ILLINOIS OFFICIAL REPORTS

Appellate Court

Colburn v. Mario Tricoci Hair Salon & Day Spas, Inc., 2012 IL App (2d) 110624 

Appellate Court

Caption

VIRGINIA COLBURN, Plaintiff-Appellant, v. MARIO TRICOCIHAIR

SALONS AND DAY SPAS, INC., Defendant-Appellee.

 District & No. Second District

Docket No. 2-11-0624

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

April 30, 2012

June 26, 2012

June 26, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an action alleging defendant hair salon and spa negligently

recommended and performed a “Vitamin C facial” on plaintiff following

a “seaweed facial” that irritated her skin, the entry of summary judgment

for defendant was upheld on appeal where plaintiff failed to present

evidence by way of an expert qualified to render an opinion on the

standard of care applicable to an esthetician at the time of the occurrence

in 2004.

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 09-L-1305; the

Hon. John T. Elsner, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Robert K. Leyshon, of Evins & Sklare, Ltd., of Chicago, for appellant.

Robert Marc Chemers, Suzanne M. Crowley, and Richard M. Burgland,

all of Pretzel & Stouffer, Chtrd., of Chicago, for appellee.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Virginia Colburn, sued defendant, Mario Tricoci Hair Salons & DaySpas, Inc.,

alleging that she sustained injuries when defendant negligentlyrecommended and performed

a “Vitamin C facial” on January 13, 2004, following a “seaweed facial” that had irritated her

skin on January 9, 2004. Plaintiff appeals from the trial court’s order barring her esthetician1

expert witness’s opinion testimony and granting summary judgment in favor of defendant

on the basis that plaintiff had presented no evidence of the standard of care applicable to an

esthetician at the time of the occurrence. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff originally initiated an action against defendant in 2006, but voluntarily

dismissed the action in September 2009 pursuant to section 2-1009 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-1009 (West 2010)). The record on appeal begins with the

commencement of plaintiff’s refiled action in October 2009.

¶ 4 Plaintiff’s first amended complaint in the refiled action alleged the following. On January

9, 2004, plaintiff was a business invitee of defendant and received a seaweed facial.

“[I]mmediately thereafter the very area where the facial had been applied turned red.”

Plaintiff called defendant, and a manager instructed her “to come back to get a Vitamin C

facial.” Plaintiff received a second facial, “which worsened the condition.” Defendant owed

plaintiff a duty “to exercise ordinary and reasonable care and caution *** so as not to cause

harm and injury to its patrons.” Defendant violated that duty in various ways, including that

defendant “improperly applied chemicals and/or products to [p]laintiff’s face causing

permanent burns to [p]laintiff’s face” and “[c]arelessly and negligently recommended and

applied a second facial when [defendant] knew or should have known, based on the reaction

to the first facial, that it was not safe to do so.” As a result of defendant’s negligence,

The parties spell this word “aesthetician,” but the Illinoislegislature, in the licensing statute 1

for estheticians, has used the spelling “esthetician.” See 225 ILCS 410/3A-1(B) (West 2010).

-2-
“[p]laintiff’s face has been permanently disfigured, discolored, and scarred, [and] the

[p]laintiff has developed an allergic and sensitive condition to contaminants in the air and

a good number of smells and presently cannot go into the sun.”

¶ 5 According to plaintiff’s brief, she disclosed Natalia Doran pursuant to Illinois Supreme

Court Rule 213(f)(3) (eff. Jan. 1, 2007) as her retained esthetician expert witness in the

original action. However, nothing in the record indicates that the parties completed any

further expert discovery before plaintiff voluntarily dismissed the action.

¶ 6 After plaintiff commenced her refiled action, the trial court ordered plaintiff to disclose

her retained expert witnesses pursuant to Rule 213(f)(3) on or before June 1, 2010. The trial

court subsequently extended that deadline to August 1, 2010, and then to October 7, 2010.

On November 1, 2010, plaintiff disclosed Dr. Jeffrey Coe as her retained expert witness.

Plaintiff’s witness disclosure stated that Dr. Coe would testify to his opinion that the January

13, 2004, facial caused plaintiff to suffer various specified injuries. According to defendant’s

brief, when defendant took Dr. Coe’s deposition on March 10, 2011, Dr. Coe testified that

he had no opinion on the standard of care applicable to an esthetician. The record does not

contain a transcript of Dr. Coe’s deposition.

