## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Colbu rn v. Mario Tricoci Hair Salon & Day Spas, In c. , 2012 IL App (2d) 110624

Appellate Court Caption V IRGI NIA COL BU RN, Plaintiff-Appellant, v. MARI O T RI CO CI H A IR SAL ONS AND DAY SPAS, I NC., Defe ndant-Appe llee.

District & N o. Second District Docke t No. 2-11-0624

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed April 30, 2012

J une 26, 2012
J une 26, 2012

Held (Note : This sy ll abus

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action alleg ing defe ndant hair salon and spa neg lige ntly

rec ommended and perf

ormed a “Vitamin C fac ial” on plaintiff following

a “sea wee d fac ial” that irritated her skin, the entry of summary judgme nt for defe ndant was upheld on appea l wher e p l ai ntiff failed to prese nt

ev i d en ce by way of an expert qualified to rende r an opinion on the standard of car e applicable to an esthetician at the time of the occur renc e in 2004.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 0 9 -L-1305; the Hon. J ohn T. Elsner, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Robert K. L ey shon, of Evins & Sklar e, Ltd., of Chicag o, for a ppellant.

Robert Marc Chemers, Suz anne M. Crowley
, and Richard M. Bur g land, all of Pretzel & Stouffe r, Chtrd., of Chicag o, for a ppellee.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices Hutchinson and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Plaintiff, Virg inia Colburn, sued defe ndant, Mario Tricoc i Hair Salons & Day Spas, Inc., alleg ing that she sustained injuries when d e fenda nt neg lige ntly rec ommended and perf ormed

a “Vitamin C fac ial” on J anuar y 13, 2004, following a “sea wee d fac ial” that had irritated her skin on J anuar

y 9, 2004. Plaintiff appea ls from the trial court’s order barring her esthetician 1

ex p er t witness’s opi nion testimony and gra nting summ ary judgme nt in favor of defend an t

on the basis that plaintiff had prese nted no evidenc e of the standard of car e applicable to an esthetician at the time of the occ urre nce. F or the followingrea sons, we af firm.

¶ 2 BA CKGROUND ¶ 3 Plaintiff orig inally init i at ed an ac t i o n aga i n s t d ef en d an t i n 2006, but voluntarily d i s m i s s ed t he action in September 2009 pursuant to section 2-1009 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-1009 (West 2010)). The rec ord on appea l beg ins with the

commence ment of plaintiff’s r efiled a ction in October 2009. ¶ 4 Plaintiff’s first amende d com p lain t in the ref iled action alleg ed the following

. On J anuar y 9, 2004, plaintiff was a business invite e o f d ef en d ant and rec eived a seaw eed fac ial. “[I ]m mediatel y there afte r the very are a wher e the fac ial had been applied turned red.” Plaintiff called defe ndant, and a ma n age r i n s t ructe d her “to come back to g et a Vitamin C fac ial.” Plaintiff rec eived a second fac ial, “which worsene d the condition.” Def endant owed plaintiff a duty “to exercise ordinary and rea sonable car e and caution *** so as not to cause harm and injury to its patrons.” Def endant violated that duty in various way s, including that defe ndant “improperly applied chemica ls and/or products to [p] lainti ff’s face causing
perma nent burns to [p] laintiff’s face ” and “[c]arelessly and neglig entl y rec ommended and applied a second fac ial when [defendant] knew or should have known, based on the rea ction
to the first fa ci al
, t h at i t was not safe to do so.” As a result of defe ndant’s neg lige nce,

T he par ti es spe ll thi s word “ae st het ic ian,” but the I ll ino is le gisla tur e, in the li cen si ng st atute 1 fores the ti ci ans , ha s us ed t he s pel li ng “est het ic ia n.” See 225 I LCS 410 /3A-1(B) ( We st201 0).

-2-“[p] laintiff’s fac e has been p erma nently disfigur ed, discolored, and scar red, [and] the [p] laintiff has develope d an allerg ic and sensitive condit i o n to contaminants i n the air and
a g ood number of sme lls and prese ntly cannot g o into the sun.” ¶ 5 Acc ording to plaintiff’s brief, she disclosed Natalia Dora n pursuant to I llinois Supreme Court Rule 213(f) (3) (e ff

