# Witherell v. Weimer

> Appellate Court of Illinois · July 17, 1986 · 148 Ill. App. 3d 32

URL: https://www.frixlaw.com/law-library/cases/9744093

## Case

- **Full name:** BETTY WITHERELL, Plaintiff-Appellee and Cross-Appellant, v. JAMES I. WEIMER Et Al., Defendants-Appellants and Cross-Appellee
- **Court:** Appellate Court of Illinois
- **Decided:** July 17, 1986
- **Citations:** 148 Ill. App. 3d 32; 101 Ill. Dec. 679; 499 N.E.2d 46; 1986 Ill. App. LEXIS 2885
- **Precedential status:** Published
- **Opinion:** Dissent by Barry
- **Judges:** Wombacher, Barry
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Witherell v. Weimer, 118 Ill. 2d 321 (1987).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744093

## Opinion text

Dissenting Opinion Upon Denial Of Rehearing
JUSTICE BARRY, dissenting:
I am compelled to dissent from the majority decision to deny plaintiff's petition for rehearing. I believe plaintiff’s arguments for rehearing have sufficient merit to be given full consideration by this court. Although plaintiff’s petition is entitled “Petition for Rehearing,” she is actually seeking a first hearing on review of the issue which the majority found determinative in this case.
Plaintiffs assertions include that the majority has misstated the testimony of several of the doctor-witnesses, that neither party requested a new trial on appeal, and that only one of four alleged acts of defendants’ negligence involved the prescription of estrogen and birth control pills. These assertions present considerations that were ignored by the majority in its opinion disposing of the merits of this appeal.
Another significant issue raised by plaintiff is her claim that her constitutional right to due process of law has been infringed upon by this decision construing Supreme Court Rule 366 to permit reversal on a theory not raised by the parties in either the trial court or before this court.
In sum, since the majority has granted relief not sought on grounds not argued, I would prefer to see the parties have some opportunity to argue their respective positions regarding the issues deemed dispositive by the majority — even at this late date in the proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744093. Public record. Not legal advice.