Appendix — Mann v. Upjohn Co.

Supreme Court, US.

> FILED

\S

No. 01-1486 oe a

OFFICE OF THE CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

BEVERLY B. MANN,

Petitioner,

V.

THE UPJOHN COMPANY,

Respondent.

REPRINTED PORTION OF, AND SUPPLEMENT TO,

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

ILLINOIS APPELLATE COURT, FIRST DISTRICT,

AND THE ILLINOIS SUPREME COURT

REPRINTED: APP. C —- ILLINOIS APPELLATE

COURT ORDER

ADDED: APP. G- ARTICLE: JUSTICES

; REVAMP A KEY DISCOVERY RULE

Beverly B. Mann

Petitioner Pro Se

7261 North Campbell Avenue

Chicago, Illinois 60645

(773) 465-4587

ses pha Pama so

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INDEX TO REPRINTED PORTION OF, AND

SUPPLEMENT TO, APPENDIX

Beverly B. Mann v. The Upjohn Company,

Jun. 29, 2001, No. 1-98-2343, 324 Ili. App. 3d 367;

753 N.E.2d 452; 257 Ill. Dec. 257 «0.2.1... cee creeeeee ees App. C

“Justices Revamp a Key Discovery Rule,”

Chicago Daily Law Bulletin, Mar. 28, EE a pcnvdeascis App. G

—

App. C- 1

As noted in a letter to Mann from assistant Clerk Gail B. John-

son dated April 11, 2002 (which Mann received on April 18),

the following opinion erroneously printed in 9-point rather

than in 12-point type in the Appendix included in the Petition.

2001 Ill. App. LEXIS 531, *; 324 Ill. App. 3d 367;

753 N.E.2d 452; 257 Ill. Dec. 257

BEVERLY B. MANN, Plaintiff-Appellant and Cross-

Appellee, v. THE UPJOHN COMPANY, Defendant-Appellee

and Cross-Appellant.

No. 1-98-2343

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT,

THIRD DIVISION

324 Ill. App. 3d 367; 753 N.E.2d 452; 2001 Ill. App. LEXIS

531; 257 Ill. Dec. 257

June 29, 2001, Decided

SUBSEQUENT HISTORY: [*1] Rehearing Denied August

14, 2001. Released for Publication August 28, 2001.

PRIOR HISTORY: Appeal from the Circuit Court of Cook

County. Honorable Susan Zwick, Jacqueline Cox, Robert

Bastone, Lynn Egan, Donald O'Connell, Judges Presiding.

DISPOSITION: Affirmed.

COUNSEL: FOR APPELLANT, Beverly B. Mann, Pro se,

Chicago, IL.

App. C -2

FOR APPELLEE, Johnson & Bell, Ltd. (William V. Johnson,

Thomas H. Fegan, of counsel, Chicago, IL, Shook, Hardy, &

Bacon, L.L.P. (Stephen E. Scheve, Marie S. Woodbury,

Thomas A. Sheehan, of counsel), Kansas City, MO.

JUDGES: JUSTICE BURKE delivered the opinion of the

court. HALL, P.J., and WOLFSON, J., concur.

OPINION BY: BURKE

OPINION: JUSTICE BURKE delivered the opinion of the

court:

Plaintiff Beverly Mann appeals from numerous orders of the

circuit court granting summary judgment to defendant The

Upjohn Company on counts I and II of plaintiff's complaint,

granting summary judgment to defendant on count IV of

plaintiff's amendments to her complaint, granting defendant's

motion to dismiss count VII of plaintiff's amendments to her

complaint, denying plaintiff's motion to amend her complaint,

denying plaintiff's motions for continuance of the trial date,

and denying plaintiff's motion [*2] to vacate the dismissal of

her complaint for want of prosecution (DWP) Defendant

cross-appeals from orders of the circuit court granting

plaintiff's motion to amend her complaint following summary

judgment on counts I and II, denying defendant's motion for

summary judgment based on lack of expert testimony on

causation, and denying defendant's motion for summary

judgment on plaintiff's economic loss claims. For the reasons

set forth below, we affirm.

STATEMENT OF FACTS

Plaintiff, an attorney, filed a pro se complaint against

defendant alleging that she suffered physical and

—

App. C - 3

psychological injuries as a result of her ingestion of a

prescription drug, Halcion, from January 1988 to January

1990. Halcion, also known as triazolam, is a member of the

benzodiazepine drug class and is a sleep aid used to treat

insomnia. Defendant manufactures Halcion and the drug

received the Food and Drug Administration's (FDA) approval

and licensing in 1982. Numerous complaints similar to

plaintiff's were filed against defendant across the country

following various news magazine and newspaper articles, as

well as a "20/20 Report" detailing adverse side effects of

Halcion.

