author: JUSTICE McCULLOUGH

text:
    CHARLOTTE HAMMOND, Plaintiff-Appellee, v. NORTH AMERICAN ASBESTOS CORPORATION et al., Defendants (Great Lakes Carbon Corporation, Defendant-Appellee; Grefco, Inc., Defendant-Appellant).
    Fourth District
    No. 4—90—0461
    Opinion filed January 23, 1991.

      James C. Craven and Donald M. Craven, both of Craven Law Offices, of Springfield, and J. Timothy Eaton, Daniel P. Albers, and Barbara J. Anderson, all of Coffield, Ungaretti, Harris & Slavin, of Chicago, for appellant.
    Law Offices of Strodel, Kingery & Durree, Associated, of Peoria, and James Walker, Ltd., of Bloomington (Steven A. Wakeman, of counsel), for appellee Great Lakes Carbon Corporation.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Charlotte Hammond filed a negligence action on October 22, 1987, against Great Lakes Carbon Corporation (Great Lakes), General Refractories, Inc. (General), Grefco, Inc. (Grefco), and others for injuries allegedly sustained due to exposure to diatomaceous earth. The trial court granted Great Lakes’ motion for summary judgment after finding any liability Great Lakes had for plaintiff’s injuries was assumed by Grefco by contract dated March 24, 1966. Grefco appeals the summary judgment order, arguing (1) it has standing to appeal the order; (2) it is not collaterally estopped from raising an issue regarding the 1966 contract; (3) the 1966 contract was intended to include only the fixed and choate obligations of Great Lakes; (4) the express negation clause in the 1966 contract bars plaintiff from suing Grefco; (5) Great Lakes’ tort liability cannot be delegated by contract to Grefco; and (6) the trial court erred in entering findings under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) as to that portion of the order entered on the summary judgment motion which was not final. For the reasons that follow, we affirm.

In her complaint, plaintiff alleged her husband was employed at a plant in Bloomington from 1953 to 1971. During this time, Grefco, Great Lákes, and General sold a substance known as diatomaceous earth to the plant owners and plaintiff’s husband was exposed to this substance while working at the plant. Plaintiff was exposed to the substance through her husband’s clothing which contained particles of it. Plaintiff alleged she inhaled these particles and contracted pulmonary fibrosis, a lung disease caused by exposure to diatomaceous earth. Plaintiff alleged Great Lakes, Grefco, and General (1) knew of the hazards of exposure to diatomaceous earth; (2) knew the plant’s employees were ignorant of the hazards; (3) failed to warn the employees of the risks of exposure to diatomaceous earth, including the risk of pulmonary fibrosis; and (4) failed to provide adequate safety instructions for the handling and processing of diatomaceous earth. In its answer, Great Lakes denied the plaintiff’s allegations.

In its motion for summary judgment, Great Lakes alleged that by contract between Great Lakes and General in 1966, Grefco assumed all of the debts and liabilities and obligations of Great Lakes. Further, Great Lakes argued the issue of Grefco’s assumption of Great Lakes’ tort liability to plaintiff was decided in Great Lakes’ favor in Kessinger v. Grefco, Inc. (7th Cir. 1989), 875 F.2d 153. Thus, Great Lakes was entitled to judgment in its favor.

In its order dated May 9, 1990, the trial court granted summary judgment to Great Lakes. The order also included the following language:

“This decision is intended and shall be the law of the case insofar as it involves the rights and liabilities between Great Lakes Carbon Corporation and Grefco, Inc. or the construction and interpretation of the contractual documents involved in the 1966 sale of assets involving Great Lakes Carbon, General Refractories, and Grefco. Grefco shall not be allowed to reargue or relitigate these issues or its liability for the debts and liabilities of Great Lakes Carbon, involving exposure to diatomaceous earth mined, manufactured, distributed or sold, by Great Lakes Carbon Corporation on and prior to May 16,1966.”

The order included findings under Supreme Court Rule 304(a).

Plaintiff is not appealing the order granting summary judgment for Great Lakes. Grefco was permitted by this court to file a late notice of appeal from the order entering judgment in favor of Great Lakes.

We first consider Grefco’s standing to appeal the judgment in favor of its codefendant, Great Lakes. Initially, Grefco points out the issue of its standing to appeal the summary judgment order was decided in its favor by the trial court, when it granted Grefco’s request on April 18, 1990, for findings under Supreme Court Rule 304(a), and by this court when it allowed Grefco to file a late notice of appeal, and thereby rejected plaintiff’s claim that Grefco had no standing to appeal the order to this court. Further, Grefco contends it has standing because the order is adverse to its interests and it was prejudiced by the order. Specifically, Grefco argues (1) the order could have collateral estoppel effects on related insurance coverage litigation which could prejudice Grefco; (2) Great Lakes could argue the order has collateral estoppel effects on all future litigation against Great Lakes for its pre-1966 conduct; and (3) the order affects Grefco’s interests in all potential future actions because it requires future plaintiffs to sue Grefco alone for their injuries and thereby increases Grefco’s potential tort liability.

Plaintiff argues Grefco lacks standing to maintain this appeal because the only prejudice to Grefco from the order stems from that portion of the order which is not final and, therefore, not before this court. Plaintiff also points out that Grefco raises this same issue in its brief. Plaintiff also contends that since Grefco has not filed any third-party action against Great Lakes, it has not suffered any prejudice from the order.

Any party to a case may seek appellate review from a final judgment which is adverse to his interests. (St. Mary of Nazareth Hospital v. Kuczaj (1988), 174 Ill. App. 3d 268, 528 N.E.2d 290.) When judgment is entered in favor of one codefendant, the general rule is that only the plaintiff may appeal the judgment. (Kuczaj, 174 Ill. App. 3d at 270-71, 528 N.E.2d at 292, citing Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 446 N.E.2d 1271.) However, as the Kuczaj court noted, the application of this rule is limited to those cases where the rights of the appellant are not affected by the judgment entered. (Kuczaj, 174 Ill. App. 3d at 271, 528 N.E.2d at 292.) In Tisoncik, the court determined a codefendant had no standing to appeal a directed verdict for another codefendant because the appealing defendant had not filed a claim for contribution while the action was pending as required by “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 305). That court stated:

“As between codefendants, a judgment for or against one of them does nothing but establish their respective rights and liabilities toward the plaintiff, unless the issues between the codefendants were actively litigated in the action. [Citation.] The issues relevant to contribution action were not resolved in the instant case, and thus [the appealing defendant] cannot claim that its interest was prejudiced by [the other defendant’s] dismissal.” Tisoncik, 113 Ill. App. 3d at 244, 446 N.E.2d at 1274.

Plaintiff maintains the rule as set forth by the court in Tisoncik applies to this case and bars Grefco from appealing the summary judgment order because Grefco has not (1) filed a claim for contribution or indemnity against Great Lakes or (2) actively litigated the issue of Great Lakes’ liability to plaintiff in the trial court.

Grefco urges the reasoning of the court in Kuczaj is readily applicable to this case. In Kuczaj, a hospital sued a divorced couple under the family expense statute (Ill. Rev. Stat. 1987, ch. 40, par. 1015) to collect for hospital charges incurred by the wife while separated, but not yet divorced, from her husband. Summary judgment was entered for the husband and the wife appealed. The court concluded the wife had standing to appeal the judgment for the husband in spite of the lack of a counterclaim filed in the trial court because (1) the interests of the husband and wife were clearly adverse; and (2) the judgment for the husband was prejudicial to the wife’s case against the hospital.

We find the Kuczaj case persuasive authority on the standing issue and conclude Grefco has standing to bring this appeal. Great Lakes’ and Grefco’s interests in this litigation are adverse to each other. Thus, the order in favor of Great Lakes is prejudicial to Grefco. Moreover, at this stage of the proceedings in the trial court, we do not find Grefco’s failure to file a claim against Great Lakes for contribution determinative regarding the standing issue.

We now turn to the merits of Grefco’s appeal. Great Lakes asserted two arguments in the trial court in support of its motion for summary judgment: the 1966 contract was an assumption contract whereby Grefco agreed to assume all of Great Lakes’ debts and liabilities and the issue of assumption of liabilities, previously decided in Kessinger, is res judicata on this issue. Grefco argues on appeal that the contract is one of indemnity, not assumption, and the Kessinger case has no res judicata or collateral estoppel effects in this litigation. We first consider the res judicata issue. Before we proceed, we first must examine the provisions of the 1966 contract between these parties.

In 1966, Great Lakes decided to sell all of the assets of its mining and mineral products division (Division) to General. On March 24, 1966, Great Lakes and General signed a purchase and sale agreement. In the agreement, General promised to deliver to Great Lakes at the closing an undertaking, whereby General assumed and agreed to pay and discharge all of the debts, obligations, contracts, and liabilities of the Division. The undertaking, dated May 16, 1966, stated in pertinent part:

“General *** assumes and agrees to pay or cause to be paid, or otherwise discharge or cause to be discharged to the extent that they are existing and outstanding on the date hereof or may hereafter accrue, as they become due and payable, all liabilities, debts and obligations of, or attributable to, the *** Division of Great Lakes *** as are assumed by General under the terms of an Agreement dated March 24, 1966, by and between Great Lakes and General ***.”

The purchase and sale agreement, dated March 24, 1966, further included the following clause:

“This Agreement shall inure to the benefit of and be binding upon Great Lakes and General and their respective successors and assigns; nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies under or by reason of this Agreement.”

