{ "id": 3345314, "name": "EVELYN TREADWELL, Plaintiff-Appellant, v. DR. JOHN CHIAKMAKIS, Defendant-Appellee", "name_abbreviation": "Treadwell v. Chiakmakis", "decision_date": "1978-06-08", "docket_number": "No. 76-1476", "first_page": "125", "last_page": "129", "citations": [ { "type": "official", "cite": "61 Ill. App. 3d 125" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 449", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599835 ], "weight": 3, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0449-01" ] }, { "cite": "264 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1968, "pin_cites": [ { "page": "268" }, { "page": "269" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 835", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2824421 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "837" }, { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0835-01" ] }, { "cite": "241 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 2d 410", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820083 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0410-01" ] }, { "cite": "226 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1968, "opinion_index": 0 }, { "cite": "37 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864902 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0180-01" ] }, { "cite": "323 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2700742 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0864-01" ] } ], "analysis": { "cardinality": 579, "char_count": 11478, "ocr_confidence": 0.883, "pagerank": { "raw": 1.2011123542473505e-07, "percentile": 0.5936782414727654 }, "sha256": "7ab82015e03d7aab247bc7116f763be27e4231791e9125097462448538f63cde", "simhash": "1:b3a67e3c8e45dbe1", "word_count": 1831 }, "last_updated": "2023-07-14T16:49:01.727672+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EVELYN TREADWELL, Plaintiff-Appellant, v. DR. JOHN CHIAKMAKIS, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nPlaintiff, Evelyn Treadwell, brought a malpractice action against defendant, Dr. John Chiakmakis. Plaintiff contends she suffered disability by virtue of the negligence of the defendant in his care and treatment of her. The trial court entered summary judgment in favor of the defendant. From that order the plaintiff now appeals.\nWe reverse the summary judgment entered by the trial court.\nPlaintiff\u2019s complaint alleged that in May of 1971, defendant, a duly licensed podiatrist, performed surgery upon her for the treatment of a hammer toe condition. The surgical procedures performed were described as bilateral bunionectomies with arthroplasties of the lesser digits. It was also alleged in plaintiff\u2019s complaint that approximately l)i years after the operation plaintiff discovered that the toes upon which defendant had performed surgery were elongated, that she could not move them, and that as a result of that condition she experienced great pain and discomfort.\nThe record further discloses that, on January 16, 1973, plaintiff visited another physician, Dr. Garry Isenstadt, for treatment. In a written report, Dr. Isenstadt diagnosed plaintiff\u2019s state as an \u201covercorrection\u201d of the hammer toe condition. He noted in his report that plans were being made to perform \u201ccorrective\u201d surgery. In April of 1973, this surgery was performed by Dr. Isenstadt. Plaintiff alleges that the subsequent surgery did not correct the alleged injury caused by defendant. Plaintiff\u2019s complaint charged that she had suffered a permanent disability because defendant allegedly conducted the surgery negligently and failed to render proper postoperative care. Defendant denied these allegations in his answer to the complaint.\nOn May 11, 1976, the trial court entered an order scheduling a pretrial conference for May 25, 1976, and directed that discovery be completed by that date. At the pretrial conference it was disclosed that although plaintiff had completed answers to defendant\u2019s supplementary interrogatories on May 10, 1976, these answers had not been filed with the court or provided to defense counsel. The trial court thereupon ordered plaintiff to file her answers with the court within seven days and further ordered that the pretrial conference be continued to June 14, 1976.\nPlaintiff complied with this order. In response to defendant\u2019s inquiry for the names of \u201call experts and/or treating or consulting doctors who would testify for the plaintiff at trial,\u201d plaintiff provided the names of Dr. Garry Isenstadt and Dr. Jerome Frankel. Previously, in an answer to defendant\u2019s earlier interrogatories, these doctors had been named by plaintiff as her treating physicians.