{ "id": 4271036, "name": "JEREMY SOMERS, Plaintiff-Appellant, v. MICHAEL J. QUINN, Defendant-Appellee", "name_abbreviation": "Somers v. Quinn", "decision_date": "2007-04-25", "docket_number": "No. 2-05-0619", "first_page": "87", "last_page": "105", "citations": [ { "type": "official", "cite": "373 Ill. App. 3d 87" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "343 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719540 ], "year": 2003, "pin_cites": [ { "page": "742", "parenthetical": "failure to object at trial and to raise the issue in a posttrial motion results in waiver" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0733-01" ] }, { "cite": "116 Ill. App. 3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520627 ], "year": 1983, "pin_cites": [ { "page": "310", "parenthetical": "objection to deponent's expression of an opinion about the veracity of plaintiffs prior statement to her was not waived, because \"[t]he defect of [the witness] interjecting her opinion could not have been 'corrected' at the time her deposition was taken\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0305-01" ] }, { "cite": "148 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642740 ], "year": 1986, "pin_cites": [ { "page": "908", "parenthetical": "objection to \"the competency of the deponent and [the] relevancy of the subject matter of the testimony in whole\" was not waived under Rule 211" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0903-01" ] }, { "cite": "15 Ill. App. 3d 368", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461323 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0368-01" ] }, { "cite": "83 Ill. App. 3d 222", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5554284 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0222-01" ] }, { "cite": "129 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490980 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "397" }, { "page": "398" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0390-01" ] }, { "cite": "316 Ill. App. 3d 682", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096658 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "692" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0682-01" ] }, { "cite": "142 Ill. App. 3d 320", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448718 ], "year": 1986, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0320-01" ] }, { "cite": "213 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606819 ], "year": 1991, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0591-01" ] }, { "cite": "343 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719726 ], "year": 2003, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0553-01" ] }, { "cite": "249 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410875 ], "year": 1993, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0694-01" ] }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "year": 1992, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0432-01" ] }, { "cite": "173 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147606 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0167-01" ] }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "year": 2003, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "264 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680621 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0176-01" ] }, { "cite": "364 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262335 ], "year": 2006, "pin_cites": [ { "page": "555", "parenthetical": "McLaren, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0549-01" ] }, { "cite": "5 L. Ed. 257", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 11730243 ], "year": 1821, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/us/19/0264-01" ] }, { "cite": "608 F.2d 965", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1426381 ], "year": 1979, "pin_cites": [ { "page": "969-70" } ], "opinion_index": 0, "case_paths": [ "/f2d/608/0965-01" ] }, { "cite": "353 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3362731 ], "year": 2004, "pin_cites": [ { "page": "398-99", "parenthetical": "noting that the appellate court may not read into a statute exceptions, limitations, or conditions not expressed by the legislature" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0378-01" ] }, { "cite": "221 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703655 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "433" }, { "page": "429" }, { "page": "432-33" }, { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0414-01" ] }, { "cite": "191 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229719 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "504" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0493-01" ] }, { "cite": "209 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461402 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "255" }, { "page": "255-56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0248-01" ] }, { "cite": "218 Ill. 2d 390", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735833 ], "year": 2006, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0390-01" ] }, { "cite": "191 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229713 ], "year": 2000, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0326-01" ] }, { "cite": "223 Ill. 2d 49", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604629 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "59" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0049-01" ] }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "year": 1986, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "209 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462131 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "112" }, { "page": "114" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0100-01" ] }, { "cite": "336 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599291 ], "year": 2002, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0377-01" ] }, { "cite": "222 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602037 ], "year": 2006, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/222/0530-01" ] }, { "cite": "357 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135194 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "421" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/357/0411-01" ] }, { "cite": "358 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730882 ], "year": 2005, "pin_cites": [ { "page": "486" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/358/0476-01" ] }, { "cite": "83 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473849 ], "opinion_index": 1, "case_paths": [ "/ill-2d/83/0282-01" ] }, { "cite": "118 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188627 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "334" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/118/0321-01" ] }, { "cite": "77 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490810 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "285" }, { "page": "285" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/77/0279-01" ] }, { "cite": "154 