author: JUSTICE McNULTY

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT ORDER OF SALE AGAINST LANDS AND LOTS FORFEITED FOR NONPAYMENT OF GENERAL TAXES AND SPECIAL ASSESSMENTS FOR THE YEAR 1985 AND PRIOR YEARS (Ron Ohr, Petitioner-Appellee, v. Travelers Mortgage Services, Inc., et al., Respondents-Appellants).
    First District (5th Division)
    No. 1—90—0665
    Opinion filed October 18, 1991.

      Arthur M. Holtzman, of Pedersen & Houpt, and Richard E. Zulkey, of Zulkey, Pikarski & Gordon, both of Chicago, and James J. Kenny, of Park Ridge, for appellants.

      Joel S. Ostrow, of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

On October 16, 1989, the trial court denied a motion by Travelers Mortgage Service (Travelers) to dismiss tax petitioner Ron Ohr’s application for an order directing the county clerk to issue a tax deed. Pursuant to a hearing held on January 22, 1990, the trial court ordered the tax deed to be issued to Ohr. Travelers appeals both the denial of its motion to dismiss Ohr’s application and the order directing the issuance of a tax deed to Ohr.

On February 11, 1987, petitioner Ron Ohr purchased the delinquent 1985 real estate taxes on the property at 6221 North Glenwood Avenue in Chicago. On May 27, 1989, Ohr visited the property and learned that one of the former title holders, Martin Mostyn, was deceased and the property was occupied by Jane Mostyn and her brother, John Keckeisen. On May 31, 1989, Ohr rechecked the county records, filed a petition for tax deed, and on June 4 and 10 timely served the interested parties (Mostyn and Keckeisen) with notice of his petition and the appropriate period for redemption of the property (until October 16, 1989).

On June 21, 1989 (after receiving Ohr’s notice), Jane Mostyn executed a mortgage with Travelers Mortgage Services. The mortgage was recorded on June 23 before the termination of the redemption period, but after Ohr’s search for and notice to interested parties. On June 27, 1989, Travelers issued its corporate check in the amount of $6,401.53 to Stanley Kusper, Jr., county clerk of Cook County, in payment of the estimated cost of redemption of the real estate at issue. This check was returned without explanation to Travelers, which resubmitted it on September 28. Again this payment was returned.

On October 16 the redemption period ended, and on November 9 Ohr filed an application for an order directing the county clerk to issue a tax deed. On December 19, 1989, the circuit court denied Mostyn’s and Travelers’ motion to dismiss Ohr’s application (Mostyn and Travelers contended that they had made a valid attempt at redemption), and on January 22, 1990, held a hearing in which it denied further objections by Travelers. An order directing the county clerk to issue a, tax deed was entered on February 14, 1990, and the deed was subsequently issued to Ron Ohr.

Both Travelers and Mostyn argue that the circuit court erred in denying Travelers’ motion to dismiss Ohr’s application for a tax deed. They contend that although Travelers’ attempts to redeem the property were unsuccessful, nonetheless such actions were in “substantial compliance” with the statute (Ill. Rev. Stat. 1989, ch. 120, par. 734) and furnished the trial court with adequate grounds to dismiss Ohr’s application for a tax deed. Section 253 of the Illinois Revenue Act of 1939 (as amended) (Ill. Rev. Stat. 1989, ch. 120, par. 734) provides in pertinent part that a party attempting to redeem real estate must make payment in cash, cashier’s check, certified check or money order to the county clerk of the proper county, in the amount for which the property was sold plus all subsequent taxes and special assessments with 12% penalty. In the instant action, Travelers made payment by personal check to the county collector in the amount for which the property at issue had been sold. (The estimate for redemption had been prepared by the county clerk and did not include the 1988 taxes or the 12% penalty. In spite of this omission, Travelers sent a separate check to cover payment of the delinquent first installment 1988 taxes to the Cook County collector, which payment was also returned for unknown reasons.)

Although, as Travelers asserts, courts do look with favor upon redemption from tax foreclosure sales and give liberal construction to redemption laws, they also maintain that redemption is a statutory privilege and must be exercised in substantial compliance with the statute. In fact, in In re Application of County Treasurer (1978), 57 Ill. App. 3d 550, 373 N.E.2d 870, a case cited by Travelers to support its liberal construction argument, the appellate court reversed the trial court’s finding of a valid redemption based on a too broad reading of the Illinois mailing statute.

There are other cases more supportive of Travelers’ contentions. In In re Application of County Treasurer (1980), 84 Ill. App. 3d 506, 510, 405 N.E.2d 869, 872 (Atlantic Municipal Corporation v. McGuirk), the appellate court upheld the trial court’s finding of a valid redemption when the taxpayer sent his check to the incorrect county official. (The McGuirk court found that a cashier’s check made payable to the Du Page county treasurer rather than the county clerk and postmarked on the last day of the redemption period was a reasonable mistake having no bearing on the validity of the redemption. Additionally, the county clerk had mailed the McGuirks a certificate of redemption after the cashier’s check had been deposited.)

Other appellate court decisions have found the existence of a valid redemption when personal checks have been accepted by the county clerk. In In re Application of Williamson County Collector (1984), 128 Ill. App. 3d 408, 409-10, 470 N.E.2d 1193, 1195, the reviewing court upheld the trial court’s finding of a valid redemption when payment had been made by personal check, even though the check had later been dishonored and reissued after the expiration of the period of redemption. Additionally, the clerk had issued a certificate of redemption. (The Williamson court also noted that the case involved an unusual factual situation, unlikely to recur.) See also John Allan Co. v. Sesser Concrete Production Co. (1969), 114 Ill. App. 2d 186, 252 N.E.2d 361, and Weiner v. Chicago Title & Trust Co. (1960), 21 Ill. 2d 69, 171 N.E.2d 50, which indicate that the acceptance of a personal check by the county clerk and the issuance of a certificate of redemption will effect a valid redemption. But see Weiner v. Eder (1961), 22 Ill. 2d 408, 176 N.E.2d 777, in which the Illinois Supreme Court determined that a valid redemption had not been made when appellee deposited a personal check with the county clerk, who declined to issue a certificate until the check had been honored by the bank. (By the time the check had cleared, the redemption period had expired and the clerk correctly refused to issue a certificate.) While these cases imply that this court will uphold the actions of a county official who incorrectly accepts a proffered personal check and issues a certificate of redemption, they do not support the argument that a court should order the county clerk to accept payment made in an incorrect legal tender.

Additional case authority indicates that a taxpayer may find relief from redemption requirements (such as submitting an incorrect amount of payment) if the mistake was caused by a clerk’s error. See In re Application of County Treasurer & Ex Officio County Collector (1987), 171 Ill. App. 3d 644, 525 N.E.2d 852. See also In re Application of the County Treasurer & Ex Officio County Collector of Cook County, Illinois, for Judgment & Order of Sale Against Real Estate Rendered Delinquent for the Nonpayment of 1980 Taxes (1989), 185 Ill. App. 3d 789, 542 N.E.2d 397.

Thus the liberal construction argument and the policy in favor of redemption support a finding of a valid redemption in the following limited circumstances: (1) when a payment in the correct legal tender was timely made and accepted by the incorrect county official, who also issued a certificate of redemption (McGuirk, 84 Ill. App. 3d 506, 405 N.E.2d 869); (2) when a payment in the incorrect legal tender (personal check) was made and accepted by the correct county official, who also issued a certificate of redemption (Williamson, 128 Ill. App. 3d 408, 470 N.E.2d 1193; John Allan Co., 114 Ill. App. 2d 186, 252 N.E.2d 361; Weiner v. Chicago Title & Trust Co., 21 Ill. 2d 69, 171 N.E.2d 50); and finally (3) when the taxpayer’s mistakes were due to a clerk’s error. (In re Application of County Treasurer & Ex Offic io County Collector, 171 Ill. App. 3d 644, 525 N.E.2d 852.) The problems with the attempted redemption in the case at bar are too numerous to be encompassed by any of the above scenarios in which a valid redemption was found. In the instant action not only was payment made to the wrong county official, but it was made in the wrong type of tender AND was not accepted by the county clerk. Furthermore, no certificate was ever issued. Additionally, although the clerk’s office did make the mistake of not including the real estate taxes in the estimate, this mistake was overcome because Travelers made a separate payment of real estate taxes. For all of the above reasons, we find that the trial court correctly determined that a valid redemption had not been made and appropriately denied Travelers’ and Mostyn’s motion to dismiss Ohr’s application for a tax deed.

Travelers and Mostyn further contend that the circuit court erred in issuing a tax deed to Ohr, as Ohr did not provide them with the statutorily required notice.

Sections 263 and 266 of the Illinois Revenue Act of 1939 (as amended) (Ill. Rev. Stat. 1989, ch. 120, pars. 744, 747) require that between three and five months prior to the expiration of the redemption period, a petitioner for a tax deed must give written notice to “the owners, occupants and parties interested” in the property of the “sale and the date of expiration of the period of redemption,” “the fact of filing a petition for a tax deed and the date on which he intends to apply in the circuit court for an order for a deed if the real estate is not redeemed from the sale.” Illinois courts have required strict compliance with these regulations. In re Application of Cook County Collector (1981), 100 Ill. App. 3d 178, 426 N.E.2d 947 (Ohr v. Prairie Material Sales, Inc.).

In the case at bar, the period of redemption ended on October 16, 1989. The appropriate period of notice (between three and five months before the end of this period) began on May 16, 1989, and ended on July 16, 1989. Ohr made a search for “owners, occupants and parties interested” as of May 31, 1989. On June 4 and June 10, Ohr served the interested parties of record. (Jane Mostyn, owner, and John Keckeisen, occupant.) Travelers’ loan to Mostyn was concluded on June 21, 1989, and its interest in the property was recorded on June 23 after Ohr had completed the statutorily required search and notice obligations.

