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2018 IL App (1st) 170516 

No. 1-17-0516 

Fourth Division 

June 28, 2018 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST DISTRICT
 

) 

MARIA BRUMMEL, Executor of the Estate of Bruce ) Appeal from the Circuit Court 

Brummel, Deceased, ) of Cook County. 

) 

Plaintiff-Appellant, ) No. 14 L 13363 

) 

v. ) The Honorable 

) John P. Callahan, Jr., 

RICHARD D. GROSSMAN; AGNES E. GROSSMAN; ) Judge Presiding. 

LAW OFFICES OF RICHARD D. GROSSMAN; ) 

RICHARD C. DANIELS; DANIELS, LONG & ) 

PINSEL, LLC; JASON S. MARKS; and NOONAN, ) 

PERILLO, POLENZANI & MARKS, LTD., ) 

)
 

Defendants )
 

)
 

(Richard D. Grossman; Agnes E. Grossman; Law Offices )
 

of Richard D. Grossman; Richard C. Daniels; Daniels, )
 

Long & Pinsel, LLC, Defendants-Appellees). )
 

) 

 JUSTICE GORDON delivered the judgment of the court, with opinion. 

Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion. 

OPINION 

¶ 1 The instant appeal arises from the trial court's grant of summary judgment against 

plaintiff Maria Brummel’s amended complaint for legal malpractice committed by 

defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, LLC 
 

 

 

 

 

 

 

 

 

No. 1-17-0516 

(collectively, Daniels defendants) and attorneys Richard D. Grossman and Agnes E. 

Grossman and the Law Offices of Richard D. Grossman (collectively, Grossman 

defendants).1 The lawsuit, originally filed by Bruce Brummel2 (decedent) on December 30, 

2014, alleged legal malpractice against defendants for negligently representing him during a 

case he filed in 2009 against his employer, Nicor Gas, for retaliatory discharge and for a 

violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), in which he 

claimed that Nicor terminated his employment because he reported to various government 

agencies that the drinking water where he worked was contaminated. In the instant case, the 

trial court entered an order on April 13, 2016, limiting the amount of additional oral 

discovery sought by plaintiff. On February 3, 2017, the trial court granted defendants’ motion 

for summary judgment, finding that the decedent could not have prevailed in the 

whistleblower case regardless of defendants’ representation, since there was no evidence that 

the decedent was discharged for a protected activity, and that the doctrine of judicial estoppel 

barred the decedent’s claim that he was able to return to work. Plaintiff appeals, arguing (1) 

that a genuine issue of material fact existed as to whether Nicor terminated the decedent’s 

employment for reporting toxic work conditions to government authorities, and (2) that the 

doctrine of judicial estoppel did not bar his claim. Plaintiff also appeals the trial court’s April 

13, 2016, order limiting the amount of additional oral discovery, arguing that the trial court 

1

Plaintiff also alleged a separate count of legal malpractice against the Daniels defendants, 

attorney Jason S. Marks, and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively, 

Marks defendants) for their handling of a separate related worker’s compensation and/or occupational 

diseases claim, but those counts are not at issue in this appeal. 

2

Bruce Brummel passed away on June 3, 2015, during the pendency of his legal malpractice 

lawsuit. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 

6, 2015. 

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No. 1-17-0516 

erred when it allowed her to conduct only one deposition prior to responding to the motion 

for summary judgment. For the following reasons, we affirm the judgment of the trial court. 

¶ 2 BACKGROUND 

¶ 3 The decedent’s employer, Nicor Gas (Nicor), is a natural gas distribution company. The 

decedent began working for Nicor in December 1980 when he was 18 years old, and he 

remained with the company for over 22 years. The decedent was employed as a distribution 

technician with job duties that included repairing gas mains, operating machines, and 

directing and leading members of his crew. His job required physical labor, which he 

described as heavy, strenuous work. In 2001, the decedent and some of his coworkers at 

Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and 

fatigue. The decedent consulted a physician, who opined that the decedent’s symptoms were 

caused by ingestion of chemicals. From 2001 to 2003, the decedent, as well as other 

employees, informed Nicor about his concerns that its drinking water was contaminated, but 

Nicor did not take any action to investigate or remedy the problem. The decedent also 

reported his concerns to the Occupational Safety and Health Administration in 2001 after 

Nicor did not take remedial action. The decedent conducted his own investigation, designed 

to discover the source of the chemicals at the Nicor facility where he worked, and he found 

that the drinking water in the break room connected to the flush line of the boiler, which 

allowed toxins to be emitted from the boiler into the drinking water consumed by Nicor 

employees. The decedent informed his union about the contaminated drinking water, but the 

union also ignored his requests for help. In late 2002, the decedent reported his findings 

concerning the connection between the boiler and the drinking water to the Occupational 

Safety and Health Administration for the second time, and he reported his findings to the 

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No. 1-17-0516 

City of Aurora, the Kane County Health Department, and the Illinois Department of Public 

Health. Although the decedent continued to consult his physician for gastrointestinal 

problems, his health continued to deteriorate, and he began a medical leave of absence on 

October 6, 2003. 

¶ 4 On October 14, 2003, the City of Aurora’s emergency response team and head plumbing 

inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the 

facility. The inspection revealed that the drinking water was contaminated with methylene 

chloride and/or dichloro methane. Nicor later resolved the problem by installing backflow 

protection devices, which conformed the plumbing to city, state, and federal water safety 

regulations. 

¶ 5 Once the decedent was on medical leave, Nicor placed him in its short-term disability 

plan governed by the company’s Employee Benefit Association. In order to receive benefits, 

the Employee Benefit Association rules required the decedent to provide proof of his shortterm disability. 

¶ 6 On December 26, 2003, Nicor’s senior labor and employee relations consultant, Jean 

Smolios, sent a letter to the decedent, advising him that Nicor had not received medical 

documentation to support his leave of absence, and that, since the Employee Benefit 

Association rules required the decedent to provide proof of his disability claim within 18 

days of his absence, failure to provide the documentation could result in the suspension of his 

Employee Benefit Association benefits. 

¶ 7 Smolios sent the decedent another letter on December 29, 2003, advising him that his 

Employee Benefit Association benefits would be suspended on January 12, 2004, if he did 

not provide medical documentation supporting his leave of absence. 

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No. 1-17-0516 

¶ 8 On January 13, 2004, Nicor’s medical services administrator, Eileen Boedigheimer, sent 

the decedent a letter, advising him that, since Nicor never received medical documentation 

supporting his leave of absence, his Employee Benefit Association benefits were suspended 

as of January 12, 2004, and that the suspension would be in effect until Nicor were to receive 

the appropriate documentation in the future. Boedigheimer also offered to fax another copy 

of the required form to the decedent’s physician, as she previously discussed with the 

decedent on the telephone. 

¶ 9 Three days later, on January 16, 2004, the decedent’s physician, Dr. J. David Siegfried, 

faxed an “Employee Benefit Association Proof of Claim Form” and “Family and Medical 

Leave Act of 1993 Certification of Health Care Provider” form to Nicor, which stated that he 

diagnosed the decedent with chronic reflux disease and esophagitis. In the certification of 

health care provider form, Dr. Siegfried opined that the decedent was indefinitely disabled as 

of October 6, 2003, and that his disability was still “ongoing.” Dr. Siegfried also answered in 

response to question 5.b that, from October 3, 2003, to October 3, 2004, the decedent would 

be “off intermittently when exacerbations occur or treatment is necessary.” In response to 

question 5.c, Dr. Siegfried opined that the decedent “is unable to work from 10/6/03 thru 

indefinite.” In response to question 7.a, which asked whether the decedent was able to 

perform work of any kind, Dr. Siegfried answered that the decedent “is able to work unless 

exacerbations occur, which is intermittently.” Despite submitting these documents, Nicor 

never lifted the suspension of his Employee Benefit Association benefits. 

¶ 10 Three months later, on March 16, 2004, Smolios mailed the decedent another letter, 

advising him that Nicor had not received medical documentation to support his October 6, 

2003, leave of absence, and that Nicor would terminate his employment if he did not provide 

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No. 1-17-0516 

a medical certification in support of his leave of absence by April 2, 2004. Smolios noted 

that, in late December, Nicor “again requested that you provide documentation to support 

your absence and again you failed to provide evidence in support of your continued 

absence.” In response, on March 26, 2004, the decedent sent Nicor copies of the same two 

forms that Dr. Siegfried faxed to Nicor on January 16, 2004, but provided Nicor no new 

information. 

¶ 11 On April 2, 2004, Smolios mailed the decedent another letter, explaining that the 

documentation he provided on March 26, 2004, was the same information from October of 

2003, and that Nicor had not received any documentation concerning his treatment or 

condition since that time. Smolios enclosed a blank proof of claim form to be completed by 

the decedent’s physician, and she advised the decedent that, “[i]n order for the company to 

maintain you as an employee it is imperative that you supply the company’s Medical 

Department with information regarding your current health status and treatment program.” 

She further advised the decedent that, “[i]f this information is not received by the company as 

of Monday, April 12, [2004,] your employment with Nicor Gas will be terminated.” Despite 

Smolios’ letter, the decedent never submitted any additional medical documentation. 

¶ 12 On April 15, 2004, Smolios sent the decedent another letter, advising him that his right to 

a leave of absence under the Family and Medical Leave Act of 1993 had expired and that 

Nicor was terminating his employment since he had not provided appropriate medical 

documentation to support his leave of absence despite numerous requests. 

¶ 13 Later that year, on December 17, 2004, the decedent applied for disability benefits from 

the Social Security Administration, representing that he was disabled and unable to work 

since he began his leave of absence. The Social Security Administration denied his 

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No. 1-17-0516 

application, but an administrative law judge reversed the denial on appeal in a written 

decision on January 9, 2007. The administrative law judge determined that the decedent had 

been disabled and was “not able to engage in any substantial gainful activity” since October 

6, 2003, that he was unable to perform his job as a distribution technician, and that his job 

skills did not transfer to other occupations within a residual functional capacity. Attorney 

George Weber represented the decedent in those proceedings. 

¶ 14 In late 2005 or early 2006, the decedent discussed his health and work issues with 

defendant attorney Richard C. Daniels, a friend that the decedent had met through the 

Shriner’s. Defendant Daniels agreed to represent decedent in a workers’ compensation and/or 

occupational diseases case and an action against Nicor for retaliatory discharge and violating 

the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). The decedent and defendant 

Daniels entered into a retainer agreement that defendant Daniels would receive a contingency 

fee of one-third of any recovery and that the decedent would pay all costs. Defendant Daniels 

also agreed to be paid his fee on the workers’ compensation and/or occupational diseases 

action in accordance with the provisions of the Workers’ Compensation Act (820 ILCS 305/1 

et seq. (West 2004)) and the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq. 