Ill. 2d 39", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821058 ], "year": 1992, "pin_cites": [ { "page": "43" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/154/0039-01" ] }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "year": 2003, "pin_cites": [ { "page": "24" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "221 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703655 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "429" }, { "page": "429" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/221/0414-01" ] }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "243", "parenthetical": "\"It must be established that the expert is a licensed member of the school of medicine about which he proposes to express an opinion\"" }, { "page": "243" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "209 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462131 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "114" }, { "page": "114" }, { "page": "114" }, { "page": "114" }, { "page": "115" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/209/0100-01" ] } ], "analysis": { "cardinality": 1586, "char_count": 48282, "ocr_confidence": 0.76, "pagerank": { "raw": 8.212537900810579e-08, "percentile": 0.4766654349346236 }, "sha256": "2d33cd8a0415be6c811c66d13906d7fe96106dd8dcb47c6a4c48b88cde03856c", "simhash": "1:3f2dc5c47747d9fa", "word_count": 7957 }, "last_updated": "2023-07-14T16:22:18.400209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEREMY SOMERS, Plaintiff-Appellant, v. MICHAEL J. QUINN, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HUTCHINSON\ndelivered the opinion of the court:\nPlaintiff, Jeremy Somers, appeals the judgment of the circuit court that (1) granted defendant Michael J. Quinn\u2019s motion in limine to bar the testimony of plaintiffs expert witness regarding the standard of care applicable to defendant\u2019s medical treatment of plaintiff, and (2) denied plaintiffs motion for a continuance to find another expert to testify to the standard of care. We affirm.\nPlaintiff filed his complaint on June 11, 2001, alleging that defendant was negligent in his treatment of plaintiffs broken leg and that his negligence resulted in injury to plaintiff. On July 5, 2002, pursuant to Supreme Court Rule 213 (210 Ill. 2d Rs. 213(f), (g), (h), (i), (j), (k)), plaintiff disclosed that Dr. Mark Benson would describe at trial the treatment he provided plaintiff in the months following plaintiffs treatment by defendant and would opine that defendant\u2019s treatment \u201cwas inadequate and below the standard of care.\u201d\nDr. Benson sat for a discovery deposition on June 2, 2003. Dr. Benson testified that he acquired medical licenses from Colorado and Wisconsin in 1979. He let his Colorado license expire after one year but retained his Wisconsin license. In 1993, Dr. Benson suffered a cervical spine fracture in an automobile accident. He took hydro-codone for pain relief and became addicted to it. In 1996, the Wisconsin medical licensing board suspended Dr. Benson\u2019s medical license after finding that he had taken hydrocodone samples from his office. Dr. Benson testified that he secured periodic stays of the suspension between 1996 and 2002. He further testified that he was twice convicted of attempting to obtain a prescription by fraud, once in May 2000 and again in October 2002. In the spring of 2002, Dr. Benson surrendered his medical license due to vision problems caused by eye ulcerations. Dr. Benson testified that he intended to return to the practice of medicine in August 2003.\nIn October 2004, the trial court entered an order setting the case for jury trial on May 23, 2005. The order also set April 1, 2005, as the deadline for all motions for involuntary dismissal or summary judgment.\nDr. Benson sat for an evidence deposition on May 20, 2005, three days before trial. He testified that, on August 20, 2003, he petitioned the Wisconsin medical licensing board for reinstatement of his license. On August 29, 2003, the board granted Dr. Benson a limited medical license with the opportunities to apply for consecutive three-month extensions of that limited license. In October 2004, the hoard found that Dr. Benson had obtained medication by forging prescriptions. Subsequently, Dr. Benson surrendered his license, effective December 15, 2004.\nDr. Benson testified that the board\u2019s findings that he had forged prescriptions were false, but acknowledged that he stipulated to those findings in the board\u2019s written order accepting the surrender of his license. Dr. Benson admitted that he held no medical license at the time of the deposition.\nOn May 23, 2005, the day of trial, defendant filed a motion in limine to exclude from evidence the portions of Dr. Benson\u2019s evidence deposition in which he testified as to the standard of care applicable to defendant\u2019s medical treatment of plaintiff and as to whether defendant\u2019s treatment met that standard. Parenthetically we note that defendant did not challenge the admissibility of Dr. Benson\u2019s descriptions of his or defendant\u2019s treatment of plaintiff. Defendant argued that, because Dr. Benson lacked a medical license at the time of his evidence deposition, his qualifications did not meet the standards for expert medical witnesses set forth in section 8 \u2014 2501 of the Code of Civil Procedure (the Code) (735 ILCS 5/8 \u2014 2501 (West 2004)). Defendant attached to his motion a copy of a December 15, 2004, decision of the Wisconsin medical licensing board finding that Dr. Benson \u201ccommitted unprofessional conduct\u201d by forging prescriptions on two occasions in October 2004. The decision noted that Dr. Benson had voluntarily surrendered his Wisconsin medical license effective immediately.\nThe record contains no transcript of the hearing on defendant\u2019s motion. The trial court issued a written order in which it found that section 8 \u2014 2501 of the Code categorically required that an expert be licensed to practice medicine at the time he testified to the applicable standard of care in a medical malpractice case. The trial court also held that, even if it had discretion to decide whether to allow Dr. Benson\u2019s testimony, it would still exclude the testimony. Accordingly, the trial court granted the motion to bar Dr. Benson\u2019s testimony relating to the standard of care applicable to defendant. Plaintiff then moved for a continuance of the trial for the purpose of retaining another expert. The trial court denied the motion on the ground that plaintiff \u201cwas not duly diligent.\u201d The parties stipulated that, in the absence of Dr. Benson\u2019s testimony, plaintiff would present no evidence on the standard of care. Defendant then moved for a directed verdict, which the trial court granted. Plaintiff filed this timely appeal.