Besco v. Henslee, Monek & Henslee

No. 4--97--0950

IN TH E
APPEL LATE COURT OF ILLINOIS
THIRD DISTRICT

A.D., 1998

TOMMIE G. BESCO and ) Appeal from the Circuit Court
DEBRA LYNN BESCO, ) for the 10th Judicial Circuit
) Peoria County, Illinois
Plaintiffs-Appellants, )
)
v. )
) No. 94--L--467
HENSLEE, MONEK & HENSLEE, )
THE ESTATE OF FRANCIS MONEK, )
FRANK VAN BREE, and )
WILLIAM E. DAVIS, ) Honorable
) John A. Barra,
Defendants-Appellees. ) Judge Presiding

PRESIDING JUSTICE HOMER delivered the opinion of the court
modified upon denial of rehearing:

Plaintiffs brought suit against their former attorneys for
legal malpractice in the handling of plaintiffs' underlying
personal injury case. As a sanction for violating a discovery
order, the trial court barred plaintiffs from naming any opinion
witnesses. Thereafter, the trial court granted summary judgment
in favor of the attorneys finding that plaintiffs could not
prevail on their claim, as a matter of law, absent opinion
testimony on the applicable standard of care. We reverse.

FACTS
Tommie and Debra Lynn Besco filed a complaint for legal
malpractice against the law firm of Henslee, Monek and Henslee,
attorney Frank VanBree, and the estate of attorney Francis Monek
(collectively referred to as "Chicago Counsel"), and attorney
William Davis (Davis) based upon their representation of
plaintiffs in the underlying personal injury case.
The underlying lawsuit arose from an automobile accident
that occurred in Iowa on January 3, 1990. Tommie, an employee of
Chicago and Northwestern Transportation Company, was injured when
the company van in which he was riding collided with a vehicle
driven by Ronald Cousins. In June 1990, plaintiffs retained
Chicago Counsel to represent them in a lawsuit to recover for
Tommie's injuries. Although the claim against Cousins was based
upon common law negligence, jurisdiction was in the Federal
District Court for the Southern District of Iowa since a separate
claim against Tommie's employer was based upon the Federal
Employers' Liability Act (45 U.S.C.A. 51 et seq. (West 1986)).
The rules of the Federal District Court for the Southern
District of Iowa require that attorneys who are not admitted to
practice before that court but who wish to file suit in the
district must associate with an attorney who has been admitted to
the court's bar. Since Chicago Counsel were not so admitted,
they hired Davis as local counsel but did not inform plaintiffs.
Chicago Counsel first contacted Davis in late November 1991 and
asked him to provide them pleading forms so they could ensure the
complaint would comply with local rules. At this time, both
Chicago Counsel and Davis acknowledged that the claim against
Cousins was subject to a two-year statute of limitations;
however, it appears that they never discussed the date upon which
it would expire in this particular case.
Davis forwarded the requested forms in mid December; and on
December 23, 1991, Chicago Counsel sent Davis the complaint and
asked him to review, sign and file it. Davis ultimately filed
the complaint on January 30, 1992, which was 27 days past the
expiration of the statute of limitations for the action against
Cousins. The complaint against Cousins was subsequently
dismissed based upon the running of the limitations period.
Plaintiffs settled their claim against Tommie's employer for
$175,000.
In April 1993, plaintiffs instigated the instant malpractice
suit against Chicago Counsel and Davis based upon their failure
to file the suit against Cousins in a timely manner. At the
case management conference on June 28, 1996, the following
discovery cut-off dates were set by court order: (1) all written
discovery by July 15, 1996; (2) depositions of all parties and
nonopinion witnesses by September 30; (3) plaintiffs' opinion
witnesses identified by September 15, and deposed by October 15;
and (4) all other parties' opinion witnesses identified by
November 15, and deposed by December 15.
Chicago Counsel identified attorney James Shipman as their
expert witness on November 15, 1996. The disclosure statement
revealed that Shipman was prepared to testify that (1) Chicago
Counsel acted reasonably and were not negligent in their
representation of plaintiffs, but that Davis was negligent for
failing to timely file the complaint, and (2) he believed it
would be highly unlikely, given the history of jury verdicts in
the Iowa federal courts, the nature of Tommie's injuries, and his
vocational abilities, that plaintiffs would have recovered a jury
verdict exceeding the settlement collected from Tommie's
employer.
Plaintiffs, however, failed to disclose opinion witnesses by
the September 15 deadline and failed to appear at a scheduled
case management conference in December. On December 19, 1996,
Chicago Counsel filed a motion to bar plaintiffs from naming
opinion witnesses and a motion for summary judgment.
On January 6, 1997, new counsel appeared on behalf of
plaintiffs and filed a response to the motion to bar experts and
a disclosure statement naming Roger Denton, the attorney who
initially represented them in this case, as their expert witness.
In their response to the motion to bar experts, plaintiffs
explained that Chicago Counsel's repeated refusal to make
defendant VanBree available for deposition since their first
request in July 1995 prejudiced their ability to file an adequate
and timely expert witness disclosure. Plaintiffs also filed a
motion for summary judgment based upon Chicago Counsel's lack of
cooperation in making VanBree available for deposition.
The trial court entered an order on May 2, 1997, granting
defendant's motion to bar plaintiffs' expert witness, granting
summary judgment in favor of Chicago Counsel, and denying
plaintiffs' motion for summary judgment. The court found that
plaintiffs' counsel failed to: appear at two case management
conferences; disclose any expert witnesses by October 15 as
ordered by the court; seek an extension of the deadline of
October 15; or show good cause why they could not disclose
experts by that date. The court also found that plaintiffs
would be unable to prove their case without a standard of care
expert. The action against Davis continued until he filed a
motion for summary judgment in August 1997 which was granted by
the trial court based upon plaintiffs' lack of an expert witness.
On appeal, plaintiffs contend that the trial court erred in
(1) barring them from presenting opinion witnesses and (2)
granting summary judgment in favor of Chicago Counsel and Davis
after finding that plaintiffs could not prevail on their claim,
as a matter of law, without opinion testimony on the applicable
standard of care.

