THE ESTATE OF GIANNA PRATHER, a Minor, By and Through her Grandmother, Josefa Pena, and her Plenary Guardian, The Northern Trust Company v. SHERMAN HOSPITAL SYSTEMS, SHERMAN HOSPITAL, INC., and CAROL KORZEN, M.D.
No. 2-14-0723
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Opinion filed June 26, 2015
2015 IL App (2d) 140723
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.
Appeal from the Circuit Court of Kane County. No. 08-L-220. Honorable F. Keith Brown, Judge, Presiding.
11 Plaintiff, the estate of Gianna Prather, appeals from the trial court‘s orders that dismissed the case after approving a settlement agreement with defendants, Sherman Hospital Systems, Sherman Hospital, Inc. (collectively, Sherman Hospital), and Dr. Carol Korzen. Dr. Korzen delivered Gianna Prather at Sherman Hospital in Elgin. Soon after her birth, Gianna was diagnosed with permanent neurological injuries, and she now suffers from profound physical and developmental disabilities. Gianna resides at Misericordia Home, where the State pays for her care.
13 On appeal, plaintiff argues that (1) the circuit court of Cook County erred in transferring the case to Kane County, (2) the guardian ad litem was appointed in error, (3) the settlement is not in Gianna‘s best interest, (4) the settlement process was “tainted by unwarranted confidentiality,” and (5) Sherman Hospital violated rules of discovery and regulations promulgated under the Health Insurance Portability and Accountability Act (HIPAA) (
14 Defendants respond that the transfer of the case was appropriate under the doctrine of forum non conveniens and that the settlement was in Gianna‘s best interest. Defendants also argue that plaintiffs appellate brief is deficient, and Sherman Hospital asks that it be stricken for failing to comply with
15 I. BACKGROUND
16 On September 5, 2005, Jaclyn arrived at Sherman Hospital for elective induction of labor because she was more than 41 weeks’ pregnant. Jaclyn was a patient of Dr. Korzen, who practiced obstetrics and gynecology in Elgin.
17 After admission, an external monitor was applied and the fetus was continuously monitored throughout labor. At 2:15 a.m. on September 6, 2005, Jaclyn received an epidural. At 4:45 a.m., a nurse contacted Dr. Korzen to update her on Jaclyn‘s progress. Dr. Korzen was present at 7:20 a.m., and Jaclyn was coached to begin pushing. At 8:21 a.m., Gianna was delivered vaginally, weighing six pounds, four ounces.
18 Gianna‘s Apgar scores were very low. At one minute after birth, Gianna‘s score was zero. At five minutes, her score was one. At 10 minutes, her score was three. The umbilical cord was described as “thin and shoe-string-like,” and was coiled seven times. The cord also was described as having no Wharton‘s jelly around it, a substance usually present to cushion the cord. Gianna was diagnosed with hypoxic-ischemic encephalopathy (HIE) and metabolic acidosis. Gianna has cerebral palsy and a life expectancy of only 21 years.
10 Defendants’ theory is that Gianna‘s cerebral palsy was neither predictable nor preventable. Defendants argue that the fetal heart tracings did not indicate intrapartum hypoxemia or acidosis; rather, the tracings were reassuring and the actions taken by the obstetrical team were within a reasonable standard of care. Defendants assert that the thinness of the umbilical cord, the way it was coiled, and the absence of Wharton‘s jelly indicate an antenatal event, a genetic abnormality, or both, which contributed to the neurological outcome and could not have been avoided by an earlier delivery. Defendants deny any liability.
11 A. Cook County
12 On December 20, 2006, Jaclyn filed her original complaint against defendants in the circuit court of Cook County. On February 26, 2007, Dr. Korzen moved to transfer the action to Kane County, and Sherman Hospital joined the motion to transfer. The parties disputed whether the public- and private-interest factors favored a transfer.