. J an

. 1, 2007) as her reta ined esthetician expert witness in the orig inal action. Howeve r, nothing in the rec ord indicates that the parties completed any further expert discovery

befor e plaintiff voluntar ily dismiss ed the a ction. ¶ 6 After plaintiff commence d her ref iled action, the trial court order ed plaintiff to disc lose her reta ined expert witnesses pursuant to Rule 213(f) (3) on or befor e J une 1, 2010. The trial court subseque ntly extended that deadline to August 1, 2010, and then to Octobe r 7, 2010. On Nove mber 1, 2010, plaintiff disclosed Dr. J eff rey Coe as her reta ined expert witness. Plaintiff’s witness disclosure stated that Dr. Coe would testify to his opinion that the J anuar y 13, 2004, fac ial cause d plaintiff to suffe r various specifie d injuries. Acc ording to defe ndant’s brief, when def

endant took Dr . Coe’s deposition on Marc h 10, 2011, Dr. Coe testified that he had no opinion on the standard of car e applica

ble to an esthe tician. The rec ord does not contain a tr anscript of Dr. Coe’s deposition. ¶ 7 On April 18, 2011, plaintiff filed her “Motion to D isclose New (f) (3) Standar d of Care Wit ness.” Plaintiff alleg ed the following

. She had previously disclosed an esthetician expert witness who would testify to her opinion that defe ndant did not meet the applicable standard

2 of car e. Plaintiff’s relationship with her expert had broken down to the extent that she could
not continue with her as an ex pert. P laintiff’s medical causation ex p er t woul d rema in the 3

same and had bee n d ep o s ed

. Plaintiff reque sted until April 29, 2011, to disclose a new esthetician e x pert witness. ¶ 8 The same day
, t h e t ri al co u rt enter ed an order direc ting plaintiff to disclose her ne w expert witness and corresponding repor t by April 29, 2011, at 4:30 p.m. or pl aintiff would be bar red f rom disclosing a

n esthetician e x pert. ¶ 9 On Ap ri l 29, 2011, plaintiff sent a letter to defe ndant, purporting to enclose t h e Ru l e 213(f) (3) report of Pamela S tieber. Pl aintiff st ated that Stie b er had e-mailed t he report t he night befor e and that it was there fore unsigne d. The repor t consisted of a letter from Stieber
to p l ai n t iff’s counsel and an attache d one-pa g e document. The letter stated the following

. Stieber was an esthetician licensed in the state of I llinois since 2006. She had attended Pivot Point Interna

tional Aca demy

. She had experience with various skin and fac ial treatments and techniques, including mi crode rmabra sion, chemica l peels, fa cials, and laser treatments for

rosac ea, sun da

mag e, ac ne, wrinkles, and sca rs. ¶ 10 The one-pa g e document attache d to t h e l et t er s t at ed t h at S t i eber had revie wed the depositions of plaintiff, Dr. Coe, def en dant’s spa coordinator and manag er, defe ndant’s
corpor ate spa direc tor, and one of defe ndant’s estheticians. She had also revie wed plaintiff’s handwr itten s u m m ary of the incident, photogr aphs of plaintiff, a book entitled Milady’s

We in fe r t hatpl ai nti ff

was re fe rr ing to Nat al iaDor an. 2

We in fe r t hatpl ai nti ff

was re fe rr ing to Dr. J ef

fr ey Coe. 3

-3-S

ta n d a r d E s th e ti c s F u n d a m e n ta ls M

a n u a l
, defe ndant’s esthetics tra inin g ma n u a l, d e f e n d a nt’ s written disco v ery re sponses, materia l safe ty data sheets, a “Repe chag e revie w summary sheet,” and a product ingr edient listi ng sheet. None of these documents wer e attache d to the
repor t, and none a

re c ontained in the re cord. ¶ 11 The document then stated the following under the heading “Persona l Opinion of Pamela Stieber”: “When [p] laintiff, Virg inia Colburn returne d for her SECOND treatment on J anuar y 13, 2004, with demar cation from treatment dated J anuar y 9, 2004, I would have ref used
to treat Ms. Colburn. Upon revie wing the document s s t at ed above, it is in my opinion when Ms. Colburn returne d to Ma rio Tricoc i on J anuar

y 13, 2004, she should not have been treated. I fee l this second treatment to Ms. Colburn , whi ch included a steam treatment, exasperate d [ sic ] her condition. As stated: M I L AD Y’ S Standard Esthetics F u n d a m e n t a l s M a n u a l
, P a r t 3 ‘ T h e S k i n S ci en ce s ’ p age 2 1 6
, u n d e r CONTRAI

NDI CATI ONS, it states that a skin disorder or skin irritation can all
contra indicate a service

. Also, contra indications indicator shown in MARI O TRI COCI AESTHETI C TRAI

NI NG MANUAL
, Fa cial Training –Sec. 2: Skin Ana l y s i s , Part B, Pag e 1, first bullet point asks: Question[:] ‘ Do you usevaporizers’?
Answer : Y

es, we do use vaporizers in eve ry Facial Treatment, unless a condition is present in which heat is a contraindication

