2026 IL App (4th) 251372 FILED
August 20, 2026
NO. 4-25-1372 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
DEANA ORDAZ, as Special Administrator of the Estate ) Appeal from the of Noah Ordaz, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Peoria County
v. ) No. 19L55
DANIEL HURST, D.O., and SPECIALISTS IN )
MEDICAL IMAGING, S.C., an Illinois Corporation, ) Honorable
Defendants-Appellees. ) Stewart J. Umholtz,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Grischow and Harris concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Deana Ordaz, the mother of decedent Noah Ordaz and special
administrator of his estate, brought wrongful death claims against defendants Daniel Hurst, D.O.,
and his employer, Specialists in Medical Imaging, S.C., alleging that Hurst provided negligent
medical treatment to decedent. During discovery, plaintiff twice failed to abide by the deadline for
disclosing expert witnesses and their opinions. This ultimately resulted in the circuit court granting
defendants’ motion to bar the late-disclosed expert testimony and denying plaintiff’s motion to
reconsider. The court subsequently granted defendants’ motion for summary judgment, reasoning
that plaintiff would be unable to prove the proximate cause element of her claims without expert
testimony on that issue. She now appeals, arguing both that the preclusion of her experts’ testimony
was an abuse of discretion and the granting of defendants’ motion for summary judgment was erroneous. We affirm the circuit court’s judgment.
¶2 I. BACKGROUND
¶3 A. Decedent’s Death
¶4 The record developed in connection with the motion for summary judgment reflects
the following. On March 25, 2017, decedent awakened with sudden-onset chest pain. He went to
the Proctor Hospital emergency department in Peoria, Illinois, where he was seen by James Brown,
M.D., an emergency medicine physician. Decedent complained of left-sided substernal chest pain,
which he characterized as a 7 on a scale of 1 to 10. Brown’s differential diagnosis included
pneumonia, myocarditis, and pericarditis, and he ordered chest X-rays.
¶5 Defendant Hurst, a radiologist, then read and interpreted the results of the X-rays.
He concluded “there is no evidence of acute disease in the chest.” Brown relied upon Hurst’s
impression in his treatment of decedent. He discharged decedent with a diagnosis of chest pain of
an unspecified type.
¶6 That night, decedent told his family that his pain was feeling much better. Two days
later, one of decedent’s family members heard a thud coming from behind the locked door of
decedent’s bedroom. First responders arrived at the house and pronounced decedent dead. A
pathologist’s report concluded that he died due to a hemopericardium associated with a ruptured
dissecting aortic aneurysm.
¶7 B. Plaintiff’s Initial Investigation and This Action
¶8 In March 2019, diagnostic and interventional radiologist Myron Marx, M.D.,
conducted his own review of decedent’s chest X-rays and autopsy. He ultimately disagreed with
defendant Hurst’s interpretation, writing as follows in a letter to plaintiff’s counsel:
“There is clear evidence of abnormal density in the retro sternal clear space on the
-2-lateral film. The differential diagnosis of a mass in this region includes lymphoma,
teratoma, ascending aortic aneurysm, thymoma and retrosternal thyroid mass. The
diagnosis of an aneurysm of the ascending aorta is supported by poor definition of
the aortic knob on the frontal film, increased soft tissue density cephalic to the aortic
knob and clearly defined density outlining the anterior proximal ascending aorta on
the lateral radiograph.
To have met standard of care, the interpreting physician needed to make
note of the mass and recommend further imaging studies, specifically a contrast
enhanced chest [computed tomography (CT)]. The failure to have made this
observation and recommendation resulted in this aneurysm/dissection going
untreated until it ruptured into the pericardial sac resulting in the patient’s death
two days later.”
¶9 Plaintiff filed this wrongful death action in March 2019. Count I asserted a claim
of medical negligence against Hurst, and count II asserted a respondeat superior claim against his
employer, Specialists in Medical Imaging, S.C. Plaintiff brought claims against other hospital
entities as well, but they were voluntarily dismissed.
¶ 10 C. Discovery
¶ 11 In August 2019, the circuit court issued its first case management conference order
regarding discovery. It imposed no deadlines for discovery but set a subsequent case management
conference for December of that year.
¶ 12 The deposition of Brown, the emergency room doctor, was taken in November
2019. Regarding his expertise, the following exchange occurred during the deposition:
“Q. Based on what you know of Noah passing just a couple days after this,
-3-do you believe that he had an aortic dissection at the time he was in the emergency
room on March 25, 2017?
A. I can’t formulate that opinion.
Q. Is that based on history, information or specialty that you’re not able to
formulate the opinion?
A. I think all of those things.”
Brown further testified that, if he had diagnosed decedent with an aortic dissection, he would have
placed an “[i]mmediate call to [a] cardiothoracic surgeon.” When asked if, in the past, he had
diagnosed an aortic dissection and had a cardiothoracic surgeon “fly in there and perform surgery
on the patient,” he answered in the affirmative. In those instances, he indicated that he “believes”
the patient survived and that “in my 20-plus year career that maybe I have had it five times and
they have all been adults or if there was a younger person with significant risk factors for that.”
¶ 13 In May 2020, defendants filed a motion to compel discovery responses on the basis
that discovery requests served in July 2019 had not yet been responded to. The record does not
clarify what came of this motion. Over six months later, in January 2021, plaintiff provided her
initial disclosures, listing, in pertinent part, Brown as an independent expert witness, Hurst as an
adverse fact witness, and Marx as a controlled expert witness, pursuant to Illinois Supreme Court
Rule 213(f)(2), (1), (3) (eff. Jan. 1, 2018), respectively. Plaintiff disclosed anticipated testimony
from Hurst and Marx concerning the applicable standard of care. The disclosure listed only Marx
as having opinions about “the cause, proximate or otherwise, in bringing about the harm suffered
by decedent,” stating more specifically that the alleged negligence “resulted in the death of the
decedent” and deprived him of a “chance to survive or recover.” Plaintiff’s disclosures included a
copy of Marx’s March 2019 letter to plaintiff’s counsel. The letter focused on the standard of care
-4-related to the care provided by Hurst; it made no mention of the treatment decedent would have
received, such as cardiothoracic surgery, had a proper diagnosis been made.
¶ 14 Defendant Hurst’s deposition was taken in November 2021. He testified about the
radiological standard of care, indicating that a CT scan with contrast is the “gold standard” for
diagnosis of an aortic aneurysm, with a probable accuracy rate of higher than 95%. However, he
had no opinion as to if or when cardiothoracic surgery would have occurred or if it would have
been successful. When asked whether he was “going to offer any opinions regarding standards of
care or medical opinions in the area of cardiology” or “cardiothoracic surgery or cardiothoracic
opinions” in this case, he said he would not unless they specifically pertained to radiology.
¶ 15 In August, the circuit court entered a case management conference order setting a
November 14, 2022, trial date. No other deadlines were set in the order.