Travelers argues that its interest in the property was recorded within the notice period, and that a liberal construction of the search and notice procedures would require Ohr to make additional later searches in an effort to discover and notify any other persons who had recorded interests in the property as of any later date in the notice period. While urging this statutory interpretation, Travelers notes that there are no reported decisions in which either the appellate court or the supreme court has addressed the question of whether the tax deed petitioner is obligated, as part of his diligent inquiry, to update his search and notify persons with interests in the property that were recorded later in the notice period.

A judicial determination that a tax purchaser is required to repeat his search and notification procedures throughout the notice period would substantially alter the obligations imposed by sections 263 and 266 of the Revenue Act, which do not require that notice (or inquiry into who is entitled to such notice) be conducted on the last day of the two-month period, but only that it be accomplished during that period, thus implying that even inquiry and notice on the first day of the notice period would be sufficient. The imposition of additional requirements on a tax petitioner requires modification of the statute, which is a legislative rather than a judicial prerogative. See Fisher v. Rhodes (1974), 22 Ill. App. 3d 978, 317 N.E.2d 604.

Furthermore, as noted by the trial judge, the petition for tax deed is a public record and is discoverable by any person who takes an interest after its filing. Also, the judgment and sale records, together with the warrant book, are public records which should be inspected by and would give notice to a bona fide purchaser of property. Thus, Travelers had the opportunity to learn of Ohr and his efforts to purchase the property at issue. A careful inspection of the public records would have revealed both the sale of the property for back taxes and the application for a tax deed.

For these reasons, we affirm the finding of the trial court that Ohr properly notified all parties of record. Travelers’ interests were recorded after the notices had been sent and statutory requirements do not require additional search and notice procedures.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    BILLY KENNETH BROWN, a Minor, by his Mother and Next Friend, Myrtle Brown, Plaintiff-Appellant, v. THE CHICAGO PARK DISTRICT, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0246
    Opinion filed October 18, 1991.
    William G. Pintas & Associates, Ltd., of Chicago (William G. Pintas, of counsel), for appellant.
    Gregoria Vega-Byrnes, of Chicago, for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court: ^

Plaintiff through his next friend, his mother, filed suit against the Chicago Park District after her son’s foot was injured when a mirror fell from the wall of a park district indoor public shower. The mirror was originally placed behind a pipe in the shower stall by an unknown third party not involved in the litigation. Plaintiff alleged defendant’s conduct in not removing the mirror before the injury constituted a willful and wanton act because park district employees knew of the existence and in fact had used the mirror in the past. Plaintiff’s complaint was dismissed and amended twice and dismissed a third time for failure to state a cause of action. Plaintiff appealed the final dismissal order, which was entered with prejudice.

On appeal, plaintiff contends the court erred when it ruled that plaintiff’s second amended complaint failed to allege as a matter of law any willful and wanton conduct by the defendant.

Plaintiff also contends the park district was in error to argue as a defense that plaintiff’s action is barred by section 24 of the Illinois Park District Code, which states, “[T]he Chicago Park District shall not be liable for passive negligence on its part for claims arising on and after October 1, 1983” (Ill. Rev. Stat. 1987, ch. 105, par. 33.23a). Defendant concedes this issue on appeal and we need not discuss it here.

Plaintiff sued the Chicago Park District after plaintiff, Billy Kenneth Brown, a minor, was injured August 8, 1988, at Pulaski Park in Chicago. Plaintiff alleged that Brown was at the public, indoor shower on that date when a mirror, wedged behind the shower pipe, fell on Brown and seriously injured him. Brown’s age is not in the record. However, an interrogatory submitted to plaintiff by defendant asks what injuries the minor has sustained in the past 12 years.

Plaintiff alleged both negligence and willful and wanton conduct on the part of the park district in counts I and II and sought family expenses under a third count. The court granted defendant’s motion to dismiss the complaint and plaintiff was given leave to file an amended complaint. Plaintiff filed an amended complaint in two counts alleging willful and wanton misconduct on the part of the park district and seeking family expenses. Defendant’s motion to strike the complaint was granted, and plaintiff again was given leave to amend.

Plaintiff filed a second amended complaint in two counts which alleged willful and wanton conduct on defendant’s part and sought family expenses. The complaint alleged willful and wanton conduct by park district employees in that:

“Subsequent to the occurrence, a Chicago Park District employee on the scene spoke to the plaintiff and admitted that the Park District staff had known that the mirrors were in the shower room and that they should not have been there.
Prior to [the occurrence] and for some time prior thereto, employees of the Chicago Park District themselves used said mirrors, and were witnessed standing in front of the mirrors and combing their hair.
On [the date of the occurrence] and for some time prior thereto, the defendant and its employees and agents had actual knowledge and notice of the existence of said mirrors in the shower area, and had ample time to take measures to remove the mirrors or otherwise render them harmless.”

Plaintiff alleged willful and wanton conduct in one or more of the following ways: “Willfully and wantonly failed to remove the mirror that injured the plaintiff from its location behind the shower pipe, even though it knew the mirror should not be there and that it constituted a great hazard to users of the public showers; willfully and wantonly failed to affix the mirror securely to the wall or otherwise render it harmless to patrons, even though it knew that the mirror was only wedged behind a pipe and that it constituted a great hazard to users of the public shower; willfully and wantonly failed to warn patrons of the shower that said mirrors constituted a great hazard.”

The trial court dismissed the second amended complaint with prejudice on December 20, 1989. Plaintiff appealed, raising as an issue whether the trial court erred' in its ruling that plaintiff’s second amended complaint failed to allege as a matter of law any willful and wanton conduct by the defendant.

The Local Governmental and Governmental Employees Tort Immunity Act (hereinafter the Tort Immunity Act) provides tort immunity to local public entities or public employees based on the condition of any public property “intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1989, ch. 85, par. 3—106.

Here, plaintiff alleged the defendant’s conduct constituted willful and wanton actions which would serve to block the protection provided by the Tort Immunity Act. The trial court found no willful and wanton conduct on the part of defendant and ruled that the mirror was not something designed on the walls of the building but rather was something people brought to the showers. “[T]he folks who maintain these places, perhaps figured that the patrons of the Park District will continue bringing the mirrors as fast as they can take them down. Even if that’s not their thinking, whether the glass is or the mirror is dangerous or not, is, of course, for a jury to decide; but as a matter of law, I don’t think this conduct, which is now very well described, as about as well alleged as can be set forth, is willful and wanton. I think that the pleadings are sufficient to pass the notice problem, but I think the conduct itself is not willful and wanton.”

Plaintiff’s action was dismissed on a motion to dismiss. To determine the propriety of such a motion, all facts properly pleaded must be taken as true (Nyman v. Washington State Bank (1980), 86 Ill. App. 3d 781, 782, 408 N.E.2d 471, 472) with all reasonable inferences construed in plaintiff’s favor. Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 186, 520 N.E.2d 62.

The Tort Immunity Act defines willful and wanton conduct as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” Ill. Rev. Stat. 1989, ch. 85, par. 1—210.

The supreme court in Lynch further defined willful and wanton conduct: “A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.” (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447, 457.) The knowledge can be actual or constructive. Lynch, 82 Ill. 2d at 430, 412 N.E.2d at 457.

The question of what constitutes willful and wanton conduct is generally reserved for the trier of fact; however, a court may make a determination of that issue if the evidence so overwhelmingly favors one party that a contrary determination cannot stand. (Lester v. Chicago Park District (1987), 159 Ill. App. 3d 1054, 1057-59, 513 N.E.2d 72, 75.) In Lester, the appellate court affirmed a trial court’s finding that plaintiff failed to state a cause of action for willful and wanton conduct when it alleged that the park district’s failure to repair ruts and holes in a softball field constituted willful and wanton conduct. Lester, 159 Ill. App. 3d at 1060, 513 N.E.2d at 76.

Plaintiff argues that he has alleged willful and wanton conduct in alleging that the park district employees had “notice of the existence of the mirrors, knew they posed a hazard to park patrons, had ample time to remove or securely affix them to the wall” and did nothing to remove the glass, resulting in one glass mirror falling and injuring Brown. Plaintiff argues that by ignoring a known hazardous condition, defendant’s conduct rose to the level of willful and wanton misconduct.

Plaintiff contends he properly pled that defendant had notice of the hazardous condition because he alleged defendant’s employees knew the mirrors were there and they had used them themselves. Plaintiff rejects defendant’s argument that it is necessary to allege defendant had knowledge of prior injuries caused by the mirrors. Plaintiff argues that it is reasonable to expect park employees to know that glass in a shower room is dangerous, even if no one has yet been injured.

Defendant contends plaintiff simply has not pled willful and wanton action on the part of the park district. In support, defendant cites to Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 532 N.E.2d 409, Winston v. Board of Education (1989), 182 Ill. App. 3d 135, 537 N.E.2d 964, and Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62.

In Majewski, plaintiff sued the Chicago Park District after he sustained injuries when he fell on broken glass located on a park district field. The trial court dismissed plaintiff’s complaint for failure to state a cause of action for willful and wanton misconduct. Plaintiff alleged the park district failed to post signs around the football field warning of the possibility of broken glass and failed to inspect and remove debris from the field. The reviewing court upheld the dismissal and found that these allegations, standing alone, describe mere omissions which perhaps constitute ordinary negligence, but are not allegations of willful and wanton misconduct. Majewski, 177 Ill. App. 3d at 341.