. In Virg inia Colburn’s deposition transcript, she stated that her skin was irritated and blotchy
, pag e 98, line number 23 and in her persona l diary
, dated Fr iday
, J anuar y 9, 2004, she stated she experience d pain and r edness of her f ace

. It is m y personal opin ion wh en Virg inia Colburn ret urned for her second tre atm en t o n J anuary 13, 2004 upon consultin g and viewin g client’s skin , she shou ld n ot h ave b een treate d, and s he shou ld h ave im m ediately been re ferre d f or

m edical atte ntion. ” (Empha ses in orig inal.) ¶ 12 Def

endant then filed its “Motion to Ba r and for Summary Judg ment.” Def endant a sked the court to strike Stieber’s purported Rule 213(f) (3) report o n th e fo llowing g rounds: (1) Stieber was not a licensed esthetician in 2004 when the incident occur red; (2) Stieber did not identify the standard of car e for an esthetician in 2004; (3) Stieber g ave her “per sonal opinion” rathe r than her profe ssional opinion; and (4) Stieber did not identify the s p ec i fic actions that violat ed a s t an d ard of car e. Def endant then asked the court to enter summary judgme nt in its favor beca use “abse nt a proper ly disclosed expert to establi s h and addre ss standard of car e issues, plaintiff is unable to proce ed with her alleg ed cause of action ag ainst the def endant.” ¶ 13 In response to de fenda nt’s motion, plaintiff argued that her disclosure was sufficie nt to qualify Stieber as an expert. Plaintiff contende d that Stieber need not have been licensed in 2004 to be qualified to g ive her opinion as to the “conduc t and standard” of an esthetician. Plaintiff maintained that Stieber’s ref ere nces to Milady’s Standard Esthetics Fundamentals Manual and to defe ndant’s own esthetics training manual established that she was g iving her opinion on the standard of car e applica

ble to defe ndant.

-4-¶ 14 Plaintiff further argued that summ ary judgme nt would be improper beca use t his was a “standa rd neg lige nce case ” in which the standard of car e was that of a rea sonable person, not

a “medica l arts” case

. Plaintif f contended that defe ndant had “not demonstrated that there was not neg lige nce unde r a g ener al neg lige nce sta ndard.” ¶ 15 Plaintiff attache d Stieber’s affidavit t o her response. The af fi d av it larg ely repe ated the disclosures contained in Stieber’s letter and one-pa g e repor t, but inclu d ed the following revised pa

ragraph:
“In my pro fessional opinion, when Virg inia Colburn returne d for her second
treatment on J anuar

y 13, 2004 with demar cation from treatment o n J an uary 9, [s] he

s h ould have been ref

used any treatment and ref err ed to a phy sician. This demar catio n

was also described as painful, i rr i t at ed
, and blotchy skin. Refusal of treatment and ref err al was the appropriate standard of car e under with [ sic ] the skin conditions prese nt. When Ms. Colburn wa s t reated on J anuar y 13, 2004, this violated t he st andard of care and exace rbate d and ag g ravated her skin condition.” Stieber also stated in the aff idavit that both Milady’s Sta n d a rd Esthetics Fundamentals Manual and defe ndant’s esthetics training manual “support the opinion that trea tment should
not have been provided since there was pain, redne ss a nd irritated and blotchy skin prese nt when [plaintiff] presented f or treatment on J anuar

y 13, 2004.” ¶ 16 The rec ord does not c ontain a transcript of the hearing on defe ndant’s motion. On J une 16, 2011, the trial court enter ed a written order in which it barr ed Stieber from testifying as

an expert and enter ed summary judgme nt in defe ndant’s favor

. The court first conclude d that it did “not have the discretion to not consider the [S tieber] aff idavit as the [pl aintiff’s] 213(f) (3) disclosure .” The court we nt on: “The next issue is whether Ms. Steiber [ sic ] can g ive an opinion. The aff iant attended Pivot Point International Aca demy and graduated in 2006. She then rec eived training from a doc tor. The incide nt occur red on January

13, 2004[,] more than two year s prior
to this person g raduating from school. The aff iant was not licensed in 2004. The aff iant does notstate she ha s knowledg e as to the standard for aestheticians in 2004; nor does she state a basis for her knowledg e of standards that exis ted in 2004. Finally
, the opinions

rea ched are based upon her schooling
, training
, licensing and experience

. All of the basis [ sic ] for her ability to g ive an opinion oc curr ed more than 2 year s afte r the incident. As the defe ndant points out, the aff iant does not show that she has knowledg e of the standard of car e a profe ssional aesthe tician wit h the same knowledg e skill and ability would have used under simil ar circ umstances in J anuar y , 2004. The motion in limine to bar this witness from g iving opinion testimony is gr anted. The final issue is whether there is a g enuine issue of materia l fac t and if not whether the defe ndant is entitled to judgme nt as a matter of law. Since there is no evidenc e of the standard of car e in J anuar

y , 2004 or an opinion as to the brea ch of that standard, then the defe ndant is entitled to judgment a s a matter of law. The motion for summary

judgme nt is gra

nted.” ¶ 17 This timely

appea l followed.