¶ 16 An e-mail chain from April 20, 2022, shows the parties appeared to be working on
scheduling the deposition of Marx. An April 28 letter from plaintiff’s counsel states, “[t]here will
be a more detailed disclosure, I’m hoping to get that to you shortly.” A July 25 letter from defense
counsel to plaintiff’s counsel stated that the supplemental disclosures had still not been received,
despite repeated requests. The letter also indicated in relevant part that they were running out of
time to complete expert discovery by the trial date, so it should be vacated by an agreed scheduling
order setting disclosure and deposition deadlines.
¶ 17 In an order entered in late September 2022, the circuit court struck the trial date by
agreement of the parties and ordered plaintiff to file her supplemental expert report within 45 days.
The court set a December 2 case management conference “for status on expert discovery and trial
setting.”
¶ 18 When the parties returned for the December 2 status date, plaintiff had not complied
-5-with the prior order requiring expert supplementation within 45 days. No transcription of the
December 2 hearing is contained in the record, but the circuit court issued an order at that hearing
providing as follows: “Plaintiff to supplement expert disclosures by no later than 12/30/22.” The
court set January 27, 2023, as the next case management conference date.
¶ 19 It is undisputed that plaintiff did not supplement her expert disclosures by the
extended deadline of December 30, 2022. She also did not request an extension prior to expiration
of the deadline.
¶ 20 The record does not reflect what was discussed at the case management conference
of January 27, 2023. On February 2, plaintiff’s counsel left a voicemail for defense counsel
indicating that plaintiff needed a few more days to complete the supplemental disclosure of Marx.
The voicemail also mentioned for the first time that plaintiff was planning to disclose a
cardiothoracic surgeon as an expert and that his report would be served shortly.
¶ 21 D. Motion to Bar
¶ 22 On February 10, 2023, defendants filed a motion to bar plaintiff’s supplemental
Rule 213(f)(3) disclosure. The same day, plaintiff filed her supplemental expert disclosure
regarding Marx; this disclosure did not purport to name any new experts. However, on February
17, plaintiff disclosed Carl Adams, M.D., a cardiothoracic surgeon, as a controlled expert witness.
Later that month, defendants served discovery requests for production of documents related to
Marx and Adams. In March, defendants filed an amended motion to bar the supplemental
disclosures of plaintiff to account for the new disclosures. In April, plaintiff provided defendants
with deposition dates for Adams in May and June and for Marx in June and July. She also filed
her response to the motion to bar.
¶ 23 On April 20, plaintiff delivered her responses to defendants’ request for production
-6-regarding Adams. The same day, the hearing on the motion to bar took place. Among various
arguments, defense counsel argued that defendants were prejudiced because the delayed trial date
resulted in a larger prejudgment interest amount and because the pending litigation is bad for the
doctors as they reapply for insurance. Plaintiff argued that defense counsel failed to address the
test that applies when a circuit court is considering a motion to bar. She also argued that
“Dr. Marx is going to render the opinions of standard of care. Dr. Adams is going
to kind of fill in the gap of, okay, if this dissection is properly diagnosed, what
happens? What surgery is performed? What are the chances of survival? So he is
not rendering opinions of standard of care.”
Plaintiff’s counsel later stated that defendants were trying to prevent plaintiff from bringing what
she needs “to have a trial on the merits of the case to court.” Defense counsel responded that
“[p]laintiff still can have a trial on the merits. He has Dr. Marx. He has not been barred from calling
any fact witnesses, any treating physicians, any lay witnesses, and he has not been barred from
calling Dr. Marx.” Defense counsel also noted his efforts to give plaintiff’s counsel more time—
agreeing to a continuance, corresponding with counsel about discovery, and
“finally fil[ing] the motion to bar as a last act, because I didn’t want to file a motion
to bar but the disclosure hadn’t been coming for months and months and months. I
finally filed it. And only after I filed a motion to bar did we get the disclosure.”
¶ 24 After hearing the arguments, the circuit court reasoned as follows:
“I mean that is something I find troublesome here because I wonder why orders are
entered? Why deadlines are set? And this judge, I started my training as a journalist
where deadlines were deadlines. If you didn’t meet the deadline, done. And I think
it’s important that in fairness to both parties to have deadlines, to have rules that
-7-everybody follows. And I really wasn’t even looking at this in terms of sanctions,
but rather looking at the integrity of the Court and the Court’s ability to set
deadlines in order to move cases along.
***
*** The court after considering the pleadings and the arguments that have
been made and taking into account numerous previous orders of the Court setting
deadlines for discovery finds that it would be appropriate and maintain the
integrity of the Court to stick with those deadlines and to bar the disclosure of Dr.
Adams and additional disclosures of Dr. Marx after the deadlines have passed.
The Court does not find any basis for finding that such delay was reasonable.
And for those reasons the Court will grant that in addition to the Court
waiving any prejudgment interest for the period of time that this has caused
delay.”
Despite this ruling, plaintiff requested leave to file an affidavit explaining the reasons for the late
disclosure, and the court granted leave to do so.
¶ 25 By May 18, 2023, plaintiff had not yet filed the explanatory affidavit the circuit
court had permitted her to file. The court at that point issued its order granting defendants’ motion
to bar the late-disclosed supplemental opinion of Marx and effectively any opinions from Adams.
The court also tolled all prejudgment interest accrued between February 20, 2022, and April 20,
2023. The same day, defendants issued a notice of deposition of Marx, scheduled for June 7, 2023.
¶ 26 During his June 2023 deposition, Marx repeatedly indicated that he is not a
cardiothoracic surgeon. He stated that
“the radiologist needed to call the abnormality on the chest X-ray, recommend a
-8-CT angiogram. Given the presence of chest pain, a CT angiogram would have
diagnosed the aneurysm and the dissection and that information could have been
used by the emergency room department and the referring cardiothoracic surgeon
to figure out what they wanted to do for this patient.”
He later indicated that aortic aneurysms are not always emergencies and stated:
“I am not a cardiothoracic surgeon, but many people live with aneurysms for many
years. I think the criteria for surgery is size, rapid change in size or pain. Again, I
am not a surgeon *** Some dissections are chronic and are not treated or can be
treated medically. Others are emergencies or need to be corrected surgically, but
who falls into what category I would leave to a cardiothoracic surgeon.”
When specifically asked moments later whether he would defer opinions as to the appropriate
treatment of aortic dissection, he again answered in the affirmative. He testified that his “job as a
radiologist is to report [aortic aneurysms], give dimensions, any other findings that might be
associated with an aneurysm, such as the dissection.”
¶ 27 He also testified that he had patients in the past who were referred to surgery as a
result of a diagnosis of an aortic dilation, dissection, or aneurysm. When asked whether they
survived, he stated:
“I don’t have a particular recollection of a particular case to opine or to answer that
question, but obviously replacement of a thinning thoracic aorta due to an aneurysm
and dissection is a major surgery. It is my impression, not being a cardiothoracic
surgeon, that most patients would survive that operation successfully.”
