## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Lev ine v. EBI, LLC

, 2013 IL App (1st) 121049

Appellate Court Caption SUSAN L EVI NE and MARC L EVI

NE, Plaintiffs-Appellan t s , v. EBI
, L L C, f/k/a EBI , L P, d/b/a Biomet Spine, Defe ndant-Appe llee.

District & N o. First District, Third Division Docke t No. 1-12-1049

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed J anuar y 23, 2013

Fe bruar y 28, 2013
Marc h 6, 2013

Held (Note : This sy ll abus

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

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

o r t h e

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

f t h e

rea der

. ) In an action for the injuries plaintiff suffe red when her surg eon wa s not supplied with the instruments nece ssary to repa ir her back, the rec ord was sufficie nt to establish that defe ndant, the party responsible for providing the instruments, was estopped from asser ting the statute of limit ations as a defense be cause of the fa lse response s it made to plaintiffs’ di scover y reque sts.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-L -2006; the Hon. Marc ia Mara s, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l L an e & L ane, L L C, of Chicag o (Stephen I

. L ane, of counsel), for appellants.

Fr eebor n & Peters L L P, of Chicag o (Will iam N. Howar d and Gar ry L

. Wil ls, of counsel), f

or appe llee.

Panel PRES I DI NG J USTI CE NEVI L L E delivere d the judgme nt of the court, with opinion.
J ustices Sterba a

nd Hy man conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Susan and Marc L evine sued Interpore Cross International in 2009 to rec over for injuries Susan suffe red beca

use her surg eon did not have the instruments he neede d to c omplete an operation Susan underw ent in Marc h 2007. The L evines named EBI and others as responde nts in d i s co v er y , and the L evines asked all the responde nts questions about the parties responsible for providing the instruments neede d for S u s an’s operation. EBI responde d that it did not know who bore responsibility for providing the instruments. In 2011, when the L evines lear ned that EBI should have supplied the instruments, they filed an amende d complaint naming EBI as a defe ndant. The trial court dismiss ed the claim in the complaint ag ainst EBI as untimely and found no cause to delay appea l under Supreme Court Rule 304(a) (I ll. S. C t. R. 304(a) (e ff. F eb. 26, 2010))

. ¶ 2 In th i s ap p ea l
, the L evines argue that the trial court should not have added the Rule 304(a) languag e, that EBI ’s fra udulent conce alment made the claim timely
, and that the court should have found EBI equitably estopped from raising the statute of limit ations as a defe nse. We hold that the trial court did not abuse its discretion in adding Rule 304(a) languag e and that EBI ’s fra

udulent conce alment does not make the complaint timely . Howeve r, we hold that the L evines have stated adequate g rounds for application of equitable estoppel. There fore
, we reve rse th e j udg ment and rema nd for further proce eding s on the amende d complaint.

¶ 3 BA CKGROUND ¶ 4 Dr. David Shapiro fused part of Susan’s spine in 1996. He inserted medical scre ws into Susan’s back as part of the 1996 opera tion. Susan’s sever e lower back pain returne d in 2007, and Dr. Shapiro rea liz ed that he neede d to repla ce the 1996 scre ws. Dr. Shapiro’s secr etar y contac ted the make rs of the 1996 de vice a nd the new de vice and both br oug ht packa g es of hardw are to the operation on Marc h 5, 2007. Dr. Shapiro neede d instruments called drivers, which functioned like scre wdriver s to fit the scre ws in Susan’s back, to allow him to safe ly

remove the 1996 device

.