13 Defendants argued that Jaclyn and Gianna were residents of Elgin and that Sherman Hospital was also in Elgin. Dr. Korzen was a resident of Hoffman Estates in Cook County but
14 Jaclyn responded that “the vast majority of [Gianna‘s] relevant medical treatment and the location of the majority of the potential medical witnesses” were in Cook County. Jaclyn also pointed out that Sherman Hospital did business in Cook County through a subsidiary. Jaclyn argued that the relative legal congestion of Cook County was irrelevant and that travel to Cook County should not be a factor, because Cook County is adjacent to Kane County and the witnesses could travel by commuter rail, such that any inconvenience would be minimal.
15 On November 6, 2007, the circuit court of Cook County granted the motion to transfer, but the record contains neither a transcript of the proceedings nor a written order explaining the court‘s reasoning.
16 B. Kane County
17 On May 1, 2007, Andre Prather, Jaclyn‘s husband and Gianna‘s father, died at the age of 23 from a bronchial asthma condition. Jaclyn and Gianna lived with Jaclyn‘s mother, Josefa. In April 2008, the Department of Children and Family Services (DCFS) removed Gianna from the home, and the caseworker‘s investigation revealed “credible evidence of child abuse and/or neglect,” based on Jaclyn‘s difficulty in coping with the death of her husband and with Gianna‘s condition. DCFS eventually placed Gianna at Misericordia Home, where she resides today. The State pays for Gianna‘s care and treatment.
19 In March 2014, the parties began settlement negotiations and submitted to the trial court pretrial memoranda that set forth their theories of the case. Sherman Hospital and Dr. Korzen tendered separate redacted memoranda to counsel for plaintiff, denying any liability. Plaintiff‘s memorandum claimed damages exceeding $22.5 million. On March 25, 2014, the trial court appointed Daniel Konicek as guardian ad litem to evaluate potential settlement offers. Plaintiff‘s counsel stated expressly that he did not object to the appointment.
20 Konicek reviewed the redacted pretrial memoranda from defendants, the memorandum submitted by plaintiff, and the depositions of Dr. Korzen, Nurse Erickson, and the parties’ experts. He also reviewed the fetal monitoring strips, researched the issues of causation and damages, evaluated Dr. Korzen‘s conduct during labor and delivery, met with plaintiffs counsel several times, and reviewed the report of plaintiffs damages expert.
21 At a pretrial conference on April 24, 2014, Konicek again interviewed the parties and assisted the trial judge. There is no transcript of the conference, but the record indicates that defendants made a final offer to settle for $3 million: $1 million, representing the full amount of Dr. Korzen‘s insurance policy, and $2 million from Sherman Hospital.
23 Konicek recommended that plaintiff accept defendants’ $3 million offer to settle. Konicek explained that plaintiff‘s likelihood of success at trial was an important factor. He pointed out that Dr. Korzen had stated in her deposition that, although she did not read the fetal monitoring strips until after the incident, she would have delivered Gianna the same way had she read them contemporaneously. Konicek concluded that Sherman Hospital could be found not liable, because, if Dr. Korzen believed that an emergency caesarian procedure was not necessary, anything the nurses did or did not do would not have proximately caused the injuries. Konicek opined that “it‘s more likely than not that the hospital would probably, in my mind, win more often than not at a trial.” Konicek also agreed with the proposal to distribute the funds into a special-needs trust, so the State would continue to pay for Gianna‘s care.
24 On June 5, 2014, Konicek filed a written report summarizing his reasons for recommending the terms of the settlement. Konicek explained that a $1 million settlement would guarantee Gianna $60,360 per year for 19 years and that her life expectancy is 21 years. Konicek concluded that Gianna‘s economic loss, including medical expenses, was $2.705
25 Plaintiff objected to the settlement, claiming that it put the State‘s interests ahead of Gianna‘s. Counsel argued that nothing would be left to rebuild the family‘s garage into a facility for Gianna when she visits on weekends and holidays. Acknowledging this concern, the trial court set aside $150,000 outside the special-needs trust, for construction purposes and other needs that become apparent when Gianna visits home. In approving the settlement at the hearing on June 5, 2014, the court commented as follows:
“I‘ve tried a lot of cases. I‘ve probably tried 20 medical malpractice cases in my lifetime as a judge; and I think only two of them in Kane County, possibly three have come to positive verdict for the plaintiff. I‘ve also probably tried maybe six or seven of those were baby cases; and out of all the baby cases I‘ve had, none of them have come to
verdict on behalf of the plaintiff. Now, I‘ve settled cases in which have—which had had different results, and I‘ve been involved in those settlements. I‘ve reviewed this file; and even though I‘m not the jury, I do believe that this would be a very difficult case for the plaintiffs to have a verdict in their favor. In fact, I‘m not helping them in purposes of settlement. I think it‘s more likely that a verdict could come back as zero.