The agreement also provided it was to be construed in accordance with the laws of Pennsylvania. After purchasing the assets of the Division, General assigned all the Division’s assets to its newly formed subsidiary, Grefco.

Both res judicata and collateral estoppel operate to preclude multiple actions involving the same issues and parties, the latter being narrower in scope. (Decatur Housing Authority v. Christy-Foltz, Inc. (1983), 117 Ill. App. 3d 1077, 454 N.E.2d 379.) The doctrine of res judicata provides a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. (City of Hickory Hills v. Village of Bridge-view (1977), 67 Ill. 2d 399, 367 N.E.2d 1305.) Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first; i.e., where the causes of actions are based upon a common core of operative fact. (Decatur Housing Authority, 117 Ill. App. 3d at 1081, 454 N.E.2d at 382.) This doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. Kahler v. Don E. Williams Co. (1978), 59 Ill. App. 3d 716, 375 N.E.2d 1034.

Collateral estoppel precludes parties from relitigating an issue in a subsequent proceeding where that issue was actually or necessarily decided by a court of competent jurisdiction in an earlier proceeding involving the same parties in a different cause of action. (Smith v. Bishop (1962), 26 Ill. 2d 434, 187 N.E.2d 217; Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 375, 444 N.E.2d 205, 208.) For a judgment in a prior proceeding to have collateral estoppel effect in a subsequent action:

“[I]t is absolutely necessary that there shall have been a finding of a specific fact in the former judgment or record that is material and controlling in that case and also material and controlling in the pending case. It must also conclusively appear that the matter of fact was so in issue that it was necessarily decided by the court rendering the judgment interposed as a bar by reason of such estoppel. If there is any uncertainty on the point that more than one distinct issue of fact is presented to the court, the estoppel will not be applied, for the reason that the court may have decided upon one of the other issues of fact.” Decatur Housing Authority, 117 Ill. App. 3d at 1082, 454 N.E.2d at 383.

In determining what has been adjudicated in a prior proceeding, the court examines the judgment actually entered with respect to the issues presented for review, rather than only the opinion rendered. (Adams v. Pearson (1952), 411 Ill. 431, 437, 104 N.E.2d 267, 270.) Additionally, the court looks to the proceedings in the earlier case to ascertain what the issues were and how they were resolved. (Mateyka v. Smith (1964), 47 Ill. App. 2d 1, 4, 197 N.E.2d 157, 159.) The burden of establishing the defense of collateral estoppel is on the party invoking it. That party must show with clarity and certainty the precise issues and judgment in the former action. City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1120, 418 N.E.2d 63, 72.

In Kessinger, the plaintiff filed a diversity action similar to the instant action against Grefco for injuries due to his exposure to diatomaceous earth while employed at the same plant in Bloomington. Grefco filed a third-party complaint for indemnity and contribution against Great Lakes. The district court granted summary judgment for Great Lakes on Grefco’s third-party complaint. On appeal, in response to Grefco’s assertion that Illinois and not Pennsylvania law should govern the construction of the 1966 contract, the court of appeals noted there was no difference between Illinois and Pennsylvania law regarding the tort liabilities of the parties. Further, the court stated there was no ambiguity in the contract wherein General agreed to assume all of Great Lakes’ liabilities. Therefore, the court affirmed the district court’s entry of summary judgment for Great Lakes.

Great Lakes argues Grefco is barred by the principles of res judicata from arguing the issue of its liability to plaintiff pursuant to the 1966 contract. According to Great Lakes, the same cause of action is present here as was involved in Kessinger, that is, the dispute between Great Lakes and Grefco regarding responsibility for third parties’ injuries. In the trial court, Great Lakes relied on collateral estoppel to bar Grefco from relitigating this issue. Grefco contends res judicata has no application in this case because Kessinger involved a different cause of action. According to Grefco, the Kessinger court merely determined that Grefco could not file a third-party complaint for indemnity and contribution against Great Lakes which is not the same issue as (1) whether Great Lakes had any direct liability to future injured plaintiffs or (2) whether Grefco alone could be sued for Great Lakes’ pre-1966 tortious conduct. Grefco argues that the liability here has not “become due and payable.” Thus, Grefco maintains Kessinger has no collateral estoppel effects in the pending action.

We conclude it is not necessary to determine whether Kessinger involved the same cause of action as presented in the case before us for the reason that Kessinger decided the issue Grefco now raises and, therefore, that decision bars relitigation of this issue.

The reviewing court in Kessinger affirmed the district court’s order granting summary judgment to Great Lakes on Grefco’s third-party complaint for indemnity and contribution. That court made the following statement regarding the 1966 contract:

“Unfortunately for Grefco, the parties agreed that General would assume all of [Great Lakes’] liabilities. We do not find any ambiguity in that wording.” (Emphasis in original.) (Kessinger, 875 F.2d at 155.)

The district court’s order granting summary judgment to Great Lakes in Kessinger clearly establishes the basis for its decision was the 1966 contract. The Federal district court judge in Kessinger relied on Philadelphia Electric Co. v. Hercules, Inc. (3d Cir. 1985), 762 F.2d 303, which construed Pennsylvania law, and found Grefco assumed all Great Lakes’ debts and liabilities by the 1966 contract. The trial judge went on to state:

“Grefco must bear the ultimate responsibility for Plaintiff’s purported loss. ***
* * * The contracts were for the purchase of an entire division of Great Lakes with the clear intention of carrying its business forward. *** Responsibility for lawsuits was an obvious incident to the performance of the agreements. Grefco, having entered into an arm’s length bargain, cannot now cry foul.” (Emphasis added.) (Kessinger v. General Mining Union Corporation, Grefco, Inc. (C.D. Ill. Oct. 20, 1987), No. 85 — 3092, slip op. at 5-6 (unpublished order).)

The policies underlying res judicata and collateral estoppel include, inter alia, certainty and finality to litigation and consistency of judgments. (Osborne v. Kelly (1991), 207 Ill. App. 3d ,488.)We conclude Kessinger bars Grefco from relitigating any issues regarding the 1966 contract.

In its reply brief, Grefco asserts that collateral estoppel has no application to this case because there is no action or lawsuit between Great Lakes and Grefco in this case. We find no merit to this argument. Grefco further argues the Kessinger court did not decide what Great Lakes’ defense obligations were or whether Great Lakes remains originally liable to tort plaintiffs for its pre-1966 conduct. We disagree. As stated previously, the district court’s order clearly shows that the effect of the 1966 contract on a case such as that before us was considered. Grefco has had a full opportunity to litigate this issue and is not entitled to litigate the matter twice. Chas. Ind Co. v. Cecil B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 38, 205 N.E.2d 786, 790.

In light of our conclusion on this issue, we need not address Grefco’s remaining issues. The order of the trial court is affirmed.

Affirmed.

SPITZ and KNECHT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH JAMISON, Defendant-Appellant.
    Third District
    No. 3—90—0354
    Opinion filed January 25, 1991.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, Keith Jamison, of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3). The trial court sentenced him to a four-year term of imprisonment. The defendant appeals.

At trial, Marianne Barcus testified that on October 5, 1989, around 9:30 a.m., she left her home to go shopping. When she returned about 10:45 a.m., she saw her front door close and a black man run from the porch. She noted that he was wearing a cap and a blue coat with a red stripe. Finding the doorjamb broken, she ran to her neighbor, Judy Nagra. The two women then called the police.

Barcus returned to her home a short while later. She noticed a cane and a board in the hallway, some torn woodwork, and a broken chandelier. However, nothing appeared to be stolen.

Judy Nagra testified that around 10:30 or 11 a.m. on October 5, she noticed two black men standing near Barcus’ driveway. One man, who wore a cap and a blue baseball jacket with a red stripe, was hitting a. tree with a board. The other man, who wore a cap and a gray jogging suit, was holding a cane. She stated in court that the second man was the defendant. Shortly after she observed them, the two men walked off. No more than five minutes later, Barcus came to Nagra’s door and told her that her house had been broken into. She then joined Barcus in calling the police and providing descriptions of the men.

Officer Michael Garland testified that he heard a report that two men involved in a possible burglary had fled the scene and were headed toward Summit Street. While patrolling the area, he saw two men standing in a side yard facing Summit Street. The two men fled when Garland left his car to approach them.

Officer James Ryan testified that he also heard a report about a possible burglary. When he saw two men standing in the middle of Summit Street, he chased them. However, he fell and lost sight of them.

Officer Ronald Nagra testified that he heard Ryan’s transmissions about what he had seen and also received information about a man running near a body shop. When he searched the shop area, he saw the defendant crouched behind a small shed. He then drew his gun, placed the defendant against a wall, and began searching him. When the defendant resisted the search, the two men struggled and rolled down a hill. Officer Garland then assisted Nagra in taking the defendant into custody.

A police technician testified that fingerprints he obtained from the cane and board could not be compared with those of the defendant. However, he was able to determine that a palm print found on the door did not match the defendant’s palm. A second technician testified that a shoe impression found on the door did not match the defendant’s shoes.

The parties subsequently met to discuss jury instructions. The trial court decided to give instructions referring only to the defendant’s guilt as a principal, i.e., whether he personally entered the Barcus home.

In closing arguments, the State pointed to the evidence regarding the cane as proof of the defendant’s entry into the home. The defendant conceded that a break-in had occurred, but argued that the State had failed to prove he actually entered the home.