\nPlaintiff challenges the trial court\u2019s decision barring Dr. Benson\u2019s testimony on the ground that he lacked a medical license at the time he gave his evidence deposition. The plaintiff in a medical malpractice action must prove: (1) the proper standard of care against which the defendant\u2019s conduct is measured; (2) a negligent failure to comply with the applicable standard; and (3) a resulting injury proximately caused by the defendant\u2019s want of skill or care. Jinkins v. Evangelical Hospitals Corp., 336 Ill. App. 3d 377, 382 (2002). \u201c \u2018Unless the physician\u2019s negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a layperson, expert medical testimony is required to establish the standard of care and the defendant physician\u2019s deviation from that standard.\u2019 \u201d Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004), quoting Purtill v. Hess, 111 Ill. 2d 229, 242 (1986).\nAt the time of this case, section 8 \u2014 2501 of the Code contained four factors for the trial court to consider in qualifying an expert witness, including whether the witness was licensed in the same profession as the defendant. 735 ILCS 5/8 \u2014 2501(c) (West 2004). This section provides in relevant part:\n\u201cExpert Witness Standards. In any case in which the standard of care applicable to a medical professional is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.\n(a) Whether the witness is board certified or board eligible in the same specialties as the defendant and is familiar with the same medical problem or problems or the type of treatment administered in the case;\n(b) Whether the witness has devoted 75% of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;\n(c) whether the witness is licensed by any state or the District of Columbia in the same profession as the defendant; and\n(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.\u201d 735 ILCS 5/8 \u2014 2501 (West 2004).\nAs to plaintiffs first contention, our standard of review is de novo because the construction of a statute is a question of law. DeLuna v. Bureiaga, 223 Ill. 2d 49, 59 (2006), citing In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000). Our primary objective is to ascertain and give effect to the intention of the legislature. DeLuna, 223 Ill. 2d at 59, citing Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). When the language of a statute is clear and unambiguous, a court must give effect to the plain and ordinary meaning of the language without resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 255 (2004), citing Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). \u201c \u2018One of the fundamental principles of statutory construction is to view all provisions of an enactment as a whole. Words and phrases should not be construed in isolation, but must be interpreted in light pf other relevant provisions of the statute.\u2019 \u201d Raintree Homes, Inc., 209 Ill. 2d at 255-56, quoting Michigan Avenue National Bank, 191 Ill. 2d at 504.\nSection 8 \u2014 2501 of the Code provides standards that the trial court shall apply in medical malpractice cases \u201cto determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.\u201d 735 ILCS 5/8 \u2014 2501 (West 2004); see also Thompson v. Gordon, 221 Ill. 2d 414, 433 (2006). The plain language of section 8 \u2014 2501 does not impose a mandatory licensure requirement. Instead, the statute leaves the admission of the expert\u2019s testimony to the determination and discretion of the trial court. The legislature could have imposed a mandatory licensure requirement had it wished to do so, and we will not read such a requirement into the statute. See Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 398-99 (2004) (noting that the appellate court may not read into a statute exceptions, limitations, or conditions not expressed by the legislature).\nPlaintiff argues that subsections (a) through (d) are not \u201cnecessarily mandatory,\u201d but instead are \u201cfactors *** to be applied by the court in making its determination.\u201d We find plaintiffs argument persuasive and determine that the plain language of the statute is controlling. We determine that it is inappropriate to disregard statutory authority governing the admission of expert testimony in medical malpractice cases and to instead decide the case based upon other common-law requirements for the competency of a medical expert. See 735 ILCS 5/1 \u2014 104 (West 2004) (providing that supreme court may not make rules governing civil practice and procedure that are inconsistent with the provisions of the Code). This court should also not ignore section 8 \u2014 2501 of the Code simply because our supreme court has not yet had occasion to address its meaning or effect as it would specifically apply to the circumstances presented in this case.\nFurthermore, the special concurrence applies Sullivan beyond its facts to determine that Sullivan is controlling and requires that licensure must exist at the time the witness testifies. The special concurrence states:\n\u201cThe supreme court held in Sullivan that \u2018 \u201cin order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein.\u201d \u2019 (Emphasis added.) Sullivan, 209 Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. *** Sullivan can be read but one way: the testimony of a witness cannot be considered competent medical opinion testimony unless the witness holds a medical license at the time of the testimony.\u201d 373 Ill. App. 3d at 102.\nThere is nothing in Sullivan or common experience that implies or concludes that expertise exists solely and dependently on the existence of a license and that, upon termination of the license, regardless of cause, the expertise fades to black and is lost until the license is renewed. Such an interpretation does violence to the concept of memory.\nOur supreme court explained in Sullivan that licensure in the school of medicine about which the expert proposes to testify is required because:\n\u201c[T]here are different systems or schools of medicine with varying tenets and practices, and *** testing the care and skill of a practitioner of one school of medicine by the opinion of a practitioner of another school would result in inequities. The practitioner of a particular school of medicine is entitled to have his or her conduct tested by the standards of that school. Dolan, 77 Ill. 2d at 283 (and authorities cited therein).\u201d Sullivan, 209 Ill. 2d at 113.\nThus, the licensure requirement serves to protect practitioners of one school of medicine from the imposition of standards followed in other schools of medicine. Preventing the testimony of someone who had never been licensed in the school of medicine at issue or, especially, someone licensed in a different school of medicine clearly would tend to prevent the imposition of an improper standard. We fail to see how allowing the testimony of an expert who had been licensed in the appropriate school of medicine, but who was no longer so licensed, would result in the harm that Sullivan identified.