With that, in this situation, and receiving the report from the guardian ad litem, I do believe it‘s in the best interest of the child at this time to accept the settlement, especially in light of the fact that the settlement offers were going to be withdrawn today.”
26 On June 23, 2014, plaintiff filed a motion objecting to the appointment of the guardian ad litem and to the approval of the settlement. To the motion, plaintiff attached a letter from plaintiff‘s counsel to Konicek stating, “you may be breaching your duty to Gianna by recommending that the settlement be accepted. I know of no effort on your part to seek additional funds from Sherman [Hospital], but you have consistently urged me to accept your [sic] offer.” Plaintiff also argued that it should have received nonredacted versions of defendants’ pretrial memoranda and that the court should have considered the statements from plaintiff‘s recently identified rebuttal witness. Plaintiff argued that the settlement could not be “in the best interest of Gianna when all she gets is $150,000 to refurbish the family‘s garage.”
27 The court denied the motion, commenting that pretrial memoranda are typically kept confidential and that Konicek was given redacted copies of the pretrial documents, which meant that his recommendations were based on the same information that plaintiff had. The court also noted that plaintiff‘s counsel had agreed to ex parte communications as part of the pretrial
28 The trial court reiterated that the settlement was in the best interest of Gianna and dismissed the action on June 25, 2014. The court ruled that the transcripts of the proceedings from March 2014 to June 25, 2014, were incorporated into the order by reference. This timely appeal followed.
29 II. ANALYSIS
30 A. Motion to Strike Plaintiff‘s Brief
31 Initially, we address Sherman Hospital‘s argument that plaintiff‘s brief fails to comply with
32 The Illinois Supreme Court Rules are not suggestions; they have the force of law and must be complied with. People v. Campbell, 224 Ill. 2d 80, 87 (2006). Where a brief has failed to comply with the rules, we may strike portions of the brief or dismiss the appeal should the circumstances warrant. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 9. Ordinarily, plaintiffs violations would hinder our review to the point that dismissal of the appeal would be appropriate. However, in this case involving the best interest of a minor, we neither strike plaintiff‘s brief nor dismiss the appeal (McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 3), but we will disregard the noncompliant portions of plaintiff‘s brief. We also strongly admonish counsel to follow carefully the requirements of the supreme court rules in future submissions.
33 B. Josefa‘s Standing
34 Dr. Korzen argues that Josefa lacks standing to bring the appeal, because “she has no statutory or court-appointed authority to represent Gianna Prather in this lawsuit.” Jaclyn, as Gianna‘s mother and natural guardian, filed the original complaint on December 20, 2006. Plaintiff‘s counsel represents that, after the birth of Gianna and the death of her husband, Jaclyn began suffering from depression, which led a juvenile court to appoint DCFS as the guardian administrator and legal guardian of Gianna on July 9, 2008. On May 12, 2009, DCFS petitioned the juvenile court to appoint Northern Trust as the plenary guardian of Gianna‘s estate. On August 5, 2009, the juvenile court granted the appointment.
36 Regardless of plaintiffs failure to present an adequate record of Josefa‘s appointment as guardian of Gianna‘s person, Dr. Korzen cites nothing in the record to indicate that the trial court ever ruled on her challenge to Josefa‘s standing. Dr. Korzen presents a thorough argument on the merits but fails to present a ruling for us to review on appeal. Because the record does not establish that Dr. Korzen sought a ruling on her motion and that the trial court ruled on the matter, Dr. Korzen abandoned the standing challenge. Long ago, our supreme court held that, where there is no ruling made on an objection, an appellate court has nothing to review. Mitchell v. Chicago, Burlington & Quincy Ry. Co., 265 Ill. 300, 302 (1914). We reject Dr. Korzen‘s standing argument accordingly.