-5-¶ 18 ANALYSI S

¶ 19 We beg in by clar ifying what is not at issue in this appea l. Both parties spend sig nificant time in their briefs arg

uing over whether plaintiff’s disclosure of Pamela Stieber on April 29, 2011, satisfied the require ments of Rule 213(f) (3). Howeve r, the trial court expli citly stated that it was considering Stieber’s aff idavit as plaintiff’s Rule 213(f) (3) disclosure. The court’s order stated that “[t] he court does not have the discretion to not consider the aff idavit as the 213(f) (3) disclosure.” (Emphasis added.) A double neg ative is “a reiter ated denial that equals

an aff irmative.” Webster’s Third New International Dictionary 67 8 (1993). Plaintiff’s compliance with Rule 213(f)( 3) is not at issue on appea l.

¶ 20 Def endant’ s Motion to Bar ¶ 21 The first issue on appea l is whether it was proper f or the trial c ourt to bar Stieber from
g iving her opinion on the standard of car e app l i cab le to an esthetician at the time of the

occur renc e. “[I ]t is well settled that the decision whether to admit expert testimony is within the sound discretion of the trial court.” Thomps o n v. Go r don
, 221 I ll. 2d 414, 428 (2006) ( Thompson I

). “ ‘The burden of establishing the qualifications of an expert witness is on the proponent of his testimony ***.’ ” Lombardo v. Reliance Elevator Co.
, 315 I ll. App. 3d 111, 123 (2000) (quoting People v. Jordan
, 10 3 I l l

. 2 d 192, 208 (1984))

. “A person will be allowed to testify as an expert if his experience and qualifications aff ord him knowledg e that is not common to lay

persons, and wher e his testimony will aid the t rier of fac t in rea ching i t s conclusions.” Thompson I
, 221 I ll. 2d at 428. “ ‘There is no prede termined formula for h ow an expert acquir es specialized knowledg e or experience and the expert can gai n s u ch through prac tical experience
, scientific study
, educa tion, training or rese arc h.’ ” Thompson I
, 221 I ll. 2d at 428-29 (quoting P eo p l e v. Miller
, 173 I ll. 2d 167, 186 (1996))

. An expert need not have formal aca demic training o r specific degree s, but only “knowledg e and experience beyond that of an a vera g e citizen.” Thompson I , 221 I ll. 2d at 429. ¶ 22 W e re v i ew for an abuse of discretion a trial court’s decision not to allow a wi t n es s t o testify as an expert. Somers v. Quinn
, 373 I ll. App. 3d 87, 95-96 (2007). A trial court abuses its discretion only wher e no rea sonable person would take the position adopted by the court. Somers
, 373 I ll. App. 3d at 95-96. “The test is not whether the revie wing court agree d with the trial court’s decision, but whether the lower court ‘ac ted arbitra rily without the employ ment of conscie ntious judgme nt or, in view of all the circ u m s t ances, exceede d the bounds o f rea son and ignor ed rec og nized principles of law so that substantial prejudice resulted.’ ” (Interna l quotation marks omitted.) Somers
, 373 I l l

. Ap p

. 3 d at 96 (quoting American Fede ration of

State, County & Municipal Employe es, Council 31 v. Schwartz
, 343 I ll. App. 3d 553, 559 (2003)). ¶ 23 Our sup re m e court held in Thompson I that the lack of an I llinois eng ineer ing lice nse alone was an insufficient basis on which to bar a witness from testifying as an expert to the standard of car e for profe ssional eng ineer s in I llinois

. Thompson I
, 221 I ll. 2d at 429. The
court held that, while licensing may be one fac tor to consider in deter min i n g wh et h er a witness is qualified to testify as an ex p er t , it is not a prer equisite and must be considere d along with other rele vant fac tors. Thompson I
, 221 I ll. 2d at 429. The court rema nded to the

-6-trial court to proper ly deter mine the witness’s qualifica tions based on all of the rele vant criteria. Thompson I

