Illinois Official Reports 

Appellate Court

Sandler v. Sweet, 2017 IL App (1st) 163313

Appellate Court 

Caption

PHILIP W. SANDLER, Plaintiff-Appellant, v. JERRY J. SWEET, 

Ph.D., NORTH SHORE MEDICAL GROUP, and NORTH SHORE 

UNIVERSITY HEALTH SYSTEM, Defendants-Appellees.

District & No. First District, Sixth Division 

Docket No. 1-16-3313

Filed August 4, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 16-L-62008; the 

Hon. Roger G. Fein, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Ronald L. Bell, of Ronald L. Bell & Associates, P.C., of Libertyville, 

for appellant.

Kevin J. Clancy, Andrea H. Kott, and Joseph E. Comer, of Lowis & 

Gellen LLP, of Chicago, for appellees.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the 

court, with opinion.

Justices Rochford and Delort concurred in the judgment and opinion.
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 OPINION 

¶ 1 The plaintiff, Philip W. Sandler, brought this action against the defendants, Jerry J. Sweet, 

Ph.D., North Shore Medical Group, and North Shore University Health System, alleging 

medical negligence, common law fraud, and breach of fiduciary duty. The circuit court granted 

the defendants’ motion to dismiss, finding that no physician-patient relationship existed and, 

therefore, no duty of care was owed to the plaintiff. The court subsequently denied the 

plaintiff’s motion for leave to file a second amended complaint. For the reasons that follow, we 

affirm. 

¶ 2 The following facts are derived from the various pleadings, which we accept as true in the 

context of a motion to dismiss. See Wackrow v. Niemi, 231 Ill. 2d 418, 420 (2008). 

¶ 3 This case arises directly out of a medical negligence action that the plaintiff filed in the 

circuit court of Cook County (case No. 09 L 08290) against Advocate Good Samaritan 

Hospital (Advocate). In that case, the plaintiff sought damages for a brain injury he allegedly 

sustained after attempting suicide while receiving inpatient psychiatric treatment at Advocate. 

During the course of that litigation, Advocate retained Dr. Sweet, a board certified clinical 

psychologist and neuropsychologist, as a controlled expert under Illinois Supreme Court Rule 

213(f)(3) (eff. Jan. 1, 2007). 

¶ 4 In February 2012, Dr. Sweet conducted a neuropsychological evaluation of the plaintiff to 

determine the nature and extent of his alleged brain injury. Dr. Sweet prepared a written report 

of his findings and opined that the plaintiff did not suffer a brain injury as a result of his suicide 

attempt at Advocate. Two years later, in February 2014, Dr. Sweet issued a supplemental 

report based upon his review of additional medical records. The doctor acknowledged that the 

additional medical records noted “consideration of brain dysfunction in the form of hypoxic 

ischemic encephalopathy,” but stated that his opinion remained the same. Specifically, he 

stated that the plaintiff “does not have a cognitive disability, does not have acquired brain 

dysfunction[,] *** [and] does not show evidence of executive dysfunction.”

¶ 5 On February 4, 2016, the plaintiff filed the instant action against Dr. Sweet and his 

employers, North Shore Medical Group and North Shore University Health System. The 

plaintiff’s amended complaint sought recovery on theories of medical negligence (count I), 

common law fraud (count II), and breach of fiduciary duty (count III), all of which are based 

exclusively upon Dr. Sweet’s original and supplemental reports provided in conjunction with 

the plaintiff’s underlying litigation against Advocate. The plaintiff alleged that Dr. Sweet 

failed to correctly diagnose his brain injury, which caused him harm because he failed to seek 

“treatment and rehabilitation, which could have enhanced his quality of life.”

¶ 6 In June 2016, the defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of 

the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)), contending that 

Dr. Sweet enjoys an absolute privilege from civil liability for any statements he made during 

the course of the underlying judicial proceedings. Alternatively, the defendants argued that no 

physician-patient relationship exists between Dr. Sweet and the plaintiff and, therefore, Dr. 

Sweet owed no duty of care to the plaintiff. In support of their motion, the defendants attached 

as Exhibit B, a transcript of Dr. Sweet’s deposition testimony in the underlying case, in which 

he stated that he was retained as an expert witness by counsel for Advocate. 
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¶ 7 In response, the plaintiff maintained that the doctrine of absolute privilege applies only to 

experts appointed by the court pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 

2011), and is limited to statements the expert made while testifying at a deposition or at trial. 

According to the plaintiff, because his claims are based upon statements made in Dr. Sweet’s 

written reports, and because Dr. Sweet authored those reports before Advocate disclosed him 

as a “controlled expert” under Illinois Supreme Court Rule 213(f)(3), Dr. Sweet is not immune 

from civil liability. The plaintiff also disputed the defendants’ assertion that no 

physician-patient relationship existed between himself and Dr. Sweet. 