¶ 7 On April 18, 2011, plaintiff filed her “Motion to Disclose New (f)(3) Standard of Care

Witness.” Plaintiff alleged the following. She had previously disclosed an esthetician expert

witness who would testify to her opinion that defendant did not meet the applicable standard 2

of care. Plaintiff’s relationship with her expert had broken down to the extent that she could

not continue with her as an expert. Plaintiff’s medical causation expert would remain the 3

same and had been deposed. Plaintiff requested until April 29, 2011, to disclose a new

esthetician expert witness.

¶ 8 The same day, the trial court entered an order directing plaintiff to disclose her new

expert witness and corresponding report by April 29, 2011, at 4:30 p.m. or plaintiff would

be barred from disclosing an esthetician expert.

¶ 9 On April 29, 2011, plaintiff sent a letter to defendant, purporting to enclose the Rule

213(f)(3) report of Pamela Stieber. Plaintiff stated that Stieber had e-mailed the report the

night before and that it was therefore unsigned. The report consisted of a letter from Stieber

to plaintiff’s counsel and an attached one-page document. The letter stated the following.

Stieber was an esthetician licensed in the state of Illinois since 2006. She had attended Pivot

Point International Academy. She had experiencewith various skin and facial treatments and

techniques, including microdermabrasion, chemical peels, facials, and laser treatments for

rosacea, sun damage, acne, wrinkles, and scars.

¶ 10 The one-page document attached to the letter stated that Stieber had reviewed the

depositions of plaintiff, Dr. Coe, defendant’s spa coordinator and manager, defendant’s

corporate spa director, and one of defendant’s estheticians. She had also reviewed plaintiff’s

handwritten summary of the incident, photographs of plaintiff, a book entitled Milady’s

We infer that plaintiff was referring to Natalia Doran. 2

We infer that plaintiff was referring to Dr. Jeffrey Coe. 3

-3-
StandardEstheticsFundamentalsManual, defendant’s esthetics trainingmanual, defendant’s

written discovery responses, material safety data sheets, a “Repechage review summary

sheet,” and a product ingredient listing sheet. None of these documents were attached to the

report, and none are contained in the record.

¶ 11 The document then stated the following under the heading “Personal Opinion of Pamela

Stieber”:

“When [p]laintiff, Virginia Colburn returned for her SECOND treatment on January

13, 2004, with demarcation from treatment dated January 9, 2004, I would have refused

to treat Ms. Colburn. Upon reviewing the documents stated above, it is in my opinion

when Ms. Colburn returned to Mario Tricoci on January 13, 2004, she should not have

been treated. I feel this second treatment to Ms. Colburn, which included a steam

treatment, exasperated [sic] her condition. As stated: MILADY’S Standard Esthetics

Fundamentals Manual, Part 3 ‘The Skin Sciences’ page 216, under

CONTRAINDICATIONS, it states that a skin disorder or skin irritation can all

contraindicate a service. Also, contraindications indicator shown in MARIO TRICOCI

AESTHETIC TRAINING MANUAL, Facial Training–Sec. 2: Skin Analysis, Part B,

Page 1, first bullet point asks:

Question[:] ‘Do you use vaporizers’?

Answer: Yes, we do use vaporizers in every Facial Treatment, unless a condition

is present in which heat is a contraindication.

In Virginia Colburn’s deposition transcript, she stated that her skin was irritated and

blotchy, page 98, line number 23 and in her personal diary, dated Friday, January 9, 2004,

she stated she experienced pain and redness of her face.

It is my personal opinion when Virginia Colburn returned for her second

treatment on January 13, 2004 upon consulting and viewing client’s skin, she

should not have been treated, and she should have immediately been referred for

medical attention.” (Emphases in original.)

¶ 12 Defendant then filed its “Motion to Bar and for Summary Judgment.” Defendant asked

the court to strike Stieber’s purported Rule 213(f)(3) report on the following grounds: (1)

Stieber was not a licensed esthetician in 2004 when the incident occurred; (2) Stieber did not

identify the standard of care for an esthetician in 2004; (3) Stieber gave her “personal

opinion” rather than her professional opinion; and (4) Stieber did not identify the specific

actions that violated a standard of care. Defendant then asked the court to enter summary

judgment in its favor because “absent a properly disclosed expert to establish and address

standard of care issues, plaintiff is unable to proceed with her alleged cause of action against

the defendant.”