Plaintiff's complaint against [*3] defendant was based on

claims of negligence (count I) and products liability (count Il),

and alleged that defendant failed to adequately warn her of the

detrimental effects of Halcion. Plaintiffs complaint was

subsequently removed to the federal district court based on

diversity jurisdiction. Plaintiff was ordered two times by the

district court to answer outstanding discovery and to sign

medical authorizations. In August 1992, plaintiff voluntarily

dismissed her federal complaint, but plaintiff was granted

leave to refile it in state court. In October 1992, plaintiff

retained an attorney who refiled plaintiff's complaint in the

circuit court of Cook County. In addition to the claims against

defendant, plaintiff added as defendants Dr. John Karesh, the

doctor who prescribed Halcion for her, and NorthCare

Medical Group, where Karesh worked, alleging medical

malpractice (count III). In February 1996, the court granted

summary judgment in favor of Karesh and NorthCare based

on its determination that the claims against them were time

barred by the applicable statute of limitations, and they are not

parties to this appeal.

In early 1993, the trial court ordered plaintiff to answer

interrogatories [*4] on two occasions. In November 1993,

defendant filed a motion for sanctions based on plaintiff's

App. C -4

failure to comply with discovery. Although the trial court

denied the motion for sanctions, the court ordered plaintiff to

answer discovery. In the summer or autumn of 1994,

defendant filed a motion to compel answers to interrogatories.

The trial court's ruling on this motion is not contained in the

record.

In May 1996, defendant filed three motions for summary

judgment with respect to counts I and II of plaintiff's

complaint; one based on lack of evidence of causation, one

based on lack of evidence of loss of income claim, and one

based on adequacy of warnings. On June 18, plaintiff's

attorney was granted leave to withdraw as plaintiff's counsel.

During the summer of 1996, defendant filed a motion for

relief from plaintiff's personal attacks on counsel. Neither the

motion itself, nor the trial court's decision, is in the record.

Plaintiff filed her first motion for a continuance of the trial

date on October 22 in order to retain new counsel and to

obtain defendant's Halcion database. Plaintiff was ordered on

this date to answer Supreme Court Rule 213 interrogatories.

177 Ill. 2d R. 213. [*5] Thereafter, the trial court denied

plaintiff's motion for continuance. At the hearing on this

motion, the court questioned plaintiff about her discovery

efforts and expressed its concern with respect to her diligence

in prosecuting the case. The court stated that it had serious

problems with whether plaintiff had done discovery and

advised plaintiff that this was her "last chance." At this

hearing, plaintiff accused defense counsel of being notorious

for harassing plaintiffs. Plaintiff filed a motion to reconsider,

which the trial court granted. The trial was continued from

December 9, 1996, to August 21, 1997. Plaintiff was also

ordered to answer Rule 213(g) interrogatories by January 3,

1997.

In December 1996, plaintiff replied to defendant's motions for

App. C - 5

summary judgment, relying on various documentary evidence.

In January 1997, defendant filed a motion to bar plaintiff from

presenting expert testimony based on her failure to comply

with the court's order requiring her to answer Rule 213(g)

interrogatories. On February 25, the trial court granted

defendant's motion for summary judgment on counts I and Il,

and on March 25, it denied plaintiff's motion to reconsider its

February 25 [*6] order granting summary judgment.

On April 22, the trial court granted plaintiff's motion to amend

her complaint, allowing her to add claims for fraud (count IV),

negligence (count V), products liability (count VI), and

battery (count VII) based on alleged misrepresentations made

by defendant. Defendant's subsequent motion to reconsider the

order allowing plaintiff to amend her complaint was denied.

Defendant thereafter filed a motion to dismiss plaintiff's

amendments to her complaint.