\nWithout notice to plaintiff\u2019s counsel, defendant\u2019s counsel contacted both of these physicians by telephone purportedly for the purpose of arranging to take their depositions. As a result of these conversations, defendant\u2019s counsel produced signed statements by Dr. Isenstadt and Dr. Frankel indicating that they had never agreed to serve as experts for anyone in the instant case, that they had never discussed the case with plaintiff\u2019s attorneys, that they knew nothing about previous treatment rendered to plaintiff other than the fact that there was prior surgery, and that they had no opinion with regard to the propriety of the prior surgery or with regard to any alleged malpractice.\nOn June 20,1976, defendant filed a motion for summary judgment. He argued that since Drs. Isenstadt and Frankel, plaintiff\u2019s purported expert witnesses, had denied that they had agreed to be expert witnesses and stated that they held no opinion regarding the defendant\u2019s actions, plaintiff would be unable to produce evidence of defendant\u2019s alleged negligence through expert testimony and thus would be unable to present her case at the time of trial.\nIn plaintiff\u2019s answer to the motion for summary judgment, it was stated the \u201c[pjlaintiff will furnish at the trial of this cause sufficient proof to establish liability of the defendant under the rules of evidence and under the laws of the state of Illinois.\u201d Plaintiff requested that the court rescind its order closing discovery to permit the plaintiff an opportunity to rehabilitate Drs. Isenstadt and Frankel as experts to testify on her behalf or to show the availability of other expert testimony. The trial court refused this request and granted defendant\u2019s motion for summary judgment.\nOpinion\nRule 219 of the Illinois Supreme Court Rules, governing pretrial procedures, provides:\n\u201cIf a party \u00ae \u00ae 8 unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court \u00ae \u00ae \u00ae may enter, in addition to remedies elsewhere specifically provided, such orders as are just\u00ae \u00ae \u00ae.\u201d (Ill. Rev. Stat. 1975, ch. 110A, par. 219(c).)\nUnder this rule the trial court has broad discretion in the conduct of pretrial discovery procedures and such discretion includes the imposition of reasonable sanctions against parties guilty of dilatory practice. (Savitch v. Allman (1975), 25 Ill. App. 3d 864, 323 N.E.2d 435.) The Illinois Supreme Court has recognized that such breadth of power requires careful exercise of discretion in order to balance the needs of truth and the imposition of an excessive burden to litigants. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) However, a reviewing court will not interfere with the exercise of such discretion unless the discretion has been clearly abused. Booth v. Sutton (1968), 100 Ill. App. 2d 410, 241 N.E.2d 488.\nDespite this allowance for broad judicial discretion, courts have been understandingly lenient with and sympathetic to plaintiffs who have been deprived of their day in court, absent some showing of a deliberate and contumacious disregard of the rules or of the court\u2019s order. (Savitch v. Allman (1975), 25 Ill. App. 3d 864, 323 N.E.2d 435.) It has been held that in those situations where a party has not exhibited such a disregard, it is an abuse of discretion to deny the plaintiff a hearing on the merits of his claim. Bergin v. Ashford (1970), 130 Ill. App. 2d 835, 264 N.E.2d 266; Gillespie v. Norfolk & Western Ry. Co. (1968), 103 Ill. App. 2d 449, 243 N.E.2d 27.\nIn Bergin v. Ashford (1970), 130 Ill. App. 2d 835, 264 N.E.2d 266, it was held that the trial court abused its discretion where it had dismissed the plaintiff\u2019s personal injury suit for failure to comply with discovery procedures. There, the plaintiff had failed to appear at two depositions that had been arranged by defendant\u2019s counsel. Citing People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6, the court ruled that although Rule 219 provides for sanctions to be imposed when a party unreasonably refuses to comply with discovery procedures, \u201c \u2018the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.\u2019 \u201d 130 Ill. App. 2d 835, 837, 264 N.E.2d 266, 268.\nThe plaintiff\u2019s failure to comply with the discovery procedures in Bergin was held not to demonstrate \u201ca persistent failure or unreasonable refusal to comply with discovery rules or any order of the trial court.