\nThe issue then becomes what effect the witness\u2019s lack of current licensure has on his or her ability to opine on the current state of the standards in a school of medicine. The legislature touched on this issue in the recent amendment to section 8 \u2014 2501 contained in Public Act 94 \u2014 677, effective August 25, 2005. Though this amendment cannot be used to dispose of this case, because it was passed after the trial court\u2019s ruling in this case, its terms are instructive in this situation.\nSection 8 \u2014 2501 of the Code now allows for testimony from a retired expert if the expert provides:\n\u201c[E]vidence of attendance and completion of continuing education courses for 3 years previous to giving testimony. An expert who has not actively practiced, taught, or been engaged in university-based research, or any combination thereof, during the preceding 5 years may not be qualified as an expert witness.\u201d 735 ILCS Ann. 5/8\u2014 2501 (West Supp. 2005).\nAccordingly, the legislature has now found fit to allow testimony from experts who have retired or have not been in active practice for up to five years.\nHere, Dr. Benson had surrendered his license only five months before trial was scheduled. While his lack of a current license was certainly a factor that the trial court should have considered in determining whether Dr. Benson qualified as an expert, we do not find that his lack of a current license is a basis for an automatic disqualification.\nWe also believe that the special concurrence fails to examine Sullivan in context. In Sullivan, the expert was never licensed in the area in which he was presented to opine; he was, however, licensed in another area of medicine. Furthermore, we have not discovered another reported case wherein the issue of a prior licensure has been considered. Therefore, neither Sullivan nor any other reported case is controlling or precedential.\n\u201cA judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.\u201d Allegheny General Hospital v. National Labor Relations Board, 608 F.2d 965, 969-70 (3d Cir. 1979).\nChief Justice Marshall examined the purpose of this principle of law in 1821 when he wrote:\n\u201c \u2018 \u201cIt is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question *** before the [cjourt is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.\u201d [Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400, 5 L. Ed. 257, 290 (1821).]\u2019 R. Aldisert, The Judicial Process 314 [(1996)].\u201d People v. Trimarco, 364 Ill. App. 3d 549, 555 (2006) (McLaren, J., dissenting).\nWe submit that Sullivan is logical and sound only as it applies to the particular facts in Sullivan. The witness in that case was a licensed physician hut never obtained a license in the area of medicine at issue and thus patently was not certified as a knowledgeable expert. Applying Sullivan retrogressively, as the special concurrence has, is counter-intuitive. Among other things, licenses expire, are suspended, are revoked, and are even voluntarily surrendered. However, the underlying skills that the license certified do not mystically or automatically disappear when the license is no longer legally valid. The termination of a license to operate a motor vehicle does not cause the driver to lose the mental or physical ability to control and maneuver a vehicle. Rather, the driver loses only the legal ability to operate a motor vehicle. The unlicensed driver can still opine as to the cause of an accident he or she witnesses while a pedestrian, a passenger, or the driver of a vehicle. There is no logical reason to conclude that never having had a license is the same thing as having had a license but not at the time of testifying.\nIn a recent decision, our supreme court held that a witness\u2019s compliance with an engineering licensing requirement was not a prerequisite to admissibility of the witness\u2019s expert testimony; instead, it was merely a factor to be weighed in considering whether the witness was qualified as an expert, thereby overruling People v. West, 264 Ill. App. 3d 176 (1994). Thompson, 221 Ill. 2d at 429. The Thompson court further provided that, \u201c[t]o the extent that West may he read as holding that licensing is a prerequisite to the admissibility of expert testimony rather than a factor to be weighed in considering expert qualifications, we overrule that portion of the West decision and reject defendants\u2019 argument that West controls the disposition of this case.\u201d Thompson, 221 Ill. 2d at 432-33.\nThus, it would appear here that the supreme court has effectively overruled sub silencio the special concurrence\u2019s interpretation of Sullivan. From Thompson, it is clear that whether an expert witness has a license or does not have a license is a factor to be considered, and that the lack of a license does not inevitably lead to the conclusion that the witness has also lost all the knowledge that he or she previously possessed or that any diminution occurred in the amount of knowledge previously possessed. Interestingly, the witness in this case apparently lost his license because of improper acts related to substance addiction and not because of an established deficiency based upon a loss of memory or some other mental disability that sapped his knowledge in the area of his claimed expertise.\nBecause current licensure is a factor to be considered by the trial court, we believe that the appropriate analysis in this case deals with whether the trial court abused its discretion based upon the totality of the circumstances. As our supreme court has stated:\n\u201cWith regard to expert testimony, it is well settled that the decision whether to admit expert testimony is within the sound discretion of the trial court. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). A person will be allowed to testify as an expert if his experience and qualifications afford him knowledge that is not common to laypersons and where his testimony will aid the trier of fact in reaching its conclusions. People v. Miller, 173 Ill. 2d 167,186 (1996). \u2018There is no predetermined formula for how an expert acquires specialized knowledge or experience and the expert can gain such through practical experience, scientific study, education, training or research.\u2019 Miller, 173 Ill. 2d at 186. Thus, \u2018[f] or mal academic training or specific degrees are not required to qualify a person as an expert; practical experience in a field may serve just as well to qualify him.\u2019 Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 459 (1992).\u201d Thompson, 221 Ill. 2d at 428-29.\nIn the present case, the trial court initially held that it had no discretion to allow the witness to testify. However, the trial court also mentioned that it would not have allowed the witness to testify even if it had the discretion to do so. This court will find an abuse of discretion only when no reasonable person would take the position adopted by the lower court. McKenzie Dredging Co. v. Deneen River Co., 249 Ill. App. 3d 694, 700 (1993). The test is not whether the reviewing court agrees with the trial court\u2019s decision, but whether the lower court \u201c \u2018 \u201cacted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted.\u201d \u2019 \u201d American Federation of State, County & Municipal Employees, Council 31 v. Schwartz, 343 Ill. App. 3d 553, 559 (2003), quoting Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595 (1991), quoting In re Marriage of Aud, 142 Ill. App. 3d 320, 326 (1986). Here, the trial court could have reasonably concluded that Dr. Benson was not qualified to testify as an expert due to the surrender of his medical license and due to the other findings made by the Wisconsin board of medical examiners. Considering the totality of the circumstances, we cannot conclude the trial court abused its discretion.\nPlaintiffs next contention is that the trial court erred in refusing to grant him a continuance to retain another expert witness. Litigants do not have an absolute right to a continuance, and the grant or denial of a motion for a continuance lies in the sound discretion of the trial court. Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 692 (2000). The decisive factor in assessing the merits of a motion for a continuance is whether the moving party has exercised due diligence in proceeding with the case. Williams, 316 Ill. App. 3d at 692.\nPlaintiff claims that he acted with due diligence at all stages of the proceedings and criticizes defendant for not bringing his motion to exclude Dr. Benson\u2019s testimony before the day of trial. Plaintiff asserts that \u201cdue diligence can scarcely require the Plaintiff to anticipate as-yet-unregistered objections by the Defendant, or to make such objections in the Defendant\u2019s stead.\u201d Plaintiffs protests do not ring true. Due diligence required plaintiff to stay abreast of the status of his own witness\u2019s medical license, which plaintiff knew or should have known had been in a precarious state for years. Though defendant did learn at Dr. Benson\u2019s June 2003 discovery deposition that he was not currently licensed, defendant had no duty to file what at that point would have been a possibly premature motion in limine, especially in light of Dr. Benson\u2019s stated intention to seek reinstatement of his license in the next two months. Nor did defendant have a duty to monitor Dr. Benson\u2019s credentials in the intervening months to determine whether he had regained his license before his evidence deposition. When the evidence deposition finally transpired on May 20, 2005, plaintiff should have expected that Dr. Benson\u2019s lack of a medical license at that time would draw a motion to exclude his testimony. Defendant, we recognize, could have filed that motion on May 20 rather than three days later on May 23, but the diligence at issue here is not defendant\u2019s, but plaintiffs. Since the supreme court\u2019s 2004 decision in Sullivan, there has been no question that licensure is an absolute requirement of a witness who would testify to the standard of care in a medical malpractice case. Plaintiffs counsel at the time of the motion in limine had been in the case since January 24, 2002. At least since June 2003, counsel was aware that Dr. Benson had suffered physical ailments and committed misdeeds that negatively impacted the viability of his license, leading first to the licensing board\u2019s suspension of that license and, later, in the spring of 2002, to his outright surrender of it. This knowledge obligated plaintiffs counsel to stay current on the status of this witness\u2019s license. If counsel did not know well before May 2005 that Dr. Benson had again surrendered his license in December 2004, counsel certainly should have known. Plaintiff has no excuse for failing to secure an expert with adequate credentials before the May 20, 2005, deposition.\nPlaintiff argues that defendant waived his objection to Dr. Benson\u2019s testimony by failing to raise it at the May 2003 evidence deposition. Plaintiff cites three cases, Lundell v. Citrano, 129 Ill. App. 3d 390 (1984), Banwart v. Okesson, 83 Ill. App. 3d 222 (1980), and Bireline v. Espenscheid, 15 Ill. App. 3d 368 (1973), all of which rely on Supreme Court Rule 211(c)(1) (134 Ill. 2d R. 211(c)(1)). That rule provides:\n\u201cGrounds of objection to the competency of the deponent or admissibility of testimony which might have been corrected if presented during the taking of the deposition are waived by failure to make them at that time; otherwise objections to the competency of the deponent or admissibility of testimony may be made when the testimony is offered in evidence.\u201d 134 Ill. 2d R. 211(c)(1).\nThe crucial phrase here is, \u201cmight have been corrected if presented during the taking of the deposition.\u201d 134 Ill. 2d R. 211(c)(1). Dr. Benson admitted at the deposition that he was not currently licensed in medicine. As plaintiff was powerless to remedy Dr. Benson\u2019s lack of a medical license during the deposition, defendant was not required to raise that lack in an objection to Dr. Benson\u2019s opinion.\nLundell, Banwart, and Bireline do not help plaintiff. In Lundell, the plaintiff sued the defendant for lower-back injuries that the plaintiff claimed were caused when the defendant\u2019s automobile struck the plaintiffs. At trial, the defendant sought to exclude from evidence the portions of a chiropractor\u2019s deposition testimony in which he opined that the plaintiffs injuries were caused by a certain type of neck strain. The defendant argued that the chiropractor \u201clacked a history of the plaintiffs lower-hack problems\u201d and that, therefore, any opinion he rendered about the cause of those problems was speculative and lacking in foundation. Lundell, 129 Ill. App. 3d at 397. The reviewing court held that the defendant waived the argument because \u201cobjections to deposition testimony of an expert witness which assumes facts without evidentiary support must be made at the time the deposition is taken.\u201d Lundell, 129 Ill. App. 3d at 398. The reviewing court explained that \u201c[t]he lack of foundation for [the chiropractor\u2019s] testimony was evident at the time of the deposition and should have been pointed out to afford the plaintiff a chance to remedy the defect.\u201d Lundell, 129 Ill. App. 3d at 398.\nIn Banwart, the defendant moved to exclude the deposition testimony of a physician who treated the plaintiff following an accident involving scaffolding owned by the defendant. The defendant argued that the physician\u2019s opinions were based on facts contained in hospital records and thus were inadmissible as hearsay. Citing Rule 211(c)(1), but providing no discussion, the reviewing court held that the defendant\u2019s hearsay objection was waived for his failure to raise it at trial. Banwart, 83 Ill. App. 3d at 227-28.\nIn Bireline, the defendants objected at trial to leading questions asked by the plaintiff during his witness\u2019s evidence deposition. Citing Rule 211, the reviewing court summarily found the defendants\u2019 objection waived. Bireline, 15 Ill. App. 3d at 371.