author: JUSTICE KNECHT

text:
    M. WAYNE SANDS, Plaintiff, v. J.I. CASE COMPANY, Defendant and Third-Party Plaintiff-Appellee (Illinois Power Company, Third-Party Defendant; McCartin McAuliffe, Third-Party Defendant-Appellant).
    Fourth District
    No. 4-91-0975
    Opinion filed December 23, 1992.

      Robert A. Hoffman and Howard W. Small, both of Thomas, Mamer & Haughey, of Champaign, for appellant.
    Thomas J. Andrews and Charles P. Rantis, both of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan and Mindy Kallus, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

J.I. Case Company (Case), the defendant in a products liability action instituted by M. Wayne Sands (Sands), filed a third-party complaint for contribution against McCartin McAuliffe (McCartin) and Hlinois Power Company. Following Case’s settlement of the products liability action, a jury verdict on the contribution claim found Hlinois Power not liable for Sands’ injuries, and assessed 35% of the damages to McCartin and the remainder to Case. McCartin appeals from denial of its motion for a directed verdict and post-trial motions for judgment n.o.v. and for reduction in the judgment amount, alleging (1) Case failed to prove it was a tortfeasor so as to entitle it to contribution, (2) the court erred in refusing to strike certain trial testimony of Case’s expert witness, (3) the court improperly denied its motion for a continuance, and (4) the present value of future medical benefits is not properly part of its workers’ compensation liability.

On March 9, 1982, Sands, an employee of McCartin, suffered an amputation of his arm from entanglement with a hydra-borer attachment while operating a trencher manufactured by Case. Sands brought a products liability action against Case alleging that the trencher was unreasonably dangerous because it lacked (1) proper guards to prevent users from becoming entangled with trencher parts, (2) an automatic shutoff device to stop the boring rods from functioning when the operator was not at the control panel, and (3) adequate warnings of the dangers associated with the boring attachment. Contemporaneous with its answer denying liability, Case filed a third-party action against McCartin and Illinois Power seeking contribution pursuant to the Joint Tortfeasor Contribution Act (Act) (Ill. Rev. Stat. 1991, ch. 70, pars. 300 through 305).

On April 15, 1991, the date scheduled for trial, Sands entered into a settlement agreement with Case and executed a release in consideration of $575,000. Pursuant to the terms of settlement Sands released Case from any claims arising out of the accident, and Illinois Power and Mc-Cartin, the third-party defendants in Case’s action for contribution, were also released. The trial court dismissed the action between Sands and Case in light of the settlement agreement, denied McCartin’s oral motion for a continuance, and directed the parties to the contribution action to proceed to trial.

At trial Case introduced evidence in support of its contribution claim, including the amount of settlement paid Sands, and facts showing McCartin’s negligence was a proximate cause of Sands’ injury. For example, testimony was presented that McCartin allowed machine operators to use their hands to guide the boring rods without warning of the dangers of this practice and failed to provide training or a safety manual for use of the trencher and attachment. Case also introduced evidence from which the jury could reasonably have concluded that the trencher was unreasonably dangerous: e.g., (1) the owner warranty registration card indicated the Case manual without warnings on hydra-boring was shipped to Hlinois Power with the trencher, (2) the trencher did not have a safety switch, and (3) Case sold guide anchors to purchasers as optional equipment. In addition, Case’s products claims manager testified that 11 accidents involving the use of the hydra-borer attachment had been reported, all involving entanglement by the injured party with a boring rod. Based on his analysis of the facts in the Sands lawsuit, the seriousness of the injury, and the fact Case had lost lawsuits involving entanglements with boring rods in the past, he concluded liability in the Sands lawsuit was reasonably anticipated and approved the settlement.

The jury returned a verdict in favor of Case, finding Illinois Power not liable and McCartin 35% at fault. The trial court found that pursuant to the supreme court’s decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, McCartin’s liability for contribution was limited to the extent of its workers’ compensation liability to Sands. The trial court concluded this liability was not, however, limited to the $176,283.54 already paid to Sands as of the date of settlement, but included the present value of future medical benefits, stipulated by the parties to be in excess of $24,966.46. The contribution judgment due Case from McCartin was thereafter determined to be $201,250.

McCartin first argues that the trial court’s denial of its motions for directed verdict and judgment n.o.v. was against the manifest weight of the evidence (see Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Mizowek v. De Franco (1976), 64 Ill. 2d 303, 309, 356 N.E.2d 32, 35) because Case failed to submit evidence to prove it was a tortfeasor. McCartin asserts that absent such proof Case is not entitled to contribution under the Act.

Section 2(b) of the Act provides “[t]he right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability.” (Ill. Rev. Stat. 1991, ch. 70, par. 302(b).) McCartin interprets this language as imposing a burden of proof on Case as to its own liability, citing Victory Memorial Hospital Association v. Schmidt, Garden & Erickson (1987), 158 Ill. App. 3d 931, 935, 511 N.E.2d 953, 956, wherein the court stated a plaintiff in contribution “must plead and offer evidence of the amount he paid to the injured party, along with evidence of the joint tortfeasors’ fault, so the fact finder has a basis for determining what, if any, amount was paid by plaintiff over and above his fair share of the joint liability.” McCartin contends the only tortfeasors there were the contribution plaintiff and one remaining contribution defendant. McCartin also cites section 886A, comment e, of the Restatement (Second) of Torts, which provides “[t]he burden of proof is upon the person seeking contribution to establish both his own liability and that of the contribution defendant.” (Restatement (Second) of Torts §886A, Comment e, at 339 (1979).) McCartin acknowledges, however, no Hlinois court has expressly imposed such a burden of proof on the plaintiff in a contribution action.