\u201d (130 Ill. App. 2d 835, 838, 264 N.E.2d 266, 269.) Therefore, the court concluded that the plaintiff\u2019s conduct did not constitute such a disregard of the rules as to require a dismissal of his suit.\nSimilarly, in this case, plaintiff\u2019s apparent failure to have expert witnesses readily available at the time the court ordered that discovery be closed did not constitute such a deliberate or contumacious act as to warrant a denial of a hearing on the merits.\nPlaintiff\u2019s counsel stated in his affidavit accompanying the answer to the motion for summary judgment that prior to June 14, 1976, Dr. Isenstadt had agreed to testify with respect to the contents of his diagnostic report concerning the plaintiff. That report stated \u201ccorrective\u201d surgery was needed to treat plaintiff. Plaintiff\u2019s counsel also stated in his affidavit that Dr. Isenstadt had agreed to testify as to his observation of plaintiff\u2019s condition and why the subsequent surgery was necessary. Dr. Frankel had also agreed with plaintiff\u2019s counsel, prior to June 14,1976, to testify as to the facts which he knew and he requested that all medical reports be furnished him.\nSince the record discloses that prior to the date which had been set for closing discovery, plaintiff\u2019s counsel had arranged for Drs. Isenstadt and Frankel to testify at trial regarding plaintiff\u2019s condition, it is clear that there has been no showing of a persistent failure or unreasonable refusal to comply with the court\u2019s order. Rather, it is evident that plaintiff\u2019s attorney had made every reasonable attempt to complete discovery by the date set by the trial court. Plaintiff\u2019s actions cannot be characterized as a deliberate and contumacious disregard of the rules or of a court order warranting a denial of a hearing on the merits of the plaintiff\u2019s claim.\nIn Gillespie v. Norfolk & Western Ry. Co. (1968), 103 Ill. App. 2d 449, 243 N.E.2d 27, the trial court\u2019s dismissal of the plaintiff\u2019s suit for failure to answer the defendant\u2019s interrogatories was also reversed when the court found there was evidence of an attempt to comply with the rules regarding discovery. There the court held that in light of that good faith attempt, further effort to obtain compliance should have been made before imposing so severe a penalty. The court also observed that all the decisions affirming dismissal of a complaint under Rule 219 have involved evidence of a refusal to comply with discovery procedures or gross negligence in respect thereto. Nearly all involved disobedience or repeated disobedience of court orders. 103 Ill. App. 2d 449, 455, 243 N.E.2d 27, 31.\nIn the instant case plaintiff did not deliberately refuse to comply with discovery procedures and apparently was surprised by her witnesses\u2019 sudden unwillingness to testify. We do not believe that the trial court\u2019s refusal to reopen discovery in order to allow the plaintiff to restore the availability of expert testimony was a proper sanction in this case. Often a witness is found during trial and the court may allow his testimony by giving the opponent an opportunity to take his deposition even during trial. We are keenly aware of the trial court\u2019s apparent concern and desire to foster a prompt disposition of this case. Nevertheless, we believe that in the instant proceedings, the trial court should have allowed discovery to be reopened. Accordingly, summary judgment was improperly granted.\nFor the foregoing reasons the trial court\u2019s order for summary judgment is reversed and the cause is remanded for further proceedings consistent with this decision.\nReversed and remanded.\nDIERINGER and ROMITI, JJ., concur.\nCounsel for both parties agreed during oral argument that expert testimony would be required in this case to explain the nature of these procedures and to testify as to the issues of standards of treatment, care and related matters.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "Heller & Morris and Schwartzberg,' Barnett & Cohen, both of Chicago (Benjamin H. Cohen, of counsel), for appellant.", "Bernard E. Epton and Russell S. Barone, both of Chicago, for appellee." ], "corrections": "", "head_matter": "EVELYN TREADWELL, Plaintiff-Appellant, v. DR. JOHN CHIAKMAKIS, Defendant-Appellee.\nFirst District (4th Division)\nNo. 76-1476\nOpinion filed June 8, 1978.\nHeller & Morris and Schwartzberg,' Barnett & Cohen, both of Chicago (Benjamin H. Cohen, of counsel), for appellant.\nBernard E. Epton and Russell S. Barone, both of Chicago, for appellee." }, "file_name": "0125-01", "first_page_order": 147, "last_page_order": 151 }