-2-¶ 5 After Dr. Shapiro cut into Susan’s back and strip p ed t h e m u s cle awa y from the 1996 devi ce , Dr. Shapiro closed Susan’s back without repla cing the device

. In his repor t of the operation, written shortly afte r the ope ration, Dr. Shapir o said: “The company had b r o u ght th e in s tr u mentation in, but unfortunate ly the proper driver
was not available

. The company repr esentative admitted that many of t he drivers wer e simply not in the set and he was hoping that this would work. Severa l dif fer ent options

wer e tried a

nd finally it was dec ided to abandon the proce dure.” ¶ 6 As a prophylactic measure , the hospital administered antibiotics to S u s an p en d i nga second operation with all of the nece ssary instruments. Two day s afte r the initial operation, Dr. S hapiro performe d a second operation in which he succe ssfull y re p l ac ed the device i n Susan’s back. Susan later develope d an infec tion o f a k i nd that usually results from antibiotics. ¶ 7 Susan and her husband, Marc
, sued Interpore Cross International in Fe bruar y 2009. They added 17 other parties, including Dr. Shapiro and EBI
, as responde n t s in discovery

. The L ev i n es s en t Dr. Shapiro’s repor t and the same questions to all of the responde nts in discovery

. First, they asked the responde nts to identify “The company” to which Dr. Shapiro ref err ed. Second, they ask ed the responde nts to identify the persons or corpor ations responsible for bring ing “the missing instruments/tool s/drivers” to the operation Dr. Shapiro perf ormed on Mar ch 5, 2007. ¶ 8 EBI submitt ed a response in which it claimed it did not know who bore responsibility for bring ing the missing instruments to the operation, and it did not know to which entity Dr. Shapiro ref

err ed in his repor

t. Other responde nts in discovery produce d simil arly unhelpful

answe rs. The L evines conver ted Dr. Shapiro to a defe ndant in J uly 2009, but they identified EBI only as a r espondent in discover y

. ¶ 9 The L evines took Dr. Shapiro’s d ep o s i t ion in April 2011. Dr. Shapiro said that in his

m an y y ear s as a surg eon, he had never befor e or since encounte red a failure of a medica l supplier to provide the instruments nece ssary for an operation. Dr. Shapiro testified th at a repr esentative of the company that should have broug ht the d ri v ers attended the surg ery

. When time came to remove the 1996 device from Susan’s back, Dr. Shapiro aske d the repr esentative, “[W ]here’s the driver for the scre w? ” Acc ording to Dr. S h ap i ro , the

re p re s entative answere d, “[O]h, well, i t wasn’t in the box
, but we figur ed y ou could m ake do without it.” Dr. Shapiro said that much later, afte r discussions with the L evines’ lawyer, he rea l i z ed that EBI was responsible for bring ing the drivers to the operation, and the repr esentative who attended the operation worke d for EBI

. Dr. Shapiro said that he and the L evines’ lawy er discussed the identity of the company at fault back i n 2 0 0 9
, b efore the L evines named Dr. Shapiro a s a def endant. ¶ 10 In April 2011, a fe w day s after Dr. Shapiro’ s deposition, the L evines filed a n amende d complaint that named EBI as a defe ndant. The L evines alleg ed that EBI neg lige ntly shipped
t o the hospital an instrument kit that did not include the drivers neede d to com p l et e t h e surg ery on Susan’s bac k. ¶ 11 EBI invoked section 2-619 of t h e Code of Civil Procedur e (Code) (735 I L CS 5/ 2-619 (W est 2010)) as the basis for its motion to strike the amende d complaint as untimely

. I n

-3-response , the L evin es relied on section 13-215 of the Code (735 I L CS 5/13-215 (West

2010)), which allows a plaintiff more time to file a claim if a defe ndant fra udulently conce als the ca use of a ction. ¶ 12 The trial court dismiss ed the claim ag ainst EBI as untimely
, and the court added a finding of no just cause to delay

enfor ceme nt or appe al. The L evines now a ppeal.