On June 18, the trial court granted defendant's motion to

require plaintiff to submit to an independent medical

- examination (IME). This motion had apparently been pending

for over a year. On June 20, plaintiff filed a motion to

continue the trial date, contending that the case had been in

suspension from February 25 (when summary judgment was

granted on counts I and II of her complaint) until April 22

(when she was allowed to amend her complaint). In June,

plaintiff filed a motion to compel production of the Halcion

database, which the trial court subsequently granted on

September 23. On July 1, plaintiff filed a motion to continue

the trial date to retain counsel, which the trial court denied

based [*7] on its determination that plaintiff had not been

diligent in prosecuting her case and had not demonstrated

good cause for a continuance. At the hearing, the court

expressed to plaintiff its concern with her discovery efforts

over the previous five years. Rather than answer the court's

questions with respect to what discovery remained, plaintiff

App. C - 6

engaged in an outburst and verbally attacked defendant. The

court admonished plaintiff that it would not tolerate such

conduct. Because of plaintiff's outburst, the court continued

the matter to later that day. When the hearing resumed, the

court indicated to plaintiff that her case was in jeopardy and

that she had not answered Rule 213 interrogatories even

though she had been ordered to do so. It then denied plaintiff's

motion to continue.

Sometime during the summer of 1997, the FDA

commissioned the National Academy of Sciences’ Institute of

Medicine (IOM) to conduct an independent review of Halcion.

On July 9, the trial court granted defendant's motion to

dismiss plaintiff's battery claim, but denied its motion to

dismiss the negligence, fraud, and products liability claims.

On July 10, the trial court granted plaintiff's motion to

reconsider [*8] its order of June 18, requiring plaintiff to

submit to an IME. However, on July 22, the trial court again

granted defendant's motion for an IME. Plaintiff's motion to

reconsider was denied and she underwent psychiatric and

psychological examinations in August 1997. Thereafter, in an

emergency motion for an extension of time to file a brief on

her motion to compel production, plaintiff accused one of

defendant's counsel of faking surgery for the purpose of delay.

On July 23, the trial court continued the trial date from August

21 to October 21, 1997, although the court did question

plaintiff as to what discovery she had done and admonished

her to answer the court's questions and cease being

unresponsive. The court further indicated that plaintiff was in

the position she was in with respect to discovery of

defendant's documents due to her "own doings,” e.g., her

failure to review the documents when they were produced in

1992. The court struck those portions of plaintiff's motion for

an extension of time that dealt with attacks upon defense

counsel. During the hearing, plaintiff also accused defense

- App.C-7

counsel of lying to the court both at this hearing and on

previous occasions and [*9] demanded a transcript of the

hearing so she could respond in writing.

On September 13, the trial court entered an order barring

plaintiff from presenting any opinion witnesses except those

previously disclosed and deposed, e.g. plaintiff's treating

physicians. On September 18, plaintiff filed a motion to

continue the trial date based on her need to obtain the IOM

report as well as defendant's 8,500 patient study of Halcion.

On September 23, plaintiff filed another motion to continue

the trial date based on the soon-to-be-released IOM report. At

a hearing on this date, plaintiff accused defense counsel of

lying to the court. The court warned plaintiff that it would

censure her and told her there were to be no more attacks in

her written memorandum on "how bad" defendant and defense

counsel were. Plaintiff was further instructed that she was to

cease her accusations that defense counsel was lying. The

court advised plaintiff that it would strike her briefs in their

entirety if she continued her conduct. On September 29,

plaintiff amended her motion to continue. However, the

motion was withdrawn based on plaintiff's pending motion to

recuse Judge Cox for cause.

On October 3, plaintiff [*10] filed an amended motion to

continue the trial date based on the forthcoming IOM report.

Plaintiff supplemented this motion on October 7, alleging a

history of unethical conduct on the part of defendant's

attorney, including fabrication of data for defendant. The trial

court granted plaintiff's motion to continue based on the recent

disclosure by defendant of the IME reports and continued the

trial from October 21 to November 4. On October 17, the trial

court denied plaintiff's "Motion for Substitution of Judge." On

October 24, plaintiff filed an emergency motion to continue

the trial date based on the imminent release of the IOM, which

the trial court denied. At this hearing, plaintiff again accused

App. C-8

defense counsel of making false statements to the court.

Plaintiff was admonished about this as well as the fact that

what occurred in other Halcion cases in Cook County and the

fact that continuances were granted in other cases, as plaintiff

argued, were irrelevant because each case was to be

considered individually. The trial court also denied plaintiff's

subsequent October 27 motion to continue the trial. On

October 30, plaintiff advised defendant that she would not

proceed to trial [*11] on November 4 and would allow the

court to DWP her case.

On November 4, plaintiff renewed her motion to continue the

trial date, which the court granted; however, the court noted

that plaintiff had done little affirmatively to work up her case,

in particular, to disclose witnesses to prove up liability. The

court also transferred the case to Judge Zwick for all further

proceedings. On November 13, the IOM report was released.