(West 2004)). After the decedent retained defendant Daniels as counsel, defendant Daniels 

recommended that the decedent also retain defendant attorney Jason S. Marks as cocounsel 

for the Workers’ Compensation Act and/or Workers’ Occupational Diseases Act claim, since 

defendant Marks represented that he had experience in handling those cases. Defendant 

Marks agreed, defendants Daniels and Marks entered into a fee sharing agreement, and the 

decedent agreed. Defendant Daniels also recommended that the decedent retain defendant 

attorneys Richard and Agnes Grossman, who represented that they specialized in litigating 

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No. 1-17-0516 

“whistleblower” cases. The decedent agreed, and the Grossman defendants entered into an 

oral contingency agreement with the decedent. Defendant Daniels continued to supervise and 

participate in the whistleblower case on a regular basis. 

¶ 15 In 2006, defendant Marks filed a workers’ compensation and/or occupational diseases 

claim against Nicor on the decedent’s behalf, claiming that the decedent was permanently 

disabled as a result of exposure to contaminated water while working at Nicor. Five years 

later, while the workers’ compensation and/or occupational diseases claim was still pending, 

Nicor offered the decedent a lump sum settlement of $125,000, and decedent accepted it on 

October 20, 2011. An arbitrator approved the settlement five days later on October 25, 2011. 

The settlement order stated that the decedent claimed that he was “unable to work” and had 

an injury to his “whole body,” which rendered him “permanently and totally disabled for any 

employment.” 

¶ 16 On April 13, 2009, after the decedent filed his workers’ compensation and/or 

occupational diseases claim but before it settled, the Grossman defendants filed a lawsuit on 

the decedent’s behalf against Nicor for retaliatory discharge and violation of the 

Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), alleging that Nicor unlawfully 

terminated his employment in retaliation for him reporting to various government officials 

that he suspected the drinking water at the Nicor facility where he worked was contaminated. 

In the complaint, the decedent claimed that, after he reported the water contamination to 

various government agencies, Nicor began a course of conduct calculated to result in the 

termination of his employment, which included claims that his supervisors (1) did not 

respond to his requests for adequate staffing and then blamed him for alleged work 

deficiencies, (2) failed to process his medical leave documentation and deliberately frustrated 

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No. 1-17-0516 

his attempts to obtain disability benefits, and (3) told other employees that he was a 

“troublemaker,” that they were going to “get” him, and to report his minor infractions so that 

negative information be placed in his file. 

¶ 17 On January 30, 2013, the decedent was deposed in the whistleblower case. At his 

deposition, he testified that he had not worked or looked for work in the nine years since he 

began his leave of absence on October 6, 2003. He further testified that he had been unable to 

work since he began his leave of absence and that he was physically incapable of performing 

his prior job at Nicor. He also testified that he was “very sick” and “on the ground sick” from 

the beginning of his leave of absence through at least 2007, when an administrative judge 

reversed the denial of his application for Social Security Administration benefits on appeal, 

and that he “had no idea” when he would have been able to return to any kind of 

employment. 

¶ 18 The decedent testified that, after Smolios’s letter of April 2, 2004, he never provided 

Nicor any further medical documentation to support his continuing leave of absence. The 

decedent also did not recall sending between October of 2003 and April 15, 2004, any other 

medical documentation to support his leave of absence to Nicor, other than the two forms 

signed by Dr. Siegfried. The decedent admitted that, other than the two forms faxed by Dr. 

Siegfried, he was unaware of any additional medical documentation in support of his leave of 

absence sent to Nicor prior to faxing those forms on January 16, 2004. The decedent further 

admitted that, although Dr. Siegfried signed the two forms in January of 2004, Dr. Siegfried 

had not examined or treated him since October 31, 2003. The decedent also testified that he 

did not recall if he tried to schedule an appointment with Dr. Siegfried to obtain the medical 

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No. 1-17-0516 

documentation or if he spoke with anyone at Nicor to ask for more time to obtain the 

documentation after receiving Smolios’ April 2, 2004, letter. 

¶ 19 The decedent further testified that he knew when he applied to the Social Security 

Administration for disability benefits that he needed to provide medical evidence that he was 

disabled and unable to perform any gainful activity and that he presented such evidence 

under penalty of perjury. He also testified that he agreed with the findings of the 

administrative law judge that he “had been disabled since October 6, 2003,” that he was “not 

able to engage in any substantial gainful activity because of [his] determinable physical or 

mental impairment,” that he had “not engaged in any gainful activity since October 6, 2003,” 

and that he was “unable to perform any task relevant work.” 

¶ 20 On December 13, 2013, Nicor filed a motion for summary judgment, arguing that the 

decedent could not prove that Nicor discharged him in retaliation for his protected activities 

because the record showed that Nicor terminated the decedent’s employment for failing to 

provide, after numerous requests, the required medical documentation to support his 

continuing medical leave of absence. Nicor also argued that the decedent could not prove 

damages, an essential element of his claims, because the record showed that he repeatedly 

admitted that he was disabled and unable to work since he began his leave of absence and 

that judicial estoppel barred him from claiming otherwise. 

¶ 21 After a hearing on February 5, 2014, the trial court granted the motion for summary 

judgment, finding that there was no genuine issue of material fact that Nicor terminated the 

decedent’s employment because it had not received medical documentation supporting his 

continuing leave of absence. The trial court also found that there was no genuine issue of 

material fact that the decedent was unable to work and that the decedent could not prove 

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No. 1-17-0516 

damages as a result. After the trial court granted the motion for summary judgment, the 

decedent retained new counsel, Edmund Moran, Jr., who then filed motion to reconsider the 

summary judgment finding, which the trial court denied. 

¶ 22 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and 

Grossman defendants for legal malpractice for their handling of the whistleblower case 

against Nicor for retaliatory discharge and violating the Whistleblower Act (740 ILCS 174/1 

et seq. (West 2004)). The decedent claimed that the Grossman defendants did not adequately 

conduct or respond to discovery, including a failure to respond to requests to admit that 

resulted in those requests being deemed admitted, which resulted in the trial court granting 

Nicor’s motion for summary judgment. By failing to respond to the requests to admit, the 

decedent admitted that he did not work for any employer since he began his leave of absence, 

that he did not seek alternative employment since Nicor discharged him, that he was disabled 

and unable to perform the essential functions of his former job at Nicor since he began his 

leave of absence, that he was disabled and unable to perform any gainful employment due to 

disability since he began his leave of absence, and that he submitted an application to the 

Social Security Administration for disability benefits in which he represented, under penalty 

of perjury, that he was disabled and unable to work since October 6, 2003. The decedent also 

argued that the trial court granted summary judgment in favor of Nicor because the 

Grossman defendants failed to respond to the motion summary judgment or appear at the 

hearing on the motion on February 5, 2014. The lawsuit also alleged separate counts of legal 

malpractice against the Daniels and Grossman defendants for their handling of the decedent’s 

related workers’ compensation and/or occupational diseases claim; however, those counts are 

not at issue in this appeal. 

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¶ 23 In the complaint, the decedent also claimed that the trial court in the whistleblower case 

granted Nicor’s motion to transfer venue and transferred the case from Cook County to 

Du Page County. The decedent alleged that Nicor served a discovery request on the 

Grossman defendants in January of 2010, and later that year, the trial court dismissed the 

case for want of prosecution, since the Grossman defendants failed to appear in court. The 

decedent alleged that the trial court later reinstated the case, but on November 17, 2010, the 

Grossman defendants voluntarily non-suited the case without informing the decedent. The 

decedent argued that the Grossman defendants subsequently refiled the whistleblower case 

again in an identical complaint on October 28, 2011—three days after the workers’ 

compensation and/or occupational diseases settled—and the trial court ultimately transferred 

the case from Cook County to Du Page County. The decedent also alleged in the complaint 

that, in late 2012, he attended a case management conference but the Grossman defendants 

did not appear and the trial court told him that his attorneys had not appeared in court for 

some time. The decedent claimed he immediately called the Grossman defendants, who did 

not respond to his call. The decedent then called defendant Daniels, who assured him 

everything was fine, that he would call the Grossman defendants, and that the decedent did 

not need to worry about the handling of his case. 

¶ 24 The decedent also claimed in the complaint that the trial court granted Nicor’s motion to 

compel answers to discovery and set a deadline for the decedent to produce documents, but 

that the Grossman defendants only partially responded to the discovery requests, despite the 

decedent providing the Grossman and Daniels defendants with all the information needed to 

respond. The decedent alleged that, as a result, the trial court entered a sanction order against 

the decedent on May 16, 2013, barring him from offering any documents into evidence at 

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trial that had not been produced. The same day, the trial court granted Nicor’s motion for the 

request to admit deemed admitted, since the Grossman defendants failed to respond to the 

request to admit. The decedent also claimed that the Grossman defendants never served 

discovery requests on Nicor. 

¶ 25 The decedent also claimed that, in 2013, Nicor withdrew its motion for summary 

judgment and began settlement discussions with the decedent. The Grossman defendants 

initially told the decedent that Nicor offered $240,000 to settle all claims, then later told him 

that Nicor reduced the amount to $50,000, and again later reduced the offer to $20,000. Nicor 

then refiled its motion for summary judgment, since it was unable to settle the whistleblower 

case with the decedent. 

¶ 26 The decedent also alleged that he had defenses that would have defeated Nicor’s motion 

for summary judgment, but neither the Grossman defendants nor the Daniels defendants told 

him about the motion and the consequences of not responding to it. The decedent alleged 

that, for unknown reasons, neither the Grossman defendants nor the Daniels defendants 

responded to Nicor’s motion for summary judgment. The decedent argued that, since the 

Grossman and Daniels defendants (1) did not develop evidence, including taking the 

deposition of persons who could support the decedent’s claim that he was adversely treated 

and wrongfully discharged; (2) did not respond to the motion for summary judgment; (3) did 

not request additional time to respond to the motion; (4) did not tell the decedent that he 

would need to retain new counsel to respond the motion; and (5) did not appear at the hearing 

on the motion, the trial court granted the summary judgment motion and dismissed the 

decedent’s case. The decedent claimed that he personally attended the hearing on the motion 

for summary judgment and requested the trial court to grant him time to find a new attorney 

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No. 1-17-0516 

and respond to the motion, but he claimed that the trial court denied his request due in part to 

the Grossman defendants’ dilatory tactics and lack of attention to the case throughout the 

litigation. 