In Winston, the appellate court found the evidence insufficient to establish willful and wanton misconduct on the part of a school district when plaintiff, a five-year-old kindergarten student, was hit by a car after leaving the school alone. Plaintiff alleged that other children had been struck by motor vehicles crossing the same intersection. The appellate court affirmed the trial court finding that plaintiff failed to prove that charge at trial. Winston, 182 Ill. App. 3d at 138.

In Scarano, the trial court dismissed plaintiff’s action for failure to state a cause of action for willful and wanton misconduct causing plaintiff to be injured in a fall from a playground slide. The appellate court reversed the trial court, finding that the complaint alleged willful and wanton conduct on the part of defendants when it alleged defendants knew other children had fallen from the slide due to the slide’s defective and dangerous design but had taken no action to remedy the defects.

Defendant argues that the plaintiff here has alleged no facts to indicate the park district knew of other injuries or accidents due to the placement of mirrors behind the pipes by patrons of the showers. Defendant argues that plaintiff failed to allege any prior knowledge of an impending danger or a reckless disregard for that danger.

We find that the trial court properly determined that the allegations of the park district’s conduct did not rise to allegations of willful and wanton misconduct because plaintiff has not alleged any intentional act or any act committed under circumstances exhibiting utter indifference or a reckless disregard for the safety of others. We find plaintiff has failed to allege facts in the amended complaint that would defeat the Park District’s statutory tort immunity protection from negligence claims for bodily injury provided the park district in the Tort Immunity Act. We therefore affirm the trial court’s dismissal of plaintiff’s second amended complaint.

Affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    ROBERT W. ZIMMERMAN, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—3539
    Opinion filed October 18, 1991.

      Motherway & Glenn, of Chicago (Nicholas J. Motherway, of counsel), for appellant.
    Oppenheimer, Wolff & Donnelly and Lord, Bissell & Brook, both of Chicago (David C. Bohrer, Thomas J. Healey, Hugh C. Griffin, Sandra K. Macauley, and Peter R. Reilly, of AMTRAK, Gary L. Crosby, of Atchison, Topeka & Santa Fe R.R., Woodrow M. Cunningham, of Belt R.R. of Chicago, Kenneth J. Wysoglad, of Burlington Northern R.R. Company, James P. Daley, of Chicago & North Western Transportation Company, Michael J. Daley, of Chicago South Shore & South Bend R.R. Company, Lucy S.L. Amerman, of CONRAIL, Robert N. Gentile, of Elgin, Joliet & Eastern R.R., John A. Ponitz, of Grand Trunk Western R.R., and Roger Serpe, of Indiana Harbor Belt R.R. Company, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

In this appeal we are asked to decide whether a negligently inflicted emotional injury is compensable pursuant to the Federal Employers’ Liability Act, 45 U.S.C. §51 et seq. (1988) (FELA). The trial court held that it was not and entered summary judgment for defendant. We agree and therefore affirm.

Plaintiff was employed by the Illinois Central Gulf Railroad (IC) as a claim agent. It was his job to investigate and settle claims made against the IC by employees, passengers, motor vehicle drivers and trespassers. Defendant is a railroad corporation with its principal place of business in Illinois. On March 12, 1986, plaintiff was terminated from his position because, as defendant alleges, plaintiff was unable to resolve claims in a timely manner and was hostile to immediate supervisors. Five days later plaintiff filed a complaint seeking damages under FELA for psychic injury resulting from an increased workload and decrease in available staff and support.

Plaintiff’s complaint specifically alleged that his job duties usually produced stress and anxiety but that commencing in February 1985, defendant further subjected him to an unwarranted and unmanageable workload and arbitrary and capricious orders which defendant knew or should have known would cause psychic injury. Plaintiff further alleged that defendant’s conduct in negligently allowing plaintiff’s work environment and job duties to become unreasonable and unmanageable was a violation of FELA.

At his deposition, plaintiff acknowledged that his claims against defendant did not include any physical contact, threat of physical contact, harassment or verbal abuse such as insults or name calling. Following a hearing, Judge Thomas E. Hoffman granted defendant’s motion finding that, absent any evidence of physical contact, threat of physical contact or outrageous conduct, plaintiff could not recover any damages under FELA.

Plaintiff contends that the trial court erred in granting defendant’s motion for summary judgment because his emotional injury was compensable under FELA. FELA provides in part:

“Every common carrier by railroad while engaging in commerce *** shall be liable in damages to any person suffering injury while he is employed by such carrier *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C. §51 (1988).

The issue of whether plaintiff’s injury is compensable under FELA involves the interpretation of a Federal statute. Rights created under this statute are governed by the decisions of Federal courts in order that the Act be given uniform application rather than be subject to the local rules of each State. Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186, 199-200, 142 N.E.2d 104, citing Dice v. Akron, Canton & Youngstown R.R. Co. (1952), 342 U.S. 359, 361, 96 L. Ed. 398, 403, 72 S. Ct. 312, 314.

While this issue is one of first impression for this court, it has been addressed by Federal courts in several jurisdictions, including the seventh circuit. Those courts have generally found that the negligent infliction of emotional distress was not compensable under FELA unless there was contemporaneous offensive physical contact or threat of physical harm. However, some jurisdictions, excluding the seventh circuit, have allowed recovery for an emotional injury where the infliction of emotional distress was intentional if the defendant’s conduct was unconscionably or outrageously abusive. See Adams v. CSX Transportation, Inc. (6th Cir. 1990), 899 F.2d 536; Netto v. Amtrak (5th Cir. 1989), 863 F.2d 1210; Kraus v. Consolidated R.R. Corp. (E.D. Pa. 1989), 723 F. Supp. 1073; Harris v. Norfolk & Western Ry. Co. (W.D. Va. 1989), 720 F. Supp. 567.

The seventh circuit has consistently required a showing of offensive physical contact or threat of physical harm in order to allow recovery for emotional injury under FELA, whether the infliction of emotional distress is intentional or negligent. The issue was first addressed in Lancaster v. Norfolk & Western Ry. Co. (7th Cir. 1985), 773 F.2d 807. In that case the court held that a railroad worker who became mentally ill had a valid claim under FELA where his illness was found to be related to a series of incidents in which he was subjected to offensive physical contact and the threat of physical harm by several supervisors. In Hammond, v. Terminal R.R. Association (7th Cir. 1988), 848 F.2d 95, the issue was again considered in the context of whether plaintiff’s complaint had properly been removed to Federal court. In its discussion of this issue, the Hammond court restated its holding in Lancaster that FELA was limited to tortious acts involving unwanted physical contact or threat of physical harm. (Hammond, 848 F.2d at 97.) The court then concluded that plaintiff’s claims that the railway had inflicted emotional distress by filing unmeritorious disciplinary charges, setting unrealistic work quotas and too closely supervising his work was not within the scope of FELA pursuant to its holding in Lancaster. (Hammond, 848 F.2d at 98.) In Ray v. Consolidated Rail Corp. (7th Cir. 1991), 938 F.2d 704, the court recently upheld its position that there is no recovery for emotional injury under FELA without a showing of unwanted physical contact or the threat of physical harm. The sixth circuit has followed the approach of the seventh circuit that an emotional injury including an intentional infliction of emotional distress without unwanted physical contact was not compensable under FELA. See Adkins v. Seaboard System R.R. (6th Cir. 1987), 821 F.2d 340, 342.

In this case, the plaintiff seeks recovery under FELA for psychic injury allegedly resulting from an increased workload, decrease in staff and support as well as arbitrary and capricious orders which produced an unreasonable amount of stress in the work environment. Plaintiff concedes that the complained-of conduct only supports a claim for the negligent infliction of emotional distress. Plaintiff further acknowledges that the law of the seventh circuit is that the negligent infliction of emotional distress is not compensable under FELA without unwanted physical contact or threat of such contact but urges us to reject this authority and follow the authority which allows compensation under the facts of this case. However, contrary to plaintiff’s arguments and the numerous cases cited, we find no persuasive authority which holds that the negligent infliction of emotional distress is recoverable under FELA absent offensive physical contact or harm.

Although plaintiff relies heavily upon Atchison, Topeka & Santa Fe Ry. Co. v. Buell (1987), 480 U.S. 557, 94 L. Ed. 2d 563, 107 S. Ct. 1410, and Urie v. Thompson (1949), 337 U.S. 163, 93 L. Ed. 1282, 69 S. Ct. 1018, neither case lends support to his argument. In Urie the plaintiff sued the the trustee, Thompson, and the Missouri Pacific Railroad for compensation under FELA. Plaintiff’s complaint alleged that his contraction of silicosis after 30 years of employment as a fireman on steam locomotives arose from the continuous inhalation of silica dust that had been blown or sucked into the cabs of the locomotives on which he worked. Plaintiff claimed that the injurious concentration of silica dust was caused by the railroad’s use of equipment which it knew or should have known could cause plaintiff’s illness. (Urie, 337 U.S. at 166, 93 L. Ed. at 1290, 69 S. Ct. at 1023.) Plaintiff’s claim was denied by the Missouri Supreme Court based on the ruling that only accidental injuries were compensable under FELA. (See Urie, 337 U.S. at 165, 93 L. Ed. at 1290, 69 S. Ct. at 1022.) The United States Supreme Court reversed, holding that injuries compensable under FELA included occupational diseases such as silicosis which developed as a result of the employee’s on-going exposure to harmful working conditions due to the railroad’s negligence. (Urie, 337 U.S. at 187, 93 L. Ed. at 1302, 69 S. Ct. at 1033.) The ruling in Urie, that a chronic physical illness was compensable under FELA, adds no support to plaintiff’s argument. In Buell, the court refused to rule on the issue of whether an emotional illness was compensable and vacated in part the ruling of the lower court which had held that emotional injuries were within the scope of FELA. (See Buell v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1985), 771 F.2d 1320.) Plaintiff also cites Taylor v. Burlington Northern R.R. Co. (9th Cir. 1985), 787 F.2d 1309. However, the court in Taylor relied upon that part of Buell which was later vacated by the Supreme Court. Additionally, the court stated that “it is not clear from the record before us that appellant presents no evidence of a physical touching or injury.” (Taylor, 787 F.2d at 1313.) In fact, the plaintiff’s foreman in Taylor had threatened him with a knife and had pulled and cut a portion of his beard. Thus Taylor provides little support to plaintiff’s argument. In Yawn v. Southern Ry. Co. (5th Cir. 1979), 591 F.2d 312, the court also did not reach the issue of whether an emotional injury was compensable under FELA. Rather, the holding in Yawn was that the railroads failed to prove that employees’ allegations of negligence and injury were so baseless as to constitute a fraudulent attempt to evade removal to Federal court. (Yawn, 591 F.2d at 317.) In addition, while the specific nature of the plaintiffs’ injuries was not indicated, the Yawn court made several references to the plaintiffs’ allegations of physical injury.