On November 20, a status hearing was held at which time trial

was set for February 23, 1998, and discovery was cut off as of

December 23, 1997. At this hearing, plaintiff again accused

defense counsel of making misrepresentations to the court and

distorting the truth. Plaintiff demanded that she be allowed to

respond in writing. On November 21, plaintiff was allowed to

amend her complaint to add punitive damages claims.

Sometime in December, defendant filed a motion for summary

judgment on plaintiff's fraud claim, apparently on the basis of

preemption by federal law. Defendant also filed a motion for

sanctions against plaintiff based on its contention that she

violated a protective order entered in the case by sending

defendant's Halcion database to an attorney [*12] in Texas.

On December 27, defendant filed a motion to dismiss

plaintiff's amendments to her complaint. On December 31,

defendant filed a motion to bar plaintiff's fact witnesses

because they were identified after the discovery cut off date,

App. C -9

their testimony was not disclosed by plaintiff, or they were

opinion witnesses.

In December 1997 or January 1998, plaintiff had apparently

arranged for two different attorneys to act as her counsel.

However, both counsel later declined to represent plaintiff

based on time constraints and the state of the record.

On January 9, 1998, defendant filed another motion for

summary judgment on the fraud count, alleging that plaintiff

had no evidence to establish reliance by the FDA on any

alleged misrepresentations by defendant. On the same day, the

trial court denied plaintiff's motion to amend her complaint,

concluding that her proposed claims were based on failure to

warn, a claim upon which defendant had been previously

granted summary judgment.

On January 28, defendant filed a motion to have facts deemed

admitted based on plaintiff's failure to answer defendant's

request for admissions. On February 13, plaintiff filed an

emergency motion to designate [*13] an opinion witness on

causation, which plaintiff was later allowed to withdraw. On

February 19, the trial court granted defendant's motion to bar

fact witnesses. On February 23, the trial court continued the

trial date to April 23. On March 3, the trial court denied

defendant's motion to dismiss counts IV and V of plaintiff's

complaint, but granted defendant's motion for a bill of

particulars as to count IV. On March 6, plaintiff moved to

supplement her response to one of defendant's motions for

summary judgment with the November 13, 1997, IOM report.

This request was denied on March 17. On March 27, the trial

court granted defendant's motion for summary judgment on

plaintiff's fraud count. Plaintiff filed an emergency motion to

reconsider the grant of summary judgment to which she

—_

App. C - 10

attached various documents. The trial court denied plaintiff's

motion to reconsider.

On April 21, plaintiff filed an emergency motion to continue

the trial date to retain counsel, which the trial court denied. At

this hearing, plaintiff accused defense counsel of engaging in

tactics to keep her from obtaining the assistance of counsel

that she needed, i.e., that defense counsel had persuaded an

attorney [*14] who had agreed to represent plaintiff from

representing her. Plaintiff also accused defense counsel of

making substantial misrepresentations to the court. The trial

court admonished plaintiff, warning her to stop her repeated

interruptions of the proceedings and interruptions when others

were talking, and to stop with her outbursts. Plaintiff renewed

her motion to continue on April 23, which the trial court again

denied. The following colloquy then occurred:

"MS. MANN: *** I am not prepared to proceed to tral. So I

would assume that that means you will enter a dismissal for

want of prosecution.

THE COURT: I guess I should make this more formal

because I assumed something that was not true. For the

record, is the defendant ready to proceed to trial?

MS. WOODBURY [defense counsel]: Yes, your Honor.

MS. SCHEVE [defense counsel] Yes, your Honor.

THE COURT: For the record, is the plaintiff prepared to

proceed to trial?

MS. MANN: No, I am not.

App. C- 11

THE COURT: Will you be prepared to proceed to tral any

time this afternoon?

MS. MANN: No.

THE COURT: This court then has no other recourse then if

the plaintiff is [un]prepared and unwilling to proceed at trial to

dismiss the case. [*15]

e**

The case is dismissed for want of prosecution."

Thereafter, the trial court granted defendant's motion for costs.