ANALYSIS
Pursuant to Supreme Court Rule 219(c), trial judges are
afforded the authority to enter a wide range of orders when a
party unreasonably fails to comply with discovery rules and
orders. 134 Ill. 2d R. 219(c). The decision whether to impose
sanctions for failure to comply with a discovery order and, if
so, what type of sanction to impose, are decisions largely within
the sound discretion of the trial court. Peterson v. Ress
Enterprises, Inc., 292 Ill. App. 3d 566, 579, 686 N.E.2d 631, 640
(1997). Such decisions will not be overturned on appeal absent
an abuse of discretion. Vallejo v. Mercado, 220 Ill. App. 3d 1,
8, 580 N.E.2d 655, 660 (1991).
However, the purpose of Supreme Court Rule 219(c) is to
advance the discovery process and encourage a trial on the
merits. Farley Metals, Inc. v. Barber Colman Co., 269 Ill. App.
3d 104, 109-10, 645 N.E.2d 964, 967-68 (1994). Its purpose is
not to punish the offending party, and judges may not impose
sanctions that are intended primarily as punishment. Kubian v.
Labinsky, 178 Ill. App. 3d 191, 196, 533 N.E.2d 22, 25 (1988).
Consequently, the trial court's discretion in imposing sanctions
is limited by the requirement its order be just. 134 Ill. 2d R.
219(c); Vallejo, 220 Ill. App. 3d at 8, 580 N.E.2d at 660.
In the instant case, plaintiffs acknowledge that they failed
to disclose their expert witness and present him for deposition
within the time period ordered by the trial court. They contend,
however, that the discovery sanction imposed upon them
constituted an abuse of discretion. Although we do not condone
plaintiffs' disregard of the discovery deadlines established by
the trial court and believe sanctions were in order, we agree
with plaintiffs that the sanction imposed was unjust under the
circumstances and must be reversed.
In determining the proper severity of sanctions for failure
to make a timely expert witness disclosure, trial courts should
consider the following factors: (1) the surprise to the adverse
party; (2) the prejudicial effect of the expert's testimony; (3)
the nature of the expert's testimony; (4) the diligence of the
adverse party; (5) whether objection to the expert's testimony
was timely; and (6) the good faith of the party calling the
witness. Jerke v. Jackson Products, Inc., 282 Ill. App. 3d 292,
297, 668 N.E.2d 46, 49 (1996). Consideration of these factors
demonstrates that the trial court abused its discretion in
barring plaintiffs from naming expert witnesses in this case.
There is nothing in the record to suggest that the
defendants were surprised or prejudiced by the plaintiffs' late
disclosure of their expert witness. To the contrary, the
defendants knew that the nature of plaintiffs' claim required the
presentation of the testimony of an expert witness, and Chicago
Counsel had secured an expert of their own. The defendants were
also aware of the numerous delays in the discovery process for
which all parties apparently bore responsibility. Further,
despite the fact that this case had been pending since April
1993, no trial date had been set and the parties were still in
the early stages of discovery. Under the circumstances, we
cannot see how the defendants were prejudiced by plaintiffs'
tardy disclosure of their expert witnesses in this instance.
The testimony of an expert was necessary in this case to
demonstrate the applicable standard of care as well as proof of
damages. See Barth v. Reagan, 139 Ill. 2d 399, 407, 564 N.E.2d 1196, 1200 (1990) (finding that failure to present expert
testimony is usually fatal to a legal malpractice action). Thus,
the trial court's decision to bar plaintiffs from presenting such
evidence effectively scuttled their case and resulted in summary
judgment. A sanction that results in summary disposal of a claim
should be used as a last resort only where other enforcement
powers at the court's disposal have failed to advance the
litigation. See Senese v. Climatemp, Inc., 289 Ill. App. 3d 570,
584, 682 N.E.2d 266, 276 (1997).
Further, although the defendants contend that plaintiffs
were not diligent because they did not make timely disclosure of
their expert or seek an extension of the September 15 deadline, a
review of the facts reveals that plaintiffs' actions were not
completely without basis. At the time when the trial court
