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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

BENJAMIN HERNANDEZ, Independent )

Administrator of The Estate of ALMA )

HERNANDEZ, Deceased, )

)

Plaintiff, )

)

vs. ) No. 09 L 005795

)

ALEXIAN BROTHERS HEALTH SYSTEM, a )

Corporation; ST. ALEXIUS MEDICAL CENTER, )

A corporation; BONAVENTURE MEDICAL )

GROUP, S.C., a corporation; MICHAEL OSTEN, )

M.D.; SUBURBAN LUNG ASSOCIATES, S.C., )

A corporation; ELIZABETH SCHUBB, M.D.; )

THOMAS FIGLER, M.D; FRED J. )

ROTHENBERGER, M.D.; ASSOCIATES IN )

CARDIAC, THORACIC & VASCULAR )

SURGERY, S.C., a corporation; ALADIN )

MARIANO, M.D.; CARDIOVASCULAR )

ASSOCIATES, S.C., a corporation, and )

NEPHTALI KOGAN, M.D., )

)

Defendants. )

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO

AMEND THE 213(F)(3) DISCOVERY SCHEDULE FOR SIMULTANEOUS

DISCLOSURE

NOW COME the Defendants, ALEXIAN BROTHERS HEALTH SYSTEM, ST.

ALEXIUS MEDICAL CENTER, and BONAVANTURE MEDICAL GROUP, S.C., and in

response to Plaintiffs’ Motion to Amend the Rule 213(f)(3) Schedule for Simultaneous

Disclosure of Experts, state as follows:

A. Plaintiffs’ Expert Disclosure Deadline Was Set In This Case In An Order On

Which All Parties Have Subsequently Relied And There Is No Sufficient Reason

To Modify The Consecutive Expert Discovery Pattern Already Initiated Herein.

On June 15, 2011, this Court, in accordance with the historical and accepted pattern of

orderly consecutive discovery in medical malpractice cases and without objection by plaintiffs,

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entered an order that Plaintiffs must answer Rule 213(f)(3) interrogatories, disclosing their

experts and their opinions, on or before September 16, 2011. No simultaneous disclosure of

Defendants’ experts’ opinions was requested or ordered. Accordingly, the parties have relied and

continue to rely on the June 15 order and the consecutive expert disclosure pattern approved

therein, and Plaintiffs have not identified any substantial reason that such a well-established and

heretofore followed expert discovery pattern should be modified in this case. Simply stating that

other judges in the Cook County Law Division are now selectively requiring simultaneous expert

disclosure and filing of Rule 213(f)(3) interrogatory answers is not a sufficient reason to alter the

consecutive discovery pattern adhered to in this Court’s June 15, 2011 order.

The “pilot program” initiated in the Cook County Law Division motion courtrooms this

week should not be applied retroactively to cases in which expert discovery is currently pending.

The time that the new simultaneous discovery pattern is theoretically supposed to save would not

be saved in this situation where there would be consecutive 213(f)(3) disclosures of Plaintiffs’

and Defendants’ experts, followed by a 45 day supplement opportunity for Plaintiffs in advance

of Plaintiffs’ expert depositions, followed by Plaintiff’s experts depositions, followed by a period

of time for Defendants’ experts to review the Plaintiffs’ expert depositions, and then followed by

the Defendants’ expert depositions. Also, as discussed in more detail below, as expert opinions

are probed, challenged, and bolstered during deposition, the opinions will no doubt become more

detailed and / or change, which will still lead to a request for rebuttal disclosures or depositions.

This is especially true in light of the fact that during the Defendants’ experts’ depositions, they

will still be addressing Plaintiffs’ experts’ disclosures and depositions. Thus, the purpose of the

simultaneous discovery pilot program is not served where a consecutive 213(f)(3) discovery

pattern has already been initiated.

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Furthermore, simultaneous expert discovery is not appropriate in the instant alleged birth

injury case where numerous medical defendants are sued and the cause of the minor plaintiff’s

injuries may be proven through one or more experts from different medical specialties. It would

not be fair to say that the Defendants in this case know the specific causation theories that

Plaintiffs will advance at trial or what kinds of medical experts will be needed as to the Plaintiffs

theory of causation. Thus, the instant case is not appropriate for the “pilot program” testing the

effectiveness of simultaneous expert discovery.

B. This Historically Established And Accepted Consecutive Expert Disclosure

Pattern In Medical Malpractice Cases Is Far Superior To The Simultaneous

Disclosure Pattern Belatedly Sought By Plaintiffs In This Case.

1. Plaintiffs’ Request For Simultaneous Expert Disclosure Is Based On

Inaccurate Assumptions That Do Not Hold True In Actual Practice.

With all due respect to other circuit court judges and the simultaneous discovery orders

that may have been entered in other cases, the stated assumption behind such simultaneous

expert disclosures is not accurate in most cases – particularly complex medical malpractice cases

such as this. That faulty assumption, as identified in Plaintiffs’ motion, is that at the very

commencement of a medical malpractice case defense counsel already knows the relevant

standards of care, the medical specialty at issue, and “what kind of experts need to be retained

for case review and depositions.” (Pl. Mot. par. 3, pp.1-2).