Plaintiff next urges us to follow Illinois common law regarding the Hlinois Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) (Act). Plaintiff cites Board of Education v. Industrial Comm’n (1989), 182 Ill. App. 3d 983, 538 N.E.2d 830, and Chicago Board of Education v. Industrial Comm’n (1988), 169 Ill. App. 3d 459, 523 N.E.2d 912, for the proposition that mental disorders are compensa ble under the Act if the injuries arise from a situation of greater dimension than the emotional strain and tension that employees usually experience. Plaintiff suggests that this higher threshold level of mental distress should be applied in FELA context. However, the Act is not analogous to FELA where it provides no-fault recovery as opposed to the proof of negligence standard of FELA. Furthermore, according to the cases cited, plaintiff would be less likely to recover under the Act than he would under FELA. In Board of Education (182 Ill. App. 3d 983, 538 N.E.2d 830), the plaintiff experienced a reoccurrence of his emotional illness after being slapped in the face by a student, and in Chicago Board of Education (169 Ill. App. 3d 459, 523 N.E.2d 912), the plaintiff suffered from emotional symptoms which interfered with his ability to resume his teaching position after he experienced numerous physical assaults from students. In both cases the plaintiff’s emotional illness was not compensable under the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). As such and because there is existing precedent which holds that the negligent infliction of emotional injury is not compensable under FELA, we decline to analogize FELA with the Workers’ Compensation Act.

Finally, plaintiff alleges that even if this court concludes that emotional injuries are only compensable if they result in some physical manifestations or physical harm, his injuries would be recoverable where they resulted in such physical symptoms as diarrhea, impotence and tightness in his chest. However, the physical symptoms plaintiff describes are his individual internal responses to the anxiety he experienced as opposed to the occurrence of physical harm resulting from defendant’s tortious activity. See Holliday v. Consolidated Rail Corp. (3d Cir. 1990), 914 F.2d 421, 425 (where the court found that the plaintiff’s physical manifestations of his emotional distress had no bearing on the nature of the defendant’s tortious activity).

For the foregoing reasons, we are unpersuaded by plaintiff’s arguments or authority cited. We thus conclude that where a plaintiff alleges an emotional injury based on the negligent infliction of emotional distress, as is true in this case, the injury is not compensable under FELA. Accordingly, the order of the circuit court is affirmed.

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE EGAN

text:
    MAURICE TONGATE et al., Plaintiffs-Appellants, v. WYETH LABORATORIES, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0053
    Opinion filed August 16, 1991.
    Modified on denial of rehearing November 15, 1991.

      Paul R. O’Malley and Thomas D. Nissen, both of Paul R. O’Malley, Ltd., of Chicago, for appellants.

      Wildman, Harrold, Allen & Dixon, of Chicago (Richard C. Bartelt, Ruth E. VanDemark, David A. Kanter, Francine J. Aren, and Frank T. Rivas, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, Maurice Tongate and his wife Constance Tongate, filed a complaint against Wyeth Laboratories (Wyeth) and Elston Industrial Clinic (Elston). The initial complaint and subsequent amended complaints alleged that after Maurice Tongate injured his finger at work he was taken to Elston, where he was given an injection of tetanus toxoid manufactured by Wyeth, and as a result of his receiving the injection he suffered severe and permanent neurological impairment. The complaints alleged that Elston was negligent because its agents failed to take a complete history from Tongate to determine whether the use of tetanus toxoid was contraindicated. The complaint against Wyeth alleged that the tetanus toxoid was unreasonably dangerous for its intended and foreseeable purposes because it failed to contain an adequate warning that would inform medical personnel of the possibility of an allergic reaction resulting in neurological impairment.

The trial judge granted summary judgment in favor of Wyeth and denied the plaintiffs leave to file an amendment to their complaint. The judge stayed the proceedings against Elston until this appeal has been completed. The plaintiffs contend that the order granting summary judgment and the order denying their motion to file an amendment are both erroneous.

Tongate testified at his deposition that on January 25, 1978, he injured his hand while at work, and he was taken to Elston. When he arrived at Elston, he was asked to fill out “a little yellow card,” and he was asked if he had ever had a number of different diseases and allergies. He answered that he had had rose fever. A doctor, later identified as Emilo Beltran, told a nurse to give Tongate a tetanus shot. Tongate told the nurse that he had previously received a tetanus shot, and he did not think he needed one. Beltran explained to him that it was the procedure and it was for his own good. Tongate asked the doctor, “Why do I need that?” The doctor said, “Why, did you have one?” Tongate told him that he had one about five or six years ago. He added, “You know, I don’t think I need it.” Beltran then said, “Well, five, six years ago, that’s long enough, we can give you another one.” (In his deposition, Beltran denied that the plaintiff ever suggested that he did not need the injection.) Tongate did not remember telling Beltran anything more about his previous tetanus shot. A nurse gave Tongate the tetanus shot in his left shoulder.

In February Tongate went to see his family doctor complaining about numbness in his hands and feet. By May he felt more affected in the ankles, groin, knees and wrists when he moved. In June he began to experience “flatfootedness,” stinging in his mouth and difficulty in swallowing fluids. In July, after he found himself catching his breath and falling down, he saw Dr. Neil Allen, board certified in neurology and internal medicine.

Dr. Allen asked Tongate if he had had any injections, and Tongate asked whether a tetanus shot could have caused his problem. Dr. Allen told him that it could have caused the problem and asked Tongate to find out what type of tetanus injection he had been given. Dr. Allen diagnosed Tongate’s condition as “acute polyneuritis” caused by an allergic reaction to the tetanus injection.

Tongate was examined by Dr. Kranzler, a neurologist, who told Tongate he believed his problems were caused by the tetanus injection. He subsequently went to Edgewater Hospital where he remained for one month; he was treated by Dr. Allen. On Dr. Allen’s advice, Tongate contacted Dr. Sahgal at the Rehabilitation Institute of Chicago, and he was treated there during April, May and June of 1979. The doctors at the institute told Tongate that he had Guillain-Barre syndrome, a form of polyneuritis.

When Tongate’s deposition was taken on January 14, 1982, he was having plasma phoresis, a procedure in which blood plasma is removed. He was using crutches and a brace in his shoe because of foot drop.

' A more detailed recitation of additional evidence is required when addressing the various arguments raised by the parties. For the sake of brevity, we will not recite them at this point. We would add, however, that this case centers on the information contained in “inserts” which are placed in each package of the tetanus toxoid manufactured by Wyeth. Wyeth maintains that summary judgment in its favor is required because the information contained in the inserts provided in each of the packages containing the tetanus toxoid was adequate as a matter of law; it cannot be liable based on the “learned intermediary” rule; and it cannot be liable because Dr. Beltran did not rely on the information provided in Wyeth’s inserts when he prescribed the tetanus toxoid.

The plaintiffs maintain in their reply brief that Wyeth has waived the argument that the inserts were adequate as a matter of law on the ground that Wyeth did not raise that argument in its motion for summary judgment. As appellee, Wyeth responded correctly that we may affirm on any ground “so long as the factual basis for such [ground] was before the trial court.” (Shaw v. Lorenz (1969), 42 Ill. 2d 246, 248, 246 N.E.2d 285, 287.) The issue is whether or not there is a factual basis in the record for Wyeth’s argument. Pursuant to our request during oral argument, Wyeth has referred us to those parts of the record which it claims will show that it did raise the argument in the trial court. We have examined those parts of the record, and we judge that Wyeth did not properly raise the argument in the trial court.

The grounds for summary judgment should be pleaded with sufficient specificity to alert the opposing party to what he must answer and the trial judge to what he may be expected to pass on. Wyeth’s motion for summary judgment was based solely on the claim that Wyeth owed no obligation to warn the plaintiff, that its only obligation was to warn Dr. Beltran and that Dr. Beltran had sufficient information from both Wyeth and other sources to enable him to act as a learned intermediary. In its memorandum in support of its motion Wyeth denied that its warnings on the tetanus toxoid vaccine were inadequate and asserted that it would “present evidence in support of its defenses at trial.” It pointedly added: “For purposes of this motion, however, it is unnecessary to consider those issues, as the evidence before this Court is that the prescribing physician has testified that he knew of anecdotal reports of [the condition of which the plaintiff complains] following Tetanus Toxoid Administration in the medicine literature.” Wyeth’s reply memorandum stated in bold type: “The learned intermediary doctrine focuses on the defendant’s ‘duty’ to warn; not the adequacy of the warning provided.” It is clear, therefore, that the motion for summary judgment itself and the memoranda of Wyeth did not inform the judge that he was being asked to pass on the sufficiency of the information provided by Wyeth.