, 221 I ll. 2d at 430. ¶ 24 In Somers
, the appellate court simil arly held that the trial court err ed in c oncluding that

a witness who had l o st his license to prac tice medicine was automatically barr ed from testifying as an expert to the standard of car e for a phy sician. Somers
, 373 I ll. App. 3d at 93. The court in Somers did not rema nd for further proce eding s, howeve r, beca use, althoug h the trial court had err oneously conclude d that the witness’s lack of a license automatically disqualified hi m from testi fying as an ex pert, the trial court had als o s t at ed that “eve n if it had discretion to decide to allow [t he wi t n es s ’s] testimony
, it would still exclude the testimony .” Somers
, 373 I ll. App. 3d at 90, 95-96. The Somers court held that the trial court could hav e re as o n ably conclude d that the witness was not qualified to testify as an expert based on the loss of his license and othe r fa ctors. Somers , 373 I ll. App. 3d at 96. ¶ 25 Plaintiff would have us interp re t t h e tri al court’s J une 16, 2011, order as er roneously concluding that Stieber was automatically barr ed from testify i n g as an expert beca use she

rec eived her esthetician’ s license in 2006, two year s afte r th e o ccur renc e. Plaintiff asser

ts that the trial cour

t “ruled that since Ms. Steiber [ sic ] wa s first licensed in 2006 a nd the conduc t

occur red in 2004, [p] laintiff could not establish the standard of car e in 2004.” Plaintiff argues that “[j] ust beca

use Ms. Steiber [ sic ] was not licensed in 2004 does not mean that she cannot testify to a standar d of ca

re that she is familiar with that exist ed at that time.” ¶ 26 Whil e we agree with plaintiff that Stieber’s lack of a license or a specialized degree in 2004 did not automatically disqualify her from testify ing as an expert to the standard of car e in 2004, we decline to interpre t the trial court’s order as applying such an absolute rule. The trial court considere d Stieber’s education and experience in making its decision–the court acknow ledg ed that “the opinions reac hed ar e base d upon her sc hooling, tra ining, lice nsing and experience ”–but the court never theless conclude d that she was unqualified as an expert beca use she did not “state a basis for her knowledg e of standards that exis ted in 2004” and beca use she did “not show that she h ad knowledg e of the standard of car e a profe ssional aesthe tician with the same knowledg e skill and ability would hav e u s ed un der simil ar circ umstances in January , 2004.” ¶ 27 Whil e it is conce ivable that, despite he r lac k of a specia liz ed degree or an esthetician’ s license in 2004, Stieber could have been qualified to testify as an e x pert to the s tandar d of

car e applicable to an esthetician in 2 0 0 4, it was plaintiff’s burden to prese nt sufficie nt evidenc e to the court to establish her qualifications. See Lombardo
, 315 I ll. App. 3d at 123 (the burden of establishing an expert witness’s qualifications is o n t h e proponent of the testimony). Ag ain, there is not a “ ‘pre deter m i n ed formula’ ” for acquir ing specia liz ed knowledg e or experience that will qualify a witness as an expert. Thompson I
, 221 I ll. 2d at 428-29 (quoting Miller
, 173 I ll. 2d at 186). An expert can acquir e specia liz ed knowledg e in

a n u m b er of way s, including “ ‘through prac tical experience
, scientific study
, education, training or rese arc h.’ ” Thompson I
, 221 I ll. 2d at 428-29 (quoting Miller
, 173 I ll. 2d at 186). Plaintiff simply did not prese nt sufficie nt information to s at i s fy the court that Stieber was qualified to g ive her

opinion on the standard of car e for an esthe tician in 2004. ¶ 28 The shortfalls in plaintiff’s disclosure and in Stieber’s aff idavit wer e appar ent. Althoug h

-7-S t ieber stated that she had experience using various products and techniques, she d i d n o t

state whe ther the sa

me produc ts a

nd techniques w ere used in 2004. Stieber also stated that both Milady’s Standard Esthetics Fundamentals Manual and defe ndant’s esthetics training manual supported her opinions, but she did not state whether those materia ls had b een published prior to 2004 or that they establi s h ed th e s t andar d of car e in 2004. In her brief, plaintiff conclusively states that “Mario T ricoc i’s policies and the industry treatise were in exis tence on the date of the alleg ed neg lige nce,” but plaintiff offe rs no citation to the rec ord
to establish this, and the materia ls are not included in the rec ord. Given that Stieber was not licensed until 2006, it was critica l for plaintiff to establish how Stieber beca me an expert on the standard of car e as i t ex i sted in 2004. Simpl y stating in her aff idavit that “[r]efusal of
treatment and re fer

ral wa s the appropriate standa rd of c are ” wa s not enough. ¶ 29 At oral arg

ument, plaintiff asked this court to inf er that, beca

use defe ndant tender ed its

es thetics training manual in response to plaintiff’s dis cover y reque sts, the t raining manua l