\nThe bases for the objections in Lundell, Banwart, and Bireline differed fundamentally from the grounds for the objection in the present case. Where a deponent\u2019s testimony is based on hearsay or lacks proper foundation, or where the deponent is asked an improper leading question, the impropriety may potentially be remedied on the spot. In Lundell, Banwart, and Bireline, defects such as these were found curable at the depositions. By contrast, Dr. Benson\u2019s lack of a medical license could not be remedied during the deposition. See Schultz v. Richie, 148 Ill. App. 3d 903, 908 (1986) (objection to \u201cthe competency of the deponent and [the] relevancy of the subject matter of the testimony in whole\u201d was not waived under Rule 211); Peterson v. Henning, 116 Ill. App. 3d 305, 310 (1983) (objection to deponent\u2019s expression of an opinion about the veracity of plaintiffs prior statement to her was not waived, because \u201c[t]he defect of [the witness] interjecting her opinion could not have been \u2018corrected\u2019 at the time her deposition was taken\u201d).\nNext, plaintiff argues that, because Dr. Benson\u2019s testimony was the lynchpin of his case, defendant\u2019s motion in limine to exclude that testimony was \u201cessentially equivalent\u201d to a motion for involuntary dismissal and, therefore, should have been brought before the April 1, 2005, deadline for motions to dismiss. Plaintiff also complains that the trial court did not give him \u201can opportunity to file or otherwise prepare a response\u201d to defendant\u2019s motion in limine. The record contains no indication that plaintiff asked the trial court to deny the motion in limine as untimely or allow him a response to it. Therefore, plaintiff has not shown us that he properly preserved these arguments for appellate review. See Morgan v. Richardson, 343 Ill. App. 3d 733, 742 (2003) (failure to object at trial and to raise the issue in a posttrial motion results in waiver).\nLast, plaintiff argues that, because his complaint stated all the elements of a cause of action for medical malpractice, the dismissal of his case was a \u201cpalpable injustice.\u201d In support, plaintiff cites cases that set forth the elements of medical malpractice. Our concern, however, is not whether plaintiffs complaint was sufficient, but whether he diligently sought an expert with the proper credentials. We find that he did not. We conclude, therefore, that the trial court did not abuse its discretion in denying plaintiffs motion for a continuance.\nFor the reasons stated above, we affirm the judgment of the circuit court of Lake County.\nAffirmed.\nMcLAREN, J., concurs.", "type": "majority", "author": "JUSTICE HUTCHINSON" }, { "text": "JUSTICE O\u2019MALLEY,\nspecially concurring:\nThe majority states that following our supreme court\u2019s decision in Sullivan, as I would do in this case, is \u201cretrogressive\u201d because Sullivan is not \u201clogical and sound\u201d beyond its particular facts. 373 Ill. App. 3d at 94. Thus, the majority apparently takes a retrogressive view of judicial hierarchy, wherein the appellate court decides the soundness of a supreme court decision and then decides whether it should be precedential or limited to its particular facts. If the supreme court\u2019s decisions are meant to be limited to their facts, then it has squandered' considerable time and paper detailing the policy ramifications of rulings that affect only the parties to each case the supreme court reviews, and, if the supreme court\u2019s function is one of error correction confined to a particular case rather than policy determination to guide lower courts such as ours, then the supreme court\u2019s practice of straining through myriad petitions for leave to appeal to sift out the cases worthy of its review is arbitrarily cruel. Despite what may be the wisdom of the majority\u2019s belief that licensure alone should not he dispositive in determining whether an expert health-care witness is qualified, I must admit that I lack the temerity to declare a supreme court decision illogical and unsound and on those grounds decline to follow it. For the reasons I detail below, I believe our supreme court was clear in stating in Sullivan that licensure is a \u201c \u2018foundational requirement[ ]\u2019 \u201d (Sullivan, 209 Ill. 2d at 114, quoting Jones v. Young, 154 Ill. 2d 39, 43 (1992)) for the admission of expert health-care testimony, and I would follow that supreme court precedent in this case.\nPlaintiff challenges the trial court\u2019s decision barring Dr. Benson\u2019s testimony on the ground that he lacked a medical license at the time he gave his evidence deposition.\nOur supreme court has developed common-law requirements for the competency of a medical expert. In Dolan v. Galluzzo, 77 Ill. 2d 279, 285 (1979), the supreme court held:\n\u201c[I]n order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein. Once the fact of such license has been established, it lies within the sound discretion of the trial court to determine if the witness is qualified to testify as an expert regarding the standard of care. [Citation.]\u201d\nThe supreme court reaffirmed the common-law licensure requirement in Purtill v. Hess, 111 Ill. 2d 229, 243 (1986) (\u201cIt must be established that the expert is a licensed member of the school of medicine about which he proposes to express an opinion\u201d). Recently, in Sullivan, the supreme court dismissed the notion that its decisions since Dolan and Purtill eroded the requirement \u201cthat a health professional expert witness must always be a licensed member of the school of medicine about which the expert proposes to testify.\u201d Sullivan, 209 Ill. 2d at 114. The plaintiff in Sullivan argued that the supreme court\u2019s prior decision in Jones \u201cretreat[ed] from any rigid, formalistic rule\u201d on licensure. Sullivan, 209 Ill. 2d at 114. Surveying its past decisions on the qualifications of expert medical witnesses, the court responded:\n\u201cWe cannot accept this argument. Jones clearly reaffirms this court\u2019s decision in Purtill describing two foundational requirements: that the health-care expert witness must be a licensed member of the school of medicine about which the expert proposes to testify; and that the expert must be familiar with the methods, procedures, and treatments ordinarily observed by other healthcare providers in either the defendant\u2019s community or a similar community. *** It is only after determining that both foundational requirements are satisfied that the court proceeds to evaluate whether the allegations of negligence concern matters within the expert\u2019s knowledge and observation.\u201d (Emphasis in original.) Sullivan, 209 Ill. 2d at 114-15.\nPlaintiff cites Witherell v. Weimer, 118 Ill. 2d 321 (1987), a pre- Sullivan medical malpractice case where the supreme court applied a \u201cprejudice\u201d test to the admission of opinion testimony from an unlicensed physician. In Witherell, the court wrote:\n\u201cLanguage in Dolan, which was criticized in a dissenting opinion, suggested *** that an expert must actually hold a license in order to testify. (See also Purtill v. Hess (1986), 111 Ill. 2d 229, 243; cf. Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282.) Whether or not a license is in fact required, we are unable to perceive how the fact that [the physician] did not hold such a license prejudiced the defendant here.\u201d Witherell, 118 Ill. 2d at 334.\nAlthough Sullivan did not include Witherell in its survey of prior decisions, I consider Witherell\u2019s approach no longer valid after Sullivan. The supreme court in Sullivan reaffirms as unexceptionable the requirement that a medical expert hold a license in the school of medicine about which the expert proposes to give opinion testimony. Sullivan forecloses the notion that the admission of opinion testimony from a witness unlicensed in the relevant school of medicine can be considered harmless error, as was held in Witherell. Plaintiff, in fact, fully admits that Sullivan conflicts with Witherell, acknowledging that Sullivan \u201coverlook[s] the commonsensical and equitable considerations that actuated the [Witherell] court[ ] to permit medically expert testimony from unlicensed individuals who were nevertheless astute and competent expert witnesses.\u201d Plaintiff urges us to follow With-erell, but our allegiance should be to Sullivan.\nThe majority discounts the above precedent in favor of the statutory factors enumerated in section 8 \u2014 2501 of the Code. There is no case from our supreme court employing section 8 \u2014 2501 to determine whether a witness is a proper medical expert. However, though Dolan, decided in 1979, predated section 8 \u2014 2501, which was enacted in 1985 (Pub. Act 84 \u2014 7, eff. August 15, 1985), the remaining supreme court cases discussed above were decided after the enactment of section 8 \u2014 2501. We are not free to depart from an unequivocal holding of our supreme court that licensure in the relevant school of medicine is an absolute requirement of a medical expert giving opinion testimony. The majority claims that I \u201cdisregard\u201d section 8 \u2014 2501 (373 Ill. App. 3d at 92). To the contrary, I have duly noted section 8 \u2014 2501 and its import. However, \u201c[i]t is fundamental to our judicial system that once our supreme court declares the law on any point, its decision is binding on all Illinois courts, and we cannot refuse to follow it, because we have no authority to overrule or modify supreme court decisions\u201d (Du Page County Airport Authority v. Department of Revenue, 358 Ill. App. 3d 476, 486 (2005)). Thus, I cannot choose whom to follow here. The majority is exactly wrong when it says that I \u201cinappropriate[ly] *** disregard statutory authority governing the admission of expert testimony.\u201d 373 Ill. App. 3d at 92. On the contrary, it is the majority that inappropriately holds that supreme court precedent is unsound.\nThe majority states that I fail to \u201cexamine Sullivan in context.\u201d 373 Ill. App. 3d at 93. It further claims that my position would inappropriately expand Sullivan beyond its facts in that the witness in Sullivan \u201cwas never licensed in the area [of medicine] in which he was presented to opine\u201d (373 Ill. App. 3d at 93), but Dr. Benson was licensed in this area of medicine up to approximately five months before he gave his opinion testimony. The majority states that \u201c[t]here is nothing in Sullivan or common experience that implies or concludes that expertise exists solely and dependently on the existence of a license and that, upon termination of the license, regardless of cause, the expertise fades to black and is lost until the license is renewed.\u201d 373 Ill. App. 3d at 92. The first clause of this sentence may accurately state what \u201ccommon experience\u201d holds, but it does not accurately state what Sullivan holds. Sullivan holds that a \u201chealth-care expert witness must be a licensed member of the school of medicine about which the expert proposes to testify.\u201d Sullivan, 209 Ill. 2d at 114. Thus, for the supreme court, a witness\u2019s competence to testify in a given school of medicine is indeed dependent on the witness\u2019s licensure in that school. As for the second clause of the sentence, I see no warrant for reading into Sullivan\u2019s licensure requirement an exception for a witness who, though not licensed in the relevant school of medicine when he gives his testimony, had such a license at some prior time and is otherwise qualified to offer an opinion in light of his skill and knowledge. The supreme court held in Sullivan that \u201c \u2018in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein.\u2019 \u201d (Emphasis added.) Sullivan, 209 Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. If the supreme court did not intend to require that the licensure he concurrent with the testimony, it would have said that the witness \u201cmust be or have been licensed therein.\u201d Regardless of \u201ccommon experience,\u201d Sullivan can be read but one way: the testimony of a witness cannot be considered competent medical opinion testimony unless the witness holds a medical license at the time of the testimony.\nIn fact, if ever there was a situation in which the supreme court would favor \u201ccommon experience\u201d over a per se rule requiring licensure for a medical witness, the particular facts of Sullivan itself presented it. The proposed witness in Sullivan was a doctor who sought to testify regarding the standard of care for nurses. \u201cCommon experience\u201d tells us that there will be at least some doctors who have enough experience with the duties of nurses (which would be uncommon experience for the common person) to opine on the duties of nurses, since \u201ccommon experience\u201d tells us that, in no small measure, nurses do what doctors tell them to do. Nevertheless, even under its particular facts, Sullivan lays out a per se rule that, irrespective of a doctor\u2019s experience, including for example his having been previously licensed as a nurse, the doctor is unqualified to testify regarding the standard of care for a nurse due to the lack of a current license in that school of medicine.\nThe majority persists that neither \u201cSullivan nor any other reported case is controlling or precedential\u201d (373 Ill. App. 3d at 94), and in support of this approach the majority cites reflections on the nature of precedent by federal judges, including no less a figure than Chief Justice Marshall. 373 Ill. App. 3d at 94. If we were equals with our supreme court I might consider reading Sullivan as sharply as these authorities could be construed to warrant, but given our subordinate posture, it is best that we hew to a more narrow path. The supreme court may revise and limit Sullivan if it sees fit to do so, but we exceed our prerogative in doing the same.\nThe majority\u2019s approach to precedent is strikingly reminiscent of the view vigorously advanced by the majority in People v. Luedemann, 357 Ill. App. 3d 411 (2005). The majority in Luedemann claimed that \u201cevery case like this one is sui generis in that no two factual situations are identical,\u201d and so, though \u201c[precedent may provide some insight ***, common sense must be our main guide.