37 C. Venue
38 Next, we address plaintiff‘s contention that the circuit court of Cook County erred in transferring the case to Kane County. Defendants respond that transfer of the case was appropriate under the doctrine of forum non conveniens.
40 The doctrine of forum non conveniens “allows a court to decline jurisdiction of a case, even though it may have proper jurisdiction over the subject matter and the parties, if it appears that another forum can better serve the convenience of the parties and the ends of justice.” Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶ 12. The doctrine is founded in considerations of fundamental fairness and sensible and effective judicial administration. Fennell, 2012 IL 113812, ¶ 14.
41 Illinois courts weigh various interests, grouped into private-interest factors affecting the litigants and public-interest factors affecting court administration. Fennell, 2012 IL 113812, ¶¶ 14-15. The private-interest factors include the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive. Fennell, 2012 IL 113812, ¶ 15. The public-interest factors include the administrative difficulties caused when litigation is
42 In considering these factors, the trial court must balance the public- and private-interest factors. The court does not weigh the private-interest factors against the public-interest factors, but rather evaluates the total circumstances of the case in determining whether the balance of factors strongly favors dismissal. If any one factor were emphasized, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable. Fennell, 2012 IL 113812, ¶ 17.
43 The defendant bears the burden of showing that the plaintiff‘s chosen forum is inconvenient to the defendant and that another forum is more convenient to all parties. The defendant cannot assert that the plaintiff‘s chosen forum is inconvenient to the plaintiff. Each motion to transfer is unique and must be decided on its own facts; and on review, the determination will be reversed only if the trial court abused its discretion in balancing the relevant factors. An abuse of discretion will be found where no reasonable person would take the view adopted by the trial court. Fennell, 2012 IL 113812, ¶¶ 20-21.
44 Dr. Korzen argues that we should not review the transfer order, because we lack jurisdiction or plaintiff has failed to provide a sufficient record on the issue. We disagree with both propositions.
45 Dr. Korzen argues that we lack jurisdiction because plaintiff filed its notice of appeal more than 30 days after the November 6, 2007, transfer order.
46 Here, the transfer order was not a final order, because it was not a determination that ascertained and fixed absolutely and finally the rights of the parties. Recognizing the interlocutory nature of the order, Jaclyn sought permissive review in the Appellate Court, First District, which denied leave to appeal. Plaintiff seeks review of the order in this appeal from the final order dismissing the action after settlement.
47 An appeal from a final judgment draws into issue all previous interlocutory orders that produced the final judgment; and consequently, a court of review has jurisdiction to review an interlocutory order that constitutes a procedural step in the progression leading to the entry of the final judgment from which an appeal has been taken. Knapp v. Bulun, 392 Ill. App. 3d 1018, 1023 (2009). Plaintiff‘s cause of action was never dismissed, but rather transferred to Kane County.
48 Although we have jurisdiction to review the transfer, the record contains neither a written order nor a transcript prepared by the circuit court of Cook County, which hinders our review. Under Foutch v. O‘Bryant, 99 Ill. 2d 389 (1984), plaintiff, as appellant, had the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error; and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court conformed with the law and had a sufficient factual basis. See Foutch, 99 Ill. 2d at 391-92.
49 Plaintiffs appendix includes a copy of the transcript from the November 7, 2007, hearing where the trial court granted defendants’ motion to transfer, but we disregard the filing because plaintiff has failed to move to supplement the record. See
50 That said, the record contains undisputed evidence indicating that the circuit court of Cook County did not abuse its discretion in transferring the action to Kane County. When Jaclyn
51 Furthermore, the undisputed evidence related to the private factors favored the transfer under the doctrine of forum non conveniens. Sherman Hospital was located in Kane County. The only fact witness identified by Jaclyn was also a resident of Kane County. Jaclyn identified 23 other potential witnesses who cared for Gianna, but she did not provide home addresses or affidavits of convenience for any of those treaters. Furthermore, those potential witnesses treated Gianna long after her delivery, which was the focal point of the case and had occurred at
52 Although Dr. Korzen resided in Cook County, her residence was closer to the courthouse in Kane County than to the courthouse in Cook County. Defendants identified seven witnesses who participated in Gianna‘s care: four were residents of Kane County, three were residents of McHenry County, and all worked in Kane County. Five of defendants’ witnesses provided affidavits stating that Kane County was a more convenient forum. Proceeding in Kane County allowed more convenient access to the evidence and made the attendance of witnesses easier.
