# Woolums v. Huss

> Appellate Court of Illinois · June 28, 2001 · 323 Ill. App. 3d 628

URL: https://www.frixlaw.com/law-library/cases/9729389

## Case

- **Full name:** ADAM WOOLUMS Et Al., Plaintiffs-Appellants, v. M. STEPHEN HUSS Et Al., Defendants-Appellees
- **Court:** Appellate Court of Illinois
- **Decided:** June 28, 2001
- **Citations:** 323 Ill. App. 3d 628; 257 Ill. Dec. 39; 752 N.E.2d 1219
- **Precedential status:** Published
- **Opinion:** Concurrence by Steigmann
- **Judges:** Knecht, Steigmann
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729389

## How later opinions describe it (automated extraction)

- stating that when “a party moves to strike an affidavit filed in summary judgment proceedings, it is that party’s duty to bring his motion to the attention of the trial court and to get a ruling on the motion. Failure to obtain such a ruling will operate as a waiver of the obj…

## Opinion text

PRESIDING JUSTICE STEIGMANN, specially concurring:
While I concur, I write separately to state my opinion that the supreme court needs to address Rule 191 insofar as it pertains to expert opinions.
In Wilson, 84 Ill. 2d at 194, 417 N.E.2d at 1326-27, the supreme court adopted Federal Rules 703 and 705 (Fed. Rs. Evid. 703, 705) and held that an expert witness may give an opinion at trial without disclosing the facts underlying that opinion. In such a case, opposing counsel on cross-examination may elicit the facts underlying the expert opinion, if he so chooses. Wilson, 84 Ill. 2d at 194, 417 N.E.2d at 1326-27. Thus, under Wilson, an expert may render an opinion unless it is shown to be not fact based.
On the other hand, Rule 191, which came into existence many years before the supreme court decided Wilson (see 107 Ill. 2d R. 191, Committee Comments, 313 (Rule 191 “is former Rule 15, as it existed before 1964, without change in substance”)), mandates that affidavits in support of or in opposition to motions for summary judgment (1) be made on the personal knowledge of the affiant and (2) set forth facts admissible in evidence, not conclusions. 145 Ill. 2d R. 191(a).
Thus, the admission of an expert opinion under Rule 191 at the summary judgment stage requires a greater showing of foundation than is required for admission of the same expert opinion at trial. No sound basis for this inconsistency exists. I recognize that in Kosten, 132 Ill. App. 3d at 1079-80, 478 N.E.2d at 468, the First District Appellate Court held that the rule set forth in Wilson does not apply to summary judgment proceedings because “[t]he affidavit cannot be cross-examined as can a witness at trial.” I also recognize that in Northrop, 242 Ill. App. 3d at 8, 610 N.E.2d at 812, this court followed Kosten “in the absence of any direct statement by the supreme court.” However, I question the court’s reasoning in Kosten.
Although an affidavit obviously “cannot be cross-examined,” a party prior to trial may nonetheless challenge the admissibility of an expert opinion contained within an affidavit by filing a motion in limine to exclude the expert opinion. See People v. Owen, 299 Ill. App. 3d 818, 822 , 701 N.E.2d 1174, 1177-78 (1998) (“Motions in limine are commonly used to obtain a pretrial order excluding inadmissible evidence and barring any questioning of witnesses regarding such evidence”); First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 426-27 , 701 N.E.2d 1107, 1113-14 (1998) (trial court erred by denying the plaintiff’s motion in limine, which sought to bar defense expert’s testimony on the ground that it was based on unreliable data). In addition, a party may depose an affiant to test the facts underlying the expert opinion contained in an affidavit. See 166 Ill. 2d R. 206.
Given that motions in limine provide an opportunity to litigate the admissibility of expert opinions prior to trial, Wilson ought to apply to Rule 191 affidavits at the summary judgment stage. Consistent with the supreme court’s holding in Wilson, the trial court should ask only two questions when evaluating an expert opinion contained in a Rule 191 affidavit filed in support of, or in opposition to, a summary judgment motion:
(1) If called to testify at trial, would the affiant be competent and qualified to do so? and
(2) Would the affiant’s testimony regarding the material contained in the affidavit be admissible at trial?
If the answer to each of the above two questions is “yes,” the trial court should then ask the following question: When viewed in a light most favorable to the nonmovant, does the affidavit—together with the pleadings, depositions, and admissions—show that a genuine issue of material fact exists? See Williams, 316 Ill. App. 3d at 688, 737 N.E.2d at 667.
This view is consistent with case law explaining the function and purpose of a summary judgment motion and affidavits both in support of, and in opposition to, that motion. See Purtill, 111 Ill. 2d at 241, 489 N.E.2d at 872 (Rule 191 is satisfied if it appears from the whole of the documents that the affiant would be competent to testify to the contents of the affidavit if called upon at trial); Kugler v. Southmark Realty Partners III, 309 Ill. App. 3d 790, 795 , 723 N.E.2d 710, 714 (1999). Demanding more of a Rule 191 affidavit filed at the summary judgment stage subverts the purpose of a summary judgment motion, which “is not to try a question of fact, but simply to determine whether a question of fact exists.” Koziol v. Hayden, 309 Ill. App. 3d 472, 476 , 723 N.E.2d 321, 323 (1999). Thus, at the summary judgment stage, a plaintiff is not required to prove his case. Koziol, 309 Ill. App. 3d at 476 , 723 N.E.2d at 323 . Moreover, as the supreme court stated in Purtill, 111 Ill. 2d at 250, 489 N.E.2d at 876, “summary judgment is proper in a medical malpractice case only where the plaintiff has failed to demonstrate an ability to offer, through competent expert testimony, evidence at trial on the applicable standard of medical care.”
Although the supreme court has not yet definitively addressed Rule 191 in light of Wilson, the court has twice discussed Rule 191 in dicta consistent with the First District’s opinion in Kosten. The first such case was Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 462-63 , 665 N.E.2d 826, 838-39 (1996), where the court discusses Rule 191 in dicta as requiring that an expert’s affidavit (1) be based on personal knowledge, (2) “set forth the facts on which the opinion is based with specificity,” and (3) “consist of admissible facts rather than conclusions.” The second such case is Majca v. Beekil, 183 Ill. 2d 407, 422-24 , 701 N.E.2d 1084, 1091-92 (1998), where the court first rejected the plaintiffs’ claims that a cause of action existed for fear of contracting acquired immune deficiency syndrome (AIDS) but then went on to indicate that the trial court properly struck an expert’s affidavit (submitted in support of the failed cause of action) because it contained legal conclusions unsupported by facts. Despite my earlier-stated misgivings about applying Rule 191 to expert opinions in view of Wilson, I feel compelled to concur in the majority’s opinion because of the foregoing language in Bucheleres, as well as the dicta in Majca.
If the supreme court, for policy reasons, concludes that Wilson should not apply to Rule 191 affidavits, it should explicitly say so. However, as things now stand, this important area of the law appears to be governed by (1) appellate court decisions that rest on questionable analytical foundations, and (2) offhand references in two supreme court decisions that contain no analysis at all.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729389. Public record. Not legal advice.