Wyeth also refers us to parts of the record in which its attorney expressed disagreement with any assertion that its inserts were inadequate. In our judgment, those remarks of Wyeth’s attorney in response to statements made by the plaintiff’s attorney do not meet the requirements of the law. Indeed, at one point, Wyeth’s attorney took issue with the assertion by the plaintiff’s attorney that the inserts were inadequate and at the same time conceded, “This really is not relevant to the motion.” For these reasons, we conclude that Wyeth has not properly preserved the argument that summary judgment should be granted on the ground that the warnings provided by Wyeth in its inserts were adequate as a matter of law. See Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 436 N.E.2d 598; Mollihan v. Stephany (1975), 35 Ill. App. 3d 101, 340 N.E.2d 627, appeal on other grounds after remand (1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465.

Nevertheless, we have considered the argument and examined the record. The plaintiffs submitted the depositions of Dr. James T. O’Donnell, who held a doctorate degree in pharmacy, and Dr. Neil Allen. Both Dr. O’Donnell and Dr. Allen expressed the opinion that the warnings contained in the package inserts supplied by Wyeth were inadequate. Dr. O’Donnell was critical of Wyeth for failure to report neurological reactions and to warn of the dangers and contraindications connected with previous neurological reactions. Dr. Allen testified that, because enough information had previously been given in the medical literature on the association of tetanus toxoid with Guillain-Barre syndrome, “it should, in fact, be listed as a potential complication.”

Dr. Mahlon Bierly was the administrative assistant for marketed biologies and a member of the medical communications section for Wyeth responsible for the content of the warnings contained in the package insert for tetanus toxoid throughout the 1970’s and 1980’s. He testified that before 1978 he knew of reports of neurological events that had followed the administration of tetanus toxoid. Despite that knowledge there had never been any reference in the package inserts to the “reports of neurological events that had followed the administration of tetanus toxoid” before 1987. Dr. Bierly testified that in 1987 Wyeth revised its package inserts, in part, as follows:

“CONTRAINDICATIONS: Use of this product is contraindicated in persons with a history of neurologic or severe hypersensitivity reaction following a previous dose.
WARNINGS: Occurrence of neurologic disorders have been reported following administration of tetanus toxoid containing preparations. Central and peripheral nervous system disorders that have been temporally associated with the use of tetanus toxoid include *** Guillain-Barre Syndrome ***. A causal relationship has not been established.”

In our judgment, Dr. Bierly’s testimony buttresses the plaintiff’s argument. No question of the admissibility of Dr. Bierly’s testimony has been suggested by Wyeth. (Cf Northern Trust Co. v. Upjohn Co. (1991), 213 Ill. App. 3d 390 (subsequent amendment of inserts held inadmissible).) We conclude that whether the inserts were inadequate is a question of fact that could not be resolved by summary judgment. Our conclusion would be the same in the absence of the testimony of Dr. Bierly. Wyeth has cited cases which held warnings to be adequate as a matter of law. Suffice it to say that they are factually distinguishable.

We turn now to Wyeth’s principal argument that the trial judge properly entered summary judgment in its favor based on the “learned intermediary” rule, which was adopted in Illinois in Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387:

“[The learned intermediary] rule, as adopted in numerous jurisdictions, provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of the drugs’ known dangerous propensities, and the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. [Citations.]” (117 Ill. 2d at 517-18.)

The court explained further:

“The drug manufacturer generally communicates warnings relating to prescription drugs to the medical profession through package inserts, the Physicians’ Desk Reference, ‘Dear Doctor’ letters, detailmen, and through other measures. [Citations.] The doctor, functioning as a learned intermediary between the prescription drug manufacturer and the patient, decides which available drug best fits the patient’s needs and chooses which facts from the various warnings should be conveyed to the patient, and the extent of disclosure is a matter of medical judgment. [Citations.] As such, we believe the learned intermediary doctrine is applicable here and that there is no duty on the part of manufacturers of prescription drugs to directly warn patients. Certainly, if the manufacturer of a prescription drug has no duty to directly warn the user of the drug of possible adverse effects, it has no duty to warn a nonuser as [the plaintiff” 117 Ill. 2d at 519.

While Kirk instructs us as to the applicable rule, it is factually of no assistance in determining the question before us. In Kirk the plaintiff was injured while a passenger driven in a car by a person who had been given two prescription drugs. The complaint against the drug manufacturers alleged that the drugs were unreasonably dangerous because the manufacturer failed to warn that the drugs would diminish the physical and mental abilities of the driver. The supreme court upheld the dismissal of the complaint on the ground that the sequence of events that led to the plaintiff’s injuries was not reasonably foreseeable to the drug manufacturers. We emphasize that the driver, who had used the drug, was a defendant, not a plaintiff, in the action. We also emphasize, as the dissenting opinion points out, that the majority assumed that the warnings were adequate. See 117 Ill. 2d at 538 (Simon, J., concurring in part & dissenting in part).

Wyeth maintains that the learned intermediary rule is applicable, and the drug manufacturer exonerated, if it is shown that the intermediary physician was properly warned, regardless of the source of the warning, of any potential dangers in the use of the drug and regardless of the inadequacy of the warning provided by the drug manufacturer. (See Felix v. Hoffmann-LaRoche, Inc. (Fla. 1989), 540 So. 2d 102.) The plaintiff does not disagree with that argument of Wyeth. The issue, therefore, is whether the record establishes, as a matter of law, that Dr. Beltran possessed sufficient information from any source that would show that he was properly warned before he prescribed the drug. A resolution of that question depends almost entirely on two depositions given by Dr. Beltran.

Dr. Beltran first gave a discovery deposition on August 25, 1983, in which he discussed his knowledge of tetanus toxoid. He testified that he was aware of three contraindications, or situations in which a drug should not be administered, for tetanus toxoid: (1) the patient has received tetanus toxoid within the last five years; (2) the patient has a present acute illness, such as a high fever, sore throat, or upper respiratory infection; and (3) the patient has a previous allergy to tetanus toxoid. He explained that a previous allergy is “very important,” and noted that an example of an allergic reaction is one where a patient’s whole body “swells up.” The following exchange then occurred between Tongate’s attorney and Dr. Beltran:

“Q. Doctor, have you ever heard of a severe reaction to vaccines called post-vaccinal polyneuritis?
A. Heard about it, but I don’t have any experience of following it or seeing a case.
Q. You heard about it in connection with this case, I imagine, or did you know about it before?
A. Before that, before that.
Q. Were you aware before January 25, 1978, that there is— it had been known that a small percentage of people had had rather severe reactions to vaccines called post-vaccinal polyneuritis?
A. Yes, sir.”

Dr. Beltran further testified that he believed the handbook provided by Elston contained a section on tetanus toxoid; however, he said that he only looked at the handbook “in passing” because he felt confident about relying on the protocol developed by Medical Emergency Service Associates (MESA), his full-time employer. He also testified that he was “familiar” with the insert that came in the multiple dosage box of Wyeth’s tetanus toxoid, and that he read it every once in a while. Tongate’s attorney asked Dr. Beltran if he had had an occasion to refer to the Wyeth package insert for information in connection with his use of tetanus toxoid; Dr. Beltran replied, “No, sir.”

Based on Dr. Beltran’s deposition, the trial judge entered summary judgment for Wyeth. He said that he was “convinced that Dr. Beltran was informed of the specific risks that were involved in this type of situation.”

The plaintiffs filed a motion to reconsider and a motion for subpoenas to take the evidence depositions of Dr. Beltran and Dr. Schiff, Beltran’s employer. The trial judge allowed the plaintiffs to take those evidence depositions. At his evidence deposition, Dr. Beltran was asked a series of complex questions directed toward whether he had ever been aware of any warnings that severe neurological damage could be caused by an injection of tetanus toxoid. To all of these questions Dr. Beltran answered, “No, sir.” He further testified as follows:

“Q. Doctor, have you had an opportunity to review and read the transcript of your discovery deposition taken on August 25, 1983 in this matter?
A. Yes, sir.
Q. Okay. Specifically, I want to draw your attention to page 106 where you provided responses to certain questions regarding your awareness of post-vaccinal polyneuritis. Do you recall answering yes to the question ‘Were you aware prior to January 25, 1978, that it had been known that a small percentage of people had had rather severe reactions to vaccines called post-vaccinal polyneuritis?’ Do you recall that?
A. Yes, sir.
Q. You may recall that the questions asked of you on page 106 were about vaccines generally, not Tetanus Toxoid Adsorbed specifically. Now, specifically, what was your awareness before January 25, 1978, as to persons experiencing post-vaccinal polyneuritis following the use of Tetanus Toxoid Adsorbed vaccine?
A. I had not heard of any.
Q. Okay. Would you explain what you meant when you said on page 106 of your discovery deposition that you were aware of the fact that a small percentage of people had severe reactions to vaccines called post-vaccinal polyneuritis?
A. I was referring more on the swine flu and the DPT.
Q. Okay. The DPT and swine flu are separate and distinct vaccines, are they not?
A. Yes, sir.”

Dr. Beltran later testified that even if the package insert had been revised to include warnings of neurologic reactions, he still would not have transmitted those warnings to Tongate. However, after taking a short break, he testified that if the package insert had included warnings of neurologic reactions and if he had been aware of Tongate’s previous neurologic reactions following tetanus toxoid injections, he would have asked Tongate “to contact his personal physician, to verify the allergic reaction” and have the personal physician give the injection if indicated. Dr. Beltran added that if the patient was being difficult, he would “consult with the communicable disease control people about their opinion.”