¶ 13 ANALYSI S ¶ 14 Record on A ppeal ¶ 15 As a preliminary matter, EBI asks us to strike cer tain documents from the cer tified rec ord

on appea l. Supreme Court Rule 329 establishes p ro ce dures for correc ting an inacc urate or improperly authenticated rec ord. I ll. S. Ct. R. 329 (ef f. J an. 1, 2006); see W

ieser v. Missouri Pacific R.R. Co.
, 98 I ll. 2d 359, 364 (1983). EBI has prese nted no rec ord s h o wi n g t h at it made the nece ssary motion in the trial court for corr ecting the rec ord. See I ll. S. Ct. R. 329 (ef f. J an. 1, 2006). Be cause EBI has not followed the proce dures presc ribed in the rules for

corr ectingthe re cord, w e deny its mot ion. See W

ieser , 98 I ll. 2d at 364.

¶ 16 Rule 304(a) Finding ¶ 17 The L evines a rgue first that the tria l court should not ha ve adde d languag e to the orde r making the dismiss al of EBI immediately appea lable under Rule 304(a)

. I ll. S. Ct. R. 304(a) (ef f. Fe b. 26, 2010). When a judgme nt finally disposes of one or more separ ate claims, or all of the claims ag ainst one or more parties, the trial court has discretion to make a Rule 304(a) finding

. Bastas v

. Vicere
, 196 I ll. App. 3d 624, 628 (1990). The trial court should consider whether allowingan immediate a ppeal “ would have the eff ect of expediting the resolution of the controve rsy , would be fair to the parties
, an d would conser ve judicial resour ces.” Matson v. Department of Human Right s , 322 I ll. App. 3d 932, 938 (2001). Bec ause of the importance of EBI ’s role in this case , and the difficulty of proce eding on the claims ag ainst other defe ndants without considering the eff ect of EBI ’s actions, we find that the trial court did not abuse its discretion when it found no grounds for de laying this appe al.

¶ 18 Fr audulent Conce alment ¶ 19 W e re v i ew d

e novo an order dismiss ing a lawsuit under section 2-619 of t h e C o d e. Kedzie & 103rd Currency Exchange

, Inc. v. Hodge
, 156 I ll. 2d 112, 116 (1 9 9 3 ). We must construe the pleading s and supporting documents in the light most favor able to the L evines. Czarobski v. Lata
, 227 I ll. 2d 364, 369 (2008). An appea l from a dismiss al under section 2- 619 “is the same in nature as one following a g rant of summary judgme nt” ( Kedzie
, 156 I ll. 2d at 116), which “is a drastic means of di s p osing of litigation and *** should be allowed only when the rig ht of t he mo v i n g p ar t y i s clea r and fre e from doubt.” Adams v. Northern Illinois Gas Co. , 211 I ll. 2d 32, 43 (2004). ¶ 20 Section 13-215 of the Code provides:

“I f a person l i ab le t o an action fra udulently conce als the cause of such action from the knowledg e of the person entitled there to, the ac t i o n m ay be commence d at any time

-4-within 5 y ear s afte r the person entitled to bring the same discovers that he or she has such

cause of ac tion, and not after war ds.” 735 I L CS 5/ 13-215 (West 2010). ¶ 21 I llinois courts have consistently interpr et ed s ection 13-215 to apply only to fraudule nt

conce alment of cause s of action. Pratt v. Sears Roebuc k & Co

. , 71 I ll. App. 3d 825, 830 (1979); Guebard v. Jabaay
, 65 I ll. App. 3d 2 55, 260 (1978). The Pratt court held that the fra udulent conce alment statute “applies to fra u d u le nt c o n cea lment of cause s of action; it does
not apply to fra

udulent conce alment of the identity of tort-fe asors.” Pratt
, 71 I ll. App. 3d at 830. Whe n t h e t ortfea sor fra udulently conce als the identity of the tortfea sors, and the tortfea sor does not conce al the fac t that the plaintiff suffe red an injury
, section 13-215 does
not allow the plaintiff an extension of the limit ations period for filing his claim. Pratt
, 71 I ll. App. 3d at 830; Guebard, 65 I ll. App. 3d at 260. ¶ 22 Her e, the L evines knew on Marc h 5, 2007, that a tortfea sor had injured them by failing
to bring nece ssary instruments to the operation on Susan’s back. The L evines had two y ear s to sue the tortfea sors for neg lige nce. 735 I L CS 5/13-202 (West 2006). Section 13-215 does
not extend their limit ations period beyond Marc h 2009. The trial court corr ectly reje cted the L evines’ argument that EBI ’s dishonest answe rs to d i s co v ery operated as fra udulent

conce alment of the c ause of action that could make the complaint ag ainst EBI timely

.

