do so, and relies on the position that an expert is not required. As discussed above, we disagree, and find that the facts relied on by plaintiff are insufficient to create a reasonable inference that Sewart predeceased Edward Popham without an expert opinion to that effect. Accordingly, since the movants for summary judgment have presented evidence that Sewart died on May 6, 1985, by presenting the death certificate, and plaintiff has offered no competent evidence to raise a reasonable inference to the contrary, we affirm the grant of summary judgment in favor of defendants as to count II.\nAffirmed in part; reversed in part and remanded.\nMURRAY and McNULTY, JJ., concur.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Bruce C. Davidson, of Chicago, for appellant.", "Henry Thrush Synek, of Chicago, and Stephen B. Engelman and Mark S. Smith, both of Skokie, for appellees." ], "corrections": "", "head_matter": "In re ESTATE OF THORNTON R.L. SEWART, Deceased (Irene B. Popham, Indiv. and as Independent Adm\u2019r of the Estate of Edward J. Popham, Deceased, Plaintiffs-Appellants, v. Virginia Taff et al., Defendants-Appellees).\nFirst District (5th Division)\nNo. 1\u201489\u20141946\nOpinion filed December 27, 1991.\nRehearing denied January 29, 1992.\nBruce C. Davidson, of Chicago, for appellant.\nHenry Thrush Synek, of Chicago, and Stephen B. Engelman and Mark S. Smith, both of Skokie, for appellees." }, "file_name": "0001-01", "first_page_order": 21, "last_page_order": 37 }