¶ 8 On August 4, 2016, the circuit court entered a written order, dismissing the plaintiff’s 

amended complaint with prejudice. The court observed that Dr. Sweet was retained by 

Advocate, the plaintiff’s adversary in the underlying medical malpractice case, and his role 

was limited to evaluating the nature and extent of the plaintiff’s alleged brain injury. The court 

further noted that Dr. Sweet was not sought out by the plaintiff or by any other physician caring 

for the plaintiff, did not report to the plaintiff, and was not involved in the plaintiff’s care or 

treatment. The court concluded, therefore, that no physician-patient relationship existed and 

Dr. Sweet owed no duty of care to the plaintiff.1

 On September 1, 2016, the plaintiff filed a 

motion for reconsideration and a motion for leave to file a second amended complaint, which 

the circuit court denied. This timely appeal followed. 

¶ 9 A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff’s claim but 

asserts that certain defects or defenses exist outside of the pleadings which defeat the claim. 

Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. In reviewing a section 2-619 motion, the court is 

obligated to construe the pleadings and supporting documents in the light most favorable to the 

nonmoving party, and to accept as true all well-pleaded facts in the plaintiff’s complaint. Bjork 

v. O’Meara, 2013 IL 114044, ¶ 21. We review an order granting a section 2-619 motion 

de novo. Id.

¶ 10 The plaintiff’s first contention on appeal is that the circuit court erred in dismissing count I 

of his amended complaint, which alleged that Dr. Sweet was medically negligent for failing to 

diagnose him with a brain injury. We disagree. 

¶ 11 In a negligence action for medical malpractice, the plaintiff’s complaint must allege facts 

that are sufficient to show “the existence of a duty owed by the defendant to the plaintiff, a 

breach of that duty, and an injury proximately caused by that breach.” Kirk v. Michael Reese 

Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987). Whether a duty exists is a question of 

law to be determined by the court. Id. In determining whether a duty exists in a particular case, 

a court will consider “the foreseeability of the plaintiff’s injury, the likelihood of the 

occurrence, the magnitude of the burden of guarding against it, and the consequences of 

placing that burden on the defendant.” Doe v. McKay, 183 Ill. 2d 272, 278 (1998). Our 

supreme court has stated that a physician’s duty is limited to situations in which a direct 

physician-patient relationship exists or there is a special relationship between the patient and 

the plaintiff. Id. at 279 (citing Kirk, 117 Ill. 2d at 529-32).

 

1 Although the circuit court agreed with the defendants’ assertion that Dr. Sweet’s 

neuropsychological examination of the plaintiff was conducted “during judicial proceedings,” the court 

nevertheless stated that it was not granting the defendants’ motion to dismiss on the basis of absolute 

privilege. 
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¶ 12 In this case, the major point of contention on the plaintiff’s medical negligence claim is 

whether Dr. Sweet, an expert witness retained by the plaintiff’s adversary in pending litigation, 

owed a legal duty to the plaintiff. In resolving the question of duty, we consider the readily 

analogous cases of Cook v. Optimum/Ideal Managers Inc., 130 Ill. App. 3d 180 (1984), and 

In re Detention of Duke, 2013 IL App (1st) 121722. 

¶ 13 In Cook, 130 Ill. App. 3d at 182, the plaintiff, a claimant in a workers’ compensation case, 

was examined by a physician retained by his employer. When the physician refused to furnish 

the plaintiff with a report of the medical examination, the plaintiff filed suit, alleging that the 

withholding of the report damaged him because his treating physicians did not have access to 

it. Id. at 187-88. On appeal, the court held that the physician did not owe a duty of care to the 

plaintiff, including a duty to disclose medical information. Id. at 189. The court explained that 

the physician did not agree to see the plaintiff for purposes of care and treatment, but rather for 

purposes of an examination on behalf of the plaintiff’s adversary in pending litigation. The 

court further noted that the plaintiff had other treating physicians and determined the 

foreseeability and likelihood of injury resulting from withholding the examination report was 

“insubstantial.” Id. Although the magnitude of the burden in guarding against such injury was 

“slight,” the court nonetheless concluded that a duty of care should not be recognized under 

these circumstances. Id. at 189-90. 

¶ 14 In Duke, 2013 IL App (1st) 121722, ¶¶ 1, 7, the plaintiff filed a medical negligence 

counterclaim against a court-appointed forensic psychiatrist, alleging that she improperly 

diagnosed and treated him as a sexual sadist. Affirming the dismissal of the plaintiff’s medical 

negligence counterclaim, the appellate court held that no physician-patient relationship existed 

between the plaintiff and the forensic psychiatrist. We reasoned that: 

“The relationship between Dr. Buck and plaintiff is not a therapeutic relationship. 