53 The public-interest factors weighed even more strongly in favor of the transfer. According to the relevant statistics available at the time of the transfer motion, the circuit court of Kane County disposed of 2,939 cases in 2005, while the circuit court of Cook County disposed of 218,868. Besides the relative congestion in Cook County, the transfer order was supported by the interest of Kane County citizens in evaluating medical negligence claims against Kane County treaters at a Kane County hospital.
54 Plaintiff argues for reversal of the transfer order on the ground that Kane County courts are “hostile” to personal-injury plaintiffs. Regardless of the accuracy of plaintiffs assertion, the forum non conveniens doctrine aims to prevent just the kind of forum shopping that plaintiff advocates. Courts have never favored forum shopping. Decent judicial administration cannot tolerate forum shopping as a persuasive or even legitimate reason for burdening communities with litigation that arose elsewhere and should, in all justice, be tried there. Indeed, a concern animating our forum non conveniens jurisprudence is curtailing forum shopping by plaintiffs. Fennell, 2012 IL 113812, ¶ 19. Therefore, we determine that the circuit court of Cook County did not abuse its discretion in granting defendants’ motion to transfer the action to Kane County.
56 The central issue in this appeal is whether the settlement was in Gianna‘s best interest. Plaintiff argues that approving the settlement over its objection was an abuse of discretion in that (1) the guardian ad litem‘s appointment was improper because Josefa had not been removed as the guardian of Gianna‘s person and (2) the settlement terms were unreasonable. Defendants respond that the appointment was not an abuse of discretion and that plaintiff expressly waived any objection to the appointment. Dr. Korzen alternatively argues that this court lacks jurisdiction to review the appointment. Defendants also argue that, because they denied any liability and had a good chance of prevailing at trial, the settlement was in Gianna‘s best interest.
57 1. Guardian Ad Litem
58 Plaintiff argues that the guardian ad litem should not have been appointed and allowed to recommend the settlement, because Josefa had not been removed as guardian of Gianna‘s person. We reject Dr. Korzen‘s assertion that we lack jurisdiction to review the appointment. Dr. Korzen contends that under
59 Regardless of Dr. Korzen‘s meritless jurisdictional argument, we conclude that the appointment was not an abuse of discretion. First, plaintiff expressly waived any objection to the appointment before Konicek presented his recommendation in favor of the settlement. Plaintiff filed an objection to the appointment on June 23, 2014, which was after Konicek recommended the settlement on June 5, 2014. Plaintiff challenged the appointment only after he recommended a settlement that plaintiff had rejected, which indicates that plaintiff objected not to the appointment, but to the recommendation.
60 Second, the appointment and Konicek‘s authority to recommend the settlement are supported by Ott v. Little Company of Mary Hospital, 273 Ill. App. 3d 563 (1995). Like this case, Ott was a minor‘s medical malpractice action where the family objected to a settlement agreement. In Ott, where the parents were the co-guardians of the minor‘s estate, the trial court ruled, ” ‘This case is settled for two million dollars according to a revised structured settlement, which I find satisfactory, and a guardian ad litem will be appointed in place of the father to accept the settlement.’ ” (Emphasis added.) Ott, 273 Ill. App. 3d at 568. The parents maintained their position and refused to accept the defendants’ $2 million settlement offer. The trial court subsequently accepted and approved the report of the guardian ad litem; found that the recommendations were in the best interest of the minor; increased the settlement amount to
61 Josefa argues that Ott requires removal of the minor‘s guardian before a guardian ad litem may be appointed to approve a settlement. Josefa concludes that she retained authority to reject the settlement because she never was removed as guardian of Gianna‘s person. Even assuming the dubious proposition that, as guardian of Gianna‘s person and not the estate, Josefa had standing to reject defendants’ offer, Ott does not require a plenary guardian to be removed before a settlement may be approved. Although it is true that the father in Ott was replaced by the guardian ad litem, the substitution was for the limited purpose of facilitating acceptance of the settlement on the minor‘s behalf. In fact, the unpublished portion of the opinion reveals that the trial court clarified that the father‘s guardianship was never revoked. Ott authorized the trial court in this case to appoint Konicek as guardian ad litem to make a recommendation regarding the settlement offer, and the trial court was not required to terminate Josefa‘s guardianship in order to approve the settlement.