Plaintiff then filed a handwritten motion to vacate the DWP,

which the trial court denied, stating it would not vacate an

order it had entered just five minutes previously. On May 8,

plaintiff filed a motion to vacate the DWP pursuant to section

2--1301 of the Code of Civil Procedure ( 735 ILCS 5/2--1301

(West 1998)) and an emergency motion to withdraw the

motion to vacate the DWP she had earlier filed. On May 22,

plaintiff amended her motion to vacate and, on May 26, she

filed a second amended motion to vacate as well as a motion

to reconsider the trial court's order denying her motion to

continue the trial date. On June 8, the trial court denied

plaintiff's motion to vacate the DWP. The next day plaintiff

filed a motion to reconsider the June 8 order and, on June 16,

she filed an amended motion to reconsider. On June 17,

plaintiff filed a corrected amended motion to reconsider,

which was denied on June 18. On June 19, plaintiff filed a

second amended motion to reconsider the order denying her

motion to vacate the DWP and, sometime [*16] thereafter,

she filed a third amended motion. On June 26, the trial court

declined to hear plaintiff's third amended motion to

reconsider. Plaintiff filed a notice of appeal on July 1, which

App. C - 12

she amended on July 7. On July 7, plaintiff again requested

that the court hear argument on her third amended motion to

reconsider, and the trial court again declined to conduct a

hearing on it. On July 14, defendant filed its cross-appeal.

ANALYSIS

Generally, dismissal of a case for want of prosecution is not a

final order which can be appealed since a plaintiff has an

absolute right to refile the case within one year of the

dismissal. Wilson v. Evanston Hospital, 257 Ill. App. 3d 837,

839, 629 N.E.2d 589, 196 Ill. Dec. 44 (1994). Pursuant to

section 12--317 of the Code of Civil Procedure ( 735 ILCS

5/12--317 (West 1998)), where a plaintiff's action is dismissed

for want of prosecution, the plaintiff has the option "to refile

the action within one year of the entry of the DWP order or

within the remaining period of limitation, whichever is

greater." S.C. Vaughan Oil Co. v. Caldwell, Troutt &

Alexander, 181 Ill. 2d 489, 497, 693 N.E.2d 338, 230 Ill. Dec.

209 (1998). A “trial [*17] court's order denying the vacature

of [a] DWP must also be nonfinal and nonappealable since

there is an absolute right to refile following that order."

Wilson, 257 Ill. App. 3d at 840. Similarly, a timely motion to

reconsider the denial of a motion to vacate does not transform

the DWP into a final and appealable order--this is simply a

reaffirmation by the trial court of its earlier decision which in

no way affects finality of the DWP. Wilson, 257 Ill. App. 3d at

840. Only after the one-year period for refiling has expired

does a DWP become final and appealable. Vaughan, 181 Il.

2d at 502. Plaintiffs, however, are only entitled to one refiling

of a cause of action under section 13--217 following a

voluntary dismissal. 7imberlake v. Illini Hospital, 175 Ill. 2d

159, 164, 676 N.E.2d 634, 221 Ill. Dec. 831 (1997).

App. C - 13

In the instant case, the general rule with respect to the

nonfinality of DWPs is not applicable because after the trial

court dismissed plaintiff's case for want of prosecution,

plaintiff had no right to refile her cause of action since she had

already had her one refiling under section 13--217 when she

refiled her complaint [*18] in the circuit court in October

1992 following her voluntary dismissal of her complaint in the

federal court. See Bryson v. News America Publications, Inc.,

174 Ill. 2d 77, 105, 672 N.E.2d 1207, 220 Ill. Dec. 195 (1996).

Accordingly, when the tral court dismissed plaintiff's entire

complaint for want of prosecution on April 23, 1998, at

plaintiff's voluntary request, and denied her motion to vacate

the DWP on June 8, 1998, the dismissal was with prejudice

and rendered the DWP order final. See Danaher v.

Knightsbridge Co., 56 Ill. App. 3d 977, 980, 372 N.E.2d 862,

14 Ill. Dec. 583 (1978) (order denying motion to vacate is

final and appealable). In addition, because the rights of the

parties were ascertained and absolutely fixed at the time the

trial court denied the motion to vacate on June 8, the prior

court orders granting summary judgment, dismissing count IV

of plaintiff's complaint, and denying plaintiff's various

requests for continuances, all of which were nonfinal orders

that did not contain Rule 304(a) language, then became final

orders. It was on June 8 that the litigation was terminated

upon the denial of plaintiff's motion to vacate. Thus, all prior

orders were subject to [*19] appeal and plaintiff's notice of

appeal filed on July 1, 1998, was timely.

Because plaintiff's entire cause of action was dismissed for

want of prosecution, the sole issue before this court is whether

the trial court properly exercised its discretion in denying

plaintiff's motion to vacate the dismissal of her complaint for

want of prosecution. If the trial court did not abuse its

discretion in denying the motion to vacate, the remaining

re : ee ee

a

App. C - 14

issues raised by plaintiff are rendered moot since the DWP

order disposed of the entire cause of action.