¶ 23 Equitable Estoppel ¶ 24 Next, the L evines argue that we should find EBI equitably estopped fr om assertingthe
statute of limit ations as a d ef en s e to their claim. The L evines rely on EBI ’s answe rs to discovery as the ba sis for the estoppel. EBI counter s that the L evines wa ived the equitable estoppel issue by failing to raise it in the trial court. Howeve r, we note that “the waiver rule is a limit ation on the parties and not the jurisdiction of this court, which has the responsibility of achie ving a just result and maintaining a sound and uniform body of prec edent.” Michigan Ave nue National Bank v. County of Cook
, 191 I ll. 2d 493, 518 (2000). This court should not “aid a perpe tration of a fra ud” ( Mother Earth, Ltd. v. Str awberry C amel, L td.
, 72 I ll. App. 3d 37, 53 (1979))
, and “equity will not aid any person who *** is seeking to take advanta g e of his own wrong ” (

Mother Earth
, 72 I ll. App. 3d at 53). We choose to addre ss the argument despite the wa iver. ¶ 25 In Vaughn v. Spe aker , 126 I ll. 2d 150 (1988), our supre me court said that for e quitable estoppel to apply : “F irst, there must be words or conduct by the party ag ainst whom the estoppel is alleg ed amounti n g t o a misrepre sentation or conce alment of materia l fac ts. Second, the party ag ainst whom the estoppel is alleg ed must have had knowledg e at the t ime the repr esentations wer e made that the r e p r e s e ntations wer e untrue. This knowledg e need not be actua l but may be implied; misrepre sentations made with g ross neg lige nce can form

a basis for equitable estoppel. [C itation.] Third, the truth respe cting the repr esenta tions

so made must be un k n o wn t o the party claiming the benefit of t he estoppel at t he ti me that the repr esentations wer e made an d at the time that they wer e acte d on by him. Fourth, the party estopped must intend or rea sonably expect that his cond u ct o r repr esentations will be acte d up o n by the party asser ting the estoppel or the public

-5-g ener ally ; the conduct and repr esenta tions must be such as would ordinarily lead to the results complained of. [C itations.] Fifth, the party claiming the benef it of the est o p p el
must have in g ood faith relied upon the m isrepre sentation to his detrim ent. I t has been said that this relianc e must be rea sonable, and that a party claiming estoppel cannot have
acte d improvidently

. [C itation.] Whil e this is true as a g ener al rule, it is also true that if the party alleg ed to be estopped is g uilty of ac tual intentional dece it and he rea sonably expected his decept i v e statements or conduct to be relied upon, he is in no position to

co n tend that the party acting upon his dece ption was neg lige nt in doing so. This i s consistent with the principle that one g uilty of fra udulent misrepre sentation cannot asser t that the person defr auded was neg lige nt in failing to discover the truth. [C itations.] The six th require ment is that the party cl ai m i n g the benef it of the estoppel must have so acte d, beca

use of such repr esentations or conduct, that he would be prejudice d if the first party is permitted to deny