Defense counsel objected to this statement for lack of foundation. Marx later indicated that surgery
is the “most common way once these are diagnosed.” Furthermore, he stated that, “[b]ased on my
-9-experience, if you made the diagnosis of an ascending aortic dissection and aneurysm in a patient
with acute pain, they would have had timely surgery, meaning rapid surgery, and the patient, in
my experience, would survive.”
¶ 28 E. Motion to Reconsider
¶ 29 On June 19, 2023, plaintiff filed her motion to reconsider, accompanied by her
attorney’s affidavit. The affidavit details plaintiff’s counsel’s unexpected need to devote
significant time to cases other than this one from December 2022 until April 2023. This was
offered as the explanation for the late disclosures without requesting an extension, which the
affidavit stated was not intended to undermine the circuit court’s authority.
¶ 30 In November 2023, the circuit court held a hearing on the motion to reconsider.
Among other arguments, defense counsel expressed that he “did not want to incur the cost of taking
his expert’s deposition until [he] had the entire disclosure.” There was also some disagreement
about the appropriate role the affidavits should play in the analysis on a motion to reconsider.
Plaintiff took the position that the court granted leave to file the affidavits, and defense counsel
agreed. However, defense counsel argued that the appropriate time to file the affidavits would have
been during the initial motion to bar proceedings, not during the motion to reconsider. The court
ultimately agreed with defendants and did not consider the affidavits.
¶ 31 During that hearing, the circuit court alluded to the fact that, in another case,
plaintiff’s counsel had relied upon the adverse discovery ruling in this case to argue the opposite
position. Specifically, plaintiff’s counsel argued in the separate matter that “what’s good for the
goose is good for the gander” in an attempt to impose sanctions on the other party. Plaintiff’s
counsel admitted to this and attempted to reconcile this positional conflict by arguing that he was
not challenging the imposition of sanctions in the present case so much as the sanction chosen:
- 10 -that of barring the late-disclosed expert and opinions.
¶ 32 After hearing argument, the circuit court said it considered the relevant factors
cumulatively instead of any one factor exclusively and held as follows:
“Even though this case law wasn’t argued at the motion and it was brought to the
attention of the Court in the motion for reconsideration, I believe the Court has
considered all of those factors, and I don’t believe that there’s anything to suggest
that any of those factors are controlling or that any of those factors might indeed
overlap or be conjoined in some way with regard to the arguments that were made
about surprise and prejudicial effect. I think surprise, if you look at the basis for
why a Court would even recognize such a notion of surprise as a factor, it is because
of the goal of preventing gamesmanship. And I can’t think of—well, the Court,
after hearing all of the arguments and the factors that were argued both at the
original hearing as well as today, the Court has not yet heard an explanation for
why deadlines were not met that were set. And the plaintiff certainly had an
opportunity to seek extensions of deadlines, and I haven’t heard any argument or
explanation as to why those extensions of deadlines were not sought. I think that is
part of surprise to a—to a party not meeting deadlines. I for one as a judge believe
that deadlines are important. And my background before I was an attorney was as
a journalist. We had deadlines. And if you didn’t hit the deadline, your story is
dead. That’s why they called it deadline. And unless there was some type of
extension, it wasn’t possible for that to survive. Here certainly it’s easy enough for
an attorney to seek an extension of a deadline. And I think barring a reasonable
explanation for why those extensions were not sought—and nothing has been raised
- 11 -in this matter suggesting that—I think that overlaps also into the sixth factor, which
was good faith. I think all of these factors kind of work together in ensuring that
they don’t have gamesmanship, that we have cases proceed in a workable fashion.
I do find that the defendants have shown prejudicial effect of these late disclosures.
I do find that the defendant was diligent in pursuing plaintiff’s discovery. I do find
that the defendants’ objection was timely. I do find that in this motion for
reconsideration there’s been no new case law raised.”
The circuit court issued an order in November 2023 denying the motion to reconsider.
¶ 33 In December 2023, plaintiff filed a motion requesting leave to appeal pursuant to
Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019), which the circuit court denied in February
2024 after a brief hearing on the issue. On August 9, 2024, the court set a deadline of October 4,
2024, for the disclosure of defendants’ Rule 213(f)(3) experts. The case was set for a case
management conference October 18, 2024, to “discuss deposition deadlines for Defendants’
experts and a trial date.” Defendants disclosed their experts in September 2024.
¶ 34 F. Motion for Summary Judgment
¶ 35 Shortly after disclosing their experts, defendants filed a motion for summary
judgment, arguing plaintiff failed to present evidence to establish that the claimed negligence
proximately caused decedent’s death. Specifically, defendants argue that plaintiff’s case rests on
the assumption that an earlier diagnosis by Hurst would have led to successful surgical treatment,
but there is no expert opinion from a cardiothoracic surgeon that an earlier diagnosis would have
led to earlier treatment or that the treatment would likely have been successful.
¶ 36 In February 2025, the circuit court set a trial date for January 2026.
¶ 37 In November, after full briefing from the parties, the circuit court held a hearing on
- 12 -the motion for summary judgment. After the parties’ arguments, the court reasoned that
“the Court has made rulings in this case barring testimony, and nothing—nothing
within those rulings would alleviate the burden that the Plaintiff has in presenting
its case, particularly with regard to the issue of proximate cause.
The Court has reviewed the totality of everything that’s been presented in
the pleadings, in the attachments. The Court really is left with a finding and
understanding that the evidence and testimony that’s been presented does not
satisfy the plaintiff’s burden on the issue of proximate cause. Opinions offered by
the plaintiff do not meet the requisite degree of medical certainty regarding
proximate cause. *** [T]he Court has reviewed Dr. Marx’s supplemental opinions
that even though—even though those were barred in this case, as is the Court’s
understanding of earlier rulings that the Court has made, I’m not considering those
opinions. I have looked at what has been presented, but even if I had considered, I
do not believe that the burden has been met here; and for those reasons and the
reasons [that] have been discussed today ***.”
In December, the court issued its order granting the motion for summary judgment.
¶ 38 This appeal followed.
¶ 39 II. ANALYSIS
¶ 40 A. Precluding Expert Testimony
¶ 41 Plaintiff argues that the barring of Adams’s and Marx’s late-disclosed opinions is
purely punitive and an abuse of discretion. She does not challenge the imposition of sanctions
generally and acknowledges that she failed to abide by the deadlines to file expert witness
disclosures. Rather, she argues the specific sanction outweighs the wrongdoing to such an extent
- 13 -that no reasonable court would have imposed it.
¶ 42 1. General Principles
¶ 43 Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018) requires parties to furnish
information about their expert witnesses, including, for independent expert witnesses, the subjects
on which each will testify and the opinions the party expects to elicit. For controlled expert
witnesses, like those at issue here, Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2018) requires
the party to further disclose the bases for all the witnesses’ opinions and to produce any reports
prepared by the witnesses about the case.