Plaintiff contends that the trial court abused its discretion in

denying her motions to vacate the DWP order by failing to

consider the requisite criteria pursuant to section 2--1301 of

the Code of Civil Procedure. According to plaintiff, a review

of the transcripts of proceedings demonstrate that the trial

court failed to analyze or state findings upon the required

criteria for vacating an order. It is her contention that the

overriding criteria is whether substantial justice was done and

that section 2--1301, unlike section 2--1401 of the Code of

Civil Procedure ( 735 ILCS 5/2--1401 (West 1998)), forbids

consideration [*20] of due diligence. Plaintiff claims that the

only thing she could do was let the trial court dismiss her case

because she could not have proceeded to trial pro se. She

contends that she prosecuted her case to the fullest extent of

her abilities.

Pursuant to section 2--1301 of the Code of Civil Procedure,

"the court may *** on motion filed within 30 days after entry

thereof set aside any final order or judgment upon any terms

and conditions that shall be reasonable." 735 ILCS 5/2--1301

(West 1998). The plaintiff, as the moving party, has the

burden of establishing sufficient grounds for vacating the

judgment. Jn re Marriage of Ward, 282 Ill. App. 3d 423, 432,

668 N.E.2d 149, 217 Ill. Dec. 964 (1996) "The primary

concern in ruling on a motion to vacate is whether substantial

justice is being done between the litigants and whether it is

reasonable under the circumstances to proceed to trial on the

merits." Marren Builders, Inc. v. Lampert, 307 Ill. App. 3d

937, 941, 719 N.E.2d 117, 241 Ill. Dec. 256 (1999). However,

the court may also consider whether a meritorious defense

exists, due diligence, the severity of the penalty as a result of

the judgment, and the [*21] hardship to the nonmovant if

required to proceed to trial. Marren Builders, 307 Ill. App. 3d

App. C - 15

at 941-42. The trial court should consider all events leading up

to the judgment. Marren Builders, 307 Ill. App. 3d at 943.

“What is just and proper must be determined by the facts of

each case, not by a hard and fast rule applicable to all

situations regardless of the outcome." Merchants Bank v.

Roberts, 292 Ill. App. 3d 925, 932, 686 N.E.2d 1202, 227 Ill.

Dec. 46 (1997), quoting Widucus v. Southwestern Electric

Cooperative, Inc., 26 Ill. App. 2d 102, 108, 167 N.E.2d 799

(1960). The guiding principle is to prevent dismissal when it

would be unfair, unjust, and inequitable. Kirk v. Michael

Reese Hospital and Medical Center, 275 lll. App. 3d 170, 173,

655 N.E.2d 933, 211 Ill. Dec. 550 (1995).

"The decision to grant or deny a motion to vacate *** lies

within the sound discretion of the trial court, and we will

reverse only if the trial court abused its discretion." Marren

Builders, 307 Ill. App. 3d at 941. A trial court abuses its

discretion “when it acts arbitrarily without the employment of

conscientious judgment or if its [*22] decision exceeds the

bounds of reason and ignores principles of law such that

substantial prejudice has resulted." Marren Builders, 307 Ill.

App. 3d at 941. "If reasonable persons could differ as to the

propriety of the trial court's actions, then the trial court cannot

be said to have exceeded its discretion." Merchants Bank, 292

Ill. App. 3d at 930.

In the instant case, we find that while dismissal is a severe

penalty, under the circumstances of this case, existing from

the beginning of the litigation, dismissal was a fair and just

result, which did not deny plaintiff substantial justice. The

record clearly reflects a lack of due diligence on the part of

plaintiff, a complete refusal to follow established litigation

procedures, and that plaintiff was certainly on notice as early

as 1996 that her case was in jeopardy. From very early on,

plaintiff refused to cooperate with discovery. She refused to

answer interrogatories and requests for production of

App. C - 16

documents, she refused to sign medical authorizations

although ordered to do so at least twice by the federal district

court, and she refused to provide her medical information and

records to defendant [*23] even though such information was

crucial to the issues in the case. Defendant was forced to bring

several motions to compel as well as motions for sanctions

against plaintiff based on her refusal to cooperate with

discovery. In fact, plaintiff was ultimately barred from

presenting any opinion witnesses except for her own treating

physicians because of her refusal to answer Rule 213

interrogatories.