While the Act refers to a party seeking contribution as a “tortfeasor,” it also characterizes such a plaintiff as one “subject to liability in tort.” (Ill. Rev. Stat. 1991, ch. 70, pars. 302(a), 304.) The issues and burden of proof jury instructions applicable to a contribution claim following settlement provide that plaintiff show payment was made in reasonable anticipation of liability. See Hlinois Pattern Jury Instructions, Civil, Nos. 600.09, 600.10 (3d ed. 1992) (hereinafter IPI Civil 3d).

In St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 169, 298 N.E.2d 289, 292, the defendant manufacturer in an indemnity action argued that the plaintiff insurer, which had settled with several decedents’ estates in a products liability action, had the burden of proving its insured was liable to the decedents’ estates. In rejecting this contention the court found, in addition to proving (1) the primary liability of the indemnitor for the injury occasioning a settlement, the settling plaintiff need only prove (2) by settling he was “responding to a reasonable anticipation of personal liability rather than acting as a mere volunteer.” St. Paul, 12 Ill. App. 3d at 169, 298 N.E.2d at 292.

McCartin attempts to distinguish St. Paul by noting that action was for indemnification rather than contribution, and arguing the jury has no duty to “apportion the common liability” in an indemnification action. This distinction does not render the St. Paul analysis inapplicable. In either case the plaintiff is seeking reimbursement from a defendant responsible in whole or in part for damages the plaintiff has paid to an injured parly. The lesser burden of showing only reasonable anticipation of potential liability (as opposed to proof of actual liability) is at least as justifiable in a contribution action as it is in an action for indemnification. A plaintiff seeking indemnification for its own negligent acts or omissions might have a greater incentive to dispose of a lawsuit through settlement with less forethought given to the extent of its own culpability, knowing its liability for damages could be passed on in toto. Conversely, the plaintiff seeking contribution will weigh its liability exposure carefully, knowing it will be liable for some percentage of the damages in any settlement, as was Case in this instance. We see no reason for distinguishing the result reached in St. Paul on the basis of its being an action for indemnification. Moreover, the law favors the amicable compromise and settlement of litigation, a policy which would be impeded were the settling contribution plaintiff required to carry a burden of proof as to his own negligence which he would not have borne in the initial action. (Cf. St. Paul, 12 Ill. App. 3d at 170-71, 298 N.E.2d at 293.) This element of a contribution cause of action is consistent with that in an indemnity action. IPI Civil 3d No. 600.09, Comment, at 600-27.

We cannot conclude the Act required Case to try the contribution action against itself and present evidence its product was defective or unreasonably dangerous, evidence which might later be accorded collateral estoppel effect in unrelated actions against it. The Act merely requires a showing from which the trier of fact can infer the settling plaintiff in contribution reasonably anticipated its liability to the injured party in the tort action.

In this instance, Case did put on evidence from which the jury could have concluded settlement resulted from Case’s reasonable anticipation it was subject to liability in tort: (1) Sands testified the trencher did not have a safety shut-off switch for the boring rods when the operator left the controls; and (2) Case’s product claims manager testified to prior lawsuits resulting in liability to Case from injuries sustained by entanglement with boring rods and he anticipated liability due to the seriousness of the injury to Sands.

McCartin’s reliance on comment e to section 886A of the Restatement (Second) is misplaced in view of the statutory language of section 2(a) of the Act requiring the plaintiff in contribution to show it is one of two or more parties “subject to liability in tort *** even though judgment has not been entered against any or all of them.” (Ill. Rev. Stat. 1991, ch. 70, par. 302(a).) This provision clearly contemplates the bringing of an action for contribution in the absence of an adjudication of liability. It does not require a settling plaintiff to prove itself liable. Similarly, the language in Victory Memorial Hospital on which McCartin relies is inapposite to the facts of this case as the issue there was the necessity of proof of the amount paid in settlement rather than the plaintiff’s status as a tortfeasor.

We hold that the language and elements of proof under the Act do not require a settling plaintiff to prove its own liability to the injured party with whom it has settled; it is sufficient to present the trier of fact with a factual basis showing liability was reasonably anticipated. In this instance, testimony as to Case’s prior exposure to liability claims involving entanglements with boring rods and the absence of a safety shut-off switch was sufficient to satisfy this standard. Therefore, the trial court’s denial of McCartin’s motions for a directed verdict and for judgment n.o.v. was not against the manifest weight of the evidence.

McCartin next maintains the court erred in refusing to strike expert testimony as an undisclosed opinion in violation of Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)). At trial Case’s expert opined the trencher and attachment manufactured by Case were not unreasonably dangerous. He further stated an operational and safety manual pertaining to the trencher with attachment accompanies and is part of the product sold. The expert testified to the existence of two separate manuals, one which included safety procedures and warnings pertinent to the hydra-borer attachment and one which did not. The evidence indicated one of the two manuals was supplied with the product but the expert was unable to tell whether the wrong operational manual was supplied or a typographical error made in listing its number on the purchase order. On cross-examination by Hlinois Power, the expert said if the wrong manual was sent by Case it was a “mistake” and “unacceptable.” The trial court overruled McCartin’s motion to strike, finding the statements were not admitted as an expert opinion.

Supreme Court Rule 220 prevents the direct testimony by an expert of opinions inconsistent with or beyond the fair scope of the facts known or opinions disclosed in the discovery proceedings. (134 Ill. 2d R. 220(d).) McCartin construes the expert’s statement as a “new opinion” inconsistent with deposition testimony that the product was not defective.