was the one in eff

ect at t h e time of the occur renc e. We decline to do so. It was plaintiff’s burden to prese nt a sufficiently complete recor d on appea l to support a claim of error
, and
any do ub t s t hat arise from the incompleteness of the rec ord will be resolved ag ainst her. Foutch v. O’Bry ant , 99 I ll. 2d 389, 391-92 (1984). Moreove r, plaintiff conce ded at oral
argument that she did not prese nt a copy of the training manual t o t h e tri al court, and a revie wing court cannot consider evidenc e that was not befor e the trial court when it rende red its decision. W

hittmanhart, Inc. v. CA, Inc

. , 402 I ll. App. 3d 848, 852 (2010). ¶ 30 Ba sed on the fore g oing, we cannot say that the trial court abused its discretion in ba rring Stieber from g iving her o p i n i on on the standard of car e applicable to an esthetician at the time of the occ u rr en ce

. The trial court did not apply an err oneous cate g orica l rule, but exercised its discretion by assessing the various bases for Stieber’s opinion and concluding that those bases wer e insufficient to qualify her as an expert. The court did not act “ ‘ar bitrarily without the employ m en t o f conscie ntious judgme nt or, in view of all the circ umstances, exceed[ ] the bounds of rea son and ignor e[ ] rec ognized principles of law.’ ” (Interna l quotation mar k s omitted.) Somers
, 373 I ll. App. 3d at 96 (quoting Schwartz
, 343 I ll. App. 3d at 559).

¶ 31 Def endant’ s Motion for Summary J udg ment ¶ 32 The next issue is whether the trial court err ed in g ranting summary judgme nt in favor of defe ndant. Summary judgme nt is proper wher e “the pleading s, depositions, and admissions

o n fi l e, t og ether with the aff idavits, if any , show that there is no g enuine issue as t o an y materia l fac t and that the moving party is entitled to judgme nt as a matter of law.” 735 I L CS 5/2-1005(c) (West 2010); Thompson v. Gordon
, 241 I ll. 2d 428, 438 (2011) ( Thompson II ). The purpose of summary judgme nt is not to try a question of fac t, but to deter mine whether
any g enuine issue of

fac t exi sts to be tried. Thompson I I , 241 I ll. 2d at 438. In deter mining this, the court must construe the pleading s, depositions, ad m i s s i ons, and affidavits strictly
ag ainst the movant and libera lly in favor of

the opponent. W

illiams v. Mancheste r , 228 I ll. 2d 404, 417 (2008). “Summary judgme n t s h o u l d be grante d only when the right of the moving pa

rty is clear and fre e from doubt.” Thompson II , 241 I ll. 2d at 438. We review de

-8-novo an orde r grantingsummary judgme nt. Thompson II

, 241 I ll. 2d at 438. ¶ 33 The party moving for summary judgme nt bear s the burden of proof and the initial burde n of production. Pec ora v. County of Cook
, 323 I ll. App. 3d 917, 933 (2001). The moving party

can meet the init i al burden of production either “(1) by aff irmatively disproving the plaintiff’s case by introducing evidenc e that, if uncontrove rted, would entitle the movant to judgme nt as a matter of law (traditional test) [citation]
, or (2) by establishing that the
nonmovant lacks sufficie nt evidenc e to p ro v e an essential element of the cause of action ( Celotex test) [citations] .” W illiams v. Covenant Medic al Center
, 316 I ll. App. 3d 682, 688- [4 ] 89 (2000). I f the moving party meets the initial burden of production, t h en the burden of production shifts to the nonmoving party , who must then prese nt some fa ct u al basis that would argu ab l y en t i tle it to judgme nt as a matter of law. Pec ora , 323 I ll. App. 3d at 933; W illiams
, 316 I ll. App. 3d at 689. A court should g rant summary judgme nt on a Celotex -ty pe motion “only when the rec ord indicates that a plaintiff has had ex t en s i v e opportunities to establish her case but has failed in any way to demonstrate that she could [do so].” W illiams
, 316 I ll. App. 3d at 694. ¶ 34 Def

endant’ s motion for summary j u d gm en t wa s a Celotex -ty pe motion based on the
argument that (1) plaintiff was require d to prove the applicable standard of car e through expert testimony
, (2) plaintiff had failed to disclose an expert who was qualified to g ive an opinion on the standard o f ca re , an d (3) plaintiff was barr ed from doing so beca use the deadline f or disclosure of