the truth there of.” Vaughn , 126 I ll. 2d at 162-63. ¶ 26 Be cause this issue arises on a dismiss al under section 2-619 of t h e C o d e, we m ust construe the rec ord in the light most favor able to the L evines. Czarobski
, 227 I ll. 2d at 369. Acc ording to Dr. Shapiro, a repr esentative of EBI attended the operation on Marc h 5, 2007. When Dr. S hapiro asked for the driver so that he could remove the device he inserted into Susan’s back in 1 9 9 6
, t h e E BI repr esentative said that his employ er had not included the driver with the set of equipment it sent. Fr om this evidenc e, a trier of fact could infer that E BI ’s agent, and there fore EBI
, knew that it failed to provide the requisite drivers for t h e Marc h 5, 2007, operation, and that Dr. Shapiro mea nt to refe r to EB Iwhen he wrote in his repor t of the fa ilings of “ [t ]he company .” See Van Hulle v. State Farm Mutual Automobile Insurance Co.
, 44 I ll. 2d 227, 231 (1969); Kuska v. Folkes
, 73 I ll. App. 3d 540, 544 (1979). Thus, the L evines have prese nted evidenc e that could support a findin g t h at E BI falsely stated in its response s to discovery that it did not know who bore responsibility for supplying the drivers m i s s i n g at the surg ery on Marc h 5, 2007. The evidenc e could also support a finding that EBI lied when it said that it did not know “[t] he company ” to which Dr. Shapiro ref err ed in his repor

t of the surg ery

. ¶ 27 E BI s h o u ld have expected that its response s to discovery would lead the L evines t o ref rain from suing EBI u n t i l they discovere d that EBI lied in its discovery response s. The

rec ord befor e this court does not show that the L evines acte d in bad faith when they ref raine d from suing EBI until long afte r the expiration of the limit ations period. The L evines would suffe r the prejudice of losing their claim ag ainst the party that appea rs the most neg lige nt if this court permits EBI to asser t the statute of limit ations as a defe nse to the L evines’ claim. ¶ 28 EBI claims that the L evines knew at the time they rec eived EBI ’s answe rs that EBI lied, beca use the L evines’ attorney helped Dr. Shapiro rea liz e that EBI supplied t h e defic ient instrument packa g e. B ut Dr. Shapiro did not say that the L evines’ attorney knew EB Ibore responsibility for the injury
, only that the conversations with that attorney l ed Dr

. S h apiro
to ascr ibe responsibility to EBI

. Moreove r, the L evines have adduce d evidenc e that could support a finding that EBI actua lly intentionally dece ived the L evines, so under the principles
set out in Vaughn
, EBI “is in no position to contend that the party acting upon his dece ption was neg lige nt in doing s o ” ( V a u ghn
, 126 I ll. 2d at 163), beca use “one g uilty of fraudulent misrepre sentation cannot asser t that the person defr auded was neg lige nt in failing to discover

-6-the truth.” Vaughn , 126 I ll. 2d at 163.

¶ 29 Followin g the rea soning of Vaughn
, we find that the L evines have prese nted ade quate g rounds for equitably estopping EBI from asser ting the statute of limit ations as a defe nse to the L evines’ claim. Be cause the L evines did not raise the issue in the trial court, we rema nd the case to permit EBI to p re s ent evidenc e to counter the L evines’ evidenc e conce rning equitable e stoppel.

¶ 30 CONCLUSI ON ¶ 31 The trial court did not abuse its discretion when it found no just cause to delay appea l of the dismiss al of EBI as a party from the lawsuit. Be cause EBI appar ently tried to dece ive the L evines about only the identity of the tortfea sor, and n o t ab out whether the L evines had suffe red an injury due to a tort on Marc h 5, 2007, section 13-215 of the Code does not extend the l imitations period for the L evines’ claim ag ainst EBI . Howeve r, the recor d prese nts an adequate basis for finding that EBI ’s false response s to the L evines’ discovery equitably estops it from asser

ting the statute of limitations as a defe nse to the L evines’ claim ag ainst it. Acc ording ly
, we reve rse the judgme nt of the trial court and rema nd for further proce eding s in acc ord with this opinion.

¶ 32 Reverse d and re manded.

-7-