The decision whether to allow or exclude expert testimony is within the trial court’s discretion and will not be disturbed on review absent a clear abuse of discretion. (See Huelsmann v. Berkowitz (1991), 210 Ill. App. 3d 806, 568 N.E.2d 1373; Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213.) We find little merit in McCartin’s characterization of the expert’s trial testimony as a “new opinion” inconsistent with his deposition, since the expert was responding to a hypothetical raised in cross-examination by Hlinois Power, Mc-Cartin’s codefendant in the contribution action. As McCartin itself asserts in the context of its previous argument, there was no proof the wrong operational manual was actually shipped and, since Sands testified he never saw any manual related to the machinery, its absence would not alone have established a defect in the machinery proximately causing Sands’ injury. We conclude there was no error in refusing to strike the expert’s testimony.

McCartin next argues it is entitled to a new trial because the trial court improperly denied its oral motion for a continuance following notification of Case’s settlement with Sands. McCartin claims its theory of defense prior to trial aligned it with Case to show the trencher Case manufactured was not unreasonably dangerous. According to McCartin, settlement altered the position of the parties and necessitated a reversal of its theory of defense. McCartin argues denial of a continuance hindered the cause of justice because it had not been prepared to argue Case’s product was unreasonably dangerous, citing Auschwitz v. Wabash Ry. Co. (1931), 346 Ill. 190, 178 N.E. 403. In Auschwitz the plaintiff had proceeded to trial on the allegation a step on the railroad’s tender car was twisted and bent, which condition proximately caused plaintiff’s injury. At the close of the evidence, plaintiff was allowed to amend its pleadings, striking the allegation on the step being twisted and bent and substituting the allegation the step extended out beyond the side of the locomotive. The trial court denied the defendant a continuance to call witnesses to establish the step was in a standard and customary position. The supreme court found the trial court had abused its discretion as the defendant had no notice to defend under the changed theory. Auschwitz, 346 Ill. at 199, 178 N.E. at 407.

Litigants do not have an absolute right to a continuance, and the granting or denial of a motion for continuance lies within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. (Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 989, 562 N.E.2d 1086, 1104, cert. denied (1991), _ U.S. _, 115 L. Ed. 2d 998, 111 S. Ct. 2829.) The fact other parties have changed their theory of the case on the eve of trial does not mandate the granting of a continuance. See Grimming, 204 Ill. App. 3d at 988-89, 562 N.E.2d at 1103-04.

A decisive factor in reviewing a court’s exercise of its discretion is whether the party seeking the continuance acted with due diligence in proceeding with the cause. (Martinez v. Scandroli (1985), 130 Ill. App. 3d 712, 714, 474 N.E.2d 456, 457.) In explaining the denial of the continuance here, the court noted settlement of cases set for trial is not unusual and “[t]he Court cannot manage its calendar if it continues cases every time somebody drops out. So in these cases, the parties who have been sued for contribution have to be ready to take a little more than an offensive position if in fact they end up being sole defendant by way of contribution [as] in [this] case.”

We agree with the trial court’s conclusion. Unlike the defendant in Auschwitz, McCartin was aware of Sands’ theory of liability prior to trial, and the possibility he might prevail on the merits or effect a settlement, in which case contribution would then be sought from it. The unpreparedness of McCartin’s counsel to present a defense based on this contingency is not grounds requiring the granting of a continuance. (See Dempsey v. Sternik (1986), 147 Ill. App. 3d 571, 579-80, 498 N.E.2d 310, 315.) The trial court did not abuse its discretion in concluding Mc-Cartin presented an insufficient excuse to justify a continuance.

Last, McCartin argues the compensation award of $201,250 should have been limited to $176,283.54, the amount of workers’ compensation benefits paid Sands through the date of settlement. McCartin argues that once Case settled with Sands, McCartin had no further workers’ compensation liability for future medical benefits and its liability became fixed at $176,283.54.

In Kotecki, the supreme court held an employer sued for contribution is liable in an amount not greater than its workers’ compensation liability. In formulating its rule, the supreme court relied on and adopted the Minnesota Supreme Court’s rule in Lambertson v. Cincinnati Corp. (1977), 312 Minn. 114, 130, 257 N.W.2d 679, 689, which approved an employer’s contribution to the extent of its “total” workers’ compensation liability. The Kotecki court did not define the scope of workers’ compensation liability or expressly limit application of the rule to sums paid at the time of trial.

According to McCartin, it was relieved of paying Sands’ future medical benefits accruing under section 8(a) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.8(a)) by virtue of the settlement agreement between Case and Sands. Absent the settlement, its total workers’ compensation liability would have exceeded the 35% contribution judgment awarded Case.

Our supreme court in Zuber v. Illinois Power Co. (1990), 135 Ill. 2d 407, 553 N.E.2d 385, addressed the issue of an employer’s liability under section 5(b) of the Act (see Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)) for a proportionate share of legal fees and costs incurred by an employee in an action for damages against a third party. The court determined calculation of the employer’s pro rata share of legal expenses incurred by the employee was to be based both on past compensation benefits paid and future payments the employer would otherwise have made but for the judgment in the third-parly action. Zuber, 135 Ill. 2d at 418, 553 N.E.2d at 389-90.

We believe the Zuber rationale is equally applicable to third-party contribution actions under the Act against an employer subject to workers’ compensation liability to an injured employee. Where an employer is relieved of paying continuing medical benefits to an injured employee by virtue of the result of the employee’s cause of action against a third party, be it judgment or settlement, the employer is subject to contribution to the extent of its reasonably projected liability for future medical benefits under the Act, limited only by the amount of the settlement and the percentage of fault apportioned to it. To hold otherwise would tie the employer’s liability to the fortuity of when the tort case is settled or adjudicated. (See, e.g., Wilken v. International Harvester Co. (Minn. 1985), 363 N.W.2d 763, 766.) In this instance, had a products liability action not been pursued by Sands against Case, McCartin would have been liable for workers’ compensation benefits for sums in excess of the $201,250 contribution judgment against it. The trial court properly denied McCartin’s motion to limit its contribution to compensation benefits already paid Sands at the time of trial. The judgment for contribution of $201,250 in favor of Case is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STEIGMANN

license: Public Domain

text:
      In re LINDA JEFFERS, a Person Found Subject to Involuntary Medication (The People of the State of Illinois, Petitioner-Appellee, v. Linda Jeffers, Respondent-Appellant).
    Fourth District
    No. 4-92-0566
    Opinion filed December 30, 1992.