¶ 27 The decedent’s legal malpractice complaint also alleged new information that did not 

appear in the whistleblower complaint. The decedent claimed that Nicor’s course of adverse 

conduct against him included significantly increasing the number of assignments he was 

expected to accomplish, significantly increasing quality control inspection, sending him 

home without pay for non-existent offenses, taking amenities from him and his team that 

other teams were allowed to have such as microwaves and water coolers, singling him out 

and acting angrily towards him, ordering him to report his time in a certain fashion and then 

accusing him of stealing time when he followed management directions, providing written 

reprimands for his minor work infractions when in the past he was issued only verbal 

warnings, withdrawing a promotion that was offered to him, and singling out his team by 

preparing photographic records of the work his team performed. 

¶ 28 The decedent also newly alleged in the legal malpractice complaint that he had asked 

Nicor to assign him to a less-physically stressful job but Nicor did not accommodate him, 

despite the provisions of his union’s contract with Nicor, which provided that Nicor had an 

obligation to attempt to locate a different job to accommodate an employee’s disability. The 

decedent claimed that he also sought a referral to Dr. Katherine Duvall, a physician who 

specializes in work-related injuries, but he could not obtain a medical referral. The decedent 

claimed that he told Nicor personnel that he was having difficulty obtaining additional 

medical documentation due to his poor health and that Nicor’s nurse told him that he should 

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No. 1-17-0516 

not worry because she would take care of following up on the documentation, which never 

happened. 

¶ 29 On May 15, 2015, the decedent filed a motion to expedite discovery and advance trial, 

since his physician diagnosed that his medical condition was terminable. On May 19, 2015, 

the trial court granted the motion except for his request to advance the trial. Defendants 

submitted written discovery, and the decedent answered on May 28, 2015. The trial court 

scheduled the decedent’s deposition for June 3, 2015, but the decedent passed away that day 

before he was deposed. The trial court substituted Maria Brummel, the executor of his estate, 

as plaintiff on October 6, 2015. 

¶ 30 Neither the decedent nor plaintiff submitted written discovery until January 7, 2016, and 

the Grossman defendants answered. Plaintiff also did not notice any depositions, other than 

the decedent’s, before the Grossman defendants filed their motion for summary judgment. 

¶ 31 On February 1, 2016, the Grossman defendants filed a motion for summary judgment, 

and the Daniels defendants joined. In the motion, the Grossman defendants argued they were 

entitled to entry of summary judgment because the decedent’s deposition testimony in the 

whistleblower case alleged foreclosed plaintiff’s ability to prove a “case within a case.” 

Specifically, the Grossman defendants argued the decedent’s deposition testimony 

established that (1) Nicor terminated his employment, since he failed to provide required 

medical documentation to support his leave of absence despite numerous requests from his 

employer, (2) he was permanently and totally disabled and unable to perform the essential 

functions of his job at Nicor, and (3) he is judicially estopped from claiming otherwise, since 

he previously admitted he was totally disabled and unable to work in proceedings before the 

Social Security Administration and Illinois Workers’ Compensation Commission. 

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No. 1-17-0516 

¶ 32 On March 3, 2016, after the Grossman defendants filed their motion for summary 

judgment, plaintiff filed a motion to take additional oral discovery, which attached an 

affidavit from her counsel, Julie Boynton, naming at least 32 witnesses whom plaintiff 

argued needed to be deposed before plaintiff could respond to the motion for summary 

judgment. Plaintiff later amended the motion by substituting her attorney’s affidavit with her 

own affidavit. In the motion, plaintiff claimed that, at the time defendants filed their motion 

for summary judgment motion, the parties had neither completed written discovery nor taken 

depositions. 

¶ 33 In response to plaintiff’s motion for additional discovery, the Grossman defendants filed 

a motion to strike plaintiff’s Illinois Supreme Court Rule 191(b) affidavit and for entry of a 

protective order, arguing that the affidavit was defective, since it did not aver that the 

witnesses plaintiff sought to depose were the only people with knowledge of material facts 

necessary to respond to the motion for summary judgment. See Ill. S. Ct. R. 191(b) (eff. Jan. 

4, 2013). The Grossman defendants further argued that all material facts relating to their 

summary judgment motion were contained in the decedent’s deposition testimony in the 

whistleblower case and that the decedent’s testimony demonstrated that he is the only person 

with knowledge of facts relevant to the motion, rather than Nicor employees or other 

witnesses named by plaintiff. 

¶ 34 At oral argument on the motion for additional discovery on April 13, 2016, counsel for 

the Grossman defendants claimed that the motion for summary judgment was straightforward 

and narrow in scope, arguing that it was based entirely on the admissions the decedent made 

in his deposition in the whistleblower case, as well as admissions the decedent made before 

the Social Security Administration and Illinois Workers Compensation Commission. The 

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Grossman defendants further argued that no amount of discovery could undo the decedent’s 

binding admissions, which were dispositive of plaintiff’s legal malpractice case. The trial 

court then granted plaintiff’s motion for additional discovery in part and denied it in part, 

allowing plaintiff one deposition before responding to the Grossman defendants’ motion for 

summary judgment. The trial court recommended that plaintiff depose Jean Smolios, finding 

that deposing her would make the most sense, since she was a former human resources vice 

president who authored the letter to the decedent advising him that if they did not receive the 

medical verification of his present condition of ill-being, his employment would be 

terminated. 

¶ 35 The trial court that day also granted plaintiff leave to file an amended complaint 

concerning the legal malpractice claims against the Daniels and Marks defendants 

concerning the workers’ compensation and/or occupational diseases case only. The order 

further stated that plaintiff was not given leave to amend the pleadings concerning the 

Daniels and Grossman defendants’ handling of the whistleblower case. On April 22, 2016, 

plaintiff filed an amended complaint in the instant lawsuit, with the counts concerning the 

whistleblower case remaining the same. On August 25, 2016, the trial granted defendants’ 

motion to dismiss the counts concerning the workers’ compensation and/or occupational 

diseases claim, finding that the decedent did not raise those counts within the two-year 

statute of limitations governing legal malpractice actions (735 ILCS 5/13-214.3 (West 

2014)), and we later affirmed the trial court’s dismissal on appeal (see Brummel v. 

Grossman, 2018 IL App (1st) 162540, ¶ 44). 

¶ 36 Smolios was deposed on October 17, 2016, and she testified that she had terminated the 

decedent’s employment because the Employee Benefit Association medical department 

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No. 1-17-0516 

advised her that he did not provide medical documentation to support his leave of absence. 

She testified that the Employee Benefit Association rules require claims to be current every 

30 days and that the decedent only submitted medical documentation concerning an 

examination during the first month of his leave of absence. However, Smolios admitted that 

the proof of claim form did not explain the 30-day requirement. 

¶ 37 Plaintiff responded to the Grossman defendants’ motion for summary judgment on 

November 30, 2016, arguing that the evidence showed that the decedent was discharged for 

reporting toxic work conditions to various government agencies and that he was not 

discharged for his failing to provide medical documentation to support his continuing leave 

of absence. Plaintiff further claimed that the evidence showed that, after the decedent 

reported the toxic work conditions, Nicor engaged in a calculated course of retaliation against 

him, which culminated in the termination of his employment. Plaintiff also argued that 

judicial estoppel did not bar the decedent’s claims in either the whistleblower case or the 

instant case. Concerning the trial court’s ruling on her motion for additional discovery, 

plaintiff stated she had been prejudiced by not being allowed to undertake discovery before 

responding to the summary judgment motion, and she renewed her request for additional 

discovery. 

¶ 38 After arguments on February 3, 2017, the trial court granted the Grossman defendants’ 

motion for summary judgment, finding (1) that the decedent’s prior admissions established 

that he was disabled and unable to work, (2) that there was no evidence that Nicor terminated 

the decedent’s employment in retaliation for a protected activity, and (3) that the doctrine of 

judicial estoppel barred the decedent’s claim that he was able to return to work. The trial 

court found that the whistleblower case was “unwinnable” for the decedent and that the “die 

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No. 1-17-0516 

was cast in this particular matter by [the decedent] even before the time the Grossman 

Defendants were in play and had proceedings involving this matter.” The trial court also 

determined that there was no evidence that the decedent could have produced to prevail in 

the whistleblower case that could have overcome his failure to produce the current medical 

evidence of his disability. Plaintiff now appeals the trial court’s granting summary judgment 

in favor of the defendants. 

¶ 39 ANALYSIS 

¶ 40 On appeal, plaintiff claims that the trial court erred when it granted defendants’ motion 

for summary judgment in the legal malpractice case, arguing (1) that a genuine issue of 

material fact existed in the whistleblower case as to whether Nicor discharged the decedent 

for reporting toxic work conditions to governmental authorities and (2) that the doctrine of 

judicial estoppel did not bar his claims. Alternatively, plaintiff argues that the trial court in 

the legal malpractice case erred when it allowed her to conduct only one deposition prior to 

responding to the motion for summary judgment. For the following reasons, we affirm the 

judgment of the trial court. 

¶ 41 I. Summary Judgment 

¶ 42 Plaintiff first argues that the trial court erred when it granted summary judgment in favor 

of defendants in the legal malpractice case, arguing that there existed a genuine issue of 

material fact that Nicor terminated the decedent’s employment for toxic work conditions to 

governmental authorities. Defendants argue that, due to the decedent’s deposition testimony 

in the whistleblower case, plaintiff could not prove a claim for legal malpractice since the 

decedent would not have prevailed in the whistleblower case regardless of the alleged 

conduct of his attorneys. In that case, the trial court found that the decedent could not 

19 
 

No. 1-17-0516 

establish a causal relation between the termination of his employment and his whistleblowing 

activities due to his own admissions in his deposition testimony, which established that (1) 

Nicor terminated his employment for his failure to provide required medical documentation 

to support his continuing leave of absence after numerous requests from his employer and (2) 

he was permanently disabled and unable to perform the essential functions of his job at 

Nicor. Defendants also argue that the decedent was judicially estopped from claiming in the 

whistleblower case that he was not totally disabled and unable to work, since he previously 

admitted otherwise in proceedings before the Social Security Administration and Illinois 

Workers’ Compensation Commission. For the following reasons, we affirm the trial court’s 

award of summary judgment in favor of defendants. 

¶ 43 A trial court is permitted to grant summary judgment only “if 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 a judgment as a matter of 

law.” 735 ILCS 5/2-1005(c) (West 2014). The trial court must view these documents and 

exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v. 

Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to 

grant a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual 

Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means we perform the same 

analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 

578 (2011). 

¶ 44 “Summary judgment is a drastic measure and should only be granted if the movant’s right 

to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. 

However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary 

20 
 

 

 

 

 

No. 1-17-0516 

judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party 

moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. 