63 2. Terms
64 Dr. Korzen argues that plaintiff has forfeited review of the dismissal order because it has failed to argue that the trial court abused its discretion in dismissing the case pursuant to the settlement. However, plaintiff‘s notice of appeal specifically cites the dismissal order, and plaintiff has consistently argued that the settlement is inadequate, against Gianna‘s best interest, and an abuse of discretion. Plaintiff has preserved the issue of the adequacy of the settlement, and we reject Dr. Korzen‘s specious forfeiture argument, accordingly.
65 In the trial court and on appeal, plaintiff has alluded to a planned distribution of the settlement that they call unfair. We glean from counsel‘s comments in the record that first he would take his fees and costs and the family would take $150,000 for improvements to their home. Second, defendants’ remaining payment or payments would be placed in a special-needs trust. Third, the State would continue to pay for Gianna‘s care at Misericordia Home but would place a lien on the trust. Finally, upon Gianna‘s passing, the State‘s lien would be paid and Gianna‘s family would receive the remainder as an inheritance. Plaintiff has repeatedly argued that the settlement is in the best interest of the State and defendants, and not Gianna. However, its argument is undeveloped and potentially motivated by financial interests unrelated to Gianna‘s care. The parties have failed to cite anything in the record resembling a court-approved method of distributing the settlement, which, for obvious reasons, hinders our review.
“Okay. This is what we‘re going to do. This case is scheduled for trial on Monday. I am going to strike it off the trial calendar, but *** I‘m not accepting the recommendation as an order, that‘s what we‘re going to do.
I‘m going to give you an opportunity to take a look at the liens. I think there needs to be—I thought I asked for yesterday some financial information from Casey as far as different scenarios, that should be shared with the [guardian ad litem], I don‘t really need to look at that.
I think also, [plaintiff‘s counsel], your costs and potential fees needs [sic] to be discussed as to—because before the Court would accept the full recommendation of the [guardian ad litem], I need to look at what the bottom line dollars are.
***
What I‘d like to do is have in the next 10 days to two weeks another pretrial conference so that we can get a handle on the liens and then have a document that would show what the bottom line distributions would be, which would also—at some point [plaintiff‘s counsel] you‘re going to have to make a representation to the Court as to what your fees would be under that scenario.”
67 The parties have not cited to the record for any evidence of the State‘s lien or the ultimate distribution of the settlement. Considering that the confidentiality of the settlement terms was a hotly contested issue throughout the proceedings, it is entirely possible that a formal distribution document was prepared by the parties and approved by the court, but omitted from the record. Aside from the undisputed $3 million settlement amount, we can only speculate as to what the
68 What we do know is that Gianna is severely handicapped and residing at Misericordia Home. Plaintiff has never alleged that this placement is not in Gianna‘s best interest or that she would be better served elsewhere. At the time of settlement, the State was paying the entire cost of her care, with an expectation of reimbursement from the settlement proceeds, but plaintiff has never alleged that the $3 million would not cover the cost of Gianna‘s care. Plaintiff claims that the State‘s lien is causing Gianna to recover nothing, but, while the assertion carries some superficial appeal, the award is for Gianna, not her family or heirs. Any award in excess of her needs would be a windfall for her family members, who have filed no claims against defendants. Plaintiff does not allege that Gianna‘s needs are not being met. Moreover, the trial court set aside $150,000 for improving the family home to facilitate Gianna‘s visits.