¶ 13 In response to defendant’s motion, plaintiff argued that her disclosure was sufficient to

qualify Stieber as an expert. Plaintiff contended that Stieber need not have been licensed in

2004 to be qualified to give her opinion as to the “conduct and standard” of an esthetician.

Plaintiff maintained that Stieber’s references to Milady’s Standard Esthetics Fundamentals

Manual and to defendant’s own esthetics trainingmanual established that she was giving her

opinion on the standard of care applicable to defendant.

-4-
¶ 14 Plaintiff further argued that summary judgment would be improper because this was a

“standard negligence case” in which the standard of care was that of a reasonable person, not

a “medical arts” case. Plaintiff contended that defendant had “not demonstrated that there

was not negligence under a general negligence standard.”

¶ 15 Plaintiff attached Stieber’s affidavit to her response. The affidavit largely repeated the

disclosures contained in Stieber’s letter and one-page report, but included the following

revised paragraph:

“In my professional opinion, when Virginia Colburn returned for her second

treatment on January 13, 2004 with demarcation from treatment on January 9, [s]he

should have been refused any treatment and referred to a physician. This demarcation

was also described as painful, irritated, and blotchy skin. Refusal of treatment and

referral was the appropriate standard of care under with [sic] the skin conditions present.

When Ms. Colburn was treated on January 13, 2004, this violated the standard of care

and exacerbated and aggravated her skin condition.”

Stieber also stated in the affidavit that both Milady’s Standard Esthetics Fundamentals

Manual and defendant’s esthetics trainingmanual “support the opinion that treatment should

not have been provided since there was pain, redness and irritated and blotchy skin present

when [plaintiff] presented for treatment on January 13, 2004.”

¶ 16 The record does not contain a transcript of the hearing on defendant’s motion. On June

16, 2011, the trial court entered a written order in which it barred Stieber from testifying as

an expert and entered summary judgment in defendant’s favor. The court first concluded that

it did “not have the discretion to not consider the [Stieber] affidavit as the [plaintiff’s]

213(f)(3) disclosure.” The court went on:

“The next issue is whether Ms. Steiber [sic] can give an opinion. The affiant attended

Pivot Point International Academy and graduated in 2006. She then received training

from a doctor. The incident occurred on January 13, 2004[,] more than two years prior

to this person graduating from school. The affiant was not licensed in 2004. The affiant

does not state she has knowledge as to the standard for aestheticians in 2004; nor does

she state a basis for her knowledge of standards that existed in 2004. Finally, the opinions

reached are based upon her schooling, training, licensing and experience. All of the basis

[sic] for her ability to give an opinion occurred more than 2 years after the incident. As

the defendant points out, the affiant does not show that she has knowledge of the

standard of care a professional aesthetician with the same knowledge skill and ability

would have used under similar circumstances in January, 2004. The motion in limine to

bar this witness from giving opinion testimony is granted.

The final issue is whether there is a genuine issue of material fact and if not whether

the defendant is entitled to judgment as a matter of law. Since there is no evidence of the

standard of care in January, 2004 or an opinion as to the breach of that standard, then the

defendant is entitled to judgment as a matter of law.

The motion for summary judgment is granted.”

¶ 17 This timely appeal followed.

-5-
¶ 18 ANALYSIS

¶ 19 We begin by clarifying what is not at issue in this appeal. Both parties spend significant

time in their briefs arguing over whether plaintiff’s disclosure of Pamela Stieber on April 29,

2011, satisfied the requirements of Rule 213(f)(3). However, the trial court explicitly stated

that it was consideringStieber’s affidavit 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 affidavit as the

213(f)(3) disclosure.” (Emphasis added.)A double negative is “a reiterated denial that equals

an affirmative.” Webster’s Third New International Dictionary 678 (1993). Plaintiff’s

compliance with Rule 213(f)(3) is not at issue on appeal.