barred plaintiffs from naming any experts, fact discovery was not
yet complete and plaintiffs were not yet given the opportunity to
depose defendant VanBree despite repeated attempts to do so. It
was reasonable for plaintiffs to desire to depose the defendants
prior to presenting their expert for deposition. Further,
plaintiffs' complaint had been dismissed and refiled and
plaintiff had retained new counsel during the timeframe that
these discovery deadlines were passing and the motion to bar was
filed.
After Chicago Counsel filed their motion to bar, plaintiffs
promptly responded by (1) filing a disclosure statement naming
their expert witness and (2) filing a response to the motion to
bar explaining the delay and asking for leave to amend their
disclosure upon completion of fact discovery. Contrary to
Chicago Counsel's contention, we find no evidence that these
remedial actions were taken by plaintiffs for any reason other
than a good faith effort to fulfill the discovery obligation and
preserve their position.
Certainly plaintiffs could and should have done more to
protect their interests by filing a motion to compel Chicago
Counsel to present VanBree for deposition and by seeking an
extension of time for disclosure of their expert. In this
regard, we determine that plaintiffs' failure to comply with the
discovery order was, indeed, sanctionable. However, the trial
court clearly could have fashioned a more reasonable sanction
which would have (1) balanced the interests of all parties while
acknowledging the discovery violation, and (2) promoted the goal
of expeditiously accomplishing discovery without punishing the
plaintiffs for what appears to be their attorneys' failure to
diligently pursue their legal malpractice case.
Defendants urge this court to follow the Fourth District's
decision in Prather v. McGrady, 261 Ill. App. 3d 880, 634 N.E.2d 299 (1994); however, we decline to do so for the following
reasons. Unlike in Prather, the instant record reveals that
there was no trial date pending when defendants moved to bar
plaintiffs' experts. Furthermore, we believe that the Prather
decision failed to give meaningful consideration to whether the
sanction imposed by the trial court was, in fact, reasonable
which is required by Supreme Court Rule 219(c) and the factors
set forth in Jerke.
A trial court should generally avoid barring an expert
witness from testifying if to do so would deny a party a trial on
the merits. See Andrews v. Northwestern Memorial Hospital, 184
Ill. App. 3d 486, 492, 540 N.E.2d 447, 451 (1989). This is
particularly true when the violation occurs at the pretrial stage
and no trial date has yet been set. See Kubian, 178 Ill. App. 3d
at 202, 533 N.E.2d at 29. We hold that the trial court's
decision to sanction plaintiffs by barring them from naming
expert witnesses was unreasonable in the instant case, served
primarily to punish plaintiffs, and constituted an abuse of
discretion. In light of our decision, we must also find that the
trial court improperly granted summary judgment.
Summary judgment is properly granted only when the
pleadings, depositions, and affidavits show that no genuine issue
of material fact exists and the moving party is entitled to
judgment as a matter of law. 735 ILCS 5/2--1005 (West 1996).
Because the trial court barred plaintiffs from naming expert
witnesses, plaintiffs were unable to present an expert's
affidavit in opposition to both Chicago Counsel's and Davis's
motions for summary judgment. As a result, the trial court did
not have the opportunity to consider whether such evidence would
have raised a genuine issue of material fact precluding entry of
summary judgment. Thus, the trial court's decision to grant
summary judgment was tainted by its erroneous decision to bar
plaintiffs from naming an expert. See Keating v. Dominick's
Finer Foods, Inc., 224 Ill. App. 3d 981, 987, 587 N.E.2d 57, 61
(1992).
Therefore, we reverse the trial court's order granting
defendant's motion to bar plaintiffs from naming expert witnesses
and its order granting summary judgment, and we remand the cause
for further proceedings consistent with this opinion.

CONCLUSION
For the forgoing reasons, the judgment of the circuit court
of Peoria County is reversed and the cause is remanded for
further proceedings.
Reversed and remanded.
SLATER and BRESLIN, JJ., concur.