      John B. Lower, Jeff M. Plesko, and Penelope S. Karnes, all of Guardianship & Advocacy Commission, of Anna, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In March 1992, the trial court committed respondent, Linda Jeffers, for involuntary hospitalization in the Illinois Department of Mental Health and Developmental Disabilities (DMHDD). The State thereafter petitioned the court pursuant to section 2 — 107.1 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 91½, par 2—107.1), for authority to administer psychotropic medication to respondent against her will. After a hearing, the court granted that petition. Respondent appeals, arguing that the court erred in granting that petition because (1) the court failed to determine that the respondent would have agreed to psychotropic medication, if she were competent, and (2) the State did not prove its case by clear and convincing evidence.

We affirm.

I. Background

In March 1992, Donna Fisher (respondent’s daughter) and Steve Jeffers filed a petition for involuntary admission of respondent due to her mental illness, claiming that respondent suffered from severe depression as a result of losing custody of her youngest daughter to her ex-husband. The petition also claimed that she had not eaten, had not paid her bills, and appeared weak and unhealthy. That same month, the court conducted a hearing on the petition, granted it, and committed respondent to a DMHDD facility, the McFarland Mental Health Center in Springfield. She has since filed several requests for discharge, all of which the court has denied.

On June 18, 1992, Dr. Fayez Safi, respondent’s treating psychiatrist, filed a petition for administration of psychotropic medication. The next day, at the hearing on this petition, Dr. Safi testified that as a part of respondent’s treatment at McFarland, he had prescribed Haldol, a psychotropic medication, for her. She initially took the medicine for a week, but then refused because she said it made her tired and made her hands, toes, tongue, and face swell. However, Dr. Safi testified that the benefits of the medication would greatly outweigh the side effects. He also said that she was not competent to make a sound judgment regarding the medication as evidenced by “her fixed delusions, which are impairing her judgment even about her need for food or drink.”

Dr. Safi testified that respondent suffered from chronic paranoid schizophrenia. Since he prescribed her medication and she refused it, Dr. Safi noted that her condition had generally deteriorated. She would stand next to the pay phone in a hallway every day for 12 hours. Just prior to the hearing, she would even wake up in the middle of the night to stand next to the telephone. She refused to bathe and refused to eat because she believes they place poison in the food. Her body weight had dropped from 133 to 125 pounds since her admission. Blood tests showed that she suffered from dehydration, so they began feeding her through a tube placed down her nose to her stomach.

Dr. Safi also testified that respondent experiences continued delusions. She awoke one night and thought she saw her son and daughter in the hallway. When the staff would not let her go into the hallway, she became very abusive and physically aggressive towards the staff members. She also thought that someone wanted to get her, although she would not elaborate as to who that was. She refused to participate in individual or group therapy, but instead continually insisted that she merely wanted to get out of the hospital.

After conducting a hearing, the trial court found that respondent suffered a serious mental illness that causes suffering and deterioration of her ability to function. The court found that the symptoms of this illness had existed for a long period and that other, less restrictive, services had not worked. The court also found that (1) the benefits of the medicine would outweigh the harm, and (2) respondent lacked the capacity to make a reasoned decision about the medication. The court therefore granted the petition, and respondent appeals.

II. Analysis

A. Mootness

The State first argues that this appeal has become moot because the order for psychotropic medication lasted for only 90 days, and the 90 days had elapsed as of the time for filing briefs. However, despite the State’s assertion to the contrary, if we held this appeal moot on these grounds, then all such appeals would become moot because the statute provides that “[i]n no event shall an order issued under this Section be effective for more than 90 days.” (Ill. Rev. Stat. 1991, ch. 91½, par. 2-107.1(e).) Applying the mootness doctrine in this case would eliminate all similar appeals because, although the issue is likely to recur, it will not remain viable long enough to permit review. (See People ex rel. Foreman v. Village of North Barrington (1989), 191 Ill. App. 3d 544, 555, 547 N.E.2d 1327, 1334.) Accordingly, we hold that the mootness doctrine does not apply to this case.

B. Emergency Situation

Citing section 2—107 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 2 — 107), the State next argues that we need not address the respondent’s appeal because an emergency situation resulted when respondent refused to eat or drink. Under section 2 — 107 of the Code, a recipient of medical care has the right to refuse medication “unless such services are necessary to prevent the recipient from causing serious harm to himself or others.” (Ill. Rev. Stat. 1991, ch. 91½, par. 2—107.) However, the trial court did not find that an emergency situation existed, but instead based its order on the statutory criteria in section 2 — 107.1 of the Code. Therefore, we will not address this issue.