During deliberations, the jury posed the following question to the court:

“Can a person who was an accomplice to Residential Burglary not entering into the home be charged with Residential Burglary?”

Over the defendant’s objection, the court responded by giving the standard jury instructions on accountability (Illinois Pattern Jury Instructions, Criminal, Nos. 5.03, 14.10 (2d ed. Supp. 1989)). Thereafter, the jury found the defendant guilty of residential burglary.

On appeal, the defendant argues that the court erred in responding to the jury’s question. Pointing out that he had been charged and tried as a principal, he contends that at that point in the trial the court should not have introduced accountability as an issue. The State argues that the court properly instructed the jury and, alternatively, that the error was harmless because there was sufficient evidence to convict the defendant as a principal.

The response to a jury communication is within the trial court’s sound discretion. (See People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166.) Where the jury indicates that it is confused about a matter at issue in the trial, the court has a duty to clarify the matter. (People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174.) In so doing, however, it must not unduly prejudice the defendant or favor the prosecution in the eyes of the jurors. See, e.g., People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3.

We note that the information and the initial jury instructions referred only to the defendant’s guilt as a principal. Both parties therefore limited their arguments to the question of whether the defendant was guilty as a principal. The trial court’s supplemental instructions allowed the defendant to be convicted on a theory that was not addressed at trial. We therefore find that this was an abuse of discretion.

Turning to the question of whether the error was harmless, we note that an error shall be deemed harmless only if the record shows it did not prejudice the defendant. (People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.) Here, the jury’s question shows that it was concerned with the defendant’s guilt as an accomplice. Additionally, there was some doubt about the defendant’s guilt as a principal, because no witness testified to seeing him in the home and the fingerprint evidence was inconclusive. We therefore find that the error was not harmless.

The defendant further argues that he was not proved guilty beyond a reasonable doubt because the State failed to show that he entered the home with the intent to commit a theft. In resolving this issue, we must view all of the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Applying this standard, we find that the evidence established the requisite intent. We therefore reverse the defendant’s conviction and remand the cause for a new trial.

The judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY and GORMAN, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY ORTIZ, Defendant-Appellant.
    Third District
    No. 3—89—0653
    Opinion filed November 20, 1990.
    Rolfe F. Ehrmann, of Ehrmann, Gehlbach & Beckman, of Dixon, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Anthony Ortiz was charged with two counts of aggravated criminal sexual abuse of his girlfriend’s nine-year-old daughter. Defendant waived his right to a jury trial, and the prosecution proceeded as scheduled with its case in chief on April 24, 1989, before Whiteside County Circuit Judge Wilbur Johnson. At 11:45 a.m., midway through the State’s direct examination of the child’s mother, the prosecuting assistant State’s Attorney informed the court that the victim was not available to testify because her father had confused the trial date and he could not have her at the courthouse for another 2xk hours. The prosecutor moved for a continuance to 2:30 p.m., and defense counsel moved for a dismissal. The court denied the State’s motion and granted defendant’s.

On April 27, 1989, the prosecutor moved the court to reconsider its ruling. The prosecutor emphasized that there were two other witnesses waiting outside the court room at the time she moved to continue the case. She admitted that she might have pursued her resistance to defendant’s motion to dismiss more vigorously by bringing this fact to the court’s attention or by proceeding with the witnesses’ testimony when the court indicated its inclination to deny a continuance. Instead, the prosecutor had elected to stand on her motion. After reviewing the facts and hearing arguments of counsel, the court found that it had erred in denying the State’s motion for a short continuance. The cause was reinstated and set for a trial on May 24, 1989, before Circuit Judge John Donald O’Shea.

At the conclusion of this trial, defendant was found guilty as charged. He was sentenced to a four-year term of probation.

In this appeal, defendant raises a single issue — whether the trial court’s dismissal on April 24, 1989, was an acquittal rendering the subsequent trial a violation of defendant’s right not to be twice placed in jeopardy for the same offense. The State concedes that jeopardy attached at the April 24 proceedings, but argues that the court’s dismissal is not tantamount to an acquittal because it was based on nonfactual grounds. Therefore, the State contends, the purpose of the doctrine of double jeopardy is not served by prohibiting the later prosecution.

The double jeopardy protection was recently reviewed by our supreme court in People v. Deems (1980), 81 Ill. 2d 384, 388, 410 N.E.2d 8, 10. The court there quoted United States v. Scott (1978), 437 U.S. 82, 87, 57 L. Ed. 2d 65, 71-72, 98 S. Ct. 2187, 2192:

“ ‘ “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” ’ ”

The court further observed that “[t]he traditional rule is that jeopardy attaches in a bench trial when the first witness is sworn and the court begins to hear evidence.” Deems, 81 Ill. 2d at 389, 410 N.E.2d at 11.

There is no question but that defendant here was twice placed in jeopardy for a single offense. We have reviewed the cases cited in support of the State’s contention and find them inapposite.

In United States v. Scott, defendant moved before and during trial for dismissal of two counts of an indictment on the ground that he had been prejudiced by preindictment delay. Although the trial court did not grant the motion until the close of all evidence, the Supreme Court ruled that a subsequent prosecution would not offend the double jeopardy clause. The court deemed the defendant’s motion a “deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” (Scott, 437 U.S. at 93, 57 L. Ed. 2d at 76, 98 S. Ct. at 2195.) The Court explained that when a defendant moves for a mistrial because of a judicial or prosecutorial error,

“ ‘[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.’ United States v. Dinitz, 424 U.S. 600, 609 (1976). But, ‘[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.’ Id., at 611.” (Scott, 437 U.S. at 93-94, 57 L. Ed. 2d at 76, 98 S. Ct. at 2195.)

Accordingly, the Court ruled that defendant Scott suffered no injury cognizable under the double jeopardy clause and his reprosecution was a just consequence of his own voluntary choice. 437 U.S. at 99-100, 57 L. Ed. 2d at 79-80, 98 S. Ct. at 2198.

Similarly, in People v. Clauser (1979), 73 Ill. App. 3d 145, 391 N.E.2d 793, defendant moved midtrial to dismiss charges claiming a faulty indictment. Citing United States v. Scott, this court affirmed the trial court’s denial of defendant’s motion to dismiss his reindictment on double jeopardy grounds. We also remanded for reindictment Clauser’s codefendant in People v. Jones (1979), 75 Ill. App. 3d 945, 948-49, 393 N.E.2d 1372, 1375. We reasoned that, inasmuch as Jones’ case presented “a mid-trial termination of criminal proceedings, initiated by the defendant and based upon facts unrelated to the accused’s guilt or innocence,” reprosecution would not offend the protection against double jeopardy.

The State analogizes defendants’ motions for dismissal in Scott, Clauser and Jones to defendant’s mid-trial motion here. The critical difference, of course, is that defendant’s motion here was not predicated upon a procedural default, but upon the fact that the State did not have sufficient evidence, i.e., the testimony of the victim, at the first trial. Unlike the cases cited by the State, the dismissal here was, indeed, tantamount to an acquittal.

In People v. Bean (1985), 135 Ill. App. 3d 336, 481 N.E.2d 888, for example, defendant’s prosecution for residential burglary proceeded to a jury trial on September 19, 1983. A jury was sworn and opening statements were presented. Then, at 2 p.m., the court granted the State’s request for a recess because the victim and her daughter, an eyewitness to the crime, had not arrived at the courthouse. At 4 p.m., it became apparent that the witnesses would not be there in time to present their testimony, so the prosecuting attorney requested a further recess until 9 a.m. the following morning. At that time, the court suggested that since the State was not ready to proceed, a motion was in order. (135 Ill. App. 3d at 337-38, 481 N.E.2d at 889-90.) Defendant moved for a dismissal, and the State moved for a continuance. The court granted the former and denied the latter. The State appealed.

On appeal, the Bean court cited with approval People v. Holman (1985), 130.Ill. App. 3d 153, 474 N.E.2d 391. In Holman, as in Bean, the State had attempted to appeal from the circuit court’s midtrial denial of the State’s motion for a continuance. The Holman court ruled that retrial of a defendant was barred by double jeopardy principles whether proceedings were construed as an improper termination of a trial after a witness had testified or as an acquittal based upon the court’s determination that evidence was insufficient to convict. The Bean court also distinguished those cases wherein the State had been allowed to appeal from a final disposition favorable to defendant where the basis for such disposition was known to the court before the case was called for trial or the case had for some other reason been improperly brought to trial. (E.g., People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902; People v. Rudi (1984), 103 Ill. 2d 216, 469 N.E.2d 580; People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) In such cases, a midtrial “dismissal for want of prosecution” was appealable under section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 1).

Having ruled that the trial court’s action in Bean was not truly a “dismissal,” the Bean court considered whether it was an “acquittal,” analyzing the facts under the criteria set forth in United States v. Scott (1978), 437 U.S. 82, 98, 57 L. Ed. 2d 65, 78-79, 98 S. Ct. 2187, 2197, cited in People v. Jones (1979), 75 Ill. App. 3d 945, 393 N.E.2d 1372. Quoting from Scott, the court stated:

“ ‘[A] defendant is acquitted only when “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged” [citations]. Where the court, before the jury returns a verdict, enters a judgment of acquittal ***, appeal will be barred only when it is plain that the District Court *** evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.’ ” People v. Bean (1985), 135 Ill. App. 3d 336, 341, 481 N.E.2d 888, 892, quoting United States v. Scott (1978), 437 U.S. 82, 98, 57 L. Ed. 2d 65, 78-79, 98 S. Ct. 2187, 2197.