¶ 44 Illinois Supreme Court Rule 219(c)(iv) (eff. July 1, 2002) states that the
unreasonable failure to comply with the rules or orders of the circuit court allows the court to enter
orders that are just, including barring a witness from testifying. In this context, the “orders of the
circuit court” at issue are most likely to be case management orders entered pursuant to Illinois
Supreme Court Rule 218 (eff. Feb. 2, 2023). Among the matters Rule 218 directs courts to address
are “the area of expertise and the number of expert witnesses who may be called” and “deadlines
for the disclosure of witnesses.” Ill. S. Ct. R. 218(a)(5)(ii), (iii) (eff. Feb. 2, 2023). The supreme
court’s rule directs that “[a]ll dates set for the disclosure of witnesses, including rebuttal witnesses,
and the completion of discovery shall be chosen to ensure that discovery will be completed not
later than 60 days before the date on which the trial court reasonably anticipates that trial will
commence.” Ill. S. Ct. R. 218(c) (eff. Feb. 2, 2023). The “rule is to be liberally construed to do
substantial justice between and among the parties.” Id.
¶ 45 When analyzing a circuit court’s decision under Rule 219 to preclude expert
testimony at trial, the standard of review is abuse of discretion. Parker v. Illinois Masonic Warren
Barr Pavilion, 299 Ill. App. 3d 495, 501-02 (1998). As the Illinois Supreme Court has noted, this
- 14 -is “the most deferential standard of review available with the exception of no review at all.”
(Internal quotation marks omitted.) People v. Coleman, 183 Ill. 2d 366, 387 (1998). A circuit court
abuses its discretion only when its decision is “arbitrary, fanciful or unreasonable [citation] or
where no reasonable person would agree with the position adopted by the [circuit] court.” People
v. Becker, 239 Ill. 2d 215, 234 (2010). In this context, it has been said that the “circuit court abuses
its discretion only if it acts arbitrarily without the employment of conscientious judgment, exceeds
the bounds of reason and ignores recognized principles of law, or if no reasonable person would
take the position adopted by the circuit court.” Frulla v. Hyatt Corp., 2018 IL App (1st) 172329,
¶ 26.
¶ 46 Moreover, when assessing whether the sanction was an abuse of discretion, we
examine the same factors the circuit court considers when deciding whether to exclude a witness
as a discovery sanction: “(1) the surprise to the adverse party; (2) the prejudicial effect of the
testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely
objection to the testimony; and (6) the good faith of the party calling the witness.” Sullivan v.
Edward Hospital, 209 Ill. 2d 100, 110 (2004) (hereinafter referred to as the Sullivan factors). As
plaintiff recognizes, each case is to be considered based on its unique factual situation. Boatmen’s
National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993). No single factor is determinative.
In re Estate of Kline, 245 Ill. App. 3d 413, 433 (1993). A reviewing court is to focus on whether
the record provides an adequate basis for upholding the decision to sanction. Lake Environmental,
Inc. v. Arnold, 2015 IL 118110, ¶ 16.
¶ 47 2. The Sullivan Factors
¶ 48 Plaintiff argues that the circuit court did not consider the Sullivan factors in making
its ruling. We disagree. Though the court may not have specifically referenced the Sullivan factors
- 15 -when making its initial ruling, it acknowledged that it had considered the parties’ arguments.
Moreover, at the hearing on the motion to reconsider, the court expressly acknowledged them and
indicated that its original ruling was consistent with its consideration of the factors. “[I]t is a
fundamental principle of appellate law that when an appeal is taken from a lower court judgment,
the question before the court of review is the correctness of the result, not the correctness of the
reasoning on which the result was reached.” (Internal quotation marks omitted.) People v. White,
2025 IL App (2d) 240477, ¶ 41 (citing People v. Johnson, 208 Ill. 2d 118, 128 (2003)).
Furthermore, this rule has applied in the context of reviewing sanctions for an abuse of discretion.
Arnold, 2015 IL 118110, ¶ 16. We therefore examine the Sullivan factors individually.
¶ 49 a. Surprise
¶ 50 Regarding the first factor, pertaining to the surprise to the defendants, plaintiff
argues that there was no unfair surprise because there was still time for expert discovery.
Specifically, she points to the fact that no trial date was set in this matter. Initially, we observe that
this case had been set for trial at one time, but that trial date was canceled due to the slowness of
plaintiff’s disclosures.
¶ 51 It is conceded that, though plaintiff was given time to supplement her earlier
disclosure of Marx’s opinions, it was not until February 2, 2023, that plaintiff’s counsel first
advised defense counsel of the intention to obtain an expert in the field of cardiothoracic surgery.
In other words, this was not a development that had been explicitly discussed in the preceding
years in which the case was pending.
¶ 52 Defendants were not surprised by the disclosure of new opinions from Marx, as a
supplemental disclosure of his opinions had been clearly anticipated for quite some time. They
were, however, surprised by the addition of a new and previously undisclosed expert. Still, this is
- 16 -not the same degree of surprise that would be generated by a disclosure at or near to trial;
consequently, it weighs only slightly in favor of the circuit court’s sanction. The prejudice suffered
as a result of the late disclosure is discussed next.
¶ 53 This factor alone does not weigh in favor of a sanction barring the late-disclosed
testimony. The import of the circuit court’s scheduling orders, however, will be discussed below.
¶ 54 b. Prejudice
¶ 55 Plaintiff’s argument with respect to prejudice is largely the same as that concerning
surprise. There was no trial date set, so defendant still had time to conduct discovery of the new
expert and new opinions. Initially, we observe that this case had been set for trial at one time, but
that trial date was canceled due to the slowness of plaintiff’s disclosures.
¶ 56 Furthermore, whether a circuit court sets a future trial date falling at the end of a
long discovery schedule or only as discovery nears completion is a courtroom management
decision within the circuit court’s discretion. Here, the circuit court attempted both methods, and
neither succeeded. The first trial date was canceled because of plaintiff’s lagging disclosures, and
the late disclosures at issue would prevent a trial date from happening for months. The likelihood
is that defendants would wish to retain their own cardiothoracic expert; locating, retaining, and
disclosing the opinions of such an expert would add to the time necessary before the trial could be
scheduled.
¶ 57 More fundamentally, we cannot agree with plaintiff’s implication that, so long as
no trial date has yet been set (or, in this case, reset), no discovery violation can earn a severe
sanction. As we discuss further below, scheduling orders entered by a circuit court serve an
important purpose and must be respected. Other cases have precluded expert testimony because of
a missed deadline, even when there was no trial date set. See, e.g., Castro v. South Chicago
- 17 -Community Hospital, 166 Ill. App. 3d 479, 480-83 (1988) (analyzing Illinois Supreme Court Rule
220 (eff. Oct. 1, 1984) and holding that the circuit court did not abuse its discretion in disqualifying
late-disclosed experts even when there was no trial date set); Mitchell v. Wayne Corp., 180 Ill.