In their motion to reconsider, the plaintiffs argued that Dr. Beltran’s testimony at his evidence deposition confirmed that the judge had misconstrued Dr. Beltran’s earlier testimony in finding that he had been fully informed of the risks associated with tetanus toxoid.

Wyeth responded that the judge should not consider Dr. Beltran’s evidence deposition, arguing that the plaintiffs were bound by Dr. Beltran’s earlier unequivocal testimony at his discovery deposition. Wyeth further argued that it was entitled to summary judgment for the additional reason that Dr. Beltran testified that he had not relied on Wyeth’s package insert.

The trial judge accepted Dr. Beltran’s deposition but adhered to his original decision and granted summary judgment. He said that “one of the key things” is Dr. Beltran’s statement “that the insert did not play a role in his decision.”

We must first address the threshold issue of whether Dr. Beltran’s second deposition may properly be considered. Wyeth argues that the evidence deposition contradicts Dr. Beltran’s earlier testimony and, therefore, it may not be considered in support of the plaintiffs’ motion to reconsider. Wyeth relies on Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301, and Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill. App. 3d 103, 516 N.E.2d 515.

In Hansen, the plaintiff testified at his deposition that he had tripped over a rubber strip on a loading dock and fell. Later he executed an affidavit stating that he had actually tripped over a different object. The appellate court upheld summary judgment for the defendant, noting that the plaintiff’s deposition testimony was unequivocal and constituted a binding judicial admission. In Commonwealth East ern Mortgage Co., the defendant testified at a deposition that the terms of a mortgage were not discussed. After the motion for summary judgment was filed, the defendant filed an affidavit in which he stated what the terms of the mortgage were to be. The appellate court held that the affidavit directly contradicted the deposition testimony and refused to consider the affidavit on review.

The holdings of Hansen and Commonwealth Eastern Mortgage Co. were extended to a party’s expert witness in Adelman-Tremblay v. Jewel Cos. (7th Cir. 1988), 859 F.2d 517, also cited by Wyeth, in which the court stated:

“The rule against creating ‘sham’ issues by submitting affidavits that contradict prior depositions thus far has been applied only to parties. [Citations.] We can think of no reason, however, not to apply this rule to the present case involving the testimony and affidavit of the plaintiffs [sic] sole expert witness. The purpose of summary judgment motions — ‘to weed out unfounded claims, specious denials, and sham defenses’ [citation] — is served by a rule that prevents a party from creating issues of credibility by allowing one of its witnesses to contradict his own prior testimony.” 859 F.2d at 521.

See also Rohrbough v. Wyeth Laboratories, Inc. (N.D. W. Va. 1989), 719 F. Supp. 470 (a statement in an expert’s affidavit that contradicts earlier deposition testimony may be disregarded if it constitutes an attempt by the nonmoving party to create a sham issue of fact).

We have a serious question whether Dr. Beltran’s testimony is subject to the judicial admission rule. He is not a party, and he is not an expert witness in this case; he is an occurrence witness. But even if his testimony were subject to the rule, we believe that his discovery deposition was not so clear and unequivocal that his evidence deposition may be considered contradictory to the discovery deposition. At his discovery deposition he was asked if he had ever heard of a severe reaction “to vaccines.” He was not asked specifically if he had heard of severe reactions to tetanus toxoid vaccines. Consequently, his subsequent testimony that he was referring “more on” swine flu and DPT vaccines, although arguably ambiguous, could be considered to explain his previous answer and to show that he did not refer to tetanus toxoid vaccines in his discovery deposition. See Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 525 N.E.2d 258.

We turn now to the question of whether the evidence establishes, as a matter of law, that Dr. Beltran had prior knowledge from any source that tetanus toxoid could cause polyneuritis.

Dr. Beltran’s testimony at both depositions shows that he had read Wyeth’s insert from time to time. He was “familiar” with the insert. He looked at the handbook provided by Elston only “in passing” because he felt confident about relying on the protocol developed by MESA; consequently, the record shows that Dr. Beltran’s information came from the insert and the MESA protocol. However, the MESA protocol also did not contain any contraindications for the use of tetanus toxoid.

In addition, Dr. Beltran testified that he was not aware before January 25, 1978, that tetanus toxoid could cause severe neurologic reactions; that there might be an association between tetanus toxoid booster shots and severe neurologic disorders; that persons with previous neurologic reactions to tetanus toxoid boosters were more likely to experience severe neurologic reactions; and that booster shots of tetanus toxoid were contraindicated for tetanus-prone injuries in persons having a history of a neurologic reaction following a previous booster shot of tetanus toxoid. He also testified that before January 25, 1978, he had never read or become familiar with any authoritative medical literature, package inserts or Physicians’ Desk Reference (PDR) monographs for tetanus toxoid which warned physicians that a .5 cc booster shot of tetanus toxoid, which he always prescribed, could cause severe neurologic reactions.

If Dr. Beltran’s testimony is to be believed, a fact finder could conclude that he had not been sufficiently warned that tetanus toxoid could cause polyneuritis. That being so, he would not be a learned intermediary.

Wyeth also argues that the record establishes, as a matter of law, that Dr. Beltran did not rely upon the Wyeth inserts when he prescribed the tetanus toxoid and that, therefore, the plaintiff is unable to establish a causal connection between any lack of information in its inserts and the injuries suffered by the plaintiff. (See Batteast v. Wyeth Laboratories, Inc. (1990), 137 Ill. 2d 175, 560 N.E.2d 315.) In support of its argument Wyeth cites Ashman v. SK & F Lab Co. (N.D. Ill. 1988), 702 E Supp. 1401, and Formella v. Ciba-Geigy Corp. (1980), 100 Mich. App. 649, 300 N.W.2d 356.

In Formella, the plaintiff, an elderly woman, complained to her physician of low back pain. He prescribed Tandearil. She returned to his office in two weeks, and he continued the drug treatment. No blood tests were conducted at any time during her treatment. About six weeks later, the plaintiff called the physician to complain of multiple bruises and tiredness. He immediately suspected that Tandearil had caused her to develop a blood dyscrasia. He ordered her to stop taking the drug and to report to a hospital for tests. His suspicions were confirmed. The plaintiff was extremely ill from the aplastic anemia which had occurred as a direct result of taking Tandearil.

One of the claims against the defendant drug manufacturer was that it failed to adequately warn the physician of the dangers of the drug. The appellate court affirmed the order directing a verdict in favor of the defendant and pointed out that the plaintiff’s own expert had testified that the PDR warning and package insert warning were adequate, if read. The court concluded that the fact that the physician failed to read the package inserts and the PDR negated any possible negligence on the part of the defendant and that the physician’s negligence was the intervening, independent and sole proximate cause of the plaintiff’s illness. We do not see how the Formella case supports Wyeth’s position. As we have previously noted, whether the Wyeth insert warnings were sufficient is a question of fact that cannot be decided on summary judgment.

In Ashman, the plaintiff’s physician prescribed a drug, Tagamet, which was manufactured by the defendant. The physician subsequently prescribed Ativan, a sleeping pill, not manufactured by the defendant. The two drugs were co-administered for two years with no side effects. Two years later the physician prescribed the drug Halcion in place of Ativan. Before he prescribed the Halcion the physician consulted the package insert for Halcion and the Physicians’ Desk Reference. Both the insert and the PDR discussed a potential interaction between Halcion and Tagamet. Nevertheless, the physician decided to prescribe Halcion even though there were other sleeping pills available. The Tagamet label did not specifically mention the interactive propensities of the drug with Halcion. While the physician had read the Tagamet label on previous occasions, he did not read it when making the decision whether to prescribe Halcion for the plaintiff.

The plaintiff ingested Tagamet, and four hours later he took the Halcion. The next morning he took an overdose of Ativan tablets which he had left over from the old prescription. He was then taken to a hospital in an unconscious state. His physician was not sure what had caused the plaintiff’s condition but suspected cerebral hemorrhage and decided to do a lumbar puncture to confirm. Despite the fact that the plaintiff regained consciousness and was in a coherent state, the physician decided to proceed with the lumbar puncture. As a result of alleged negligence in the performance of the lumbar puncture, the plaintiff was partially paralyzed. The plaintiff’s claim alleged that the defendant failed to provide an adequate warning of the interactive propensities of the two drugs. The district court granted summary judgment on two grounds: the injury caused by the negligence of the physician was not reasonably foreseeable and the physician was a learned intermediary.

Wyeth argues here that Ashman is applicable because the physician, as the district court noted, did not read the Tagamet label when he prescribed Halcion and, in this case, Dr. Beltran testified that he did not “refer” to the Wyeth insert “for information in connection with [his] use of tetanus toxoid.” We believe that Wyeth has elevated an isolated fact of the Ashman case and an isolated fact in this case to an undeserved significance. First, in Ashman, the plaintiff conceded that the physician was a learned intermediary. (Ashman, 702 F. Supp. at 1404.) No such concession is present in this case; to the contrary. In addition, the district court held that the evidence clearly established that the physician was aware of the possible interactive effect when Tagamet and Halcion were co-administered. The plaintiffs’ own expert testified that, based on the information provided both in the Halcion literature and the PDR, the interaction which occurred in the plaintiff was predictable. The district court pointed to the fact that there was no evidence that the physician consulted the Tagamet label at the time he prescribed the Halcion in response to the plaintiffs’ argument that the failure to include a warning on the Tagamet label misled the physician.