plaintiff’s experts had pa ssed. Plaintiff does not a rgue on appea l that defe ndant failed to meet its initial burden of production. The sole issue is whether
, once the burden of production shifted to her, plaintiff prese nted a sufficie n t fa ct u al basis that would arguably

entitle her to judgment as a matter of law

. ¶ 35 P l ai n t i ff al l ege d t h at defe ndant was neg lige nt in rec ommending and perf orming a “Vitamin C fac ial” four day s afte r defe ndant had perf ormed a “sea

wee d fac ial” that irritated plaintiff’s skin. The elements of a c ause of action for neg lige nce are (1) a duty owed to the plaintiff by the defe ndant, (2) a brea ch of that duty
, and (3) an injury proxi mately cause d by the brea ch. W

ilfong v. L.J. Dodd Construction
, 401 I ll. App. 3d 10 4 4
, 1051 (2010). “The standard of car e, also known as the standard of conduct, falls within the duty element.” Jones v. Chicago HMO

Ltd. of Ill inois , 191 I ll. 2d 278, 294 (2000). ¶ 36 “In an ordinary neg lige nce case , the standard of car e require d of a defe ndant is to act a s would an ‘ordinary car eful person’ or a ‘reasona bly prudent’ person.” Jones
, 191 I ll. 2d at 295 (quoting Advincula v. United Blo o d Servic es , 176 I ll. 2d 1, 22 (1996))

. Gene rally
, no expert testimony is nece ssary to prove the standard of car e in an ordinary neg lige nce case

. Jones , 191 I ll. 2d at 295 (citing Advincula , 176 I ll. 2d at 24). ¶ 37 “In co n t ra s t , i n a p ro fe s sional neg lige nce case , the standard of car e require d of a defe ndant is to act as would a n ‘ordinarily car eful profe ssional.’ ” Jones
, 191 I ll. 2d at 295

I n Cel ote x Corp

. v. Catr et t , 477 U.S. 317 (19 86)
, t h e Unit ed Sta te s Supr eme Cour t 4

re cognized tha t a def

end ant m oving for summ ary j udgm ent cou ld m eet it s ini ti al bur den of
pro duc ti on by “ ‘po int ing out to the *** cou rt *** tha t the re is an abs enc e of eviden ce to sup por t the

nonmov ing par ty’s cas e.’ ” Pec ora , 323 I ll . App. 3d a t 9 34 ( quot ing Cel ote x , 477 U.S. a t 3 25)

.
-9-(quoting Advincula
, 176 I ll. 2d at 23). “Pursuant to this standard of car e, professionals are

expected to use the same degree of knowled ge, s k ill and ability as an ordinarily car eful profe ssional would exercise under simil ar circ umstances.” Jones
, 19 1 I l l

. 2d at 295. Gene rally
, ex pert testimony is nece ssary to prove the standard of car e in a profe ssional
neg lige nce case

. Studt v. Sherman Health Systems
, 2011 I L 108182, ¶ 20; Jones
, 191 I ll. 2d
at 295. “This require ment is ba sed on the simple f act that without e x pert testimony
, jurors,
not skilled in the profe ssion, are not equipped to judge the profe ssional’s conduct.” Studt
, 2011 I L 108182, ¶ 20. “Courts have rec og nized two exceptions to this ru l e: wh er e the profe ssional’s conduct is so g rossly neg lige nt, or the proce dure so common, that the jury can

rea dily appra ise it without the need for expert testimony .” Studt
, 2011 I L 108182, ¶ 20 (citing Jones , 191 I ll. 2d at 278). ¶ 38 We ha

ve alre ady deter

mined that plaintiff failed to pr esent competent expert testimony

on the standard of car e applicab l e t o an esthetician in 2004. Our decision on that issue is supported by the consideration that plaintiff “had extensi v e o p p o rtunities to establish her

case ” ( W illiams
, 316 I ll. App. 3d at 694), but never theless failed to disclose a qualified expert witness. This was not a situation in which g ranting a Celotex -ty pe motion was improper beca use the nonmoving party had not yet had an opportunity to compl et e n ec essar y discovery