¶ 20 Defendant’s Motion to Bar

¶ 21 The first issue on appeal is whether it was proper for the trial court to bar Stieber from

giving her opinion on the standard of care applicable to an esthetician at the time of the

occurrence. “[I]t is well settled that the decision whether to admit expert testimony is within

the sound discretion of the trial court.” Thompson v. Gordon, 221 Ill. 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 Ill. App. 3d 111,

123 (2000) (quoting People v. Jordan, 103 Ill. 2d 192, 208 (1984)). “A person will be

allowed to testify as an expert if his experience and qualifications afford him knowledge that

is not common to laypersons, and where his testimony will aid the trier of fact in reaching

its conclusions.” Thompson I, 221 Ill. 2d at 428. “ ‘There is no predetermined formula for

how an expert acquires specialized knowledge or experience and the expert can gain such

through practical experience, scientific study, education, training or research.’ ” Thompson

I, 221 Ill. 2d at 428-29 (quoting People v. Miller, 173 Ill. 2d 167, 186 (1996)). An expert

need not have formal academic training or specific degrees, but only “knowledge and

experience beyond that of an average citizen.” Thompson I, 221 Ill. 2d at 429.

¶ 22 We review for an abuse of discretion a trial court’s decision not to allow a witness to

testify as an expert. Somers v. Quinn, 373 Ill. App. 3d 87, 95-96 (2007). A trial court abuses

its discretion only where no reasonable person would take the position adopted by the court.

Somers, 373 Ill. App. 3d at 95-96. “The test is not whether the reviewing court agreed with

the trial court’s decision, but whether the lower court ‘acted arbitrarily without the

employment of conscientious judgment or, in view of all the circumstances, exceeded the

bounds of reason and ignored recognized principles of law so that substantial prejudice

resulted.’ ” (Internal quotation marks omitted.) Somers, 373 Ill. App. 3d at 96 (quoting

American Federation of State, County &Municipal Employees, Council 31 v. Schwartz, 343

Ill. App. 3d 553, 559 (2003)).

¶ 23 Our supreme court held in Thompson I that the lack of an Illinois engineering license

alone was an insufficient basis on which to bar a witness from testifying as an expert to the

standard of care for professional engineers in Illinois. Thompson I, 221 Ill. 2d at 429. The

court held that, while licensing may be one factor to consider in determining whether a

witness is qualified to testify as an expert, it is not a prerequisite and must be considered

along with other relevant factors. Thompson I, 221 Ill. 2d at 429. The court remanded to the

-6-
trial court to properly determine the witness’s qualifications based on all of the relevant

criteria. Thompson I, 221 Ill. 2d at 430.

¶ 24 In Somers, the appellate court similarly held that the trial court erred in concluding that

a witness who had lost his license to practice medicine was automatically barred from

testifying as an expert to the standard of care for a physician. Somers, 373 Ill. App. 3d at 93.

The court in Somers did not remand for further proceedings, however, because, although the

trial court had erroneously concluded that the witness’s lack of a license automatically

disqualified him from testifying as an expert, the trial court had also stated that “even if it

had discretion to decide to allow [the witness’s] testimony, it would still exclude the

testimony.” Somers, 373 Ill. App. 3d at 90, 95-96. The Somers court held that the trial court

could have reasonably concluded that the witness was not qualified to testify as an expert

based on the loss of his license and other factors. Somers, 373 Ill. App. 3d at 96.

¶ 25 Plaintiff would have us interpret the trial court’s June 16, 2011, order as erroneously

concluding that Stieber was automatically barred from testifying as an expert because she

received her esthetician’s license in 2006, two years after the occurrence. Plaintiff asserts that

the trial court “ruled that since Ms. Steiber [sic] was first licensed in 2006 and the conduct

occurred in 2004, [p]laintiff could not establish the standard of care in 2004.” Plaintiff argues

that “[j]ust because Ms. Steiber [sic] was not licensed in 2004 does not mean that she cannot

testify to a standard of care that she is familiar with that existed at that time.”

¶ 26 While we agree with plaintiff that Stieber’s lack of a license or a specialized degree in

2004 did not automatically disqualify her from testifying as an expert to the standard of care

in 2004, we decline to interpret the trial court’s order as applying such an absolute rule. The

trial court considered Stieber’s education and experience in making its decision–the court

acknowledged that “the opinions reached are based upon her schooling, training, licensing

and experience”–but the court nevertheless concluded that she was unqualified as an expert

because she did not “state a basis for her knowledge of standards that existed in 2004” and

because she did “not show that she had knowledge of the standard of care a professional

aesthetician with the same knowledge skill and ability would have used under similar

circumstances in January, 2004.”