C. Proof of What Respondent Would Do If Competent

Citing Cruzan v. Director, Missouri Department of Health (1990), 497 U.S. 261, 278-79, 111 L. Ed. 2d 224, 242, 110 S. Ct. 2841, 2852, In re Estate of Longeway (1989), 133 Ill. 2d 33, 49, 549 N.E.2d 292, 299, and In re Estate of Greenspan (1990), 137 Ill. 2d 1, 17, 558 N.E.2d 1194, 1201-02, respondent argues on appeal that the trial court failed to prove that she would have agreed to take the medication if she were competent. Respondent’s claim hinges on the trial court’s statement that he granted the petition “only with the consent of the guardian, Donna Fisher, who has the right to withdraw your [respondent’s] consent at any time.” (Emphasis added.) Respondent claims that the trial court erred (1) by not determining that the guardian would implement only respondent’s will if respondent were competent, and (2) by not conditioning the guardian’s ability to withdraw consent on a finding that the guardian’s decision would reflect respondent’s decision if she were competent.

The cases respondent cites all involve a guardian’s ability to invoke an unconscious, vegetative person’s right to terminate life support. (See Cruzan, 497 U.S. at 283-84, 111 L. Ed. 2d at 245-46, 110 S. Ct. at 2854-55; Greenspan, 137 Ill. 2d at 4-5, 558 N.E.2d at 1196; Longeway, 133 Ill. 2d at 36-37, 549 N.E.2d at 293-94.) Although these cases require a trial court to consider what the respondent would do if conscious and competent, section 2 — 107.1 of the Code does not require that the trial court determine that the guardian will exercise respondent’s right to refuse medication according to respondent’s wishes if respondent were competent. In other words, what respondent would do if competent is irrelevant to the inquiry. Because the legislature, not the judiciary, sets the public policy in this State, we cannot add to or supplement the statutory requirements.

To the extent that respondent’s arguments raise constitutional concerns, the cases she cites still present no support for her position. Incompetency due to serious mental health problems differs significantly from incompetency due to prolonged physical unconsciousness in a vegetative state. First, the incompetency of an incompetent person in a vegetative state does not lead him to pose a danger to himself or others while the incompetency of the mental health incompetent does. Section 2 — 107.1 of the Code thus provides procedures for administering psychotropic medication to relieve this danger, as well as to minimize the suffering and deterioration that accompany or result from the respondent’s mental illness.

Second, the choices involved in the present case hold far less drastic consequences than the choices of a guardian on behalf of a person in a vegetative state. In the present case, the guardian merely decides whether respondent will continue to receive psychotropic medication, while the guardian of a person in a vegetative coma often decides whether that person will live or die. Great care should be and is taken in the latter case to ensure that the guardian exercises the incompetent person’s wishes because of the final, irreversible nature of that decision.

Third, a person who suffers from mental incompetency might never have had the competency to make a reasoned decision regarding medication, as opposed to a person who lives in a vegetative coma. Indeed, respondent needs the medication in order to regain her ability to make reasoned decisions by treating — instead of removing treatment of — the very illness that prevents her from being able to make such decisions. Placing such a condition on the guardian’s authority would deny treatment to many mental incompetents who desperately need treatment, thereby negating the policy embodied in the statute that psychotropic medication can be involuntarily administered in certain rare cases.

Finally, this case does not involve respondent’s right to refuse medical treatment on religious beliefs or other similar grounds. Respondent did not raise any religious objections to treatment. She objected only because she did not think she needed the medication. The treating psychiatrist and several of her relatives disagreed.

Because section 2 — 107.1 of the Code does not condition the administration of psychotropic medication on finding that the guardian will exercise the respondent’s will if respondent were competent— and because failing to impose such a condition does not implicate the constitutional concerns raised by respondent — the trial court did not err by failing to make such a finding.

D. The Sufficiency of the Evidence

Respondent finally argues that the State did not prove its case by clear and convincing evidence. In support of her argument, respondent cites several cases from out-of-State courts that interpret and apply the public policy embodied in the statutes of those other States. Because Illinois statutes embody the public policy of this State, and because these cases do not discuss the pertinent Illinois statutes, we will not consider these cases beyond their persuasive value.

Section 2 — 107.1 of the Code provides, in pertinent part, the following:

“(d) Psychotropic medication shall not be administered to the recipient [against his will] unless it has been determined by clear and convincing evidence that all of the following factors are present:
(1) That the recipient has a serious mental illness or developmental disability.
(2) That because of said mental illness or developmental disability, the recipient exhibits deterioration of his ability to function, suffering, or threatening or disruptive behavior.
(3) That the illness or disability has existed for a period marked by the continuing presence of the symptoms in paragraph (2) *** or the repeated episodic occurrence of these symptoms.
(4) That the benefits of the psychotropic medication will outweigh the harm.
(5) That the recipient lacks the capacity to make a reasoned decision about the medication.
(6) That other less restrictive services have been explored and found inappropriate.” (Ill. Rev. Stat. 1991, ch. 91½, par. 2—107.1(d).)

The trial court must find by clear and convincing evidence that these conditions all exist before entering an order allowing a treating doctor to administer psychotropic medication against the patient’s will. (Ill. Rev. Stat. 1991, ch. 91½, par. 2—107.1(d).) On review, we give great deference to the trial court’s factual findings because the court stands in the best position to weigh the credibility of all the witnesses; we therefore will not reverse a trial court’s decision merely because we might have come to a different conclusion, but instead will reverse only if the trial court’s decision is manifestly erroneous. (In re Long (1990), 203 Ill. App. 3d 357, 362-63, 561 N.E.2d 290, 294.) A trial court’s decision is not manifestly erroneous unless the error is clearly evident, plain, and indisputable. People v. Green (1991), 218 Ill. App. 3d 71, 75, 578 N.E.2d 169, 172.

Respondent first challenges the trial court’s finding that she lacks the capacity to make a reasoned decision about the medication. Specifically, respondent argues that the mere fact that she disagreed with the psychiatrist does not establish her inability to make a reasoned decision. She claims that she did not fail to give a reason and did not give a deluded reason for refusing the medication, but instead said that she refused the medication because it made her drowsy and made her body swell. Further, she argues that the State presented no evidence indicating that she did not understand the options available. Essentially, she argues that because she understood the options and gave a sound reason for refusing the medication, the trial court erred in finding that she lacked the ability to make a reasoned decision.