App. 3d 796, 800, 802 (1989) (holding that circuit court did not abuse its discretion in barring an
expert witness due to late disclosures, even when there was no trial date set).
¶ 58 In assessing prejudice, we are really considering undue prejudice. The issue is not
whether defendants would be prejudiced by the new opinions but by the late disclosure of those
opinions. In our view, the only prejudice that defendants suffered from the late disclosure was the
possible delay of a future trial date as a result of the untimely disclosures. This weighs only very
slightly in favor of a discovery sanction.
¶ 59 c. Nature of the Witnesses’ Testimony
¶ 60 The parties devote little space in their briefs to discussing the third Sullivan factor:
the nature of the witnesses’ testimony. As discussed more completely below, the general rule is
that the plaintiff in a medical malpractice case must present appropriate expert testimony on the
issue of proximate cause. Simmons v. Garces, 198 Ill. 2d 541, 556-57 (2002). While barring such
testimony can have harsh consequences, the need for it should come as no surprise.
¶ 61 Furthermore, given the importance of expert testimony in malpractice cases,
disclosure and discovery of their opinions is of central importance. The obligation of disclosure is
at its zenith when it comes to controlled expert witnesses like Marx and Adams. Slow disclosure
of expert opinions has a ripple effect on the ultimate timeline for the completion of discovery and
trial.
¶ 62 We conclude that this factor weighs in favor of the sanction imposed.
¶ 63 d. Defendants’ Diligence and Timeliness
- 18 -¶ 64 Relevant to the fourth and fifth factors, regarding defendants’ diligence and
timeliness, plaintiff argues that they cannot now claim prejudice from continuing the trial because
they had agreed to it. Perhaps defendants agreed to the continuance, but it does not change the fact
that their agreement was made necessary by plaintiff’s delays. Furthermore, we will not punish
defendants for attempting to accommodate plaintiff. We view their agreement to a continuance as
a diligent, earnest, and cooperative effort to keep the litigation on track. Indeed, they were thinking
months ahead, filing a motion to compel and subsequently writing to plaintiff in July 2022 to ask
about a joint extension, given the trial date in November of that year. Even plaintiff has
acknowledged that the rules are intended to enable the parties to work together, discourage tactical
gamesmanship, and avoid surprise. Contrary to this notion is her suggestion that defendants’
agreement to a continuance is in some way a mark against them. Defendants acted promptly instead
of letting the matter sit for future adjudication.
¶ 65 We find that this factor weighs distinctly in favor of the sanction imposed.
¶ 66 e. Plaintiff’s Good-Faith Efforts to Comply
¶ 67 The sixth factor pertains to whether plaintiff had exerted good-faith efforts in
meeting the deadlines. We agree that plaintiff did not completely abandon her responsibilities, but
she fell short of the mark on more than one occasion. Discovery was served on her in July 2019,
but 10 months later, defendants were still required to file a motion to compel. As discussed above,
plaintiff’s lack of a response to defendants’ requests to supplement her expert disclosures played
a major role in scuttling the trial set for November 2022. In September 2022, plaintiff was ordered
to disclose expert opinions within 45 days; she failed to do so. The deadline was extended to
December 30; plaintiff again failed to comply. Plaintiff filed no motion seeking additional time,
apparently intending to ask for forgiveness rather than permission.
- 19 -¶ 68 On February 2, 2023, plaintiff’s counsel left a voicemail for opposing counsel
indicating that supplementation would be coming “shortly.” On February 10, 2023, she disclosed
Marx’s supplemental opinions but nothing about Adams’s opinions. She finally made a disclosure
of Adams’s opinions on February 17, 2023. This was 5 months after she was ordered to make the
disclosure and 1½ months after an extended deadline. Watching two deadlines come and go makes
a poor case for finding good faith.
¶ 69 Plaintiff filed affidavits along with her motion to reconsider the circuit court’s
rulings, which describe an exceptionally busy period at plaintiff’s counsel’s law firm from
December 2022 to April 2023. However, the lack of diligence exceeds that period on each end.
Plaintiff indicated as early as April 2022 that the supplemental disclosures were forthcoming soon,
and her claimed office difficulties did not begin until six months later. Furthermore, she was able
to make her disclosures in February 2023, so any continuing difficulty beyond that time seems to
be unrelated to the issues here. In any event, these were matters not brought forward at the time of
the hearing on the motion to bar and were raised only at reconsideration. The court was justified
in not considering these newly raised matters. See Gardner v. Navistar International
Transportation Corp., 213 Ill. App. 3d 242, 248-49 (1991) (stating that “the interests of finality
and efficiency require that the trial courts not consider such late-tendered evidentiary material, no
matter what the contents thereof may be” (emphasis in original)).
¶ 70 We find that this factor weighs in favor of the sanction imposed.
¶ 71 f. Consideration of All Factors
¶ 72 Our role here is not to reweigh the Sullivan factors as they apply here but to
determine whether the circuit court acted within its discretion in concluding that they weighed in
favor of barring the late-disclosed testimony. As noted above, the abuse of discretion standard is
- 20 -greatly deferential to the lower court. We note that the court could have made its ruling more
clearly defensible if the record showed that it engaged in progressive sanctions or if it made clear
to the parties that the somewhat lax management of the case earlier in its life would be coming to
an end and that the deadlines set in late 2022 would be more strictly enforced. On the latter point,
we note that plaintiff has not included a transcript of the proceedings from the dates on which those
deadlines were set.
¶ 73 Plaintiff relies heavily on Shimanovsky v. General Motors Corp., 181 Ill. 2d 112
(1998), and Besco v. Henslee, Monek & Henslee, 297 Ill. App. 3d 778 (1998), in support of her
contention that the circuit court’s sanction was too severe. We find both cases to be distinguishable.
¶ 74 Shimanovsky dealt with a sanction for allegedly destroyed evidence, not failing to
abide by a court order. Moreover, the sanction imposed—outright dismissal—was even more
severe than the sanction imposed here. See Shimanovsky, 181 Ill. 2d at 128-29. The issues were
more on point in Besco, but the circumstances were different. In Besco, both parties were
responsible for numerous discovery delays, the case was still in the early stages of discovery, and
the expert was the plaintiff’s only expert. Additionally, the defendants there were alleged to be
part of the reason for the delay in disclosure. Besco, 297 Ill. App. 3d at 783. Again, this case does
not bear the same characteristics.
¶ 75 Our ultimate conclusion, given the deferential standard of review, is that the circuit
court acted within its discretion in determining that the sanction of barring the testimony was
appropriate.