Plaintiff's refusal to follow established procedures for

presenting, preparing, and trying her case also supports the

trial court's decision. Plaintiff advised the court several times

that it was her intent to have the case litigated in a manner that

was different than most products liability cases were litigated.

Plaintiff repeatedly refused to answer the trial court's

questions during oral arguments. Plaintiff ignored the court's

comments from early on that it was concerned with what

efforts she was taking to move the case forward and that her

position was in jeopardy. As early as October 1996, the trial

court questioned plaintiff's diligence and discovery efforts.

Such questioning was continued throughout the case by the

various judges hearing plaintiff's motions when they

expressed [*24] their concerns with her discovery efforts and

manner of prosecution of her case. The judges’ comments at

the various hearings clearly made their concerns known to

plaintiff with respect to the adequacy of her evidence and

discovery efforts. Additionally, although the tral court

attempted to apprise plaintiff of the procedures she needed to

follow, plaintiff did not follow its suggestions and continued

to argue to the trial court that she intended to try this case

differently than other cases.

The numerous continuances and delays occasioned by

plaintiff's conduct provide additional support for the tral

court's decision. Although several of plaintiffs motions for

continuances were based on her request to obtain counsel, we

note that plaintiff herself chose to proceed pro se to protect

her own interests and privacy. While we are not saying that

plaintiff was not entitled to have counsel represent her, she

voluntarily made the decision to initially proceed pro se and

the case should not be further delayed in light of her insistence

that she proceed pro se. See Clewell v. The Upjohn Co., 1995

U.S. Dist. LEXIS 17988, No. 94-2383 (E.D. Pa. November

21, 1995).

Lastly, we find plaintiff's repeated (*25] attacks upon

defendant's counsel, both during oral argument and in her

written documents before the trial court, very disturbing.

Plaintiff was advised by the trial court that her conduct was

improper and she was admonished on numerous occasions to

cease her conduct. Plaintiff ignored the court's admonishments

and continued her attacks upon defense counsel. We also

admonish plaintiff that such conduct was improper, as well as

inexcusable. |

In summary, the record in this case discloses a lack of

cooperation by the plaintiff in obeying court orders,

indifference to the trial court's advice and admonishments,

repeated attempts to delay the proceedings, and a failure to

follow the rules of proper procedure. Plaintiff was the

architect of her own predicament, and her complaint now that

she was denied substantial justice will not be heard by this

court. Francone v. Weigel Broadcasting Co., Inc., 79 Ill. App.

3d 991, 993, 398 N.E.2d 1114, 35 Ill. Dec. 164 (1979). The

trial court indulged plaintiff and gave her many opportunities

to proceed with her case, yet plaintiff did not avail herself of

the court's indulgence. This case has lingered in the circuit

court for six years and, after all the [*26] delays, refusals,

App. C - 18

and lack of cooperation by plaintiff, it would not be

reasonable to force defendant to proceed to trial. The trial

court's decision to deny plaintiff's motion to vacate its DWP

order was reasonably made to prevent further delays and

expenses and to reach an end to this litigation. We conclude

that substantial justice was done and that the tral court did not

abuse its discretion in denying plaintiff's motion to vacate the

DWP order. Because the trial court did not abuse its discretion

and because all claims were dismissed by the court's DWP

order, the remaining issues raised in this appeal are moot, as

are those raised in defendant's cross-appeal.

CONCLUSION

For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

Affirmed.

HALL, P.J., and WOLFSON, J., concur.

a

App.G- 1

The following article was published in the Mar. 28,

2002, edition of the Chicago Daily Law Bulletin. Mann no

longer subscribes to that journal and was not of the Illinois

Supreme Court’s Mar. 28 announcement of its amendment to

Illinois Supreme Court Rule 213 until after she filed her

petition with this Court on April 4.

The amendment is pertinent to Questions | through 4

of the Questions Presented in Mann’s petition because it

illustrates that discovery controversies were exceedingly

commonplace under the discovery rules during the time period

relevant in this case and that the Illinois Supreme Court and

(surely) the Illinois Appellate Court were well aware of that

when those courts issued their respective rulings ‘n this case.

The amendment is pertinent to Questions 4 and 5 of

the Questions Presented in Mann’s petition because the

amendment expressly acknowledges the distinction between

“independent expert witnesses” and “controlled expert

witnesses,” and codifies that acknowledgment.