We do not agree that Dr. Beltran’s testimony establishes as a matter of law that he did not, to use Wyeth’s word, “rely” on Wyeth’s insert. We set out the following pertinent testimony of Dr. Beltran:

“Q. Now, while you have been at Elston Industrial Medical Center, have you had occasion to receive any literature from Wyeth Laboratories pertaining to Tetanus Toxoid Adsorbed?
A. That’s included in the box, insert, multiple dosage box.
Q. You are familiar with the insert, the package insert that comes with the product when it’s delivered; is that right?
A. Yes.
Q. Have you had occasion to read that over from time to time?
A. Yes, sir.
* * *
Q. Are you familiar with the package inserts that come with Tetanus Toxoid Adsorbed?
A. I read that every once in a while.
* * *
Q. I want to show you what I have marked as Beltran Exhibit No. 2 which is a package insert of Wyeth Tetanus Toxoid Adsorbed, and ask you if prior to January 25, 1978, you have had a chance to read and review a document like that?
A. Yes, I have read it.
Q. Generally similar to that?
A. Yes.
Q. Okay. This is the type of thing that’s found folded up in the package?
A. In the box, yes.
Q. If I understand you correctly, however, you have adopted protocols for its use associated with the emergency medicine practice that you have at Northwest Community Hospital; right?
A. Yes, sir.
Q. And you — have you had an occasion to refer to a package insert similar to the one marked as Beltran Exhibit No. 2 for information in connection with your use of Tetanus Toxoid?
A. No, sir.”

Since the case is before us on summary judgment, the issue is not whether the record shows that it is more probably true than not true that Wyeth’s negligence was the proximate cause of the plaintiff’s injury. Instead, the issue is whether Wyeth’s failure to provide adequate warnings may have proximately caused Tongate’s injury. Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586.

We are unwilling to accept, as a matter of law, the conclusion that when Dr. Beltran, whose native language is not English, said he did not “refer” to the insert, he meant that he did not take into consideration the information (or lack of information) contained in the insert when he prescribed the tetanus toxoid for Tongate. It is reasonable to construe Dr. Beltran’s testimony as a statement that he did not reread the Wyeth insert each time he prescribed tetanus toxoid. Cf Richards v. Upjohn Co. (1980), 95 N.M. 675, 625 P.2d 1192 (witness testified it is not standard medical practice to reread the PDR every time a drug is given.)

Some cases from other jurisdictions are instructive. In Mazur v. Merck & Co. (E.D. Pa. 1990), 742 F. Supp. 239, a physician testified that he considered the defendant’s package insert, the recommendations of the United States Center for Disease Control and the results of his own research before he selected the vaccine he prescribed. The defendant argued that even if it failed to provide an adequate warning, the physician’s “reliance on [nondefendant] sources of information about” the vaccine was the “true proximate cause” of the plaintiff’s illness. (742 F. Supp. at 262.) The district court ruled that “[t]here can be more than one proximate cause of an injury — and whether any inadequacy in the package circular was a substantial factor in causing harm to [the plaintiff], or whether what [the physician] did or failed to do caused that harm, or both, is a jury question.” 742 F. Supp. at 263.

In two jurisdictions it has been held that a rebuttable presumption exists that a failure to warn was a proximate cause of the injury: Graham v. Wyeth Laboratories (D. Kan. 1987), 666 F. Supp. 1483 (citing Kansas law); Williams v. Lederle Laboratories (S.D. Ohio 1984), 591 F. Supp. 381 (citing Ohio law). In the case before us, there is evidence from which a fact finder could conclude that the warnings were inadequate. The evidence clearly shows that Dr. Beltran read the Wyeth inserts from time to time. The evidence also established that, if Dr. Beltran had been aware of Tongate’s previous neurologic reactions following tetanus toxoid injections, he would have asked Tongate to “contact his personal physician to verify the allergic reaction” and have the personal physician give the injection if indicated. In our judgment, the record establishes, at least, a rebuttable presumption that the failure to provide an adequate warning was a contributing cause of Tongate’s injury. The right to summary judgment must be clear and free from doubt. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.) Wyeth has not established that right. A fact question remains as to whether the warnings were adequate and, if iftadequate, whether the absence of an adequate warning may have proximately caused Tongate’s injury.

The defendant also argues that Dr. Beltran would not have learned of Tongate’s sensitivity to tetanus toxoid even if Dr. Beltran had been aware of the warnings which the plaintiffs’ expert testified were required. It bases its argument, not on Dr. Beltran’s testimony, but on Tongate’s testimony that he did not realize that he had suffered neurological symptoms in the past. The plaintiffs claim that this argument was never raised in the trial court and is, therefore, waived. To refute that argument the defendant has referred us to the plaintiffs’ motion to reconsider the order granting summary judgment, the defendant’s response, the plaintiffs’ reply and the oral argument heard on the motion to reconsider. Since we have decided to address the defendant’s argument, we need not decide the question of waiver. Suffice it to say that, after reading the pertinent parts of the record, it is our judgment that if the defendant avoided waiver, it did so by the narrowest of margins. The principal thrust of the defendant’s argument on the motion to reconsider was that Tongate’s testimony concerning the adverse reactions he had had to tetanus toxoid inoculations before 1978 was entitled to no weight.

At his deposition Dr. Beltran was asked what he would have done if he had been aware of the contraindications, warnings and adverse reactions contained in Wyeth’s 1986-87 revised package insert. He said that if that information had been contained in the package insert and if he had known that the plaintiff had experienced neurological reactions after previous tetanus toxoid booster shots he would not have prescribed another tetanus toxoid shot. He further testified that, if he had learned through questioning that the defendant had had what the doctor felt was a neurological reaction after a previous tetanus toxoid shot, he would have told the plaintiff to contact his personal physician to verify the allergic reaction and Dr. Beltran would leave it up to his personal physician to administer the shot. If he had difficulty convincing the patient, Dr. Beltran might have consulted with the communicable disease control people at the Center for Disease Control asking “about the situation.”

The plaintiffs filed Tongate’s affidavit in the motion to reconsider which was in part a repetition of his deposition testimony. In his affidavit he testified that before the tetanus toxoid shot he received on January 25, 1978, he had at least two other tetanus booster shots, one in 1972 when he was about 20 years old and another shot sometime before the age 10. Following the previous booster shots of tetanus toxoid he remembers that he experienced unsteadiness and weakness with unusual loss of sensation in both his hands and arms lasting for several weeks to a month. The loss of sensation, particularly in his hands and fingers, appeared as numbness with intermittent tingling. He did not experience pain, and the loss of temporary nerve sensation was not constant and appeared to completely “resolve” after about a month. At that time he had no reason to believe that he might have been experiencing a neurological reaction to the tetanus toxoid booster shots.

Tongate had previously testified at his deposition that Dr. Beltran never asked whether he had any allergies or reactions to medications generally or to tetanus toxoid specifically. He was asked by a woman receptionist before being treated by Beltran if he was allergic to penicillin or sulfa, and he responded, “No.”

Also submitted on the motion to reconsider was the affidavit of Dr. Allen dated November 21, 1989, a considerable period after Dr. Beltran’s deposition had been taken. In that affidavit Dr. Allen said that the package insert warnings for tetanus toxoid before January 1978 and the 1986-87 revised package insert provided by Wyeth contained inadequate warnings to the prescribing physician. Dr. Allen was specifically critical of the failure of Wyeth’s warning to contain a requirement that a patient should be advised and questioned by the prescribing physician about whether the patient’s history of previous tetanus inoculations was followed by any unusual neurological events or reactions. It was his opinion that simply asking patients whether they had had any allergies to medication was insufficient to elicit the history necessary for a physician to make an informed medical judgment to prescribe a tetanus toxoid booster.

It is the defendant’s position that even if Dr. Beltran had asked Tongate whether he had suffered any unusual neuorological events or reactions following previous tetanus booster shots, Tongate would have answered, “No,” because Tongate was not aware in 1978 that he had suffered unusual neuorological events or reactions. We can only speculate as to what Tongate would have said if he had been asked expressly by Dr. Beltran about previous reactions to tetanus shots. We certainly cannot accept, as a matter of law, the conclusion of fact advanced by the defendant.

For these reasons, the order granting summary judgment is reversed and the cause remanded for further proceedings.

The plaintiffs also maintain that the judge abused his discretion in refusing to allow the plaintiffs to amend their complaint to allege a new theory of liability. The complaint was filed March 31, 1980, and a second amended complaint was filed December 12, 1980, to include the claim of Constance Tongate for lack of consortium. On March 21, 1989, the plaintiffs presented a motion for leave to file a third amended complaint. Counts III and VI alleged that Wyeth’s tetanus toxoid was unreasonably dangerous for its intended and foreseeable purposes for four reasons, three of which had previously been pleaded. Subparagraph (d) was as follows:

“Failed to warn of the necessity that an adequate history requires inquiry as to whether the patient had any nonlocal or systemic neurological reactions to previous [tetanus toxoid adsorbed] inoculations.”

At a hearing on the plaintiffs’ motion on March 21, 1989, the judge entered and continued the motion for hearing before the assigned trial judge. The plaintiffs filed their third amended complaint on March 21, 1989, and Wyeth filed its answer denying the material allegations directed against it in counts III and VI.

On June 29, 1989, the plaintiffs served Wyeth’s counsel with notice that on July 6, 1989, they would present a “A Motion for Leave to File Plaintiffs’ Third Amended Complaint Previously Filed on 3/21/ 89.” However, unlike the third amended complaint filed on March 21, 1989, paragraph six of the complaint contained a fifth subparagraph labeled “e” alleging that the tetanus toxoid was unreasonably dangerous because: “Wyeth failed to maintain an adequate system of adverse drug experience investigation and reporting.”