Although the circuit court in Bean made no express finding that the State’s evidence was insufficient to convict, such finding was implicit in the court’s action granting defendant’s motion to dismiss when it became clear after jeopardy had attached that the State had no witnesses to present. Thus, the Bean court concluded, defendant had been effectively acquitted, and the State had no right to appeal. On this basis, the Bean court dismissed the cause for lack of appellate jurisdiction. See also People v. Thomas (1975), 24 Ill. App. 3d 907, 322 N.E.2d 97 (ruling that where a continuance based on unavailability of essential witnesses is denied and the State fails to present evidence sufficient to convict, a judgment of acquittal may be entered by the court on its own motion).

The difference between this case and Bean is that here the State presented its “post-trial” arguments attacking the circuit court’s denial of the State’s motion for a continuance and the court’s granting of defendant’s motion to dismiss in the trial court, rather than in the appellate court. But the principles expressed in Bean apply equally here. It is clear that the State can no more move in the circuit court for “reconsideration” of an order which was in substance an acquittal than it can appeal from such order. Simply stated, once the court denies the State's motion for a continuance and grants a defendant’s motion for an acquittal based on failure to produce sufficient evidence to convict, the trial court’s determination is thereafter unreviewable. People v. Mink (1989), 186 Ill. App. 3d 316, 542 N.E.2d 468, citing People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 312, 483 N.E.2d 1236.

In this case it is apparent that the prosecutor did not learn until midtrial that the victim was not available to testify. The prosecutor’s strategy in not pursuing the testimony of the State’s other available witnesses is irrelevant. Moreover, whether or not defense counsel was cognizant of their presence outside the court room, there is no indication in the record that without the victim the available witnesses’ testimony would have been sufficient to convict. What is relevant is that defendant had been placed in jeopardy and some evidence against him had been presented by the State when proceedings unexpectedly ground to a halt. The court, having determined not to grant the State’s motion for a continuance, granted defendant’s motion to “dismiss.” In effect, the court acquitted defendant for lack of evidence sufficient to convict, regardless of the terminology used. United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187; People v. Bean (1985), 135 Ill. App. 3d 336, 481 N.E.2d 888.

We hold that, under these circumstances, double jeopardy protections precluded defendant’s reprosecution. Accordingly, we reverse the judgment of the circuit court and vacate defendant’s conviction.

The judgment of the circuit court is reversed.

Reversed.

GORMAN and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. VICKERY, Defendant-Appellant.
    Third District
    No. 3—89—0782
    Opinion filed January 15, 1991.
    — Rehearing denied February 28, 1991.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, James R. Vickery, appeals from the denial of his motion to withdraw his plea of guilty. The defendant contends the cause must be remanded for further post-plea proceedings because defense counsel failed to file a certificate with the trial court as required by Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). We reverse.

Pursuant to negotiations, the defendant pled guilty to one count of home invasion. The trial court admonished the defendant and determined that the plea was voluntary. At the conclusion of the sentencing hearing, the defendant was sentenced to 12 years in prison. Subsequently, a motion to withdraw the plea of guilty challenging the knowing and voluntary nature of the plea was filed. Following a hearing, the trial court denied the motion.

Rule 604(d) requires that before an appeal may be taken from a judgment entered on a guilty plea, the defendant must file a motion to withdraw the plea of guilty and vacate the judgment. The rule further requires in pertinent part that “[t]he defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” 107 Ill. 2d R. 604(d).

In the instant case, defense counsel did not file a Rule 604(d) certificate. In People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, the fifth district held that the requirements of Rule 604(d) must be strictly complied with and reversed based in part on the fact that defense counsel failed to file a Rule 604(d) certificate. The Hayes court found that in light of the decision in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, a relaxed standard of compliance with the strictures of Rule 604(d) was no longer acceptable. The supreme court in Wilk, in discussing the requirement of filing a Rule 604(d) motion to withdraw a plea of guilty, stated: “At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions. It is incumbent upon counsel and courts alike to follow them.” People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.

In light of Wilk, we find the reasoning of the Hayes court persuasive and adopt it. Therefore, we reverse the judgment of the circuit court of Kankakee County denying the defendant’s motion to withdraw his plea of guilty, and remand the cause for further post-plea proceedings consistent with this opinion.

Reversed and remanded with directions.

McCUSKEY and SLATER, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER ALEXANDER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0648
    Opinion filed November 7, 1990.
    — Rehearing denied January 25, 1991.

      Maria Harrigan, of State Appellate Defender’s Officer, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, Christopher Alexander, pled guilty to murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2)) and attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 18 — 2). He argues on appeal that the attorney who represented him on his motion to withdraw his guilty plea had a conflict of interest because he simultaneously represented codefendant Iyrania Hill. Defendant also argues that he should be allowed to withdraw his guilty plea because the trial court erroneously stated that he was eligible for natural life imprisonment for murder, or alternatively, that he should be resentenced because the trial court erroneously believed that defendant was eligible for natural life imprisonment. Defendant also argues that he should be able to withdraw his guilty plea because the trial court did not admonish him as to the possible sentence for attempted armed robbery.

Defendant was charged with murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2)) and attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4(a)). Defendant was initially represented by private counsel. Codefendant was represented by assistant public defender James E. Burke. Defendant withdrew his plea of not guilty. The trial court admonished defendant that because there was no plea agreement with the State it could sentence him to a minimum of 20 years’ imprisonment and a maximum sentence of 40 years’ imprisonment, that “under certain circumstances,”'the sentence could be enhanced to 80 years, and that “[i]n addition, there is a life sentence under certain circumstances, either of the case itself, or based upon your past record.”

The trial court asked whether there was the possibility of the death sentence, and Burke responded no. The trial court then stated that it understood that this was not a “death sentence case *** because the age of the defendant.” The assistant State’s Attorney stated that defendant was not 18 years old at the time of the commission of the offense, and the trial court stated that therefore the maximum sentence was a life sentence without parole. The trial court then asked defendant if he wished to enter a plea of guilty if he realized that his sentence could range anywhere between 20 years’ imprisonment and a life sentence. The trial court further questioned defendant to determine that he was voluntarily and knowingly giving up his right to a jury trial.

The assistant State’s Attorney then gave the following factual basis for the plea. A witness would testify that she saw defendant and codefendant standing in the lobby of 1344 W. 13th Street on January 13, 1987, at approximately 12:30 p.m. Larry Johnson walked into the lobby towards the elevator, and codefendant approached him and announced that she was going to rob him. Johnson continued to walk towards the elevator. Codefendant walked over to defendant a short distance away from the elevator and asked him for the “missile.” Defendant handed codefendant a gun, and codefendant walked up to Johnson and again stated she was going to rob him. Johnson stated that he did not believe her, and defendant took the gun from codefendant.

Defendant stated, “[Y]ou think I am kidding?” and shot Johnson, who fell into the elevator. The doors started to shut but hit Johnson’s feet, which were hanging out of the elevator. Defendant and codefendant kicked Johnson’s feet into the elevator and told the witness who was standing in the elevator with another person to “take him up.” Johnson died of the gunshot wound to his chest. Defendant gave a statement to an assistant State’s Attorney that he cocked the gun and it fired accidentally.

The trial court accepted the plea of guilty and entered a judgment of guilty on both charges. The trial court again stated to defendant that there had been no agreement as to what his sentence would be, that the sentence could be 20 to 40 years’ imprisonment, and that it could also impose a life sentence without parole.

A bench trial then proceeded against codefendant. Burke argued in his opening statement that the evidence would show that Johnson had been shot by a weapon which was in the hands of defendant Alexander, that there was no issue as to who was holding the weapon when it was fired, and that codefendant was being tried on the theory of accountability for Johnson’s murder. Burke argued in his closing argument that codefendant’s defense was that there was no attempted armed robbery or armed robbery but only “playing.” Burke also argued that after an unsuccessful attempted armed robbery, defendant killed Johnson. Codefendant was found guilty of armed violence, attempted armed robbery, and murder based on felony murder.

At a joint sentencing hearing, the trial court again asked defendant if he persisted in his plea of guilty when there was a potential sentence of 20 to 80 years’ imprisonment and, “under certain conditional circumstances,” to a life sentence without parole. Defendant was still represented by private counsel. Two witnesses were called on defendant’s behalf. The State requested that defendant be sentenced to natural life imprisonment. Burke requested that the trial court sentence codefendant to the minimum of 20 years’ imprisonment and emphasized her young age. Defendant’s counsel also asked for the minimum sentence.

For the murder convictions, defendant was sentenced to 36 years’ imprisonment and codefendant was sentenced to 20 years’ imprisonment. The trial court stated that the reason for the difference was that defendant brought the gun to the scene, and that although a life sentence without parole was possible, it was not imposed because of defendant’s “opportunity to be responsible to *** [himself] and to others.” In addition, defendant and codefendant were each sentenced to 15 years’ imprisonment on the attempted armed robbery convictions to run concurrently with the murder sentences. The public defender was appointed to represent codefendant in her appeal and to represent defendant in a motion to vacate the guilty plea. Burke stated that he would prepare the motion.