App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively 

showing that some element of the case must be resolved in his favor or by establishing “ ‘that 

there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill. 

App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose 

of summary judgment is not to try an issue of fact but *** to determine whether a triable 

issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) 

(quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis 

appearing in the record, whether or not the trial court relied on that basis or its reasoning was 

correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992). 

¶ 45 In the instant case, the trial court granted defendants’ motion for summary judgment on 

plaintiff’s legal malpractice claim. The elements of a legal malpractice claim are well 

established. To prevail on a cause of action for legal malpractice, a plaintiff must plead and 

prove sufficient facts to establish (1) that the defendant attorney owed the plaintiff client a 

duty of due care arising from an attorney-client relationship, (2) that the attorney breached 

that duty, (3) that the client suffered an injury in the form of actual damages, and (4) that the 

attorney’s breach was the proximate cause of those actual damages. Fox v. Seiden, 382 Ill. 

App. 3d 288, 294 (2008) (citing Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 

195, 199 (2006)); Cedeno v. Gumbiner, 347 Ill. App. 3d 169, 174 (2004); Serafin v. Seith, 

284 Ill. App. 3d 577, 586-87 (1996)). 

¶ 46 The fact that an attorney owed a duty of care and breached it is not enough to sustain a 

cause of action. Fox, 382 Ill. App. 3d at 295 (citing Northern Illinois Emergency Physicians 

21 
 

 

 

 

 

No. 1-17-0516 

v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005)). Even if an attorney was 

negligent, a plaintiff cannot recover unless that negligence proximately caused actual 

damages. Fox, 382 Ill. App. 3d at 295 (citing Northern Illinois, 216 Ill. 2d at 306-07). Thus, 

both proximate cause and actual damages are essential to a viable cause of action. Fox, 382 

Ill. App. 3d at 295 (citing Northern Illinois, 216 Ill. 2d at 306-07). “To satisfy the proximate 

cause aspect of a malpractice action, the plaintiff must essentially plead and prove a ‘case 

within a case,’ meaning that the malpractice complaint is dependent on the underlying 

lawsuit.” Fabricare Equipment Credit Corp. v. Bell, Boyd & Lloyd, 328 Ill. App. 3d 784, 788 

(2002) (citing Sharpenter v. Lynch, 233 Ill. App. 3d 319, 323 (1992)). The plaintiff must 

plead sufficient facts to establish that, “but for” the negligence of the attorney, the client 

would have succeeded in the underlying suit. Fox, 382 Ill. App. 3d at 299; Cedeno, 347 Ill. 

App. 3d at 174; Serafin, 284 Ill. App. 3d at 587. “Because legal malpractice claims must be 

predicated upon an unfavorable result in the underlying suit, no malpractice exists unless 

counsel’s negligence has resulted in the loss of the underlying action.” Ignarski v. Norbut, 

271 Ill. App. 3d 522, 525 (1995) (citing Claire Associates v. Pontikes, 151 Ill. App. 3d 116, 

122 (1986)). 

¶ 47	 Plaintiff claims that the decedent had defenses in the whistleblower case that would have 

defeated Nicor’s motion for summary judgment, but that neither the Grossman defendants 

nor the Daniels defendants told him about the motion and that neither filed a response. 

Plaintiff further claims that the trial court granted the summary judgment motion and 

dismissed the case, since the Grossman and Daniels defendants (1) did not fully develop 

evidence by deposing witnesses who could have supported the decedent’s claims, (2) did not 

respond to the motion for summary judgment, (3) did not request additional time to respond 

22 
 

 

 

 

 

 

 

 

 

 

No. 1-17-0516 

to the motion, (4) did not advise the decedent that he would need to retain new counsel to 

respond to the motion, and (5) did not appear at the hearing on the motion. Plaintiff argued 

that the decedent personally attended the hearing on the motion for summary judgment and 

requested the trial court to grant him time to hire a new attorney to respond to the motion, but 

he claimed that the trial court denied his request due in part to the Grossman defendants’ 

dilatory tactics and lack of attention to the case throughout the litigation. 

¶ 48 To determine whether the actions of the Grossman and Daniels defendants amounted to 

legal malpractice, we must consider whether their actions were the proximate cause of the 

dismissal of the whistleblower case. Fox, 382 Ill. App. 3d at 299. The whistleblower case 

raised claims of common law retaliatory discharge and violation of the Whistleblower Act 

(740 ILCS 174/1 et seq. (West 2004)). In Illinois, a noncontracted employee is one who 

serves at the employer’s will, and the employer may discharge such an employee for any 

reason or no reason. Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009). “The 

accepted general rule is that in an employment at will there is no limitation on the right of an 

employer to discharge an employee.” Price v. Carmack Datsun, Inc., 109 Ill. 2d 65, 67 

(1985). However, an exception to the general rule of at-will employment arises when there 

has been a retaliatory discharge of the employee. Turner, 233 Ill. 2d at 500 (citing Price, 109 

Ill. 2d at 67). To prove a valid cause of action for retaliatory discharge, an employee must 

prove that “(1) the employer discharged the employee, (2) in retaliation for the employee’s 

activities, and (3) that the discharge violates a clear mandate of public policy.” Turner, 233 

Ill. 2d at 500. Similarly, to establish a claim under the Whistleblower Act, an employee must 

demonstrate that his or her employer retaliated against the employee for disclosing 

information to a government or law enforcement agency that he or she had reasonable cause 

23 
 

 

 

No. 1-17-0516 

to believe disclosed a violation of a state or federal law, rule, or regulation. Zuccolo v. 

Hannah Marine Corp., 387 Ill. App. 3d 561, 566 (2008); 740 ILCS 174/15(b) (West2008). 

¶ 49 The requirement that the discharge be in retaliation for an employee’s activities requires 

that a plaintiff establish a causal relationship between the employee’s activities and the 

discharge. Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31. The employer’s 

motive in discharging the employee is the ultimate issue when deciding the element of 

causation. Michael, 2014 IL 117376, ¶ 31. “The element of causation is not met if the 

employer has a valid basis, which is not pretextual, for discharging the employee.” Hartlein 

v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992). 

¶ 50 We find that the actions of the Grossman defendants were not the proximate cause of the 

trial court dismissing the whistleblower case because the decedent would not have prevailed 

in that case. The element of causation was not met because the employer had a valid basis to 

terminate the decedent’s employment when he failed to provide the current medical 

documentation of his claimed disability. The evidence before the trial court showed that 

Nicor repeatedly requested the decedent to provide medical documentation to support his 

continuing leave of absence and that it terminated his employment after he failed to provide 

current documentation as required. 

¶ 51 The evidence shows that, once the decedent was on medical leave, Nicor placed him in 

its short-term disability plan governed by the company’s Employee Benefit Association, 

which required the decedent to provide proof of his short-term disability in order to receive 

benefits. On December 26, 2003, Smolios sent the decedent a letter, advising him that Nicor 

had not received medical documentation to support his medical leave, and that, since the 

Employee Benefit Association rules required the decedent to provide proof of his disability 

24 
 

 

 

 

No. 1-17-0516 

claim within 18 days of his absence, failure to provide the documentation could result in the 

suspension of his Employee Benefit Association benefits. Smolios sent the decedent another 

letter on December 29, 2003, advising him that his Employee Benefit Association benefits 

would be suspended on January 12, 2004, if he did not provide medical documentation 

supporting his leave of absence. On January 13, 2004, Boedigheimer sent the decedent a 

letter advising him that, since Nicor never received medical documentation supporting his 

leave of absence, his Employee Benefit Association benefits were suspended until Nicor 

received the proper documentation, effective as of January 12, 2004. Boedigheimer also 

offered to fax another copy of the required form to the decedent’s physician, as she 

previously told the decedent on the telephone. 

¶ 52 Three days later, on January 16, 2004, Dr. Siegfried faxed an “Employee Benefit 

Association Proof of Claim Form” and “Family and Medical Leave Act of 1993 Certification 

of Health Care Provider” form to Nicor, which stated that he diagnosed the decedent with 

chronic reflux disease or esophagitis. In the certification of health care provider form, Dr. 

Siegfried opined that the decedent was indefinitely disabled as of October 6, 2003, and that 

his disability was still “ongoing.” Dr. Siegfried also opined that, from October 3, 2003, to 

October 3, 2004, the decedent would be “off intermittently when exacerbations occur or 

treatment is necessary,” and that the decedent was “unable to work from 10/6/03 thru 

indefinite.” In response to a question on the form asking whether the decedent was able to 

perform work of any kind, Dr. Siegfried answered that the decedent “is able to work unless 

exacerbations occur, which is intermittently.” 

¶ 53 Three months later, on March 16, 2004, Smolios mailed the decedent another letter, 

advising him that Nicor had not received medical documentation to support his leave of 

25 
 

 

 

 

No. 1-17-0516 

absence, and that Nicor would terminate his employment if he did not provide a medical 

certification in support of his leave of absence by April 2, 2004. Smolios noted in the letter 

that, in late December, Nicor “again requested that you provide documentation to support 

your absence and again you failed to provide evidence in support of your continued 

absence.” In response, on March 26, 2004, the decedent sent Nicor copies of the same two 

forms that Dr. Siegfried faxed to Nicor on January 16, 2004, and provided Nicor no new 

information. On April 2, 2004, Smolios mailed the decedent another letter explaining that the 

documentation he provided on March 26, 2004, was the same information from October of 

2003, and that Nicor had not received any documentation concerning his treatment or 

condition since that time. Smolios enclosed a blank proof of claim form to be completed by 

the decedent’s physician, and she advised the decedent that, “[i]n order for the company to 

maintain you as an employee it is imperative that you supply the company’s Medical 

Department with information regarding your current health status and treatment program.” 

She further advised the decedent that, “[i]f this information is not received by the company as 

of Monday, April 12, [2004,] your employment with Nicor Gas will be terminated.” On April 

15, 2004, Smolios sent the decedent another letter advising him that his right to a leave of 

absence under the Family and Medical Leave Act of 1993 had expired and that Nicor was 

terminating his employment since he had not provided appropriate medical documentation to 

support his continuing leave of absence despite numerous requests. 

¶ 54 At his deposition in the whistleblower case, the decedent testified that, after Smolios’s 

letter of April 2, 2004, he never provided Nicor any further medical documentation to 

support his continuing leave of absence. The decedent also did not recall sending, between 

October of 2003 and April 15, 2004, any other medical documentation to support his leave of 

26 
 

 

 

 

 

 

 

No. 1-17-0516 

absence to Nicor, other than the two forms signed by Dr. Siegfried. The decedent admitted 

that he was unaware of any additional medical documentation in support of his leave of 

absence sent to Nicor prior to faxing those two forms. The decedent further admitted that, 

although Dr. Siegfried signed the two forms in January of 2004, Dr. Siegfried had not 

examined or treated him since October 31, 2003. The decedent also testified that he did not 

recall if he tried to schedule an appointment with Dr. Siegfried to obtain the medical 

documentation or if he spoke with anyone at Nicor to ask for more time to obtain the 

documentation after receiving Smolios’ April 2, 2004, letter. 