At the hearing on July 6, 1989, before the trial judge, Wyeth’s attorney objected to paragraphs (d) and (e) of paragraph six arguing that Wyeth would be prejudiced by the addition of a new theory of liability after discovery had been closed and after the case had been pending for nine years. The trial judge sustained the objection to sub-paragraph (e) and overruled the objection to subparagraph (d), and entered an order granting the plaintiffs leave to file their third amended complaint instanter with the exception of paragraph 6(e).

The plaintiffs argue that the trial judge’s refusal to allow them to amend their complaint to add subparagraph (e) was an abuse of discretion. They maintain that subparagraph (e) was added because of statements made by Dr. O’Donnell during his deposition, and they emphasize that their third amended complaint was filed “shortly after” his deposition. However, the defendant points out that subparagraph (e) was not a part of the third amended complaint filed on March 21, 1989.

A trial court has broad discretion in motions to amend pleadings before the entry of final judgment, and a denial of a motion to amend is not erroneous unless there has been a manifest abuse of discretion. (Starnes v. International Harvester Co. (1989), 184 Ill. App. 3d 199, 539 N.E.2d 1372.) The factors to consider in evaluating the trial court’s discretion in allowing a motion to amend a pleading are: (1) whether the proposed amendments would cure the defective pleadings, (2) whether they would cause prejudice or surprise to the defendants, (3) the timeliness of the proposed amendments, and (4) whether previous opportunities to amend the pleadings could be identified. (Starnes, 184 Ill. App. 3d at 205.) In this case, the plaintiffs’ motion for leave to file their amended complaint came five weeks before trial, after discovery had been closed and after the case had been pending for nine years. As in Starnes, the plaintiffs had a previous opportunity to add a new cause of action, and this new claim could prejudice the defendant, as the defendant would need additional time to prepare its response. Under these facts, we cannot say that the trial judge abused his discretion in denying leave to file paragraph 6(e) of the plaintiffs’ third amended complaint. The order denying leave to file subparagraph (e) is affirmed.

Judgment affirmed in part, and reversed and remanded in part.

RAKOWSKI, P.J., and McNAMARA, J., concur.

      The expert was Dr. James O’Donnell, the same expert who testified in this case.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AMOS KYSE, JR., Defendant-Appellant.
    Fourth District
    No. 4—90—0820
    Opinion filed October 9, 1991.
    Rehearing denied December 4, 1991.

      Daniel D. Yuhas and Charles L. Jones, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, defendant Amos Kyse, Jr., was found guilty of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)) and sentenced to 25 years’ imprisonment. On appeal, defendant argues that (1) he was denied effective assistance of counsel because counsel failed to raise the affirmative defense of voluntary intoxication; and (2) the trial court abused its discretion in imposing his sentence. We affirm.

At trial, the State admitted into evidence an interview Champaign city police detective George Moreland had with defendant on May 18, 1990, at 10 p.m., approximately one hour after the incident. The contents of defendant’s statement are generally supported by both the State and defense witnesses, and no factual disputes arise on appeal. During the interview, defendant stated that on May 18, 1990, he resided at 306 North Second Street, Champaign, with his girlfriend Tamara Wright, Wright’s daughter, the decedent Anthony Douglas Smith, Smith’s girlfriend Catherine Faye (Chris) Carter, and Carter’s two children.

On May 18, 1990, defendant had a barbecue and party at his home in Champaign. He stated to police that he had invited several friends and relatives to the party and that he was drinking. There was also evidence presented that the defendant used marijuana at the barbecue.

According to the defendant, Anthony Douglas Smith, Amos Kyse, Sr. (defendant’s father), Charles Kyse, and others were playing cards at approximately 8:30 or 9 p.m. on the evening of the incident. At that time, Charles Kyse and Anthony Douglas Smith had some sort of argument, and Smith stopped the card game. The defendant stated that at this time Smith said something to make defendant’s father cry. The defendant then confronted Smith and told him to apologize to Amos Kyse, Sr. Smith began using profanity and stated he would not apologize to anyone. At this point the defendant admitted, “I don’t know what hit me, but I grabbed the knife and I swung it at him. I hit him.” The defendant told police that he was provoked. His statement further described the knife’s dimensions and the altercation with Smith. During the interview with police, defendant further described the color of Smith’s clothing and identified who was present at the time of the stabbing.

The defendant first argues that he was denied effective assistance of counsel because his attorney did not raise the affirmative defense of voluntary intoxication. Defendant relies on the following to support this contention: (1) he consumed alcohol and marijuana; (2) a Champaign police officer stated he could tell defendant had been drinking; and (3) defendant’s alcohol evaluation stated that he is an alcoholic.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the Supreme Court announced a two-part test for judging ineffective assistance of counsel claims. Under that test, a defendant must first show that his counsel’s performance fell below an objective standard of reasonableness (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064); second, the defendant must also show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). Our own supreme court adopted the Strickland test in People v. Albanese (1984), 104 Ill. 2d 504, 526, 473 N.E.2d 1246, 1255. Our supreme court has also recognized that the independence of defendant’s counsel is essential to a fair trial and that no two defense attorneys will necessarily agree on the same strategy for a particular case. Accordingly, when evaluating ineffectivness claims, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (People v. Hattery (1985), 109 Ill. 2d 449, 460-61, 488 N.E.2d 513, 517.) Effective assistance of counsel refers to competent, not perfect, representation. (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548, 521 N.E.2d 900, 904, citing People v. Stewart (1984), 104 Ill. 2d 463, 492, 473 N.E.2d 1227, 1240; see also People v. Torres (1973), 54 Ill. 2d 384, 391-92, 297 N.E.2d 142, 147.) The State contends that defense counsel’s decision not to tender the affirmative defense of voluntary intoxication was a trial tactic, and that exercise of judgment cannot be the basis for finding ineffective assistance of counsel. We agree with the State.

A review of defense counsel’s competency does not extend to areas that involve the exercise of judgment and trial strategy. (People v. Somerville (1969), 42 Ill. 2d 1, 245 N.E.2d 461.) In the instant case, we believe that defense counsel, in an exercise of judgment and trial strategy, chose not to raise the affirmative defense of voluntary intoxication, although such defense could have been raised. Trial counsel informed the court, outside the jury’s presence, that voluntary intoxication was not available. This statement alone shows that trial counsel considered and rejected voluntary intoxication as a viable defense. Trial counsel’s decision was within the objective standard of reasonableness.

Even assuming that counsel’s performance did fall below an objective standard of reasonableness, we do not believe there was a reasonable probability that the jury would have decided differently. The evidence adduced at trial established that evidence of defendant’s intoxication would have been insufficient to release the defendant of criminal responsibility. See People v. Spicer (1987), 158 Ill. App. 3d 699, 704, 511 N.E.2d 235, 240.

The defendant’s statement to police, which was admitted into evidence without objection, contained the defendant’s version of what happened prior to and during the stabbing. The defendant gave his statement after the passage of only one hour. Defendant’s statement to police was very specific, and it described who was present at the party and what happened leading up to the stabbing. No witnesses testified to facts which would give rise to the inference that defendant did not know what he was doing. In fact, defendant stated to police that he was provoked by decedent. Provocation was the very defense that trial counsel attempted to assert, and which, on appeal, the defendant now claims is an unworkable defense.

In order for defendant to maintain voluntary intoxication as an affirmative defense, the voluntary intoxication must be so extreme as to suspend all of defendant’s powers of reason. (People v. Bradney (1988), 170 Ill. App. 3d 839, 855, 525 N.E.2d 112, 122.) Given the defendant’s strong recollection of the events and his admission that he felt provoked by the decedent, it is clear the voluntary-intoxication defense would have failed. Therefore, this is not a case of ineffective assistance of counsel.

The defendant’s final argument on appeal is that the trial court abused its discretion in imposing an excessive sentence upon him and sentencing him to 25 years’ incarceration for first-degree murder. The defendant claims that the sentencing court considered neither his potential for rehabilitation nor his remorse for the crime.

The Illinois Supreme Court has often emphasized the undesirability of a reviewing court substituting its judgment for that of the sentencing court. The trial judge is ordinarily best suited to tailor a sentence to the needs of the case. The sentencing court balances the appropriate factors in imposing sentence and, absent an abuse of discretion, the sentencing court’s decision should not be altered on review. People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473, 477.

In the instant case, the trial court did consider the defendant’s rehabilitative potential. Several times at sentencing the court mentioned that defendant had some rehabilitative potential. The court also stated that defendant’s rehabilitative potential was the reason for a less-than-maximum sentence. The court also considered in aggravation the defendant’s past criminal history and the fact that he was on intense probation at the time of the stabbing. The court did not abuse its discretion.

The defendant also claims that the sentencing court failed to consider his remorse as a factor in mitigation. The trial court is not required to expressly indicate its consideration of all mitigating factors and what weight each factor should be assigned. (People v. Watkins (1990), 206 Ill. App. 3d 228, 246, 563 N.E.2d 806, 816.) If mitigating factors are presented to the court, absent some contrary evidence, there is a presumption that the trial court considered them. Watkins, 206 Ill. App. 3d at 246, 563 N.E.2d at 816.

The court engaged in a lengthy explanation of its considerations prior to sentencing the defendant. The fact that the court did not specifically mention the defendant’s remorse is not evidence of an abuse of discretion. Statutes requiring the trial court to state its reasons for imposing a particular sentence do not mandate a nonwaivable requirement necessitating remand. (People v. Davis (1982), 93 Ill. 2d 155, 162-63, 442 N.E.2d 855, 858.) In the instant case, as in Davis, the defendant failed to request a statement of reasons for the sentence given. Therefore, even if the sentencing court had not elaborated on its consideration of aggravating and mitigating factors, the defendant has waived this issue. The judgment of the trial court in this case is affirmed.

Affirmed.

GREEN and KNECHT, JJ., concur.