Burke filed an amended motion to withdraw defendant’s plea of guilty and to vacate the judgment in which it was argued that defendant was not guilty, that his counsel promised that he would be sentenced to no more than 15 years’ imprisonment, and that the nature of the charges was never fully explained to him. At the hearing on the motion, defendant testified that his attorney told him that he would be sentenced to 15 years’ imprisonment and that he was never told by his previous private attorneys that he could be sentenced to life imprisonment. He was told that the “maximum would probably be forty, twenty to forty.” He also recalled that the trial judge said the minimum sentence was 20 years’ imprisonment. The motion was denied, and the appellate defender was appointed to represent defendant on appeal.

Defendant first argues that the attorney who represented him in connection with his amended motion to withdraw his guilty plea had a conflict of interest because the attorney previously argued that codefendant should have received a minimum sentence since she did not shoot Johnson and because the attorney therefore could not have effectively argued that defendant’s sentence should have been reduced.

The sixth amendment right to effective assistance of counsel prohibits an attorney from representing conflicting interests. (People v. Washington (1984), 101 Ill. 2d 104, 110, 461 N.E.2d 393.) But joint representation of codefendants is not a per se violation. (People v. Nelson (1980), 82 Ill. 2d 67, 72, 411 N.E.2d 261.) There was no conflict of interest here because counsel’s position on defendant’s motion to withdraw his guilty plea was not antagonistic to codefendant. The motion alleged that defendant was promised that he would be sentenced to no more than 15 years’ imprisonment and that the nature of the charges was not fully explained. The issue on the motion to withdraw was therefore not whether defendant’s sentence was excessive but whether defendant understood the charges and potential sentences. A comparison of the sentences received by defendant and codefendant was not relevant to the issue whether defendant’s guilty plea was knowingly and voluntarily given. There is therefore no merit to the argument that defendant’s counsel could not have effectively argued that his sentence should have been reduced.

Defendant could not have waived his right to conflict-free counsel by his guilty plea because he was not admonished of the existence of a conflict or of its significance. (People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E.2d 579.) Such a waiver must be knowing. (Olinger, 112 Ill. 2d at 339.) In addition, the alleged conflict of interest occurred after the entry of the guilty plea. The State’s additional argument that the issue was waived because not raised in the motion to withdraw the plea also fails. The alleged conflict of interest occurred at the time the motion to withdraw was filed by Burke so that the conflict of interest issue would not have been raised in the motion or contained therein.

Defendant next argues that he should be permitted to withdraw his guilty plea because the trial court erred in informing him that he could be sentenced for murder to a term of natural life imprisonment. Defendant argues that he was ineligible for natural life imprisonment, that it was not the maximum sentence, and that the error could have influenced his guilty plea because the risks of trial were substantially less than he thought.

Supreme Court Rule 402 provides that in hearings on guilty pleas, there must be substantial compliance with admonitions to defendant of “the minimum and maximum sentence prescribed by law.” (107 Ill. 2d R. 402(a)(2).) The sentence for murder was 20 to 40 years’ imprisonment or, if the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or if any aggravating factors were present, natural life imprisonment could be imposed. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1).) Defendant argues that the only possible aggravating factor was that the murder occurred in the course of another felony but that the factor could not be applied because defendant was not at least 18 years old at the time of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b).) The State responds that a defendant under 18 years of age could be sentenced to natural life imprisonment if the murder was brutal and heinous, and defendant replies that the murder did not fall under that category.

A finding that the murder was brutal and heinous was conceivable so that a term of natural life imprisonment was the possible maximum sentence. Supreme Court Rule 402 (107 Ill. 2d R. 402) requires that the trial court admonish defendant of the maximum sentence prescribed by law and makes no exception for an unlikely sentence. (See People v. Nichols (1981), 96 Ill. App. 3d 354, 356, 420 N.E.2d 1166 (trial court must inform defendant of possible sentence of death penalty even if the State did not request a death penalty hearing); People v. Kraus (1984), 122 Ill. App. 3d 882, 887-88, 461 N.E.2d 1036 (no error in admonishing defendant of possible sentence of death when State later argued its inapplicability); People v. Ehrler (1972), 8 Ill. App. 3d 912, 915, 290 N.E.2d 406 (admonishment of possibility of death penalty as maximum penalty was not error despite defendant’s argument that imposition of death penalty on retrial was a practical impossibility because the previous punishment was a term of years).) The failure to inform defendant of a possible sentence is a violation of the admonishment rule. (People v. Back (1974), 18 Ill. App. 3d 746, 748, 310 N.E.2d 420.) The trial court’s admonishment of defendant of a possible sentence of natural life imprisonment was therefore required.

Defendant next argues that the trial court did not admonish him as to the possible sentence for attempted armed robbery. This failure was not substantial compliance with Supreme Court Ride 402 (107 Ill. 2d R. 402) because at the very least defendant was not advised of the minimum sentence for attempted armed robbery. But the error was harmless because his sentence for attempted armed robbery was concurrent with the greater murder sentence, which was within the range admonished.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and FREEMAN, JJ., concur.


author: JUSTICE JIGANTI

text:
    MARY ALICE BELLUOMINI, Plaintiff-Appellee, v. LANCOME, Division of Cosmair, Inc., et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—89—1759
    Opinion filed September 13, 1990.
    — Modified on denial of rehearing February 7, 1991.

      Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Peter A. Tomaras, and Katherine L. Nee, of counsel), for appellants.
    Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) from an order of the circuit court of Cook County granting the plaintiff Mary Alice Belluomini’s motion to vacate an earlier order dismissing the cause for want of prosecution. The trial court certified for our review the question of whether the trial court had the authority, pursuant to either section 2 — 1301 or section 13— 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1301, 13 — 217), to vacate the order of another judge ruling that the “plaintiffs motion to vacate is stricken, and the previous court order dismissing this cause for want of prosecution stands in effect,” where the plaintiff made no attempt to prosecute the case until renoticing the previously stricken motion for hearing four years later.

The plaintiff filed a product liability action in April of 1983 alleging that she was injured as a result of using a skin-care product marketed by the defendants. The cause was dismissed for want of prosecution on March 11, 1985, when the plaintiff failed to appear at a pretrial conference. On April 8, 1985, within 30 days of the dismissal, the plaintiff filed a motion to vacate the dismissal. She noticed the motion for hearing on July 17, 1985, but failed to appear at the hearing. At that time, the trial court entered an order stating that the “plaintiff’s motion to vacate is stricken, and the previous court order dismissing this cause for want of prosecution stands in effect.” The interpretation of this order is at the heart of this appeal. The defendants contend that the order constituted a denial or dismissal of the plaintiff’s motion to vacate; the plaintiff maintains that the order merely had the effect of striking the motion from the court call and leaving it pending.

In April of 1989, the plaintiff renoticed the motion to vacate for hearing on May 10, 1989. Because the original trial judge had been assigned to a different division, the motion was set for hearing before a different judge. At the hearing, the defendants argued that the July 17, 1985, order striking the motion was in fact a denial of the motion which operated as an adjudication on the merits and that the one-year period for refiling after a dismissal for want of prosecution had passed. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217.) The defendants also argued that they were prejudiced by reason of the delay. At the conclusion of the hearing, the trial court granted the plaintiff’s motion to vacate and certified the above-stated question concerning the propriety of its action.

On appeal, the defendants contend that the trial court lacked jurisdiction to grant the motion to vacate pursuant to either section 2 — 1301 or section 13 — 217 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1301(e), 13 — 217.) Section 2 — 1301(e) provides that “[t]he court may *** on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” Section 13 — 217 allows a one-year refiling period in certain situations, including when a cause is dismissed for want of prosecution. The defendants also contend that the trial court impermissibly overruled a prior decision of another judge, that the order vacating the dismissal for want of prosecution undermines the spirit and purpose of local Rule 2.3 of the Rules of the Circuit Court of Cook County, and that the order circumvents the applicable statute of limitations and the purpose behind section 2— 1401 of the Code of Civil Procedure, which provides for post-judgment relief. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) All of these contentions assume that the trial court’s order of July 17, 1985, striking the plaintiff’s motion to vacate was a denial or dismissal of the motion which constituted an adjudication on the merits of the cause. We will therefore initially address the interpretation of that order.

As stated earlier, the order provided that the “plaintiff’s motion to vacate is stricken, and the previous court order dismissing this cause for want of prosecution stands in effect.” Generally, the intention of the court is determined only by the order entered, and where the language of the order is clear and unambiguous, it is not subject to construction. (Governale v. Northwest Community Hospital (1986), 147 Ill. App. 3d 590, 593, 497 N.E.2d 1318.) The order which we must interpret, however, is plainly ambiguous. Although the defendants maintain that the intended effect of the order was to deny or dismiss the motion to vacate, neither of those terms was used by the court. The court instead stated that the motion was “stricken,” which the plaintiff interprets as meaning stricken from that day’s court call. When it is necessary to construe a court order, it should be interpreted in the context of the record of proceedings and the situation which existed at the time of its rendition. (People v. Cooper (1989), 132 Ill. 2d 347, 353-58, 547 N.E.2d 449.) In this cause, the plaintiff noticed its motion to vacate for hearing, then failed to appear. The court order used the term “stricken” rather than “denied” or “dismissed.” Under the circumstances, we interpret the court’s order as meaning that the motion, although stricken from the court call, remained pending. Although the defendants cite B-G Associates, Inc. v. Giron (1990), 194 Ill. App. 3d 52, 550 N.E.2d 1080, to support their argument that striking the motion resulted in its denial, the trial court order in B-G provided that the motion was “stricken with prejudice.” (B-G, 194 Ill. App. 3d at 56, 550 N.E.2d at 1082.) The term “with prejudice” clearly denoted a finality lacking in the instant cause.