Although we agree that merely disagreeing with the treating psychiatrist does not show an inability to make a reasoned decision, we disagree that merely presenting a purportedly nondeluded reason for refusing the medication shows that respondent has the ability to make a reasoned decision. In addition, the mere fact that respondent understood the options available does not mean that she has the ability to appropriately balance those options and make a reasoned decision. Although courts in other States have held that a refusal to accept medication must have no reasonable basis in fact before medication can be involuntarily administered (see People v. Medina (Colo. 1985), 705 P.2d 961, 970), the statute before us does not so require. Based on our review of the testimony considered by the trial court, we conclude that sufficient evidence was presented to support the trial court’s finding that respondent lacked the ability to make a reasoned decision.

Respondent next argues that the State did not provide clear and convincing evidence that the benefits of the medication would outweigh the harm. Respondent claims that Dr. Safi merely testified that they would without providing the factual basis for that opinion. Citing In re Cochran (1985), 139 Ill. App. 3d 198, 200, 487 N.E.2d 389, 391, respondent argues that failing to provide a factual basis to support an assertion fails to meet the clear and convincing burden of proof. We disagree.

Dr. Safi did testify that Haldol would “decrease [respondent’s] delusions and hallucinations so she would be more capable to take care of herself, at least start drinking and eating.” He also testified that Haldol had some side effects that could be countered by another drug, Cogentin, that the trial court included in its order as one of the drugs that could be administered to respondent against her will. Thus, Dr. Safi did provide factual support for his opinion, even though he did not expressly and syllogistically connect these facts with his conclusion that the benefits of the medication would outweigh the harm.

Moreover, Cochran cited and agreed with the dissent of an opinion of this court, In re Mazzara (1985), 133 Ill. App. 3d 146, 478 N.E.2d 567, which held to the contrary. To the extent that Cochran requires an expert to provide a factual basis for every opinion, we decline to follow it and choose instead to reaffirm our earlier decision in Mazzara. To hold otherwise, as in Cochran, would unnecessarily burden expert testimony, especially in the absence of any challenge to the expert’s testimony at the hearing. Dr. Safi’s opinion provided prima facie proof at a minimum that the benefits of the medication would outweigh the harm, which the trial court could accept as clear and convincing evidence if it found Dr. Safi sufficiently credible. Respondent could have attacked that opinion on cross-examination, but did not, leaving that prima facie proof intact and unrebutted.

On appeal, respondent also raises — for the first time — that the possible side effects of psychotropic drugs are far more severe than Dr. Safi indicated. (See In re Orr (1988), 176 Ill. App. 3d 498, 512, 531 N.E.2d 64, 74.) This court decided Orr under section 2—107 of the Code (Ill. Rev. Stat. 1985, ch. 91½, par. 2—107) three years before the legislature enacted section 2—107.1 of the Code. Nonetheless, respondent failed to raise this point below, and, moreover, failed to show or even mention that Haldol (the particular medication prescribed in this case) carries any of the many harmful side effects of psychotropic medication that we only generally described in Orr. Thus, we refuse to consider any additional side effects not discussed in the record.

III. Conclusion

For the reasons stated, we affirm the trial court’s order.

Affirmed.

COOK and GREEN, JJ., concur.


author: JUSTICE COOK

text:
    AMERICAN HOME ASSURANCE COMPANY, Plaintiff, v. WAYNE R. GOLOMB, Defendant and Counterplaintiff and Third-party Plaintiff-Appellant (Bruce A. Kammeyer, Defendant and Counterdefendant-Appellee; Vicki K. Kammeyer, Third-party Defendant-Appellee).
    Fourth District
    No. 4-92-0423
    Opinion filed December 31, 1992.
    Modified on denial of rehearing February 4, 1993.

      Lowe, Moore, Susler, McNutt & Wrigley, of Decatur (William A. McNutt and Marshall A. Susler, of counsel), for appellant.
    Requa & Alexander, of Springfield (David L. Requa and Ray E. Alexander, of counsel), for appellee Vicki Kammeyer.
    Brian T. Otwell, of Morse, Giganti & Appleton, of Springfield, for appellee Bruce Kammeyer.
   JUSTICE COOK

delivered the opinion of the court:

On December 16, 1991, the circuit court of Sangamon County dismissed defendant and third-party plaintiff Wayne R. Golomb’s complaint seeking attorney fees, holding that Illinois law prohibits an attorney from recovering fees under a theory of quantum meruit where the parties’ original contingent-fee agreement was an illegal contract and against public policy. Golomb appeals, contending (1) a discharged attorney is entitled to recover the reasonable value of his services performed prior to his discharge, and (2) the trial court erred in holding the contingent-fee agreements barred his quantum meruit claim for fees. We affirm.

On February 6, 1987, third-party defendant Vicki Kammeyer (Vicki) signed an “AGREEMENT TO EMPLOY ATTORNEY” wherein she requested Golomb to represent her “in the prosecution of a claim against Roy Hankins, M.D.[,] arising out of an occurrence on or about 1983-1986.” The agreement required Vicki to pay Golomb a retainer of $500, 40% of any amount recovered, and his expenses plus interest of 2% per month calculated from the date incurred. The agreement also provided Golomb would receive 50% of any amount recovered if a second trial or appeal was required.