¶ 76 3. The Court’s Sanction Is Not Punishment
¶ 77 Plaintiff argues the circuit court order constituted punishment, contravening notions
in our case law that “the punishment should fit the crime” (Coleman v. Abella, 322 Ill. App. 3d
- 21 -792, 800 (2001)) and that a court “may not impose sanctions that are intended primarily as
punishment” (Ruane v. Amore, 287 Ill. App. 3d 465, 472 (1997)).
¶ 78 It is true that the purpose of a discovery sanction “is to coerce compliance with
discovery rules and orders, not to punish the dilatory party.” Shimanovsky, 181 Ill. 2d at 123. From
the perspective of the sanctioned party, however, the end result of a significant sanction can feel
like punishment regardless of its purpose. Other cases have upheld severe sanctions that the
affected party might have perceived as punishment. In Prather v. McGrady, 261 Ill. App. 3d 880,
887 (1994), a party’s expert was barred for noncompliance with the court’s scheduling order; that
sanction was not “punishment.” Moreover, repeated violations of court orders may properly lead
to outright dismissal. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 67 (1995). A sanction should
not be characterized as “punishment” simply due to its severity.
¶ 79 Here, looking at the context for the circuit court’s orders, we conclude that they
were not intended as punishment but were simply actions in enforcement of its Rule 218
scheduling orders. A case management order is intended to bring a case to trial following the
orderly progress of discovery. While the end of the process is the trial, the deadlines established
pursuant to a case management order are themselves important benchmarks along the road to that
end. Simply stating that the case had not yet been set (or here, reset) for trial overlooks the
relevance and importance of the schedule the court establishes to reach that goal. When the court
issued a discovery sanction in Clymore v. Hayden, 278 Ill. App. 3d 862, 869 (1996), for the failure
to abide by its orders, it invoked the supreme court’s admonition that “court rules and orders are
not merely suggestions to be complied with if convenient.” Id. (citing People v. Wilk, 124 Ill. 2d
93, 103 (1988)). Instead, they “constitute obligations that counsel disregard at their personal peril
and that trial courts must enforce.” (Emphasis in original.) Id.
- 22 -¶ 80 Other developments have reinforced the importance of Rule 218 case management
orders. The Illinois Supreme Court’s strategic agenda identifies the goal to have a court system
“that resolves disputes fairly and timely.” Ill. Jud. Branch, Illinois Judicial Branch Strategic
Agenda 2026-2028 at 10 (January 2026), available at https://ilcourtsaudio.blob.core.windows.
net/antilles-resources/resources/cbe12922-0fc6-4af0-a1d8-352337d28f7d/2026-2028%20Strategic%20Agenda.pdf [https://perma.cc/XPN5-KD4C]. The supreme court has also
adopted time to disposition standards that specify that 98% of even complex cases should be
resolved within 36 months of filing. Ill. S. Ct., Time Standards for Case Closure in the Illinois
Trial Courts (July 1, 2022), available at https://ilcourtsaudio.blob.core.windows.net/antillesresources/resources/f5cdd7d7-49b1-409e-b556-56c1f55060c3/M.R.%2031228%20-%20
Time%20Standards%20for%20Case%20Closure%20in%20the%20Illinois%20Trial%20
Courts%20-%2003-25-22.pdf [https://perma.cc/MVE2-LUPF]. This case is not subject to the
standards only because it is too old; it began three years before the standards were adopted. Still,
circuit courts are being asked to be more sensitive to the time it takes to resolve cases in our courts.
¶ 81 When making its ruling here, the circuit court cited the justice system’s integrity
and the importance of adhering to deadlines. This consideration finds resonance in established
caselaw. The Illinois Supreme Court has upheld sanctions based on “maintaining the integrity of
our court system.” Sander, 166 Ill. 2d at 68. Further, we have permitted courts to bar witnesses to
manage their dockets, prevent delays, and control discovery. See Baxter v. Mount Sinai Hospital
Medical Center of Chicago, 2026 IL App (1st) 241968-U, ¶ 27; see also Amoco Oil Co. v. Segall,
118 Ill. App. 3d 1002, 1013 (1983) (stating that the purpose of sanctions is not to punish litigants
but rather to accomplish the object of discovery and promote the unimpeded flow of litigation).
And we have permitted circuit courts the discretion to enforce court-ordered deadlines, treat those
- 23 -orders as law, and determine what sanctions to impose. See Baxter, 2026 IL App (1st) 241968-U,
¶ 20; see also Department of Transportation v. Crull, 294 Ill. App. 3d 531, 538-39 (1998)
(reasoning that Rule 213 establishes more exacting requirements for disclosure of expert witnesses
than did the former Rule 220 and, as such, “[t]rial courts should be more reluctant under Rule 213
than they were under former Rule 220 (1) to permit the parties to deviate from the strict disclosure
requirements, or (2) not to impose severe sanctions when such deviations occur”).
¶ 82 Simply put, we cannot ask our circuit courts to take a firm hand in setting deadlines
to manage their cases and then too lightly set aside steps taken in enforcement of those deadlines.
Here, a trial date was set and then stricken because of plaintiff’s initial slowness in responding to
discovery. Only three months after the trial date was stricken, the court set a specific deadline for
plaintiff to complete her expert disclosures; she ignored it. The court extended the deadline again;
plaintiff ignored it again. The complete disclosure was not made until a month and a half after the
extended deadline. We do not find it an act of “punishment” for the circuit court to treat its orders
as just that—orders.
¶ 83 Plaintiff also argues that there is a future and final opportunity for her to disclose
her experts and their opinions: at deposition. It is true that Rule 213(g) limits a witness’s testimony
on direct examination to “information disclosed in answer to a Rule 213(f) interrogatory, or in a
discovery deposition.” (Emphasis added.) Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2018). This does not
mean, as plaintiff implies, the discovery obligations under Rule 213(f) concerning interrogatories
are optional or meaningless. It is true that Rule 213(f) requires a more modest disclosure of the
opinions of an independent expert and less still of the expected testimony of a lay witness. See Ill.
S. Ct. R. 213(f)(1), (2) (eff Jan. 1, 2018). For a controlled expert, such as those at issue here,
however, the required disclosure via interrogatory is extensive, extending to the conclusions and
- 24 -opinions of the witness and all bases therefor. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018).
¶ 84 Consequently, while a party may choose to depose the opponent’s controlled expert
witness to probe the expert’s opinions and reasoning, the deposition is not intended to be the time
to learn of wholesale new and previously undisclosed opinions. “The party propounding the expert
is generally required to disclose the expert’s opinion before the deposition, not at the deposition.”
(Emphasis in original.) Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 332 (2000).
¶ 85 For all the foregoing reasons, we conclude that the circuit court did not abuse its
discretion when it barred plaintiff’s disclosures made well after the court’s established—and
extended—deadline.
¶ 86 B. Motion for Summary Judgment
¶ 87 Plaintiff argues that granting defendants’ motion for summary judgment was
erroneous because the expert testimony makes a prima facie showing of proximate causation in
support of the medical negligence claim. Defendants, in turn, argue that summary judgment was
proper because plaintiff lacked the expert testimony needed to establish proximate cause.