¶ 55 Illinois courts have found that “medical inability to work was a ‘legitimate 

nondiscriminatory reason’ for discharge.” LaPorte v. Jostens, Inc., 213 Ill. App. 3d 1089, 

1093 (1991) (quoting Horton v. Miller Chemical Co., 776 F.2d 1351, 1359 n.11 (7th Cir. 

1985)). “Illinois law does not obligate an employer to retain an at-will employee who is 

medically unable to return to his assigned position.” Hartlein, 151 Ill. 2d at 159-60 (citing 

Horton, 776 F.2d 1351). Also, an employer is not obligated to reassign a disabled employee 

to another position rather than terminate his or her employment. See LaPorte, 213 Ill. App. 

3d at 1093. An employer may also discharge an employee for excess absenteeism caused by 

a compensable injury. Slover v. Brown, 140 Ill. App. 3d 618, 621 (1986). Furthermore, courts 

have previously affirmed summary judgment in favor of an employer in retaliatory discharge 

cases where an employee could not prove causation. See Wright v. St. John’s Hospital of the 

Hospital Sisters of the Third Order of St. Francis, 229 Ill. App. 3d 680, 688 (1992) (finding 

no issue of material fact concerning the employee’s medical inability to return to work, 

which was a legitimate nondiscriminatory reason for discharge); LaPorte, 213 Ill. App. 3d at 

1094 (same); McCoy v. Maytag Corp., 495 F.3d 515, 523-24 (7th Cir. 2007) (affirming 

27 
 

 

No. 1-17-0516 

summary judgment in favor of the employer on a retaliatory discharge claim where the 

employee failed to provide current medical documentation to support his absence from work 

in accordance with company policy). 

¶ 56 At the time of his discharge, the decedent had been on a leave of absence for over seven 

months and had not provided Nicor with any current medical documentation other than the 

forms from Dr. Siegfried that were based on his examination of the decedent during the first 

month of his leave of absence. In light of this evidence, the trial court in the whistleblower 

case found that there was no genuine issue of material fact that the decedent failed to provide 

Nicor support for his medical leave and that they terminated his employment as a result. 

Since Nicor had a valid basis for discharging the decedent, the trial court found that he could 

not prevail as a matter of law and granted summary judgment in favor of Nicor. 

¶ 57 In the instant legal malpractice case, plaintiff argues that defendants mishandled the 

decedent’s case by failing to develop evidence, take depositions, or respond to the motion for 

summary judgment; however, even if defendants had done all of this, the record shows that it 

would not have been enough to create a genuine issue of material fact that Nicor terminated 

the decedent’s employment because he failed to provide current medical documentation to 

support his leave of absence as it required. As a result, defendants did not proximately cause 

actual damages to the decedent, and the trial court did not err when it granted defendants’ 

motion for summary judgment dismissing the legal malpractice case. 

¶ 58 Additionally, defendants were not the proximate cause of actual damages to the decedent 

in the whistleblower case, since the evidence shows that he was totally disabled and unable to 

work due to his health, and he could not recover compensatory damages as a result. 

“Damages for an injury to the plaintiff are an essential element of any tort cause of action.” 

28 
 

 

 

 

 

No. 1-17-0516 

Reuter v. MasterCard International, Inc., 397 Ill. App. 3d 915, 928 (2010). “[A] plaintiff is 

not entitled to retaliatory discharge damages during the time of his total incapacity to work.” 

Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 559 (1992). “[T]ime when an employee is 

away from work because of his own infirmity, rather than as a consequence of his employer’s 

tortious conduct, does not qualify for retaliatory discharge damages.” Kritzen, 226 Ill. App. 

3d at 559-60. “Lost wages attributable solely to one’s infirmity do not naturally flow from 

the commission of retaliatory discharge.” Kritzen, 226 Ill. App. 3d at 560. 

¶ 59 The decedent testified at his deposition that, since he began his medical leave of absence 

on October 6, 2003, he was medically unable to perform his job as a distribution technician at 

Nicor. At the time of the deposition in 2013, the decedent testified that he had not worked or 

searched for work in the nine years since he began his leave of absence on October 6, 2003. 

Additionally, the decedent applied for disability benefits from the Social Security 

Administration, representing that he was disabled and unable to work since he began his 

leave of absence. Although the Social Security Administration initially denied his 

application, an administrative law judge reversed the denial on appeal, finding that the 

decedent had been disabled since October 6, 2003, and that he was unable to perform his job 

at Nicor. The decedent testified at his deposition that he agreed with the administrative law 

judge’s findings that he “had been disabled since October 6, 2003,” that he was “not able to 

engage in any substantial gainful activity because of [his] determinable physical or mental 

impairment,” that he had “not engaged in any gainful activity since October 6, 2003,” and 

that he was “unable to perform any relevant task work.” In addition, the decedent settled his 

workers’ compensation and/or occupational diseases claim with Nicor in 2011, and the 

settlement order stated that the decedent claimed that he was “unable to work” and had an 

29 
 

 

No. 1-17-0516 

injury to his “whole body,” which rendered him “permanently and totally disabled for any 

employment.” 

¶ 60 In light of this overwhelming evidence, there existed no genuine issue of material fact 

that the decedent was disabled and unable to return to his job at Nicor. Since the decedent 

was unable to work, he could not recover compensatory damages in the whistleblower case. 

As a result, defendants in the instant case did not proximately cause an actual injury to the 

decedent when the trial court dismissed the whistleblower case, since he could not recover 

compensatory damages in that case, and the trial court did not err when it granted summary 

judgment in the legal malpractice case in favor of defendants. 

¶ 61 Plaintiff claims that defendants could have proven the element of causation because the 

decedent could have shown that Nicor subjected him to a course of adverse treatment after he 

reported the water contamination to governmental authorities, which culminated in the 

termination of his employment. Plaintiff argues that the evidence could have shown that 

Nicor’s supervisors significantly increased the number of assignments the decedent was 

expected to accomplish, significantly increased quality control inspection, sent him home 

without pay for non-existent offenses, took amenities from him and his team that other teams 

were allowed to have such as microwaves and water coolers, singled him out and acted 

angrily towards him, ordered him to report his time in a certain fashion and then accused him 

of stealing time when he followed management directions, provided written reprimands for 

his minor work infractions when in the past he was issued only verbal warnings, withdrew a 

promotion that was offered to him, and singled out his team by preparing photographic 

records of the work his team performed. Plaintiff claims that Nicor’s course of conduct 

continued after the decedent began his leave of absence when it refused to acknowledge his 

30 
 

 

 

 

 

No. 1-17-0516 

injury was work-related, refused to accept the medical documentation he provided, failed to 

explain to him how the documentation he provided was insufficient, and misled him when 

Boedigheimer told him that she was contacting his physician and that he did not need to 

worry about obtaining the medical documentation. Plaintiff also argues that, in essence, 

Nicor required that the decedent consult a physician for medical documentation and then 

refused to authorize treatment when he tried to visit Dr. Duvall. 

¶ 62 However, the elements of retaliatory discharge require the decedent to show that he was 

discharged (Turner, 233 Ill. 2d at 500), and alleged adverse treatment is not actionable under 

a theory of retaliatory discharge (see Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 

148, 153 (1999)). As a result, plaintiff cannot recover for retaliatory discharge solely based 

on Nicor’s actions that fell short of discharging the decedent. 

¶ 63 Also, as stated, there was no genuine issue of material fact that Nicor terminated the 

decedent’s employment as a result of his failure to provide current medical documentation of 

his continuing leave of absence. The overwhelming evidence shows that Smolios repeatedly 

advised the decedent that he needed to provide current medical documentation, which he 

failed to provide before the noticed deadline. As a result, the allegations that Nicor treated 

the decedent adversely prior to his leave of absence does not create a genuine issue of fact 

that Nicor’s stated reason for discharging him was fabricated pretext for another illegitimate 

reason. Furthermore, whether Nicor subjected the decedent to adverse treatment is 

immaterial, since he testified that he was disabled and unable to work at the time of his leave 

of absence. Since he could not work, he could not have proven damages, which is an 

essential element of his retaliatory discharge claim. Reuter, 397 Ill. App. 3d at 928; Kritzen, 

226 Ill. App. 3d at 559. 

31 
 

 

 

 

 

 

 

 

No. 1-17-0516 

¶ 64 Plaintiff argues that the decedent still could have prevailed on a claim for violation of the 

Whistleblower Act since that statute provides for damages for “any action against an 

employee.” 740 ILCS 174/30 (West 2004). However, the Whistleblower Act did not become 

effective until January 1, 2004, so the decedent could not have prevailed on a claim 

concerning Nicor’s conduct prior to the statute’s enactment. Plaintiff cites Feltmeier v. 

Feltmeier, 207 Ill. 2d 263 (2003), in support of her argument that Nicor’s prior conduct 

should be considered under the doctrine of a continuing tort. Plaintiff points to the Feltmeier 

court’s finding that “[a] pattern, course, and accumulation of acts can make an individual’s 

conduct ‘sufficiently extreme to be actionable, whereas one instance of such behavior might 

not be.’ ” Feltmeier, 207 Ill. 2d at 274 (quoting Pavlik v. Kornhaber, 326 Ill. App. 3d 731, 

746 (2001)). However, the continuing tort doctrine explained in Feltmeier concerned the 

applicability of the statute of limitations in a claim for intentional infliction of emotional 

distress. Feltmeier, 207 Ill. 2d at 279. The Feltmeier court found that, “under the ‘continuing 

tort’ or ‘continuing violation’ rule, ‘where a tort involves a continuing or repeated injury, the 

limitations period does not begin to run until the date of the last injury or the date the tortious 

acts cease.’ ” Feltmeier, 207 Ill. 2d at 278 (quoting Belleville Toyota, Inc. v. Toyota Motor 

Sales, U.S.A., Inc., 199 Ill. 2d 325, 345 (2002)). In the instant case, plaintiff argues entirely 

different circumstances by claiming that the principles of the continuing tort doctrine extend 

to finding liability for actions that would have violated a statute prior to that statute’s 

enforcement. The Whistleblower Act does not state that its provisions apply retroactively, 

and we cannot say that Nicor’s conduct prior to the enactment of the statute was actionable. 