. See W

illiams
, 316 I ll. App. 3d at 690 ( Celotex -ty pe motion filed only 13 months following filing of complaint was premature); Hansbrough v. Kosyak
, 141 I ll. App. 3d 538, 549 (1986) (motion filed only 10 months afte r complaint was filed). Plaintiff filed her initial action in 2006, and defe ndant did not move for summary judgme nt until 2011, afte r the court had g iven plaint i ff n u merous opportunities to disclose an expert. The court even g ave plaintiff one more opportunity when it considered Stieber’ s aff idavit as her Rule 213( f)( 3) disclosure. ¶ 39 Although pla intiff argued in her response to defe ndant’s summary judgme nt motion i n the t rial court that this was a “standa rd neg lige nce c ase”in which the standa rd of c are was that of a rea sonable person, not a “medical arts” case, pl ain t i ff has forfeited this argument

on appea l. Nowher e in plaintiff’s brief doe s she sug g est that this is an ordinary neg lige nce

case , rathe r than a profe ssional ne g lige nce case , or that expert testimony was not nece ssary to prove the standard of car e. Points not argued in an appellant’ s brief are forf eited. I ll. S. Ct. R. 341(h)( 7) (ef

f. J uly 1, 2008) (“Points not argued are waived and shall not be raised in the reply brief, in or al ar gument, or on petition f or rehe aring .”); People v. Evans , 405 I ll. App. 3d 1005, 1007 (2010) (applying Rule 341(h)( 7) to an argument not raised in the appellant’ s brief)

. We decline to overlook plainti ff’ s forf eit ure of the i ssue and to sua sponte rese arc h the issues, formulate arguments, and then decide the issues. See Skidis v. Industrial Comm’n
, 309 I ll. App. 3d 720, 724 (1999) (statingthat “this court will not be come the advoca te for,

as we ll as the judg e of, points an a ppellant see ks to raise” ). ¶ 40 At oral argument, plaintiff maintained that she had structure d her brief in such a way that it eff ectively raised the argument that this is an ordinary neg lige nce case

. She contende d, for example, that she chose to cite Van Holt v. National R.R. Passenger Corp.
, 283 I ll. App. 3d 62 (1996), specific ally beca use it involved an expert testifying in an ordinary neg li gen ce

case

. Howeve r, as discussed below, plaintif f’ s b ri ef g ave the impression that she was

conce ding that this is a profe ssional neg lige nce case

. Moreove r, the court in Van Holt simply

-10-reje cted the defe ndants’ argument on appea l that the trial court h ad erred in allowing the

plaintiffs’ expert to g ive opinions that related to matters within jurors’ common knowledg e. Van Holt
, 283 I ll. App. 3d at 70. The court in V a n Ho l t place d no signific ance on the consideration t h at t h e case , which involved a slip and fall, was g overne d by an ordinary
neg lige nce standard. See Van Holt
, 283 I ll. App. 3d at 70. An appellant’ s brief must contain “the contentions of the appellant and the rea sons there for, with citation of the authorities and the pag es of the rec ord relied on.” I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008). Citi ng a case and hoping that the court infe rs from its fac ts the appellant’s c ontentions is not adequate. ¶ 41 Our decision not to overlook plaintiff’s forf eiture is supported by the consideration that plaintiff seems to conce de that this is a profe ssional neg lige nce case

. In her brief, she ref ers to e s th e ti c s a s a “prof

ession.” She asser

ts that Stieber’s “[p] rofe ssional [o] pinio n ” e s ta b li s h e d the standard of car e. In arguing that the trial court should have qualified Stieber as an expert, plaintiff points out that “Ms. S t i eb er had to g o to school to become an aesthe tician,” that “[t] he State of I llinois has decide d to impose a licensing require ment for aesthe ticians,” and that “[t] hereare products involved which have ingre dients which an aver ag e per son might
not have any knowledg e of or understand.” None of plaintiff’s arguments s u gges ts that estheticians a

re not prof

essionals subject to a pr ofessional ne g lige nce sta ndard. ¶ 42 Additionally
, althoug h plaintiff argues that she could establish the standard of car e either through Milady’s Standard Esthetics Fundamentals Manual or through defe ndant’s training manual, she ref

ers to these materia ls as being admissibl e o n l y through Stieber’s expert t es t i m o n y

. For example, plaintiff asser ts that she can “prove the 2004 standard of car e through Ms. Stieber’s statement of the standard of car e as cre ated by the [d] efe ndant’s own policies

. ” As we have mentioned, plaintiff did not attach copies of the publication or the training manual to her response to defe ndant’s summary judgme nt motion, and the materia ls

are not contained in the rec ord on appea l. Plaintiff eff ectively co n ce d es the nece ssity of Stieber’s testimony

to prove he r ca se. ¶ 43 Ba sed on the fore g oing, we conclude that, once the burden of production shifted to her, plaintiff did not meet her burden of prese nting a sufficie nt fac tual basis that would arguably entitle her to judgment as a matter of law. We the ref ore conclude that it was proper for the trial court to grant de fenda nt’s motion for summary

judgme nt.

¶ 44 CONCLUSI ON ¶ 45 For

the above rea sons, we af firm the judg ment of the c ircuit court of Du Pag e County

.

¶ 46 Affir

med.

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