¶ 88 The Code of Civil Procedure allows a defendant to file a motion for summary
judgment “at any time.” 735 ILCS 5/2-1005(b) (West 2024). Furthermore, summary judgment is
appropriate when the pleadings, depositions, and admissions on file, together with any affidavits,
when viewed in the light most favorable to the nonmovant, reveal that no genuine issue of material
fact exists and that the movant is entitled to judgment as a matter of law. State Farm Fire &
Casualty Co. v. Martinez, 384 Ill. App. 3d 494, 497-98 (2008). “[A]ny evidence which would be
inadmissible at trial cannot be considered by the court in support of or opposition to a motion for
summary judgment.” Watkins v. Schmitt, 172 Ill. 2d 193, 203-04 (1996). If what is contained in
the pleadings and affidavits would have constituted all the evidence at trial, then a summary
- 25 -judgment should be entered. Jones v. Pneumo Abex LLC, 2019 IL 123895, ¶ 25.
¶ 89 Here, defendants filed a variety of summary judgment motion sometimes called a
Celotex motion, a term derived from the United States Supreme Court’s decision in Celotex Corp.
v. Catrett, 477 U.S. 317 (1986). Jiotis v. Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 25.
A Celotex motion asserts that the nonmoving party’s evidence is insufficient to avoid judgment as
a matter of law.
¶ 90 Because this action asserts a claim of medical negligence, plaintiff must establish
the breach of a duty that proximately caused injury to her decedent. Rohe v. Shivde, 203 Ill. App.
3d 181, 192 (1990). As a general rule, a plaintiff must establish proximate causation in a medical
negligence case through expert testimony. Simmons, 198 Ill. 2d at 556-57; see Thompson v.
LaSpisa, 2023 IL App (1st) 211448, ¶¶ 40-41 (discussing exceptions to the general rule). While
there is no dispute here concerning the adequacy of the evidence in other respects, the question is
whether plaintiff has adduced sufficient evidence to create an issue of fact as to the issue of
proximate cause.
¶ 91 We review a grant of summary judgment de novo. Bright v. Yenchko, 2026 IL
132015, ¶ 14.
¶ 92 1. The Expert Testimony of Record
¶ 93 Here, we accept plaintiff’s assertion that the evidence is sufficient to create an issue
of fact as to the following: (1) that defendant Hurst should have seen signs on the X-ray of the
need for additional action; (2) that, if he had seen such signs, Hurst would have ordered a CT scan
with contrast; (3) that, if such a test had been conducted, it is highly likely it would have led to
diagnosis of decedent’s aortic dissection; and (4) that such a diagnosis would have led to
consultation with a cardiothoracic surgeon. The issue boils down to the adequacy of the evidence
- 26 -to support plaintiff’s final assertion: “that the consult would have led to surgery” that would have
“likely been successful.”
¶ 94 We need not consider whether Adams might have provided the necessary
testimony, as he was barred as a witness. As discussed above, we conclude that the circuit court
acted within its discretion in that determination. We have repeatedly granted summary judgment
based on a gap in the plaintiff’s evidence that could only be filled by an already precluded expert
witness. See Smith v. Bhattacharya, 2014 IL App (2d) 130891, ¶ 21 (affirming summary judgment
and finding no abuse of discretion when the circuit court barred expert testimony for failure to
abide by the disclosure deadline even when trial was months away); see also Bennett v. Raag, 103
Ill. App. 3d 321, 327-28 (1982) (affirming summary judgment in medical negligence claim when
necessary expert testimony was barred); James v. Yasunaga, 157 Ill. App. 3d 450, 457 (1987)
(affirming summary judgment and finding no abuse of discretion when the circuit court barred
expert testimony for failure to abide by the disclosure deadline even when the discovery deadline
had not passed and trial was months away).
¶ 95 Beyond Adams, plaintiff points to other physicians who, as she puts it, “address
this ‘gap’ ” in proximate cause testimony. The irony here is that it is undisputed that these other
specialties are not medically competent to administer the treatment at issue, but plaintiff relies on
them to offer testimony on what treatment was necessary and the chances that it might succeed.
Examination of the proffered opinions of each such witness shows that they fall short of the mark.
¶ 96 Plaintiff argues that Marx would testify that, had a cardiothoracic surgeon been
consulted, her decedent “would have had *** timely surgery” and he is of the opinion “that most
patients who have this kind of surgery in a timely fashion before the aneurysm ruptures survive.”
But Marx is a radiologist, not a cardiothoracic surgeon, and he agreed that not every aneurysm is
- 27 -an emergency requiring surgery. We do not know the likelihood that decedent’s presentation on a
hypothetical CT scan would lead a surgeon to judge that surgery was the appropriate treatment for
this patient, and we do not know the likelihood that surgery would have been successful. Marx
concedes that it would be up to the surgeon to “figure out what they wanted to do for this patient.”
If the surgeon did choose to act promptly, Marx said that he would defer to the surgeon on the
appropriate treatment.
¶ 97 Under Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 974-75 (1997), bare statements from experts about survival rates increasing if the missing medical
treatment had been provided is, by itself, the kind of insufficient speculative expert testimony that
does not create an issue of fact for the jury. Without factual bases supporting the expert opinion,
“the opinions offered by the plaintiff’s experts *** must be viewed as conjecture.” Id. at 976.
Marx’s testimony about what he has seen happen with other patients is also “contingent,
speculative or merely possible.” (Internal quotation marks omitted.) Id.; see Ayala v. Murad, 367
Ill. App. 3d 591, 601-02 (2006) (reasoning that an expert’s ability to testify in general terms is
insufficient to establish proximate cause). The testimony functions more as a limited recollection
of his experience rather than an expert opinion based on medical science. It shows that, while he
interacts with cardiothoracic surgeons, he is not a specialist or practitioner in that area. Marx’s
testimony is not similar to that in Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶¶ 22-25, where
a qualified expert provided a statistical analysis comparing the odds of survival during stage 1 of
the cancer versus stage 3 of the cancer and supplemented that with her own professional
experience, knowledge, and training, which established a prima facie case of proximate cause to a
“reasonable degree of medical certainty.”
¶ 98 As to Brown, the emergency room physician, plaintiff’s disclosure offered a few
- 28 -boilerplate generalities on the topics on which he might testify, but it did not specifically mention
experience with cardiothoracic surgery. At his deposition, he testified that, if he had diagnosed
someone with an aortic dissection at the emergency room, he would have immediately called a
cardiothoracic surgeon. Over the course of his 20-plus-year career, he has had a cardiothoracic
surgeon come in and perform the surgery a handful of times, and he believes the patient lived in
those instances. However, this testimony is largely based on his sporadic experience working
upstream from cardiothoracic surgeons and is not based on his own medical expertise. Indeed, he
also testified that, due to his specialty, he could not formulate an opinion about whether decedent
passed away because of an aortic dissection. For similar reasons applicable to Marx’s testimony,
Brown’s testimony does not create a genuine issue of material fact about proximate cause. He
offers anecdotal evidence of what he has seen but not opinions to a reasonable degree of medical
certainty about what plausibly would occur with this patient.