See First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 182 (1995) (“statutes 

32 
 

 

 

 

 

 

No. 1-17-0516 

are presumed to apply prospectively only and will not be given retroactive effect absent clear 

language within the statute indicating that the legislature intended such effect”). 

¶ 65 Plaintiff additionally argues that Nicor violated the collective bargaining agreement with 

the union by not attempting to place the decedent in a less-strenuous job that he could 

perform. Plaintiff cite to a provision of the collective bargaining agreement, which states 

that: 

“In the case of a regular employee or part-time regular employee who has given long 

and faithful service and who is unable to carry on his/her regular work to advantage, 

[Nicor] will attempt to place such employee on work, which he/she is able to perform. 

In such cases, the other provisions of this Article shall not apply.” 

The collective bargaining agreement further stated that, “[i]f a regular employee or part-time 

regular employee becomes disabled and is unable to perform his/her regular work to 

advantage, [Nicor] will attempt to place the employee on work within the employee’s 

capabilities.” Plaintiff argues that the evidence shows that Nicor acted in bad faith and 

intended to discharge the decedent for reporting toxic work conditions, since it did not 

attempt to accommodate his disability by placing him in a less-strenuous job. 

¶ 66 However, whether Nicor attempted to place the decedent in another job position is 

immaterial where he testified and represented to the Social Security Administration and 

Illinois Workers’ Compensation Commission that he was disabled and unable to work during 

his leave of absence. It follows that, if the decedent could not work, then Nicor could not 

possibly place him in a job that he could perform. Also, the collective bargaining agreement 

further provides that Nicor retained the right to discharge employees for proper cause. The 

collective bargaining agreement stated that “[t]he management of [Nicor] and the direction of 

33 
 

 

 

No. 1-17-0516 

the working forces herein, including the right to hire, suspend, or discharge for proper cause, 

promote, demote, transfer and layoff because of lack of work or for other reasons, are vested 

in [Nicor], except as otherwise specifically provided in this Agreement.” Although the 

collective bargaining agreement provided that Nicor would attempt to place a disabled 

employee on work within the employee’s capabilities, the agreement provided no guarantee 

of a new job placement or an absolute right to such placement. 

¶ 67 Additionally, even if Nicor did not attempt to place the decedent another job position, 

that would not have raised a genuine issue of fact that it had another illegitimate motive to 

discharge him. As stated, the evidence overwhelmingly shows that Nicor terminated the 

decedent’s employment, since he failed to provide current medical documentation to support 

his continuing leave of absence, despite numerous requests. Since there existed no genuine 

issue of material fact that Nicor discharged the decedent for failing to provide support for his 

medical leave, defendants in the legal malpractice case did not proximately cause actual 

damages to the decedent. Additionally, defendants in the legal malpractice case did not 

proximately cause actual damages, since the decedent could not recover compensatory 

damages in the whistleblower case due to his inability to work during his leave of absence. 

As a result, the trial court did not err when it granted defendants’ motion for summary 

judgment dismissing the legal malpractice case. 

¶ 68 II. Judicial Estoppel 

¶ 69 Plaintiff next argues that the trial court erred when it granted summary judgment in favor 

of defendants in the legal malpractice case, since judicial estoppel did not bar the decedent’s 

claim. Defendants argue that, even if the decedent did not testify in his deposition testimony 

that he was unable to return to work during his leave of absence, judicial estoppel bars him 

34 
 

 

 

 

 

 

No. 1-17-0516 

from claiming otherwise due to his prior admissions to the Social Security Administration 

and the Illinois Workers’ Compensation Commission. For the following reasons, we affirm 

the trial court’s award of summary judgment in favor of defendants. 

¶ 70 The doctrine of judicial estoppel provides that “ ‘a party who assumes a particular 

position in a legal proceeding is estopped from assuming a contrary position in a subsequent 

legal proceeding.’ ” Barack Ferrazzano Kirschbaum Perlman & Nagelberg v. Loffredi, 342 

Ill. App. 3d 453, 460 (2003) (quoting Bidani v. Lewis, 285 Ill. App. 3d 545, 550 (1996)). The 

purpose of the doctrine is “ ‘to promote the truth and to protect the integrity of the court 

system by preventing litigants from deliberately shifting positions to suit the exigencies of 

the moment.’ ” Loffredi, 342 Ill. App. 3d at 460 (quoting Bidani, 285 Ill. App. 3d at 550). 

The five elements necessary for the application of judicial estoppel include the following: 

“ ‘the party to be estopped must have (1) taken two positions, (2) that are factually 

inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intended 

for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first 

proceeding and received some benefit from it.’ ” Loffredi, 342 Ill. App. 3d at 460 (quoting 

People v. Caballero, 206 Ill. 2d 65, 80 (2002)). Judicial estoppel must be proved by clear and 

convincing evidence. Seymour v. Collins, 2015 IL 118432, ¶ 39. Since judicial estoppel is an 

equitable doctrine invoked by the court at its discretion, we review a trial court’s invocation 

of the doctrine under the abuse-of-discretion standard. Seymour, 2015 IL 118432, ¶ 41. A 

trial court abuses its discretion “only where its ruling is arbitrary, fanciful, or unreasonable or 

where no reasonable person would take the view adopted by the trial court.” Crichton v. 

Golden Rule Insurance Co., 358 Ill. App. 3d 1137, 1150 (2005) (citing People v. Hall, 195 

Ill. 2d 1, 20 (2000)). 

35 
 

 

 

 

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¶ 71 Prior to the instant legal malpractice case, the decedent applied for disability benefits 

from the Social Security Administration, where he represented that he was disabled and 

unable to work since he began his leave of absence. An administrative law judge reversed the 

denial of his application on appeal, finding that the decedent had been disabled since October 

6, 2003, and that he was unable to perform his job at Nicor. The decedent also settled his 

workers’ compensation and/or occupational diseases claim with Nicor, and he signed the 

settlement order, which stated that he claimed injury to his “whole body,” rendering him 

“permanently and totally disabled for any employment.” In the instant case, the decedent 

claimed that he desperately wanted to return to work but Nicor would not accommodate him 

by placing him in a “less physically stressful job.” 

¶ 72 The decedent’s prior position that he was disabled and unable to work is factually 

inconsistent with the position that he was able to return to a different job at Nicor. The 

decedent’s statements were also made in judicial or quasi-judicial proceedings, and he 

intended the trier of fact to accept the fact of the truth of the facts he alleged so that he would 

receive benefits as a result. An administrative law judge accepted the decedent’s statements 

that he was disabled and reversed the denial of his application for Social Security 

Administration disability benefits, and an arbitrator accepted the decedent’s representations 

when it approved the settlement of his workers’ compensation and/or occupational diseases 

case, for which the decedent received $125,000 in compensation. We cannot say that the trial 

court’s finding that judicial estoppel applies is arbitrary, fanciful, or unreasonable, or that no 

reasonable person would make that finding. As a result, the trial court did not abuse its 

discretion when it found that the doctrine of judicial estoppel applies, and the decedent was 

barred from claiming that he was able to return to work at Nicor. Since he could not claim 

36 
 

 

 

 

 

No. 1-17-0516 

that he was able to return to work, he could not recover compensatory damages in the 

whistleblower case, and defendants in the instant legal malpractice case did not proximately 

cause an actual injury to the decedent. As a result, the trial court did not err when it granted 

summary judgment in the legal malpractice case in favor of defendants. 

¶ 73 Plaintiff argues that, “for judicial estoppel to apply, the two positions taken must be 

‘totally inconsistent’ ” (emphasis omitted) (Wolfe v. Wolf, 375 Ill. App. 3d 702, 705 (2007) 

(quoting Bidani, 285 Ill. App. 3d at 550)), and that the decedent’s representations to the 

Social Security Administration and the Illinois Workers’ Compensation Commission were 

not inconsistent with his claims in the whistleblower case. As to the decedent’s 

representations to the Social Security Administration, plaintiff argues that the administrative 

law judge found that, although the decedent could not perform his job at Nicor as a 

distribution technician, was able to perform some type of sedentary work. Plaintiff claims 

that judicial estoppel does not apply, since the administrative law judge’s findings were not 

inconsistent with the decedent’s claim that he was able to return to work in a “less physically 

stressful job” at Nicor. 

¶ 74 However, the position that the decedent was able to work in a less-physically stressful job 

during his leave of absence is totally inconsistent with the representations set forth in the 

administrative law judge’s findings that the decedent was “not able to engage in any 

substantial gainful activity” since October 6, 2003. Although the judge found that the 

decedent had the “residual functional capacity to perform sedentary work,” he determined 

that the decedent “is unable to perform any past relevant work,” that his “job skills do not 

transfer to other occupations within the residual functional capacity,” and that his 

“limitations so narrow the range of work that [he] might otherwise perform that a finding of 

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No. 1-17-0516 

‘disabled’ is appropriate.” The judge’s order notes that, to support a finding that the decedent 

is not disabled, the Social Security Administration had the burden to demonstrate “that other 

work exists in significant numbers in the national economy that [the decedent] can do.” In 

other words, the administrative judge’s findings show that the decedent’s disability was so 

significant that, not only was he unable to perform any past relevant work, but that he did not 

even have the ability to perform any job that existed in significant numbers in the national 

economy. As a result, the representations set forth in the judge’s findings are totally 

inconsistent with the claim that the decedent could have worked in a less-physically stressful 

job at Nicor. 

¶ 75 Plaintiff claims that the decedent did not argue inconsistent positions, since he always 

claimed that he could have performed a different job at Nicor, pointing to his deposition 

testimony that he could perform a less-physically stressful job at Nicor. However, that 

deposition was taken in 2013, where the decedent answered the question of what job he 

would be able to perform at that time, not during his leave of absence, which began nearly 10 

years prior. Instead, the decedent testified that he was “very sick” and “on the ground sick” 

from the time of his leave of absence through at least 2007 and that he “had no idea” when he 

would have been able to return to any kind of employment. To argue now that he could have 

worked in a different job at Nicor while he was on medical leave is not only inconsistent with 

the administrative law judge’s finding but also with the decedent’s own prior testimony. 

¶ 76 Plaintiff also argues that the claim that decedent could work during his leave of absence 

is not inconsistent with the findings in the workers’ compensation and/or occupational 

diseases settlement since, in that case, he merely sought compensation from Nicor for 

exposing him to toxins that impaired his ability to do his job. Plaintiff argues that position 

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No. 1-17-0516 

was also not inconsistent with his claims in the whistleblower case, since in that case, the 

decedent claimed Nicor treated him adversely and discharged for reporting toxic work 

conditions to governmental authorities. However, the settlement order stated that the 

decedent claimed that he was “unable to work” and had an injury to his “whole body,” which 

rendered him “permanently and totally disabled for any employment.” Additionally, the 

decedent represented to the Social Security Administration that he was disabled and unable 

to work. These representations are inconsistent with the decedent’s claim that he could have 

performed a different job at Nicor during his leave of absence and, as a result, the decedent 

was judicially estopped from claiming otherwise. 