¶ 27 While it is conceivable that, despite her lack of a specialized degree or an esthetician’s

license in 2004, Stieber could have been qualified to testify as an expert to the standard of

care applicable to an esthetician in 2004, it was plaintiff’s burden to present sufficient

evidence to the court to establish her qualifications. See Lombardo, 315 Ill. App. 3d at 123

(the burden of establishing an expert witness’s qualifications is on the proponent of the

testimony). Again, there is not a “ ‘predetermined formula’ ” for acquiring specialized

knowledge or experience that will qualify a witness as an expert. Thompson I, 221 Ill. 2d at

428-29 (quoting Miller, 173 Ill. 2d at 186). An expert can acquire specialized knowledge in

a number of ways, including “ ‘through practical experience, scientific study, education,

training or research.’ ” Thompson I, 221 Ill. 2d at 428-29 (quoting Miller, 173 Ill. 2d at 186).

Plaintiff simply did not present sufficient information to satisfy the court that Stieber was

qualified to give her opinion on the standard of care for an esthetician in 2004.

¶ 28 The shortfalls in plaintiff’s disclosure and in Stieber’s affidavit were apparent. Although

-7-
Stieber stated that she had experience using various products and techniques, she did not

state whether the same products and techniques were used in 2004. Stieber also stated that

both Milady’s Standard Esthetics Fundamentals Manual and defendant’s esthetics training

manual supported her opinions, but she did not state whether those materials had been

published prior to 2004 or that they established the standard of care in 2004. In her brief,

plaintiff conclusively states that “Mario Tricoci’s policies and the industry treatise were in

existence on the date of the alleged negligence,” but plaintiff offers no citation to the record

to establish this, and the materials are not included in the record. Given that Stieber was not

licensed until 2006, it was critical for plaintiff to establish how Stieber became an expert on

the standard of care as it existed in 2004. Simply stating in her affidavit that “[r]efusal of

treatment and referral was the appropriate standard of care” was not enough.

¶ 29 At oral argument, plaintiff asked this court to infer that, because defendant tendered its

esthetics training manual in response to plaintiff’s discovery requests, the training manual

was the one in effect at the time of the occurrence. We decline to do so. It was plaintiff’s

burden to present a sufficiently complete record on appeal to support a claim of error, and

any doubts that arise from the incompleteness of the record will be resolved against her.

Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Moreover, plaintiff conceded at oral

argument that she did not present a copy of the training manual to the trial court, and a

reviewing court cannot consider evidence that was not before the trial court when it rendered

its decision. Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852 (2010).

¶ 30 Based on the foregoing, we cannot say that the trial court abused its discretion in barring

Stieber from giving her opinion on the standard of care applicable to an esthetician at the

time of the occurrence. The trial court did not apply an erroneous categorical rule, but

exercised its discretion by assessing the various bases for Stieber’s opinion and concluding

that those bases were insufficient to qualify her as an expert. The court did not act

“ ‘arbitrarily without the employment of conscientious judgment or, in view of all the

circumstances, exceed[ ] the bounds of reason and ignore[ ] recognized principles of law.’ ”

(Internal quotation marks omitted.) Somers, 373 Ill. App. 3d at 96 (quoting Schwartz, 343

Ill. App. 3d at 559).

¶ 31 Defendant’s Motion for Summary Judgment

¶ 32 The next issue is whether the trial court erred in granting summary judgment in favor of

defendant. Summary judgment is proper where “the pleadings, depositions, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” 735 ILCS

5/2-1005(c) (West 2010); Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011) (Thompson II).

The purpose of summary judgment is not to try a question of fact, but to determine whether

any genuine issue of fact exists to be tried. Thompson II, 241 Ill. 2d at 438. In determining

this, the court must construe the pleadings, depositions, admissions, and affidavits strictly

against the movant and liberally in favor of the opponent. Williams v. Manchester, 228 Ill.

2d 404, 417 (2008). “Summary judgment should be granted only when the right of the

moving party is clear and free from doubt.” Thompson II, 241 Ill. 2d at 438. We review de

-8-
novo an order granting summary judgment. Thompson II, 241 Ill. 2d at 438.