¶ 99 Defendant Hurst himself was named as an independent expert witness, but he seems
like an unlikely candidate to provide the missing link in plaintiff’s evidence of proximate cause.
During his deposition, he testified that he is a radiologist. When asked, he indicated that a CT scan
with contrast is the gold standard for diagnosis of an aortic aneurysm with accuracy, with a
probable accuracy rate of higher than 95%. However, he did not opine on the likelihood that such
a radiographic result would lead to surgery or whether surgery would have been successful. He
also directly stated that he would not be offering opinions in this case about cardiology or
cardiothoracic surgery. This, too, fails to create a genuine issue of material fact on the issue of
proximate cause, for reasons similar to those described above.
¶ 100 2. Applicability of Dunbar v. Carlson
¶ 101 Plaintiff also argues that summary judgment is inappropriate because, even if a
- 29 -prima facie case has not been established yet, it could be at trial. In making this argument, she
relies on Dunbar v. Carlson, 2025 IL App (4th) 241143-U, which distinguishes between the
procedural posture of a motion for summary judgment, in which not all evidence has been heard,
and a judgment notwithstanding the verdict, in which evidence has closed.
¶ 102 Dunbar is distinguishable. Plaintiff suggested it was the now-barred Adams that
would supply the needed testimony on proximate cause: “Dr. Adams is going to kind of fill in the
gap of, okay, if this dissection is properly diagnosed, what happens? What surgery is performed?
What are the chances of survival?” But, as already established, Adams is entirely precluded from
testifying. The other three experts in plaintiff’s disclosure have affirmatively shown that they are
not surgeons and do not perform surgery on the condition at issue; they would defer to surgeons
on the question of if and when cardiothoracic surgery would have occurred and whether it would
have succeeded in resolving the issue. There is no door open to any new or different testimony at
trial concerning proximate cause.
¶ 103 Compare this situation to Dunbar, where we concluded that there were multiple
possible avenues for establishing proximate cause and at least one of those theories was backed by
specific testimony based on objective guidelines, studies, and experience. See id. ¶¶ 53-55.
Furthermore, proximate cause in Dunbar was based on treatments of the patient that had
subsequently occurred and definitively showed their effectiveness. Contrarily, here, decedent
never received surgery, making the relevant expert testimony from a qualified surgeon essential.
¶ 104 To paraphrase Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406,
414 (2000), “a [surgeon is] the one required to say [surgery] should have occurred absent the
defendant’s negligence.” Here, however, where the only possible testifying experts would not be
able to offer opinions establishing the element of proximate cause, summary judgment is
- 30 -appropriate. Consequently, the circuit court’s ruling is not erroneous.
¶ 105 3. Applicability of the Lost-Chance Doctrine
¶ 106 As a final matter, we address plaintiff’s brief invocation of the “lost-chance”
doctrine, and we do so mainly to demonstrate that it does not affect our analysis here. The evidence
of record suggests that decedent died because of a dissecting aorta; in other words, that medical
condition is a cause of his death. That does not eliminate the possibility that medical negligence,
such as a delay in treatment, was also a contributing proximate cause. Consequently,
“[t]o the extent a plaintiff’s chance of recovery or survival is lessened by the
malpractice, he or she should be able to present evidence to a jury that the
defendant’s malpractice, to a reasonable degree of medical certainty, proximately
caused the increased risk of harm or lost chance of recovery.” Holton v. Memorial
Hospital, 176 Ill. 2d 95, 119 (1997).
However, this concept “does not relax or lower [a plaintiff’s] burden of proving causation.” Id. at
120. The pattern jury instruction given in other types of tort cases is equally appropriate in lostchance cases. See id. at 110-11.
¶ 107 Furthermore, there is no different or more forgiving rule concerning the necessity
for expert testimony when a plaintiff relies on the lost-chance theory. If anything, the issues are
more complicated by the presence of more than one contributing cause of the injury or death.
Consequently, evidence to a reasonable degree of medical certainty that negligent delay in
diagnosis or treatment lessened the effectiveness of treatment is required. Snelson v. Kamm, 204
Ill. 2d 1, 47 (2003). For that reason, there is no greater tolerance for speculative testimony when a
plaintiff employs the lost-chance theory.
“Contrary to plaintiff’s argument in this case, Hemminger did not signal that
- 31 -a medical expert’s testimony under a lost-chance theory of recovery is subject to a
lower threshold for admissibility. The door is not opened for speculation as to
whether a defendant doctor’s negligence deprived the patient of the opportunity to
undergo treatment that could have been effective if given earlier.” Freeman v.
Crays, 2018 IL App (2d) 170169, ¶ 26.
¶ 108 We find that the importance of such testimony in a case such as this one is well
stated in Thompson, where the plaintiff claimed that an earlier diagnosis of cellulitis would have
prevented its progression:
“In our view, expert testimony would be necessary to establish a proximate
causal relationship for this injury. The difference between how much Thompson’s
facial cellulitis would have progressed had she immediately received emergent
hospital care, versus how much it did progress with those additional 18 hours
lacking such care, requires knowledge beyond the ken of the layperson. We know
there was a delay in her treatment, and we know from her testimony, the medical
records, and the grisly photos that her condition worsened over those 18 hours. We
also know that her swelling improved quite soon after she was hospitalized.
We do not know, however, whether earlier treatment would have prevented
that additional swelling or whether this particular infection would have reached its
full potential anyway, even if immediately treated. We do not know whether or to
what extent her hospital stay would have been shortened, either. To answer these
questions would require a firm knowledge of the finer points of facial cellulitis. The
average person knows nothing of that affliction, its treatment, and its course of
progression; expert testimony was necessary to explain it.” (Emphasis omitted.)
- 32 -Thompson, 2023 IL App (1st) 211448, ¶¶ 45-46.
¶ 109 The fact that plaintiff here is pursuing a theory that negligence caused a lost-chance
theory of recovery does not diminish the need for expert testimony on causation; if anything, it
makes such testimony even more essential.
¶ 110 III. CONCLUSION
¶ 111 For the reasons stated, we affirm the circuit court’s judgment.
¶ 112 Affirmed.
- 33 -Ordaz v. Hurst, 2026 IL App (4th) 251372
Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 19-L-55;
the Hon. Stewart J. Umholtz, Judge, presiding.
Attorneys Jeff Green, of Peoria Heights, for appellant.
for
Appellant:
Attorneys Adam P. Chaddock and Ryan M. Keeton, of Quinn, Johnston, of for Peoria, for appellees.
Appellee:
- 34 -