CHICAGO DAILY LAW BULLETIN

Thursday, March 28, 2002

Page |

JUSTICES REVAMP A KEY DISCOVERY RULE

by DANIEL C VOCK Law Bulletin staff writer

SPRINGFIELD -- The Illinois Supreme Court on Thursday

announced it would change its rules governing discovery in

civil litigation, creating three new categories of witnesses in

an effort to ease the pretrial burden borne by litigants.

App. G-2

The high court adopted the recommendations of its Rules

Committee over a competing proposal by a panel of the

Illinois Judicial Conference. The changes, which take effect

July 1, set forth different requirements for lay witnesses,

independent expert witnesses and controlled expert witnesses.

Thursday's action marks the culmination of 21/2 years of work

on Supreme Court Rule 213, which last was overhauled in

1996. The rule is designed to prevent unfair surprise at trial.

Some lawyers have maintained that under the existing rule,

judges lack discretion in deciding disputes over expert

witnesses. Attorneys also contend that Rule 213 has spawned

an expensive and time-consuming cottage industry of

discovery involving interrogations and depositions.

As amended, Supreme Court Rule 213 requires attorneys to

disclose the "subjects" of testimony from lay witnesses --

people who offer only fact or lay testimony.

Committee comments adopted with the amendments

suggested that the topics must be precise enough to give

opposing parties reasonable notice regarding the nature of the

testimony.

For example, simply disclosing that a witness will discuss "the

accident" is not sufficient, but announcing that the witness

will testify about the speeds of vehicles, the lighting at the

scene and a description of the collision would suffice, the

panel explained.

The second category of witnesses established under the

revised rule is "independent expert witnesses." They offer

expert testimony but are not the party, the party's current

employee or the party's retained expert — a group that could

App. G-3

include doctors or police officers with knowledge beyond

their initial investigations.

Parties must disclose the subjects of testimony from this group

of witnesses, just as they would for lay witnesses. In addition,

the new rule.requires parties to identify the opinions they

expect the witnesses to elicit but not in as much detail.as

required under the current rule.

"Experience has shown that the detailed-disclosure

requirement is too demanding for independent expert

witnesses," the Rules Committee explained.

The current language mandating that parties disclose the

subject matter of expert witness testimony, the reasons for the

expert's opinions and the expert's qualifications will still apply

to the last category of witnesses created by the amendments --

the controlled expert witnesses.

That group encompasses parties, the employees of the parties

and experts hired by the parties. Because such people are

under the direct control of a party, it will be easy for the party

to provide more detailed information about their testimony,

the committee reasoned.

Along with the new classifications of witnesses, the high court

adopted language that provides exceptions to the disclosure

requirements for cross-examinations.

The justices also included a new provision written by the

Rules Committee that states: "This rule is to be liberally

construed to do substantial justice between or among the

parties."

That statement came in reaction to what many in the

App. G=4

practicing bar described as "hard-line" interpretations that

appeals courts imposed on the current Rule 213.

Those decisions were counterproductive to the purpose of the

rule, which is to try cases on their merits after full and fair

disclosure, said Patricia C. Bobb, a Chicago attorney who

chairs the Rules Committee.

In its commentary, the panel explained that Rule 213 "is

intended to be a shield to prevent unfair surprise but not a

sword to prevent the admission of relevant evidence on the

basis of technicalities."

But Steven R. Bordner, an associate judge in Knox County

who chaired the Judicial Conference committee when it

forwarded its own proposals to the high court, cautioned that

the top court must offer its interpretations of the new language

quickly in order for the rule to succeed.

"I think Rule 213 and former Rule 220 were both victims of a

variety of interpretations at the Appellate Court level. With so

many interpretations and so many exceptions, the rules

became undermined. I hope that doesn't happen again,"

Bordner said.

The judge said the three categories of witnesses outlined in the

new language would encourage unnecessary litigation on the

boundaries between the classifications. The Conference's

panel on discovery procedures recommended only two

categories of witnesses.

The scaled-back disclosure requirements for independent

expert witnesses could also open the door for surprises at trial,

Bordner added.

The Galesburg judge said the changes that the high court

App. G-5

adopted reflected the concerns of the practicing bar more than

the interests of members of the judiciary.

But Bordner's successor in heading the panel on discovery

procedures, Cook County Associate Judge Joseph N. Casciato,

said that the rule changes, on the whole, weren't all that

different from the proposals forwarded by the judge's group.

Casciato called the amended rule "a good rule that helps the

problem."

Bobb, the chair of the Rules Committee, said the changes

were the result of "an awful lot of hard work" from lawyers,

bar associations and judges over the last two years. __

"Everybody weighed in on this," she said.