Given our interpretation of the order, the defendants’ contentions fall. Because the motion was not denied, it remained pending and there was no adjudication on the merits of the plaintiff’s cause. There was accordingly no order of dismissal which would have necessitated a motion to vacate under section 2 — 1301 or a refiling of the complaint pursuant to section 13 — 217. Also, because the initial order did not deny the motion, the subsequent court order granting it did not have the effect of overruling a prior court order of another judge. The defendants made no argument before the trial court concerning Circuit Court Rule 2.3, which states that a court may deny a motion if it is not called for hearing within 90 days, and we will therefore not consider it on appeal. Finally, because the motion to vacate remained pending, the defendants’ arguments concerning the statute of limitations and the effect of section 2 — 1401 are without merit.

Because the motion to vacate was filed within 30 days of the judgment dismissing the cause for want of prosecution, the trial court had the discretion to set aside the judgment “upon any terms and conditions that shall be reasonable.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e).

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE DiVITO

text:
    SAUL SARKA, a Minor, by and through Mary Sarka, his Mother and Next Friend, et al., Plaintiffs-Appellants, v. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER et al., Defendants-Appellees.-SAUL SARKA, a Minor, by and through Mary Sarka, his Mother and Next Friend, et al., Plaintiffs-Appellants, v. MELVIN GERBIE et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1—89—2145,1—89—2173 cons.
    Opinion filed November 30, 1990.
    — Rehearing denied February 5, 1991.

      David A. Novoselsky & Associates and O’Callaghan & Associates, PC., both of Chicago (David A. Novoselsky and Joseph Michael O’Callaghan, of counsel), for appellants.
    Arnstein & Lehr and Steven H. Jesser, of Northwestern Memorial Hospital, both of Chicago (Arthur L. Klein, Fredrick J. Entin, Miles J. Zaremski, and Richard C. Gering, of counsel), for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

In this medical malpractice action, plaintiff claims that due to the negligence of defendant hospital and pediatricians he suffers from injuries allegedly sustained during his birth. Contesting the claim, defendants seek to examine plaintiff. Pursuant to Supreme Court Rule 215 (87 Ill. 2d R. 215), the trial court entered an order compelling plaintiff to submit to a physical examination including magnetic resonance imaging (MRI) or computed axial tomography (CT) scan under sedation by chloral hydrate. Plaintiff refused to comply with the order on the ground that the MRI or CT scan posed a risk of harm; the trial judge held plaintiff’s mother, Mary Sarka, and his attorneys in contempt. From these orders, contemnors appeal raising the issue of whether the trial court abused its discretion in ordering plaintiff to submit to a CT scan under sedation by chloral hydrate.

On February 2, 1977, Saul Sarka was born at Northwestern Memorial Hospital. He was delivered by Melvin Gerbie, M.D., and during the delivery there was no evidence of fetal distress, nor were any problems noted during Saul’s mother’s pregnancy. However, Saul was born severely depressed with only a feeble heart beat. In addition, immediately after birth the attendant medical personnel noted that Saul had a peculiar facial appearance, and a chromosome analysis was recommended. During the chromosome analysis no abnormalities were found and the cause of Saul’s problems was diagnosed as birth asphyxia.

After Saul was discharged from the hospital, Peter Huttenlocher, M.D., examined him. Dr. Huttenlocher noted Saul’s unusual appearance and neurological dysfunction, and stated that he believed those disabilities may have resulted from congenital conditions preceding the moment of birth rather than complications at birth.

On October 30, 1980, a lawsuit was filed on behalf of Saul by his mother and next friend, Mary Sarka, against Northwestern Memorial Hospital and Dr. Melvin Gerbie. The complaint averred that Saul’s injuries resulted from the negligence of defendants during Saul’s birth and that as a result of such negligence Saul suffers from severe and permanent brain damage.

On June 30, 1983, pursuant to Supreme Court Rule 215, defendant Northwestern Memorial Hospital motioned to compel Saul to submit to a blood test. That motion was denied without prejudice by Judge O’Brien on July 20, 1983.

Defendants again made a discovery motion on February 6, 1984, to compel Saul to submit to the taking of photographs. On March 12, 1984, Judge O’Brien granted the motion. The order granting defendants’ motion stated in part that “medical personnel or therapists shall be present to insure the safety and security of the plaintiff.” On April 11, 1984, plaintiff filed a motion to vacate the order claiming that the positioning of Saul for the photographs was likely to cause him pain, terror, and other adverse psychological effects. At the hearing to determine whether the order should be vacated, Judge O’Brien stated that the photographs would be taken only in accordance with the directions of plaintiff’s therapist: “[I]f the therapist says I cannot open up [Saul’s] hands any further without injuring him, a hand is not going to be opened up any further.” On June 13, 1984, Judge O’Brien denied plaintiff’s motion to vacate.

On April 22, 1985, defendants motioned for an independent Rule 215 examination. The motion requested that Saul be submitted for a CT scan of the head and that a small amount of blood be drawn, not to exceed 10 milliliters. The motion was heard by Judge Bosco, who entered an order on June 3, 1985, requiring Saul to submit to a CT scan and a physical examination, but denying the request for the blood sample. Counsel for one of the defendants asked whether his own expert could conduct a separate examination of plaintiff on the same date; however, Judge Bosco denied that request, stating “[t]here’s going to be one exam [and] [i]t’s going to be by someone that all of you people agree on.” Accordingly, Judge Bosco’s order provided in part:

“At such examination, physicians selected by defendants other than Northwestern may be present, however, only one physician is authorized to examine the plaintiff and no further examinations are authorized.”

The physical examination authorized by Judge Bosco’s order was performed on July 18, 1985, by Michael Painter, M.D., a pediatric neurologist. Dr. Painter stated that, based upon his examination, he considered Saul to be congenitally malformed and that Saul’s condition might be genetic. On September 9, 1985, the CT scan was performed by Thomas Naidich, M.D., a pediatric neuroradiologist. In his radiology consultation report, Dr. Naidich noted that the scan was performed without sedation, and as a result, the quality of the scan was diminished.

On January 26, 1986, defendants requested another physical ex-animation, this time to be performed by a medical geneticist. In support of their motion, defendants submitted the affidavit of John Opitz, M.D., a medical geneticist. Dr. Opitz stated that he had to physically examine Saul in order to ascertain whether Saul suffers from a genetic defect. On April 7, 1976, Judge Nicholson denied defendants’ motion without prejudice for a physical examination. Judge Nicholson stated that the motion sought to vacate, reconsider or modify Judge Bosco’s order of June 3, 1985. However, Judge Nicholson also stated that, although she wouldn’t “review” Judge Bosco’s decision, defendants could “take it over to Judge Bosco.” Defendants then refiled the motion before Judge Bosco.

On May 6, 1986, Judge Bosco ordered the requested examination, but stayed enforcement of the order and set the matter for further hearing on the issue of whether such an examination would be detrimental to the physical or mental well-being of Saul. Plaintiff moved to vacate the May 6, 1986, order, arguing that further examination was precluded by Judge Bosco’s order of June 3, 1985. On June 25, 1986, Judge Bosco denied plaintiff’s motion to vacate and ordered plaintiff to submit to a physical examination by Dr. Opitz.

On August 25, 1988, plaintiff deposed Dr. Naidich, who performed the 1985 CT scan on Saul. Dr. Naidich testified that he reviewed the 1985 CT scan films of Saul just prior to the taking of the deposition and saw “certain features of this study that I did not see until this morning that I believe require further investigation.” He further testified that there was evidence “highly suggestive” of a condition known as schizencephaly, a congenital malformation of the brain generally attributed to events diming the second month of gestation “that [was] not mentioned in the report because in 1985, I did not know enough about it to appreciate it.” Dr. Naidich explained that he learned to recognize schizencephaly as a result of his participation in a medical study of the condition. Dr. Naidich stated that subsequent to the study, the methods of diagnosis of schizencephaly had improved: “We learned new things about schizencephaly that are simply not in the literature as yet.”

Dr. Naidich testified that the CT scan images were of poor quality because Saul was not sedated during the procedure. Saul was moving during the procedure, the result of which was a “motion artifact” which obscured the area where Dr. Naidich saw evidence “strongly suggestive of possible schizencephaly.” Dr. Naidich testified that if the CT scan was motion-free, he could make a diagnosis, “yes or no, as to the presence of closed lip schizencephaly.” Dr. Naidich also testified that it would be necessary to sedate Saul in order to guarantee a motion-free scan.

On February 3, 1989, based upon the deposition of Dr. Naidich, defendants filed a new motion for a CT scan to be performed under sedation. The motion was first argued on April 11, 1989, before Judge Durham. Judge Durham noted plaintiff’s argument that the requested examination was inconsistent with Judge Bosco’s order of June 3, 1985, and acknowledged that he was limited in overruling a prior discretionary order by another judge. However, Judge Durham inquired whether Judge Bosco’s order was based upon the same information that was before Judge Durham. Defense counsel advised Judge Durham that the information presented to Judge Bosco did not include the recent developments in the diagnosis of schizencephaly of which Dr. Naidich spoke.