In actual practice, the specific care criticisms and plaintiffs’ specific liability theories, and

even all the medical specialties at issue in most complex medical malpractice cases, are not

“established at the commencement of the case” or made well-known to the defendants by the

filing of a complaint and a 2-622 affidavit. To the contrary, in most cases, clarification of the

issues, plaintiff’s theories, the relevant standards of care, and required medical specialties begins

upon the filing of plaintiffs’ answers to Rule 213(f)(3) interrogatories, wherein for the first time

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plaintiffs identify their experts and summarize their experts’ opinions on standard of care and

proximate cause as well as the bases for those opinions as Rule 213(f)(3) requires.

But even then, the exact nature and scope of plaintiffs’ experts’ criticisms is often not

fully known or understood until the experts’ discovery depositions are taken under oath and the

experts’ Rule 213(f)(3) opinions are subject to the scrutiny that only a deposition can provide. It

is not at all unusual for the expert at deposition to change, clarify, withdraw, limit or add to the

criticisms contained in plaintiffs’ complaint and Rule 213(f)(3) answers to interrogatories. This

is particularly true in cases against a hospital where normally it is not until the plaintiffs’ experts’

depositions are taken that the defense will be made fully aware of all the various medical hospital

specialties that may be involved in the experts’ criticisms of plaintiff’s care (e.g., emergency

room personnel, nurses, anesthesiologists, radiologists, etc.) for which appropriate defense

experts in those specialties will then have to be retained. Indeed, the 2-622 affidavits attached to

plaintiffs’ First Amended Complaint in this case prove the point as each states that the opinions

therein “are subject to modification pending review of further materials.” Accordingly, in a

complex medical malpractice case, it is not unusual for the plaintiffs themselves to file a number

of amended complaints as the depositions of their experts expand, limit or sharpen the issues.

The simultaneous disclosure advocated by Plaintiffs simply ignores all of the above

truisms of actual practice. Moreover, forcing medical defendants to simultaneously disclose their

experts and their experts’ opinions without full knowledge of plaintiffs’ theories of the case and

without seeing and hearing the opinions of plaintiffs’ experts that they must address can only

lead to the need for more “rebuttal” disclosures and additional depositions and delay that the

simultaneous discovery procedure purports to reduce.

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2. The Proposed Simultaneous Expert Discovery Pattern Is Not Only

Prejudicial To Defendants, It Is Inconsistent With Plaintiffs’ Burden Of

Proof.

The historically followed consecutive discovery pattern is also consistent with the way

civil litigation is structured: plaintiff initiates a civil action for medical malpractice by filing suit

and then at trial must present his or her case first because it is the plaintiff that has the burden to

prove both a violation of the accepted standard of care by the defendants and that such an alleged

violation was a proximate cause of plaintiff’s injuries. The consecutive discovery pattern –

whereby plaintiffs go first in identifying their experts, providing their experts’ opinions and

submitting their experts for depositions − is consistent with that structure and with plaintiff’s

burden of proof.

The simultaneous disclosure advocated by the instant Plaintiffs is not only inconsistent with

plaintiffs’ burden of proof it overlooks the fact that in a significant number of case, plaintiffs’

Rule 213(f)(3) answers to interrogatories and the deposition of plaintiffs’ experts will reveal that

plaintiffs cannot establish either that a violation of the accepted standard of care occurred and/or

that such a violation was a proximate cause of plaintiffs’ injury. Such cases can are then resolved

on summary judgment. Thus, a simultaneous disclosure rule would not promote judicial

efficiency or fairness in such cases as it would prevent the defendants from moving for summary

judgment until they had already spent the significant time and expense involved in hiring experts

and preparing the necessary initial defense expert disclosures.

CONCLUSION

For the reasons stated above, the simultaneous expert disclosures advocated by Plaintiffs

is an unnecessary sea change in the orderly consecutive discovery pattern heretofore followed in

this Court. Such a simultaneous procedure is premised on an assessment of defendants’

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knowledge about plaintiff’s case that does not correlate with actual practice and would

disadvantage defendants, would be inconsistent with plaintiffs’ burden of proof, and would likely

cause additional delay and unnecessary expense to all parties. Accordingly, for each of these

reasons, Defendants, Alexian Brothers Health System, St. Alexius Medical Center, and

Bonaventure Medical Group, respectfully request that Plaintiffs’ Motion to Amend the 213(f)(3)

Discovery Schedule for Simultaneous Disclosure be denied.

Respectfully submitted,

Attorney for the Defendants, Alexian Brothers

Health System, St. Alexius Medical Center, and

Bonaventure Medical Group, S.C.

David C. Hall

Thomas M. Comstock

HALL, PRANGLE & SCHOONVELD, LLC

200 S. Wacker Drive, Suite 3300

Chicago, Illinois 60606

Firm I.D. 39268

4811-2920-2187, v. 1