On or about September 9, 1987, Vicki’s husband, defendant Bruce Kammeyer (Bruce), signed an “AGREEMENT TO EMPLOY ATTORNEY” wherein he requested Golomb to represent him “in the prosecution of a claim against Roy Hankins, M.D.[,] and any other persons or entities, arising out of an occurrence on or about 1983-1986.” This agreement contained three payment options. The first option provided the client would pay Golomb on an hourly basis. The second option was a contingent-fee agreement with Golomb to receive one-third of any amount up to $150,000, 25% of the next $850,000, and 20% of any amount above $1 million; this option required the client to provide his own qualified medical expert. The third option was also a contingent-fee agreement, but with Golomb to receive 40%, which included Golomb’s services in finding and retaining a qualified medical expert. This third option contained an indemnification clause which required the client to “waive any and all rights under the fee structure set by law for attorney’s fees in malpractice cases, and agree to hold Wayne R. Golomb harmless for any loss or diminution of fee he may receive as a result of the aforesaid law.” All contingent-fee options required the client to pay a contingent fee of 50% if a second trial or appeal was necessary and pay Golomb’s expenses; the first and second option also required the client to pay interest on the expenses of 2% per month calculated from the date incurred. Bruce chose the third payment option, the 40% contingent fee with Golomb providing the expert.

On September 25, 1987, Vicki signed a second contingent-fee agreement which contained three payment options and was in a form similar to the one signed by Bruce. Vicki chose the third option, the 40% contingent fee with Golomb providing the expert. At this point we note that different rules apply to fee contracts entered into before the attorney-client relation has begun and those entered into after it has begun. When an attorney enters into a transaction with a client, after the attorney has been retained, it is presumed that the attorney exercised undue influence. (In re Marriage of Pagano (1992), 154 Ill. 2d 174, 185.) We need not address that presumption, however, in order to decide this case.

After Golomb was retained to represent Vicki in the case, he states he “conducted an extensive investigation of the facts of the case”; “prepared numerous pleadings and responses”; “appeared in court on numerous times”; “negotiated settlement”; and “prepared the case to the point that it was ready to go to trial.” While Golomb was representing the Kammeyers, he received a settlement offer of $150,000, memorialized in a letter dated April 10, 1990. Thereafter Bruce and Vicki discharged Golomb as their attorney and reached a settlement agreement with plaintiff American Home Assurance Company (Dr. Hankins’ insurance carrier) under which Bruce would receive $15,000 and Vicki would receive $100,000. On July 24, 1991, plaintiff filed a “COMPLAINT IN CHANCERY (INTER-PLEADER),” seeking to interplead the sum of $15,000 which it had agreed to pay Bruce, but which was subject to an attorney’s lien filed by Golomb. Bruce denied Golomb was entitled to any of the proceeds.

Golomb filed an answer, counterclaim, and third-party complaint. Golomb claimed to be entitled to a reasonable fee for services rendered to Bruce and Vicki under a theory of quantum meruit. Golomb’s counterclaim against Bruce stated that Golomb was entitled to $42,817.50 in attorney fees, and costs and expenses totalling $6,113.43, plus interest of 2% per month calculated from July 2, 1991. Golomb also filed a third-party complaint against Vicki seeking $17,003.50 in attorney fees and $2,052.61 in costs and expenses. Golomb claimed to be entitled to the entire sum interpleaded and sought judgment against Bruce and Vicki for any deficiency.

Bruce filed a motion to dismiss the counterclaim pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—619). Vicki filed a similar motion the same day. The court granted the motions to dismiss, stating the “Court finds the contingent fee agreement to be an illegal contract and against public policy and therefore] void. Illinois law prohibits recovery of attorney’s fees pursuant to contract or on a quantum meruit basis where the contingent fee contract giving rise to the parties’ relationship is illegal.” Golomb filed a motion for reconsideration, and on March 16, 1992, the trial court granted a portion of Golomb’s motion to allow him to recover costs and expenses. The remaining portions of the motion were denied.

In Illinois, a client has the right to discharge his attorney at any time with or without cause. Ordinarily, an attorney is entitled to recover an amount equal to the reasonable value of his services in quantum meruit if he is discharged and the contingent-fee contract under which he was employed is broken. (See Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 229-30, 399 N.E.2d 969, 974-75.) Bruce and Vicki cite Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901, and Licciardi v. Collins (1989), 180 Ill. App. 3d 1051, 536 N.E.2d 840, for the further proposition that an attorney’s recovery in quantum meruit may be barred if an attorney has engaged in illegal conduct. In Leoris a fee-splitting agreement between attorneys violated a public policy, later codified in Rule 2 — 107 of the disciplinary rules of the Code of Professional Responsibility (87 Ill. 2d R. 2—107), that a division of fees be based upon the sharing of services and responsibilities. Not only was the agreement unenforceable, the attorney was also denied recovery in quantum meruit.

“Where enforcement of an illegal contract is sought, the courts will aid neither party but will leave them where they have placed themselves since the parties are pari delicto and can recover nothing under the contract. [Citation.] Therefore, we find that plaintiff is foreclosed from recovery on the theory of quantum meruit because unprofessional conduct, as exhibited here, clearly violated stated canons of ethics that bar recovery. [Citation.] Accordingly, we find that plaintiff’s conduct, which clearly violated established canons of ethics, warrants forfeiture of his attorney fees.” (Leoris, 150 Ill. App. 3d at 354, 501 N.E.2d at 904.)

Licciardi involved a situation where a lawyer’s actions were viewed as tantamount to procuring a property settlement in a dissolution proceeding, and thus within the bar of Rule 2—106(c)(4) (107 Ill. 2d R. 2—106(c)(4)), prohibiting contingent-fee agreements. (Licciardi, 180 Ill. App. 3d at 1061, 501 N.E.2d at 844-45.) Licciardi rejected the argument that the Leoris bar on recovery in quantum meruit applied only to fee-splitting cases, relying on the Leoris language that “unprofessional conduct,” and “conduct which clearly violated established canons of ethics,” warranted forfeiture of attorney fees.