After concluding that he was presented with new information not available to Judge Bosco in 1985, Judge Durham next considered the issue of safety. Judge Durham stated: “If [defendants] can show me by affidavit or by competent expert witnesses that the procedure can be done safely or the safeguards of the child’s body can be protected, I’ll grant [the] motion but not until [they] can show me.” Likewise, Judge Durham told plaintiff that he could bring in counteraffidavits and “I’ll make my decision based on that.” The motion was then continued for further hearing on the issue of safety.

On April 17, 1989, defendants requested an emergency motion for a protective order preventing plaintiff’s family or counsel from threatening litigation against any person or institution where MRI or CT scans are performed. In support of their motion, defendants stated that on April 12, 1989, plaintiff’s attorney advised defense counsel that he intended to notify any individual or institution who might consider performing the CT scan that it would be subject to suit in the event plaintiff sustained any harm from it. On April 17, 1989, Judge Durham granted defendants’ motion.

On May 15, 1989, Judge Durham conducted a further hearing on the safety of the requested CT scan under sedation. During the hearing, considerable time was devoted to a discussion of portions of a deposition given by Dr. Naidich. In his deposition, Dr. Naidich stated that while no medical procedure is 100% risk-free, chloral hydrate is a safe medication with minimal risks. Although Dr. Naidich stated that he could not assess the percentage of risk, he did state that the risks were “negligible.” However, when asked whether he knew of any fatalities associated with the use of chloral hydrate, Dr. Naidich stated that, although he had no personal knowledge of any fatalities, he was sure that there were some.

In addition to the deposition, defendants submitted the affidavit of Dr. Naidich, who recommended chloral hydrate in a dosage of 100 milligrams per kilogram of body weight, not to exceed 1,500 milligrams. Dr. Naidich stated that chloral hydrate is a medication routinely used to safely sedate premature infants, newborns, children with seizure disorders, and elderly adults. Dr. Naidich’s affidavit concluded:

“The risks associated with the use of chloral hydrate in [the] dosage [recommended] with cardiac and respiratory monitoring are minimal and specifically the risk of respiratory cessation is negligible. In my opinion the benefit ratio of chloral hydrate is best and *** Saul will not be exposed to any excessive risk.”

For added safety, Dr. Naidich recommended that respiratory and cardiac monitors be used during the course of the MRI or CT scan.

In response, plaintiff submitted the affidavit of Roger Bird, M.D. Dr. Bird stated that schizencephaly is not a new disease entity. In addition, Dr. Bird identified the risks associated with chloral hydrate as including “disorientation, incoherence, ataxia, dizziness, gastric irritation manifested by nausea, vomiting and diarrhea, and cutaneous reactions such as allergic skin rashes.” Dr. Bird identified other risks, including death, cardiac arrest, and respiratory system failure as being associated with the use of a toxic dose of chloral hydrate and chronic use of the sedative. Moreover, Dr. Bird stated that unless there are appropriate medical indications for the use of chloral hydrate, it is not medically justified or reasonable to submit a child to such risks.

In a second affidavit, Dr. Bird stated that it is impossible to determine in advance whether a particular individual will experience an adverse reaction to chloral hydrate. Although it is possible to identify individuals with elevated risks with respect to chloral hydrate, all individuals are at some degree of risk to the adverse effects of the sedative.

Plaintiff also submitted the affidavit of Lowell Zollar, M.D., who stated that “[a]ll sedated procedures involve some degree of risk to the patient”; and this risk must be weighed against the benefit to be derived by the procedure. According to Dr. Zollar, Saul will neither benefit from the procedure nor will the CT scan provide any information that would be necessary or helpful to Saul’s medical management. Consequently, the procedure is not medically justified.

Additionally, plaintiff submitted the affidavit of John Lantos, M.D., stating that it was Dr. Lantos’ opinion that the CT scan would be medically unethical and improper because there is no medical benefit to be derived by the plaintiff from the procedure. Dr. Lantos’ reasoning is twofold. First, there is some risk to Saul that, even if it is assumed to be minimal, must be weighed against the medical benefits provided by the procedure, of which there are none. Thus, the risk is not ethically justified. Secondly, consent of the patient or his parents is required; since neither Saul nor his parents have consented, the procedure would be unethical, even if the procedure was entirely risk-free.

After reviewing the affidavits and hearing arguments, Judge Durham granted the motion and ordered that the CT scan should proceed. Judge Durham stated that plaintiff’s affidavits were not helpful in that they did not “address what I asked them to. They don’t give me any information *** about the risk of harm to this child.”

In compliance with Judge Durham’s directions, a draft order was submitted for review on July 18, 1989. At that time, the court was advised that arrangements had been made for the CT or MRI procedure to be performed by Glenn Geremiah, M.D., at Rush-Presbyterian-St. Luke’s Medical Center. The court signed the order granting defendants’ motion for the CT scan. The order specified that a “clinically necessary” dosage of chloral hydrate would be used to sedate Saul prior to the CT scan.

Plaintiff then filed suit against Rush-Presbyterian-St. Luke’s Medical Center and Dr. Geremiah on July 21, 1989, seeking a temporary restraining order and a preliminary and permanent injunction to prevent the procedure from being performed. Judge Dunne dismissed the action without prejudice on the ground that the litigation pending before Judge Durham already had addressed the same issues. Two days later, Judge Durham denied plaintiff’s motion to reconsider Judge Dunne’s order.

On July 26, 1989, the date upon which the CT scan was to be administered, Saul’s mother and attorneys did not submit him for the CT scan. Accordingly, Judge Durham entered a contempt order against them; it is from these orders that contemnors appeal.

Contemnors argue that the circuit court erred in ordering the MRI or CT scan to be performed under sedation where the sedative would pose a risk of harm to Saul. Specifically, they argue that the court itself acknowledged the risk of death. In ordering the CT scan, the court had, in essence, forced Saul to make the choice between risking his life or withdrawing his lawsuit.

Pursuant to Illinois Supreme Court Rule 215, the court in which a claim for personal injuries is pending may within its discretion order the plaintiff to submit to a physical exam. The constitutionality of a statute granting a court the discretionary power to order a physical exam of the plaintiff was upheld in People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288,139 N.E.2d 780. That court stated:

“Strong feelings as to the ‘inviolability of the person’ [citation] may have been tacitly responsible [for the earlier rule that a court may not require a plaintiff to submit to physical examination]. But when one seeks to recover damages on the basis of his physical injuries he puts his physical condition in issue.” 10 Ill. 2d 288, 292-93,139 N.E.2d 780.

See also People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 493 N.E.2d 1037.

As to the more difficult question of whether a court is within its discretion to order a physical examination which may injure the plaintiff, no authority in Illinois exists, and a review of the standards and criteria in other jurisdictions is in order.

In support of their position that any examination which poses a risk of harm to a plaintiff must be denied, contemnors cite several cases from other jurisdictions. Lefkowitz v. Nassau County Medical Center (1983), 94 A.D.2d 18, 462 N.Y.S.2d 903; Duprey v. Wagner (1982), 186 N.J.Super. 81, 451 A.2d 416; McQuillen v. City of Sioux City (Iowa 1981), 306 N.W.2d 789.

In Lejkowitz, the trial court ordered the plaintiff to undergo a hysterosalpingogram, a fertility test involving X-ray examinations of the uterus and fallopian tubes after injection of a radiated opaque medium. (Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 19, 462 N.Y.S.2d at 905; see also Duprey v. Wagner (1982), 451 A.2d 416.) In response to the order, the plaintiff offered the affidavit of a board-certified gynecologist who concluded that while there was significant risk to the plaintiff, the test would not necessarily be conclusive. (Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 19, 462 N.Y.S.2d at 905.) The only proof in opposition to the gynecologist’s affidavit was “conclusory statements of the county defendants’ counsel” which the court held were valueless because of defendant counsel’s lack of qualifications to render a medical opinion. Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 21, 462 N.Y.S.2d at 906.

The reviewing court in Lefkowitz found that although the plaintiff placed her physical condition in controversy when she commenced the lawsuit, an examination would not be ordered if it presented the possibility of danger to the plaintiff’s life or health. (Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 21, 462 N.Y.S.2d at 906.) The court held that in determining whether the examination should be ordered, the plaintiff must meet the burden of showing that the examination in question is prima facie dangerous. If the plaintiff meets her burden, the burden then shifts to the defendant to demonstrate the safety of the proposed examination. (Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 21, 462 N.Y.S.2d at 906.) Although the degree and type of proof necessary to show safety may vary, the party seeking the exam generally is required to offer the affidavit of an expert or at least cite from standard medical texts. Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 21, 462 N.Y.S.2d at 906.

The Lefkowitz court held that the plaintiff had met her burden, whereas the defendant had failed to demonstrate the test’s safety. (Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 22, 462 N.Y.S.2d at 906.) Accordingly, the court denied the examination. Lefkowitz v. Nassau County Medical Center, 94 A.D.2d at 22, 462 N.Y.S.2d at 906.

Although contemnors rely upon Lefkowitz in the instant case, if the reasoning applied in Lefkowitz were adopted by this court, defendants would prevail. The deciding factor in Lefkowitz was the defendant’s failure to meet his burden to present evidence showing the safety of the examination. Here, defendants have offered several affidavits attesting to the safe, routine use of chloral hydrate. Moreover, each of the affidavits presented offered the opinions of qualified medical professionals. Although plaintiff may have met his burden showing that the proposed sedation was prima facie dangerous, defendants have indeed demonstrated the safety of chloral hydrate. Dr. Naidich has attested to the safe, routine use of chloral hydrate in premature infants, newborns, children with seizure disorders, and elderly adults.