¶ 77 This case is similar to Department of Transportation v. Coe, 112 Ill. App. 3d 506 (1983). 

In Coe, the employee suffered an injury during the course of his employment that he claimed 

rendered him 20% permanently disabled and unable to perform his job. Coe, 112 Ill. App. 3d 

at 508. The employee began a medical leave of absence and filed a workers’ compensation 

claim against the employer, which the parties settled. Coe, 112 Ill. App. 3d at 508. The 

settlement agreement, which the Illinois Industrial Commission approved, stated that the 

employee received a lump sum representing “ ‘20% man as a whole,’ ” and the employer 

soon afterwards advised the employee that he would be discharged, since he was 

permanently disabled and unable to perform his job and his leave of absence was nearing 

expiration. Coe, 112 Ill. App. 3d at 508-09. The employee then attempted to obtain his 

former job back, telling his employer that he was not disabled and that he could work. Coe, 

112 Ill. App. 3d at 509. The employer then began discharge proceedings before the Civil 

Service Commission, which ordered the employee reinstated in his job. Coe, 112 Ill. App. 3d 

at 509. The trial court reversed the commission, finding that the employee was judicially 

39 
 

 

 

 

 

No. 1-17-0516 

estopped from claiming that he was no longer disabled. Coe, 112 Ill. App. 3d at 509. The 

appellate court affirmed on appeal, finding that the employee was judicially estopped from 

claiming that he could return to work in his former job after previously claiming during a 

settlement that he had a permanent disability that rendered him unable to work. Coe, 112 Ill. 

App. 3d at 511. In the instant case, the decedent likewise settled his workers’ compensation 

and/or occupational diseases case, claiming that he was permanently disabled and unable to 

return to work, and the decedent now claims that he could have returned to work during his 

leave of absence in a less-physically stressful job. As in Coe, the decedent is judicially 

estopped from first claiming for settlement purposes that he was disabled and unable to work 

and now claiming in discharge proceedings that he could have returned to work had Nicor 

placed him a in different job position. 

¶ 78 Plaintiff further argues that judicial estoppel did not bar the decedent’s claim, since he 

was not required to show that he was able to work to prove damages in order to prevail on a 

retaliatory discharge claim. Plaintiff argues that the decedent’s whistleblower complaint 

sought compensatory damages from being discharged, including “back pay, retirement and 

other benefits, aggravation and inconvenience in a sum to be proved at trial.” Plaintiff cites 

Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071, ¶ 27, in support of her argument 

that the decedent’s representations to the Social Security Administration were not a 

“factually inconsistent” position that judicially estopped his retaliatory discharge claim. In 

Batson, the employee developed carpel tunnel syndrome and filed a workers’ compensation 

claim, after which her employer discharged her. Batson, 2013 IL App (1st) 123071, ¶¶ 6, 27. 

Prior to her discharge, the employee sought and received disability benefits from the Social 

Security Administration. Batson, 2013 IL App (1st) 123071, ¶ 27. The employee then sued 

40 
 

 

 

 

 

No. 1-17-0516 

for retaliatory discharge, and the trial court invoked the collateral source rule, which barred 

the employee from asserting judicial estoppel as an affirmative defense. Batson, 2013 IL App 

(1st) 123071, ¶ 22. On appeal, the appellate court affirmed, finding that, since the employer 

never presented any evidence of a valid, nonpretextual basis for discharging the employee 

and the employee’s retaliatory discharge action claimed she was discharged solely for filing a 

workers’ compensation claim, her disability claim with the Social Security Administration 

that she was disabled and unable to work was not a “ ‘factually inconsistent’ ” position that 

judicially estopped her recovering on a retaliatory discharge claim. Batson, 2013 IL App 

(1st) 123071, ¶ 27. 

¶ 79 However, Batson is distinguishable since, unlike the instant case, Nicor presented 

sufficient evidence that it terminated the decedent’s employment due to his failure to provide 

medical documentation in support of his continuing leave of absence. Furthermore, the 

employee in Batson brought a retaliatory discharge claim under the Workers’ Compensation 

Act, whereas the decedent in the instant case brought a common law retaliatory discharge 

claim. Batson, 2013 IL App (1st) 123071, ¶ 30. Also, the trial court in Batson invoked the 

collateral source rule and found under its discretion that judicial estoppel did not apply. In the 

instant case, the trial court did not consider the collateral source rule and used its discretion 

to find that judicial estoppel barred the decedent’s claims. Batson, 2013 IL App (1st) 123071, 

¶ 22. 

¶ 80 In reaching its findings, the Batson court distinguished a federal case, Muellner v. Mars, 

Inc., 714 F. Supp. 351 (N.D. Ill. 1989). In Muellner, the employer placed the employee on 

long-term disability, for which she received benefits. Muellner, 714 F. Supp. at 352. While 

she was on disability leave at work, she applied for and received disability benefits from the 

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No. 1-17-0516 

Social Security Administration, for which she claimed that she was totally disabled and 

unable to work. Muellner, 714 F. Supp. at 352. The employer then terminated the employee 

per company policy, since she had been on long-term disability for two years, and advised 

her that she would continue to receive disability benefits until she recovered, retired, died, or 

reached age 65, whichever comes first. Nevertheless, the employer soon terminated the 

benefits because the employee did not provide medical documentation that she continued to 

be disabled. Muellner, 714 F. Supp. at 353. The employee then filed a lawsuit for retaliatory 

discharge, claiming that she was discharged because she refused to accept early retirement. 

Muellner, 714 F. Supp. at 353. Applying Illinois law, the district court found that the 

employee was judicially estopped from asserting a claim of retaliatory discharge and granted 

the employer’s motion for summary judgment, since she represented to the Social Security 

Administration that she was unable to work, while the ability to work was a “necessary 

prerequisite” to her retaliatory discharge claim. Muellner, 714 F. Supp. at 360. The Batson 

court declined to follow Muellner, since it found that the employee’s ability to work was not 

a necessary prerequisite to a retaliatory discharge claim under the Workers’ Compensation 

Act. Batson, 2013 IL App (1st) 123071, ¶ 30. 

¶ 81 However, in the instant case, the decedent was required to prove damages, which is an 

element of a common law tort of retaliatory discharge. As stated, “[d]amages for an injury to 

the plaintiff are an essential element of any tort cause of action” (Reuter, 397 Ill. App. 3d at 

928) and “a plaintiff is not entitled to retaliatory discharge damages during the time of his 

total incapacity to work” (Kritzen, 226 Ill. App. 3d at 559). Plaintiff argues that Muellner (as 

well as Coe) is distinguishable, since the decedent was not an at-will employee claiming that 

he was totally disabled and then attempting to return to his former job claiming he could 

42 
 

 

 

 

 

 

No. 1-17-0516 

perform the job, and that he instead admitted that he could not perform his old job and he 

wanted to return to Nicor in a role more suitable for his circumstances. However, as stated, 

the decedent did, in fact, testify that he was unable to work at the time of his leave of absence 

through at least 2007, when he began to receive social security disability benefits. The 

decedent did testify that he could return to a different job at Nicor in 2013, nearly 10 years 

after he began his leave of absence; however, he never claimed that he was able to work 

during his leave of absence, and he admitted he never attempted to find a less-strenuous job 

since he was discharged. As a result, the trial court did not abuse its discretion when it found 

judicial estoppel applied as a result of the decedent’s prior inconsistent representations to the 

Social Security Administration and the Illinois Workers’ Compensation Commission. 

¶ 82 Plaintiff claims that, even if the decedent were too sick to work, he could still recover 

punitive damages under a theory of retaliatory discharge or violation of the Whistleblower 

Act. Plaintiff cites Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978), which found that “[i]t 

has long been established in this State that punitive or exemplary damages may be awarded 

when torts are committed with fraud, actual malice, deliberate violence or oppression, or 

when the defendant acts willfully, or with such gross negligence as to indicate a wanton 

disregard of the rights of others.” Plaintiff cites Holland v. Schwan’s Home Service, Inc., 

2013 IL App (5th) 110560, as a case where “an award of $3.6 million in punitive damages 

comported with due process when, among other reasons, the employee’s retaliatory discharge 

action was based on termination for exercise of Worker’s Compensation Act rights.” Holland 

cites the elements of punitive damages as a finding of “ ‘whether: (1) the harm caused was 

physical as opposed to economic; (2) the tortious conduct evinced an indifference to or a 

reckless disregard of the health or safety of others; (3) the target of the conduct had financial 

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No. 1-17-0516 

vulnerability; (4) the conduct involved repeated actions or was an isolated incident; and (5) 

the harm was the result of intentional malice, trickery, or deceit, or mere accident.’ ” 

Holland, 2013 IL App (5th) 110560, ¶ 258 (quoting Blount v. Stroud, 395 Ill. App. 3d 8, 24­

25 (2009)). 

¶ 83 However, as stated, “[d]amages for an injury to the plaintiff are an essential element of 

any tort cause of action” (Reuter, 397 Ill. App. 3d at 928) and “a plaintiff is not entitled to 

retaliatory discharge damages during the time of his total incapacity to work” (Kritzen, 226 

Ill. App. 3d at 559). In Holland, the jury awarded the plaintiff punitive damages of $3.6 

million in addition to compensatory damages of $660,400. Holland, 2013 IL App (5th) 

110560, ¶ 252. In this case, the decedent was unable to work, so he could not show damages, 

which is an element of proving the tort of retaliatory discharge. Since the decedent could not 

prove the elements of retaliatory discharge, he was not entitled to punitive damages. Illinois 

does not recognize a cause of action for punitive damages alone; punitive damages represent 

a type of relief rather than an independent cause of action. Kemner v. Monsanto Co., 217 Ill. 

App. 3d 188, 199 (1991); see Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 146 (a 

“plaintiff cannot assert punitive damages without first properly pleading the underlying 

claims”). 

¶ 84 Plaintiff additionally argues that the Whistleblower Act does not require that the decedent 

be able to return to work and that he could have recovered damages for the loss of Employee 

Benefit Association benefits, loss of a promotion, loss of his ability to work a more sedentary 

job, loss of his health care benefits, and more, and that he could recover damages even if he 

could not perform his former job. The Whistleblower Act states: 

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No. 1-17-0516 

“Damages. If an employer takes any action against an employee in violation of 

Section 15 or 20, the employee may bring a civil action against the employer for all 

relief necessary to make the employee whole, including but not limited to the 

following, as appropriate: 

(1) reinstatement with the same seniority status that the employee would have 

had, but for the violation; 

(2) back pay, with interest; and 

(3) compensation for any damages sustained as a result of the violation, 

including litigation costs, expert witness fees, and reasonable attorney’s fees.” 