¶ 33 The partymoving for summary judgment bears the burden of proof and the initial burden

of production. Pecora v. County of Cook, 323 Ill. App. 3d 917, 933 (2001). The moving party

can meet the initial burden of production either “(1) by affirmatively disproving the

plaintiff’s case by introducing evidence that, if uncontroverted, would entitle the movant to

judgment as a matter of law (traditional test) [citation], or (2) by establishing that the

nonmovant lacks sufficient evidence to prove an essential element of the cause of action

(Celotex test) [citations].” Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688- [4]

89 (2000). If the moving party meets the initial burden of production, then the burden of

production shifts to the nonmoving party, who must then present some factual basis that

would arguably entitle it to judgment as a matter of law. Pecora, 323 Ill. App. 3d at 933;

Williams, 316 Ill. App. 3d at 689. A court should grant summary judgment on a Celotex-type

motion “only when the record indicates that a plaintiff has had extensive opportunities to

establish her case but has failed in any way to demonstrate that she could [do so].” Williams,

316 Ill. App. 3d at 694.

¶ 34 Defendant’s motion for summary judgment was a Celotex-type motion based on the

argument that (1) plaintiff was required to prove the applicable standard of care through

expert testimony, (2) plaintiff had failed to disclose an expert who was qualified to give an

opinion on the standard of care, and (3) plaintiff was barred from doing so because the

deadline for disclosure of plaintiff’s experts had passed. Plaintiff does not argue on appeal

that defendant failed to meet its initial burden of production. The sole issue is whether, once

the burden of production shifted to her, plaintiff presented a sufficient factual basis that

would arguably entitle her to judgment as a matter of law.

¶ 35 Plaintiff alleged that defendant was negligent in recommending and performing a

“Vitamin C facial” four days after defendant had performed a “seaweed facial” that irritated

plaintiff’s skin. The elements of a cause of action for negligence are (1) a duty owed to the

plaintiff by the defendant, (2) a breach of that duty, and (3) an injury proximately caused by

the breach. Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1051 (2010). “The

standard of care, also known as the standard of conduct, falls within the duty element.” Jones

v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 294 (2000).

¶ 36 “In an ordinary negligence case, the standard of care required of a defendant is to act as

would an ‘ordinary careful person’ or a ‘reasonably prudent’ person.” Jones, 191 Ill. 2d at

295 (quoting Advincula v. United Blood Services, 176 Ill. 2d 1, 22 (1996)). Generally, no

expert testimony is necessary to prove the standard of care in an ordinary negligence case.

Jones, 191 Ill. 2d at 295 (citing Advincula, 176 Ill. 2d at 24).

¶ 37 “In contrast, in a professional negligence case, the standard of care required of a

defendant is to act as would an ‘ordinarily careful professional.’ ” Jones, 191 Ill. 2d at 295

In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the United States Supreme Court

4

recognized that a defendant moving for summary judgment could meet its initial burden of

production by “ ‘pointing out to the *** court *** that there is an absence of evidence to support the

nonmoving party’s case.’ ” Pecora, 323 Ill. App. 3d at 934 (quoting Celotex, 477 U.S. at 325).

-9-
(quoting Advincula, 176 Ill. 2d at 23). “Pursuant to this standard of care, professionals are

expected to use the same degree of knowledge, skill and ability as an ordinarily careful

professional would exercise under similar circumstances.” Jones, 191 Ill. 2d at 295.

Generally, expert testimony is necessary to prove the standard of care in a professional

negligence case. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 20; Jones, 191 Ill. 2d

at 295. “This requirement is based on the simple fact that without expert testimony, jurors,

not skilled in the profession, are not equipped to judge the professional’s conduct.” Studt,

2011 IL 108182, ¶ 20. “Courts have recognized two exceptions to this rule: where the

professional’s conduct is so grossly negligent, or the procedure so common, that the jury can

readily appraise it without the need for expert testimony.” Studt, 2011 IL108182, ¶ 20 (citing

Jones, 191 Ill. 2d at 278).

¶ 38 We have already determined that plaintiff failed to present competent expert testimony

on the standard of care applicable to an esthetician in 2004. Our decision on that issue is

supported by the consideration that plaintiff “had extensive opportunities to establish her

case” (Williams, 316 Ill. App. 3d at 694), but nevertheless failed to disclose a qualified expert

witness. This was not a situation in which granting a Celotex-type motion was improper

because the nonmoving party had not yet had an opportunity to complete necessary

discovery. See Williams, 316 Ill. App. 3d at 690 (Celotex-type motion filed only 13 months

following filing of complaint was premature); Hansbrough v. Kosyak, 141 Ill. App. 3d 538,

549 (1986) (motion filed only 10 months after complaint was filed). Plaintiff filed her initial

action in 2006, and defendant did not move for summary judgment until 2011, after the court

had given plaintiff numerous opportunities to disclose an expert. The court even gave

plaintiff one more opportunity when it considered Stieber’s affidavit as her Rule 213(f)(3)

disclosure.

