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Back surgery leads to equitable estoppel question

Chicago Daily Law Bulletin April 21, 2013

By Colin H. Dunn

Premise Liability Lawyer, Colin H. Dunn – Aviation Accident Attorney

Dunn is an partner at Clifford Law Offices who concentrates in personal injury and aviation law and handles complex and mass tort litigation.

The respondent in discovery statute allows a plaintiff to gatherinformation about potential tortfeasors without forcing her to sue "in sight." Bogseth v. Emanuel, 261 Ill. App. 3d 685, 690 (1994). The benefit to a would-be defendant is the potential for not becoming the real thing. But some would-be defendants who should be defendants have attempted to use the statute as a way to avoid being sued altogether.

Take a recent case from the 1st District Appellate Court. Levine v. EBI, LLC, 2013 IL App (1st) 121049 (March 6, 2013). In Levine, the plaintiff had back surgery in 2007 to remove screws that had been installed in 1996. During the surgery, her surgeon realized that he did not have a screwdriver-like instrument that he needed to complete it.

In preparation for the surgery, the doctor had contacted EBI, the product manufacturer, and asked that it send a representative with the necessary equipment to the operation. But, according to the doctor's note, "[t]he company" didn't do that. Evidently, "[t]he company representative admitted that many of the drivers were simply not in the set and he was hoping that this would work. Several different options were tried and finally it was decided to abandon the procedure."

The plaintiff named EBI and others as respondents in discovery and asked them questions about who "the company" was that the doctor had referred to in his note as well as the identity of the parties responsible for providing the instruments needed for the operation. EBI responded that it did not know who "the company" was or who bore responsibility for providing the instruments.

During the doctor's deposition, he testified that a representative of the company that should have brought the drivers attended the surgery. When time came to remove the 1996 device from the plaintiff's back, the doctor asked the representative, "[W]here's the driver for the screw?" According to the doctor, the representative answered, "[O]h, well, it wasn't in the box, but we figured you could make do without it."

The doctor said much later, after discussions with the plaintiff's lawyer, he realized that EBI was responsible for bringing the needed instruments to the operation and the representative who attended the operation worked for EBI. This discussion about the identity of the company at fault occurred sometime in 2009, before the plaintiff had named the doctor as a defendant.

A few days after the doctor's deposition, the plaintiff filed an amended complaint that named EBI as a defendant. EBI filed a Section 2-619 motion to dismiss, claiming the amended complaint was untimely. In response, the plaintiff relied on Section 13-215 of the code (735 ILCS 5/13-215 (West 2010)), which allows a plaintiff more time to file a claim if a defendant fraudulently conceals the cause of action. The trial court dismissed the claim against EBI as untimely.

On appeal, the plaintiff argued that EBI's fraudulent concealment made the claim timely and that the court should have found EBI equitably estopped from raising the statute of limitations as a defense.

The appellate court rejected the plaintiff's fraudulent concealment argument. Section 13-215 of the code provides "If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards." 735 ILCS 5/13-215 (West 2010). But the court noted that Section 13-215 only applies to fraudulent concealment of causes of action, not the identity of tortfeasors. Levine, 2013 IL App (1st) 121049 Paragraph 21, citing Pratt v. Sears Roebuck & Co., 71 Ill. App. 3d 825, 830 (1979).

When the tortfeasor fraudulently conceals the identity of the tortfeasors but not the fact that the plaintiff suffered an injury, Section 13-215 does not allow the plaintiff an extension of the limitations period for filing his claim. Pratt, 71 Ill. App. 3d at 830. Because the plaintiff knew on March 5, 2007, that a tortfeasor had injured her by failing to bring necessary instruments to the operation, Section 13-215 did not extend the limitations period beyond March 2009.

But the court found that equitable estoppel could apply. (Note that the appellate court chose to address this issue even though the plaintiff had not raised it in the circuit court because it found that the court should not, by finding waiver, "aid a perpetration of a fraud," and "equity will not aid any person who … is seeking to take advantage of his own wrong.").

Relying on the Supreme Court's decision in Vaughn v. Speaker, 126 Ill. 2d 150 (1988) and construing the record in the light most favorable to the plaintiff, the court found that there was sufficient evidence to invoke the doctrine. According to the doctor, a representative of EBI attended the operation on March 5, 2007. When the doctor asked him for the instrument, the EBI representative said that his employer had not included the driver with the set of equipment it sent.

From this evidence, a trier of fact could infer that EBI's agent and, therefore, EBI, knew that it failed to provide the requisite drivers for the March 5, 2007, operation and that the doctor meant to refer to EBI when he wrote in his report of the failings of "[t]he company." So there was evidence that could support a finding that EBI falsely stated in its responses to discovery that it did not know who bore responsibility for supplying the drivers missing at the surgery on March 5, 2007, and that that EBI lied when it said that it did not know "[t]he company" to which the doctor referred in his report of the surgery. EBI should have expected that its responses to discovery would lead the plaintiff to refrain from suing EBI until she discovered that EBI lied in its discovery responses.

EBI argued that the plaintiff should not be allowed to invoke equitable estoppels because she knew at the time she received EBI's answers that EBI lied since her attorney helped the doctor realize that EBI supplied the deficient instrument package. But the doctor did not say that the attorney knew EBI bore responsibility for the injury, only that the conversations with that attorney led the doctor to ascribe responsibility to EBI.

Moreover, the plaintiff adduced evidence that could support a finding that EBI actually intentionally deceived her, so EBI "is in no position to contend that the party acting upon his deception was negligent in doing so," because "one guilty of fraudulent misrepresentation cannot assert that the person defrauded was negligent in failing to discover the truth." Levine, 2013 IL App (1st) 121049 Paragraph 28, quoting Vaughn, 126 Ill. 2d at 163.

While there were adequate grounds for equitably estopping EBI from asserting the statute of limitations as a defense to the plaintiff's claim, because she had not raised the issue in the circuit court, the 1st District remanded the case to permit EBI to rebut that evidence.

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