In Reed Yates Farms, Inc. v. Yates (1988), 172 Ill. App. 3d 519, 530, 526 N.E.2d 1115, 1122-23, this court held that the reduction of an attorney’s fees imposed solely as a sanction for unprofessional conduct on his part would constitute an impermissible infringement on the exclusive power of the supreme court, acting through the Attorney Registration and Disciplinary Commission, to adjudicate attorney disciplinary matters. In that case, however, the attorney was not alleged to have violated some provision on contingent fees, or other fees, but to have generally acted unprofessionally: by incompetent representation, by refusing to allow the client input in a brief that was filed, by failing to advise the client an opinion had been filed, by misinforming the client in an attempt to dissuade appeal, and by violation of the attorney-client privilege. (Reed Yates, 172 Ill. App. 3d at 524, 526 N.E.2d at 1118.) Despite Reed Yates, conduct violating public policy which would render a contract for professional services unenforceable is not placed beyond the reach of contract law because it violates professional standards as well. Maksym v. Loesch (7th Cir. 1991), 937 F.2d 1237, 1244; Cross v. American Country Insurance Co. (7th Cir. 1989), 875 F.2d 625, 628-29.

Still, not every violation of every rule of professional responsibility can be assumed to be the kind of grave, injurious, and nontechnical violation of a strongly established public policy that justifies the voiding of a contract. (Maksym, 937 F.2d at 1244; Cross, 875 F.2d at 628 (attorney had not signed agreement, and agreement did not deal with expenses, both specifically required by Rule 2—106(c)(2), but the violations were viewed as only “minor technical deficiencies,” and the agreement was held enforceable); cf. Kaplan v. Pavalon & Gifford (N.D. Ill. 1992), 806 F. Supp. 192.) The supreme court has recently held, reviewing a number of cases, that a lawyer’s breach of fiduciary duty does not always bar recovery of fees:

“As these and many other cases demonstrate, when one breaches a fiduciary duty to a principal the appropriate remedy is within the equitable discretion of the court. While the breach may be so egregious as to require the forfeiture of compensation by the fiduciary as a matter of public policy [citation], such will not always be the case.” Pagano (1992), 154 Ill. 2d at 190.

In the present case the directive violated by the attorney is not found in a rule of professional conduct, but in a statute. In 1985, the Illinois General Assembly revised the procedures related to medical malpractice actions, adding a provision setting out the maximum contingent fees an attorney may recover in a medical malpractice action (Pub. Act 84 — 7, §1, eff. Aug. 15, 1985 (1985 Ill. Laws 211, 221)):

“Contingent fees for attorneys in medical malpractice actions, (a) In all medical malpractice actions the total contingent fee for plaintiff’s attorney or attorneys shall not exceed the following amounts:
SSy3% of the first $150,000 of the sum recovered;
25% of the next $850,000 of the sum recovered; and
20% of any amount recovered over $1,000,000 of the sum recovered.
(c) The court may review contingent fee agreements for fairness. In special circumstances, where an attorney performs extraordinary services involving more than usual participation in time and effort the attorney may apply to the court for approval of additional compensation.” Ill. Rev. Stat. 1985, ch. 110, pars. 2—1114(a), (c).

Even accepting the argument that enforcement of a contingent-fee agreement is not prohibited where there is only a “minor technical” violation of sections 2 — 1114(a) and (c), we cannot describe the violation here in those terms. First, we note the unusual form in which the contracts were executed. Golomb not only knowingly attempted to secure a fee in excess of the statutory maximum, but attempted to justify his fee to the client by suggesting that he was performing an extra service by securing and retaining a medical expert, usually a prerequisite in any medical malpractice case. (See, e.g., Stevens v. Sadiq (1988), 176 Ill. App. 3d 333, 336, 530 N.E.2d 1159, 1160-61.) Further, the contracts contained an indemnification clause where the client would hold “Golomb harmless for any loss or diminution of fee he may receive as a result of the aforesaid law.” While an attorney may wish to insert a clause in the original contract which reserves his right to seek additional compensation (see Ill. Rev. Stat. 1991, ch. 110, par. 2—1114(c)), an attorney who anticipates the possibility of extraordinary services is not required to execute a contract with rates in excess of those allowed in section 2 — 1114; the contract need only reserve the right to apply to the court for approval of additional compensation. Golomb’s actions in negotiating these fee agreements cannot be described as innocent, unintentional, or involving minor technical deficiencies. Golomb’s transparent attempt to charge a fee in excess of the statutory cap, and the contractual provisions by which he attempted to secure it, rendered the contract illegal from its inception.

Golomb maintains that upon his termination, the attorney-client contract ceased to exist and should not bar his recovery here, citing In re Estate of Callahan (1991), 144 Ill. 2d 32, 578 N.E.2d 985. Golomb’s reliance on Callahan is misplaced. In Callahan, the narrow issue decided was whether an attorney, after discharge, could recover in quantum meruit before the case had been tried or settled, which would not have been possible under the contingent-fee contract. The supreme court held that the contingent-fee contract had ceased to exist when the client terminated the relationship and the attorney could recover in quantum meruit regardless of whether the client had made a recovery. However, the contract in Callahan was not an illegal one and we do not read the narrow language of Callahan to imply a sweeping rule that a contingent-fee contract is irrelevant in all circumstances after the client has discharged the attorney.

The trial court acted well within its discretion in denying any attorney fees in this case. The judgment of the trial court is affirmed.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.