¶ 39 Although plaintiff argued in her response to defendant’s summary judgment motion in

the trial court that this was a “standard negligence case” in which the standard of care was

that of a reasonable person, not a “medical arts” case, plaintiff has forfeited this argument

on appeal. Nowhere in plaintiff’s brief does she suggest that this is an ordinary negligence

case, rather than a professional negligence case, or that expert testimony was not necessary

to prove the standard of care. Points not argued in an appellant’s brief are forfeited. Ill. S. Ct.

R. 341(h)(7) (eff. July 1, 2008) (“Points not argued are waived and shall not be raised in the

reply brief, in oral argument, or on petition for rehearing.”); People v. Evans, 405 Ill. App.

3d 1005, 1007 (2010) (applying Rule 341(h)(7) to an argument not raised in the appellant’s

brief). We decline to overlook plaintiff’s forfeiture of the issue and to sua sponte research

the issues, formulate arguments, and then decide the issues. See Skidis v. Industrial Comm’n,

309 Ill. App. 3d 720, 724 (1999) (stating that “this court will not become the advocate for,

as well as the judge of, points an appellant seeks to raise”).

¶ 40 At oral argument, plaintiff maintained that she had structured her brief in such a way that

it effectively raised the argument that this is an ordinary negligence case. She contended, for

example, that she chose to cite Van Holt v. National R.R. Passenger Corp., 283 Ill. App. 3d

62 (1996), specifically because it involved an expert testifying in an ordinary negligence

case. However, as discussed below, plaintiff’s brief gave the impression that she was

conceding that this is a professional negligence case. Moreover, the court in Van Holtsimply

-10-
rejected the defendants’ argument on appeal that the trial court had erred in allowing the

plaintiffs’ expert to give opinions that related to matters within jurors’ common knowledge.

Van Holt, 283 Ill. App. 3d at 70. The court in Van Holt placed no significance on the

consideration that the case, which involved a slip and fall, was governed by an ordinary

negligence standard. See Van Holt, 283 Ill. App. 3d at 70. An appellant’s brief must contain

“the contentions of the appellant and the reasons therefor, with citation of the authorities and

the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008). Citing a case and

hoping that the court infers from its facts the appellant’s contentions is not adequate.

¶ 41 Our decision not to overlook plaintiff’s forfeiture is supported by the consideration that

plaintiff seems to concede that this is a professional negligence case. In her brief, she refers

to esthetics as a “profession.” She asserts that Stieber’s “[p]rofessional [o]pinion” established

the standard of care. In arguing that the trial court should have qualified Stieber as an expert,

plaintiff points out that “Ms. Stieber had to go to school to become an aesthetician,” that

“[t]he State of Illinois has decided to impose a licensing requirement for aestheticians,” and

that “[t]here are products involved which have ingredients which an average person might

not have any knowledge of or understand.” None of plaintiff’s arguments suggests that

estheticians are not professionals subject to a professional negligence standard.

¶ 42 Additionally, although plaintiff argues that she could establish the standard of care either

through Milady’s Standard Esthetics Fundamentals Manual or through defendant’s training

manual, she refers to these materials as being admissible only through Stieber’s expert

testimony. For example, plaintiff asserts that she can “prove the 2004 standard of care

through Ms. Stieber’s statement of the standard of care as created by the [d]efendant’s own

policies.” As we have mentioned, plaintiff did not attach copies of the publication or the

training manual to her response to defendant’s summary judgment motion, and the materials

are not contained in the record on appeal. Plaintiff effectively concedes the necessity of

Stieber’s testimony to prove her case.

¶ 43 Based on the foregoing, we conclude that, once the burden of production shifted to her,

plaintiff did not meet her burden of presenting a sufficient factual basis that would arguably

entitle her to judgment as a matter of law. We therefore conclude that it was proper for the

trial court to grant defendant’s motion for summary judgment.

¶ 44 CONCLUSION

¶ 45 For the above reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 46 Affirmed.

-11-