740 ILCS 174/30 (West 2004). 

¶ 85	 Although the Whistleblower Act provides for all relief necessary to make the employee 

whole, in the instant case, there were no damages that the decedent could have shown that 

would have made him whole, since he was not able to work when Nicor discharged him. As 

a result, the decedent could not have been reinstated with a job at Nicor, since he could not 

work, and he similarly could not have recovered damages resulting from the termination of 

his employment, such as lost pay or health insurance, since he was not able to work and 

receive those benefits in the first place. Furthermore, the Whistleblower Act does not provide 

for punitive damages. See Averett v. Chicago Patrolmen’s Federal Credit Union, No. 06 C 

4606, 2007 WL 952034, at *4 (N.D. Ill. Mar. 27, 2007) (finding that punitive damages are 

not available under the whistleblower statute where the statute’s inclusion of a damages 

section allowing only for “ ‘make whole’ ” relief revealed the legislature’s intent to exclude 

the availability of other types of damages). As a result, the decedent could not recover 

damages under the whistleblower act where he was unable to work. 

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No. 1-17-0516 

¶ 86 Plaintiff also argues that, “[w]hile plaintiff understands that judicial estoppel is to protect 

the integrity of the judicial system, contrary to [Nicor]’s claim, [Nicor] could never have 

raised a judicial estoppel defense” in the whistleblower case because the workers’ 

compensation and/or occupational diseases settlement stated that “[t]he parties hereto 

acknowledge that the [decedent] presently has a lawsuit against [Nicor] pending in the 

Circuit Court of Du Page County, Case No. 2010 L 128, and, notwithstanding any other 

provision of this Contract and Rider, the parties agree that said lawsuit is neither waived nor 

released by this agreement.” However, the settlement terms in this passage merely state that 

the settlement of the workers’ compensation and/or occupational diseases case does not 

extinguish the claims in the decedent’s separate whistleblower case, allowing that litigation 

to proceed. As a result, the settlement order does prevent Nicor from raising judicial estoppel 

in the whistleblower case. 

¶ 87 We cannot say that the trial court’s finding that judicial estoppel applies is arbitrary, 

fanciful, or unreasonable, or that no reasonable person would make that finding. As a result, 

the trial court did not abuse its discretion when it found that the doctrine of judicial estoppel 

applies, and the decedent was barred from claiming that he was able to return to work at 

Nicor. Since the decedent could not claim that he was able to return to work, he could not 

recover compensatory damages in the whistleblower case, and defendants in the instant legal 

malpractice case did not proximately cause an actual injury to the decedent. As a result, the 

trial court did not err when it granted summary judgment in the legal malpractice case in 

favor of defendants, and we affirm. 

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¶ 88 III. Discovery 

¶ 89 In the alternative, plaintiff argues that the trial court erred when it limited oral discovery 

prior to hearing defendants’ motion for summary judgment. Specifically, plaintiff claims that 

it was “fundamentally unfair” for the trial court to refuse her request to depose at least 32 

witnesses, since she could have obtained evidence in those depositions that could defeat 

defendants’ motion for summary judgment, especially where defendants’ failure to conduct 

discovery in the whistleblower case is a key allegation of legal malpractice in the instant 

case. For the following reasons, we affirm the trial court’s order limiting the scope of 

discovery. 

¶ 90 “A trial court is afforded considerable discretion in ruling on matters pertaining to 

discovery, and thus its rulings on discovery matters will not be reversed absent an abuse of 

that discretion.” Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, 

Ltd., 392 Ill. App. 3d 1, 11 (2009) (citing Wisniewski v. Kownacki, 221 Ill. 2d 453, 457 

(2006), and Crichton , 358 Ill. App. 3d at 1150). As stated, a trial court abuses its discretion 

“only where its ruling is arbitrary, fanciful, or unreasonable or where no reasonable person 

would take the view adopted by the trial court.” Crichton, 358 Ill. App. 3d at 1150 (citing 

Hall, 195 Ill. 2d at 20). 

¶ 91 “[Illinois] Supreme Court Rule 191(b) specifies the procedure to be followed where 

additional discovery is needed in regard to summary judgment proceedings.” Giannoble v. 

P&M Heating & Air Conditioning, Inc., 233 Ill. App. 3d 1051, 1064 (1992). Illinois Supreme 

Court Rule 191(b) provides: 

“If the affidavit of either party contains a statement that any of the material facts 

which ought to appear in the affidavit are known only to persons whose affidavits 

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affiant is unable to procure by reason of hostility or otherwise, naming the persons 

and showing why their affidavits cannot be procured and what affiant believes they 

would testify to if sworn, with his reasons for his belief, the court may make any 

order that may be just, either granting or refusing the motion, or granting a 

continuance to permit affidavits to be obtained, or for submitting interrogatories to or 

taking the depositions of any of the persons so named, or for producing documents in 

the possession of those persons or furnishing sworn copies thereof.” Ill. S. Ct. R. 

191(b) (eff. Jan. 4, 2013). 

¶ 92 After the Grossman defendants filed their motion for summary judgment in the instant 

legal malpractice case, plaintiff filed a motion to take additional oral discovery and attached 

an affidavit naming at least 32 witnesses whom plaintiff argued needed to be deposed before 

responding to the Grossman defendants’ motion for summary judgment. However, plaintiff’s 

affidavit did not meet the requirements of Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 

2013), since she did not aver what she believed each prospective witness would testify to and 

the reasons for her beliefs. “ ‘The affidavit must state specifically what the affiant believes 

the prospective witness would testify to if sworn and reasons for the affiant’s belief.’ ” Olive 

Portfolio Alpha, LLC v. 116 W. Hubbard Street, LLC, 2017 IL App (1st) 160357, ¶ 29 

(quoting Giannoble, 233 Ill. App. 3d at 1065 (“Rule 191(b) requires facts, not 

conclusions.”)). Instead, plaintiff’s affidavit sets forth a long list of potential witnesses, 

including doctors who may know more information concerning the decedent’s medical 

condition and current and former Nicor employees who may know more information 

concerning testing the drinking water for contamination, the failure to remediate the problem, 

and the harassment the decedent may have received after reporting it. However, allegations 

48 
 

 

 

 

 

 

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in a “general sense” of what relevant information proposed witnesses would provide for the 

plaintiff’s claim is not sufficient to show compliance with Rule 191(b). Wynne v. Loyola 

University of Chicago, 318 Ill. App. 3d 443, 456 (2000) (finding that “[f]ailure to comply 

with Rule 191(b) defeats an objection on appeal that insufficient time for discovery was 

allowed”). It would appear that the decedent was on a “fishing excursion” and had no idea 

what, if anything, the witnesses would provide in the manner of useful evidence. As a result, 

plaintiff’s affidavit did not comply with the requirements of Rule 191(b), since she did not 

state specifically what she believed the prospective witness would testify to if sworn and the 

reasons for her belief. 

¶ 93 Also, as explained earlier, the decedent’s claim that he was not totally disabled and that 

he could return to work in a different job at the time of his leave of absence was barred by the 

doctrine of judicial estoppel. None of the testimony sought by plaintiff could have changed 

the fact that the decedent represented to the Social Security Administration and the Illinois 

Workers’ Compensation Commission that he was disabled and unable to work. As a result, 

the testimony sought by plaintiff would not have prevented judicial estoppel from barring the 

decedent’s claims as a matter of law, and the trial court did not need extensive deposition 

testimony to consider defendants’ motion for summary judgment. 

¶ 94 Additionally, plaintiff did not aver that any of the 32 witnesses would raise an issue of 

material fact by testifying that the decedent was not totally disabled during his leave of 

absence and could return to work. Plaintiff lists only one physician as a potential witness, Dr. 

Siegfried, who she avers “will have information about [the decedent]’s medical condition,” 

without explaining what he would reveal about the decedent’s health or his ability to work. 

The proof of claim forms completed by Dr. Siegfried were already in the record in the 

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whistleblower case, and the trial court determined that they did not raise a genuine issue of 

material fact that the decedent was disabled and unable to work. Since plaintiff’s affidavit did 

not aver that any of the 32 witnesses would testify that the decedent was not totally disabled 

and was able to return to work, the depositions sought by plaintiff would not have raised a 

genuine issue of material fact. 

¶ 95 Furthermore, the legal malpractice case had been pending for more than a year at the time 

plaintiff filed her motion for additional discovery, and both parties had exchanged written 

discovery, including answers to interrogatories and production of thousands of pages of 

documents. At the time plaintiff filed her motion, she had not conducted any depositions, 

despite her claim that she needed to depose at least 32 witnesses to respond to the motion for 

summary judgment. As a result, we cannot say that the trial court abused its discretion when 

it denied plaintiff’s motion in part and granted her leave to depose one additional witness. 

¶ 96 Plaintiff argues that strict compliance with Rule 191(b) is not required where a motion for 

summary judgment is made by the party who does not have the burden of proof on an issue 

asserting that the nonmovant cannot prove a prima facie case, and the respondent has not 

been provided a reasonable opportunity to conduct discovery before summary judgment. 

Jiotis v. Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 26. However, Jiotis further 

explained that, “to demand strict compliance with Rule 191(b) before adequate discovery— 

before a party even knows the identity of witnesses who can provide material facts—turns 

Rule 191(b) from a procedural safeguard for the nonmovant into a tactical weapon for the 

movant.” (Emphasis added.) Jiotis, 2014 IL App (2d) 121293, ¶ 29. In the instant case, we 

cannot say that plaintiff did not have an adequate opportunity to conduct discovery. At the 

time of plaintiff’s motion, the parties had exchanged written discovery, including answers to 

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interrogatories and production of thousands of pages of documents, and plaintiff was able to 

name at least 32 potential witnesses that she wanted to depose who she claimed had 

knowledge of material facts, yet no depositions other than the decedent’s were noticed during 

the 14 months that the case was pending. As a result, we cannot say that the trial court abused 

its discretion when it limited plaintiff to one additional deposition, and we affirm. 

¶ 97 CONCLUSION 

¶ 98 For the foregoing reasons, we affirm the judgment of the trial court. The trial court did 

not err when it granted defendants’ motion for summary judgment, and it did not abuse its 

discretion when it found that judicial estoppel barred the decedent’s claims. Additionally, the 

trial court did not abuse its discretion when it limited the scope of discovery prior to ruling 

on the motion for summary judgment. 

¶ 99 Affirmed. 

51