Another case upon which contemnors rely is McQuillen v. City of Sioux City (Iowa 1981), 306 N.W.2d 789. There the defendant sought to subject the plaintiff to an arteriography, a test which involves a heart catheterization and the injection of a radionuclide. Although conceded to be an unusual procedure, medical testimony assessed the risk to the plaintiff’s life and health to be less than DMb. (McQuillen v. City of Sioux City, 309 N.W.2d at 791.) That statistic persuaded the court, on balance, to order the plaintiff to submit to the procedure. McQuillen v. City of Sioux City, 306 N.W.2d at 791.

Like the defendants in the instant case, the McQuillen defendant offered proof that the test was the only remaining diagnostic technique and that it was relatively safe. The McQuillen court stated that the issue required a weighing of the risk to the plaintiff against the need for the test results. (McQuillen v. City of Sioux City, 306 N.W.2d at 791.) Because it was not shown that the plaintiff would have a particular susceptibility to risk in the procedure, the balance weighed in favor of conducting the test. McQuillen v. City of Sioux City, 306 N.W.2d at 791.

Although plaintiff offered affidavits of experts propounding on the risks associated with chloral hydrate in general, no evidence was submitted to show that Saul would have a particular susceptibility to the sedative. Although Dr. Naidich admitted that no sedation was entirely safe, he also stated that the risk of the sedative chloral hydrate was “negligible” and “very small.” Even though Dr. Naidich did not offer a percentage of risk as the expert in McQuillen had done, Dr. Naidich did state that the risk was “negligible” and that the use of chloral hydrate was “routine” even in cases involving infants and children with seizures. Thus, the evidence presented by Dr. Naidich did support a finding that the CT scan could be performed safely with chloral hydrate.

A recent New York case addressed the precise issue which this court now faces. (Langelier v. Ford (1990), 159 A.D.2d 851, 552 N.Y.S.2d 992.) In Langelier, an infant with severe developmental defects sued his pediatrician. The trial court granted the defendant’s motion to direct a physical examination, including a MRI or CT scan under sedation, of the infant and an evidentiary hearing was ordered on the issues concerning the need for the tests and the risks posed by the tests. It was conceded in Langelier that the CT scan was benign, but the sedation posed a theoretical risk to someone with the infant’s disabilities. (Langelier v. Ford, 159 A.D.2d at 852, 552 N.Y.S.2d at 993.) The court applied the standard enunciated in Lefkowitz:

“Once the opponent of the test shows ‘that the test is prima facie potentially dangerous ***’ the burden shifts to the proponent to present ‘proof “showing the necessity for such examination, the details of the procedure employed in making it, the frequency with which it has been done, together with the experience and observations which have been made by physicians as to pain [or] harm.” ’ [Citations.]” Langelier v. Ford, 159 A.D.2d at 852, 552 N.Y.S.2d at 993.

The court held that the plaintiff did make a prima facie showing that the sedative was dangerous. (Langelier v. Ford, 159 A.D.2d at 853, 552 N.Y.S.2d at 994.) Nevertheless, the court ordered the test because the plaintiff’s expert established that the risk of life-threatening complications was only 1%, the complications were reversible with proper treatment, and the order directed that proposed safety measures be employed. Langelier v. Ford, 159 A.D.2d at 853, 552 N.Y.S.2d at 994.

In the instant case, although Dr. Naidich did not testify to the percentage of risk, he nevertheless stated that the risks of life-threatening complications were “negligible.” Additionally, Dr. Naidich testified that, if a CT scan done with sedation were given, he could tell definitively whether or not Saul suffers from congenital schizencephaly.

Despite Dr. Naidich’s attestations to the safety of chloral hydrate, contemnors maintain that the CT scan should not be performed because of the risk to Saul. They argue that any risk, however small, must be weighed against the medical benefit to be derived by Saul. Here, because Saul would derive no medical benefit from the CT scan, contemnors argue that the risk of harm, however slight, mandates that the examination not be performed.

Contemnors are mistaken, however, in their contention that this court must consider the medical benefit to be derived from the examination. Although such a consideration may be necessary in the medical profession, the examination proposed is a Rule 215 examination and is thus legal, not medical, in nature. By definition, a Rule 215 examination is not performed for the patient’s benefit; rather, a Rule 215 examination is a legal discovery device. Accordingly, contemnors’ argument that Saul would not benefit from the examination is meritless. Moreover, their argument that neither Saul nor his parents have consented to the examination and, as such, the examination must be denied, is equally meritless. Again, Rule 215 examinations are neither based upon the benefit derived by plaintiff nor contingent upon plaintiff’s consent.

At issue here is not whether Saul would receive a benefit from the examination nor whether Saul has consented to the examination, but rather whether the risk posed by the Rule 215 examination outweighs the benefit to justice. Ultimately, Judge Durham did consider the risk to Saul and found that the risk did not compel the denial of the examination. As Judge Durham pointed out, plaintiff did not offer any evidence as to the risk of harm to Saul. Defendants, however, did offer evidence that the examination under the proposed sedation created a “negligible” risk to Saul.

We adopt the rationale enunciated in the Lefkowitz decision and hold that when a plaintiff contends that a Rule 215 examination presents the possibility of danger, he must meet the burden of showing that the proposed examination is prima facie dangerous. If the plaintiff meets his burden, the burden then shifts to the defendant to demonstrate the safety of the proposed examination.

In the instant case, defendants have met their burden of showing that the proposed examination is safe. Accordingly, we will not reverse the court’s order allowing the examination.

Contemnors argue further that Judge Durham abused his discretion in “reversing” the decision of a predecessor judge. However, that argument must necessarily fail. The Illinois Supreme Court stated in Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242, that a successor judge should not modify previous discovery rulings unless “there is a change of circumstances or additional facts which warrant” a modification of a prior order. (Balciunas v. Duff, 94 Ill. 2d at 188.) This is to prevent “judge shopping.” Balciunas v. Duff, 94 Ill. 2d at 188.

However, in the instant case, “changed circumstances” did indeed warrant a modification of a prior order. According to Dr. Naidich’s deposition, between 1985 and 1989, medical advances took place in the diagnostic methods of determining schizencephaly. Moreover, the order which contemnors claim cannot be modified (that of June 3, 1985, ordering “no further exams”) was itself modified by its original drafter, Judge Bosco, on May 6, 1986, when Judge Bosco ordered a physical examination by a medical geneticist.

Contemnors also argue that because Saul is a minor, the court must afford him greater protections from discovery rulings. Contemnors offer no cases which support such a proposition. Although they cite Burton v. Estrada (1986), 149 Ill. App. 3d 965, 501 N.E.2d 254, that case is inapposite to the instant case.

Contemnors finally argue in their reply brief that the order as written should not be enforced because it does not specify the dosage of the chloral hydrate nor does it set forth the qualifications of the physician and hospital who will administer the test. Contemnors maintain that the order should have included a specific dosage of chloral hydrate, names of physicians who will perform the CT scan, and the types of precautions to be taken in the event of emergency. We agree and remand the order to the circuit court so that it can be modified to conform to those requirements. The order must specify the dosage of chloral hydrate to be administered, the names of physicians who will perform the CT scan, and the precautions to be taken in the event of an emergency.

Finally, the amici curiae brief addresses several issues which the contemnors do not raise in their briefs. More specifically, the amici curiae argue that the imposition of the CT scan under sedation is an unconstitutional infringement of Saul’s rights. Here, the amici curiae rely upon three separate lines of authority, beginning with a discussion of early Federal cases addressing the propriety of physical examinations before the adoption of what is now Federal Rule 35, then turning to a discussion of cases involving the constitutional right of privacy, then to cases applying the due process clause and the fourth amendment to criminal prosecutions. However, each of these lines of authority is inapplicable to the present circumstances and the arguments based upon them are without merit.

In light of the above, we conclude that Judge Durham did not abuse his discretion when he weighed the evidence of the risks of chloral hydrate and granted defendants’ motion to compel Saul to submit to a CT scan under sedation. However, the order must be made more specific as to the dosage, names of physicians, and safety measures employed in performing the CT scan. Thus, we remand to the circuit court for further proceedings consistent with this opinion. In so ruling, we vacate the contempt order and the fines assessed against contemnors.

Affirmed in part and reversed in part and remanded.

WHITE and SCARIANO, JJ., concur.

      Dr. Melvin Gerbie has settled with plaintiff since the taking of this appeal. He has been dismissed from this action by the trial court and is not a party to this appeal.

      Although contemnors argue that the court placed undue emphasis on the testimony of a “partisan” expert, no evidence exists in the record which shows that Judge Durham gave more weight to defendants’ experts than plaintiff’s experts. If anything, it is clear that Judge Durham gave equal weight to all the testimony assessing the risks of chloral hydrate.

      The Langelier court did not specify the type of sedative to be used on the infant plaintiff.

      Contemnors also argue that the second requested CT scan would be cumulative. However, due to the change in circumstances and the defects in the first CT scan, their argument must fail.

      The amid curiae consist of: The Illinois Trial Lawyers Association, Alliance Against Intoxicated Motorists, Trial Lawyers for Public Justice, and The Association of Trial Lawyers of America.