69 The trial court appointed Konicek as guardian ad litem, and he recommended accepting the $3 million settlement offer. Plaintiffs counsel repeatedly remarked in the trial court that
70 Konicek explained that plaintiffs likelihood of success at trial was an important factor affecting his recommendation. He pointed out that Dr. Korzen had stated in her deposition that, although she did not read the fetal monitoring strips until after the incident, she would have delivered Gianna the same way had she reviewed them contemporaneously. Konicek concluded that Sherman Hospital could potentially be found not liable because, if Dr. Korzen believed that an emergency caesarian procedure was not necessary, anything the nurses did or did not do would not have proximately caused the injuries. Konicek opined that, under these facts, defendants would prevail at trial “more often than not,” and plaintiff would receive nothing. Konicek concluded that a $3 million settlement was fair because Gianna‘s likelihood of success at trial was low. Konicek also agreed that the funds should be placed in the special-needs trust.
71 The trial court was in the best position to weigh Gianna‘s needs against the likely outcome at trial. Plaintiff asserts that the $3 million settlement is inadequate because plaintiff alleges more than $22.5 million in damages, but the court accepted Konicek‘s recommendation and approved the settlement after accounting for the substantial risk that plaintiff would recover nothing at trial.
72 Plaintiff relies heavily on CSC v. United States, No. 10-910-DRH, an unpublished federal district court case from the Southern District of Illinois. Plaintiff argues that CSC, also a medical
73 E. Confidentiality of Pretrial Memoranda
74 Plaintiff also argues that the settlement process was “tainted by unwarranted confidentiality” in that defendants submitted certain information about the case to the trial court but withheld it from plaintiff. Defendants deny any impropriety in the negotiations, and Dr. Korzen also contends that plaintiff has not preserved its argument regarding confidentiality.
75 As part of the settlement negotiations, the trial court solicited memoranda from the parties summarizing their trial strategies and opposing theories of the case. Defendants submitted memoranda that were neither placed in the court file nor tendered to plaintiffs counsel. Alarmed that defendants did not make their trial tactics public record, plaintiffs counsel demanded full disclosure. Defendants then presented redacted versions of their memoranda, which were spread of record.
76 Plaintiff‘s argument that the negotiations were “tainted” fails for two reasons. First, plaintiff agreed to the ex parte settlement discussions and actually participated in ex parte
77 Second, plaintiff argues that the unredacted versions of defendants’ memoranda carried undue weight. However, the guardian ad litem made his independent recommendation of settlement based on his review of the redacted versions of the memoranda. Plaintiff‘s assertions that it was prejudiced by defendants’ communications with the trial court are not supported by the record.
78 F. Discovery
79 Plaintiff also argues that Sherman Hospital violated certain discovery rules and federal HIPPA regulations. Specifically, plaintiff contends that Sherman Hospital improperly obtained placental slides and turned them over to defendants’ medical expert for review. Plaintiff ultimately obtained the slides and submitted them to its own expert. Defendants deny the violations.
80 On April 16, 2014, plaintiff moved to suppress defendants’ expert opinion regarding the slides or, alternatively, for time to prepare and present its own expert opinion. At the April 25, 2014, hearing, plaintiffs counsel asked to delay the guardian ad litem‘s report while plaintiffs expert prepared a report on the slides. Plaintiff did not ask for a ruling on the motion to suppress
81 Without a ruling on the suppression motion, this court has nothing to review regarding defendants’ alleged discovery violations. We note that Dr. Korzen argues that this court lacks jurisdiction to review defendants’ alleged discovery violations, but the deficiency is not jurisdictional but rather a matter of procedural default from plaintiff‘s failure to obtain a ruling on its motion.
82 Plaintiff also argues that the court erred in declining an extension for time to prepare and present to the guardian ad litem an expert opinion regarding the placental slides. Plaintiff does not explain how it was prejudiced by the ruling. Plaintiff‘s assertion is speculative, as it does not cite to any report in the record where its expert opined on the slides. If plaintiffs expert had, in fact, prepared a report, plaintiff could have at least submitted it in rebuttal to the judge, who expressly stated that he was not bound by the guardian ad litem‘s recommendation and would consider other information.
83 III. CONCLUSION
84 For the reasons stated, we affirm the orders of the circuit courts of Cook County and Kane County.
85 Affirmed.