\u201d (Emphasis added.) Luedemann, 357 Ill. App. 3d at 421. Similarly, the majority states that \u201cSullivan is logical and sound only as it applies to the particular facts in Sullivan\u201d (373 Ill. App. 3d at 94). Where the majority in Luedemann invoked \u201ccommon sense\u201d as a guide in determining which cases were controlling, the majority here invokes \u201ccommon experience\u201d as the reason Sullivan does not control. 373 Ill. App. 3d at 92.\nIn reversing our decision, the supreme court in Luedemann said:\n\u201cThe central flaw in the appellate court\u2019s opinion was its failure to consider and discuss the large body of case law addressing [the relevant issue]. The appellate court freed itself from the moorings of precedent by asserting that each of these cases is \u2018sui generis in that no two factual situations are identical\u2019 and that, while precedent may provide some insight, \u2018common sense\u2019 must be a court\u2019s main guide. [Citation.] The court\u2019s failure to consider the applicable case law resulted in the court\u2019s finding a seizure based on factors that courts had not previously found to be coercive ***.\nAlthough it is true that the facts of no two cases are ever exactly the same, that does not mean that a court is free simply to ignore an entire body of relevant case law and the principles and guidelines articulated therein.\u201d (Emphasis added.) People v. Luedemann, 222 Ill. 2d 530, 551-52 (2006).\nThe majority also contends that my position conflicts with Thompson v. Gordon, 221 Ill. 2d 414 (2006). In Thompson, the supreme court held that a witness need not be licensed as an engineer in order to qualify as an expert on engineering issues. The court applied the general rule that \u201c[e]xpert testimony *** is admissible \u2018if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence.\u2019 \u201d Thompson, 221 Ill. 2d at 429, quoting Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). The court stated that \u201c[w]hile licensing may be a factor to consider in determining whether an engineer is qualified to testify as an expert witness, this court does not require an engineering license as a prerequisite to testifying.\u201d Thompson, 221 Ill. 2d at 429. The majority contends that Dr. Benson\u2019s qualifications, like those of the witness in Thompson, should be judged by the general principles governing the admissibility of expert testimony, according to which a witness\u2019s licensure in the field about which he proposes to testify is only a factor in judging his competency as an expert. 373 Ill. App. 3d at 94-95. I cannot follow the majority\u2019s recommendation without disregarding Sullivan. The approach the majority endorses was the very approach urged unsuccessfully by the plaintiff in Sullivan. The plaintiff asked the supreme court to shun a \u201crigid, formalistic rule\u201d in judging the competency of a medical expert and instead hold that the witness\u2019s lack of a license in the relevant school of medicine \u201cshould *** [go] only to the weight of his testimony and not its admissibility.\u201d Sullivan, 209 Ill. 2d at 115. Against the plaintiffs urging, the supreme court held that licensure in the relevant school of medicine is an indispensable requirement for a medical expert. Thus, a medical witness is subject to a per se rule of licensure in the medical field about which the witness proposes to give opinions. Accordingly, medical testimony is an exception to the holistic approach that otherwise governs the admission of expert opinion testimony, including, as Thompson shows, testimony about the field of engineering.\nI also note that the majority\u2019s readings of Sullivan and Thompson cannot be reconciled. According to the majority, Sullivan at least sets up a per se rule that bars the testimony of \u201csomeone who had never been licensed in the school of medicine at issue.\u201d 373 Ill. App. 3d at 93. The majority cannot maintain this interpretation of Sullivan while also believing that the \u201ctotality of the circumstances\u201d approach of Thompson should apply to expert medical testimony, because that holistic approach does not allow for any per se requirement with respect to licensure.\nThe majority also relies on an amendment to section 8 \u2014 2501 to support its position (see 373 Ill. App. 3d at 93), but I need not dwell long on that topic. The amendment allows medical expert testimony from retired witnesses who have not engaged in active practice, research, or teaching for up to five years prior to the testimony. To the extent the amendment overrules any part of Sullivan, it does not apply here, because Dr. Benson is not a retired expert and did not submit the requisite evidence of continuing education to be qualified under the amendment.\nFinally, I must note my uncertainty as to why the majority affirms the exclusion of Dr. Benson\u2019s opinion testimony. The majority argues at length that Dr. Benson\u2019s testimony could not properly have been excluded for his lack of a license alone. The majority also derides the idea that Dr. Benson\u2019s lack of licensure affected his expertise. The majority states that it would do \u201cviolence to the concept of memory\u201d to conclude that a lack of licensure, regardless of its cause, affects expertise. 373 Ill. App. 3d at 92. However, when it comes time to consider whether to affirm the trial court\u2019s exclusion of Dr. Benson\u2019s testimony, the majority relies on the idea that \u201cthe trial court could have reasonably concluded that Dr. Benson was not qualified to testify as an expert due to the surrender of his medical license.\u201d 373 Ill. App. 3d at 96. I am at a loss as to why, under the majority\u2019s reasoning, impugning Dr. Benson\u2019s expertise on the ground that his license was withdrawn for personal problems does not do \u201cviolence to the concept of memory\u201d (373 Ill. App. 3d at 92) just as much as it would on the ground of any other loss of license for reasons unrelated to expertise.\nBased on Sullivan\u2019s strictures, I would conclude that the trial court did not err in barring the opinion testimony of Dr. Benson. The supreme court may very well someday revisit its holding in Sullivan, but it has not done so as of today. It is not our place to concern ourselves with the wisdom of the supreme court\u2019s decisions for the purpose of deciding which ones we follow; it is our place to follow the supreme court\u2019s decisions. I would do so in this case.", "type": "concurrence", "author": "JUSTICE O\u2019MALLEY," } ], "attorneys": [ "Richard S. Zachary, of Chicago, for appellant.", "Linda E. Spring, of Swanson, Martin & Bell, LLP, of Libertyville, for appellee." ], "corrections": "", "head_matter": "JEREMY SOMERS, Plaintiff-Appellant, v. MICHAEL J. QUINN, Defendant-Appellee.\nSecond District\nNo. 2-05-0619\nOpinion filed April 25, 2007.\nO\u2019MALLEY, J., specially concurring.\nRichard S. Zachary, of Chicago, for appellant.\nLinda E. Spring, of Swanson, Martin & Bell, LLP, of Libertyville, for appellee." }, "file_name": "0087-01", "first_page_order": 105, "last_page_order": 123 }