Rather, Dr. Buck is a medical expert for the State, a forensic psychiatrist who 

interviewed plaintiff for purposes of the petition under the [Sexually Violent Persons 

Commitment] Act. During oral argument, it was elicited from plaintiff’s counsel that 

Dr. Buck is not a treating doctor for plaintiff. Plaintiff also admits this in his notice of 

appeal ***. Without such a therapeutic relationship, Dr. Buck has no duty of care to 

plaintiff; she is an expert for the State without a duty to plaintiff and plaintiff’s 

counterclaim was properly dismissed.” Id. ¶ 19. 

¶ 15 Similarly here, it is clear from the pleadings that the plaintiff was not Dr. Sweet’s patient. 

As the circuit court correctly noted, Dr. Sweet was not sought out by the plaintiff or by any 

other physician caring for the plaintiff, did not report to the plaintiff, and was not involved in 

the plaintiff’s care or treatment. Rather, Dr. Sweet was retained as an expert witness by 

Advocate, the plaintiff’s adversary in pending litigation, and his role was limited to evaluating 

the nature and extent of the plaintiff’s alleged brain injury. Although Dr. Sweet may have 

employed medical techniques in examining the plaintiff, it is plain that no medical treatment 

was intended or in fact provided. The neuropsychological exam was conducted simply as a 

disclosure device in litigation and, indeed, one whose benefit inured not to the plaintiff but to 

the plaintiff’s adversary. Because physicians conducting medical examinations at the request 

of third parties assume a fundamentally different role from treating physicians (see Johnston v. 

Weil, 396 Ill. App. 3d 781, 787 (2009)), no physician-patient relationship exists between Dr. 

Sweet and the plaintiff and, therefore, Dr. Sweet owed no duty of care to the plaintiff. 
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¶ 16 In so holding, we decline the plaintiff’s invitation to follow case law from other 

jurisdictions, which recognize that a “limited physician-patient relationship” exists where a 

physician performs an independent medical examination at the request of a third party. See 

Ritchie v. Krasner, 211 P.3d 1272, 1280 (Ariz. Ct. App. 2009); Greenberg v. Perkins, 845 P.2d 

530, 533 (Colo. 1993) (en banc) (a physician conducting an independent medical examination 

has a duty to perform the examination in a manner that does not cause physical harm to the 

examinee). 

¶ 17 As discussed above, the Illinois Supreme Court has clearly stated that a plaintiff cannot 

maintain a medical negligence cause of action absent a direct physician-patient relationship 

with the defendant unless a special relationship exists between a patient and the plaintiff. Kirk, 

117 Ill. 2d at 531; Doe, 183 Ill. 2d at 279. Indeed, our supreme court reaffirmed the 

“long-established principles in Kirk and Doe” and declined to expand the scope of the 

physician-patient relationship to nonpatient third parties. See Tedrick v. Community Resource 

Center, Inc., 235 Ill. 2d 155, 172 (2009). Given the Illinois Supreme Court’s reluctance to 

expand the scope of physician-patient relationship to nonpatient third parties, we similarly 

decline the plaintiff’s invitation to recognize a “limited physician-patient relationship” in this 

case. 

¶ 18 We note that this conclusion is in accord with the majority of other courts that have 

considered this issue and held that an independent medical examination performed at the 

behest of a third party does not give rise to a physician-patient relationship or to medical 

malpractice liability. See, e.g., Smith v. Radecki, 238 P.3d 111, 117 (Alaska 2010) (citing cases 

and concluding that the vast majority of courts have not found a duty); Felton v. Schaeffer, 279 

Cal. Rptr. 713, 716-17 (Ct. App. 1991) (citing cases); Martinez v. Lewis, 969 P.2d 213, 219-20 

(Colo. 1998) (en banc) (citing cases). 

¶ 19 In further support of his argument that Dr. Sweet owed him a duty of care, the plaintiff cites 

to the American Medical Association’s Code of Ethics as well as journal articles authored by 

Dr. Sweet in which he purportedly concedes that a psychiatrist owes a duty of care when 

performing a psychological exam as a retained expert. We are not persuaded. The 

determination of whether Dr. Sweet owed a duty of care to the plaintiff is a question of law, not 

a question of medical ethics. Moreover, the plaintiff’s reliance on Dr. Sweet’s opinions about 

duty of care—as expressed in his journal articles—transcends the bounds of his competence 

and intrudes on the exclusive province of the court. See Reynolds v. Decatur Memorial 

Hospital, 277 Ill. App. 3d 80, 86 (1996) (“Plaintiffs may not, in the guise of offering expert 

medical opinion, arrogate to themselves a judicial function and obviate a ruling on the 

existence of or extent of a legal duty which might be owed by a physician to a patient.”). As a 

consequence, the secondary sources cited by the plaintiff are not dispositive of this case. 

¶ 20 In sum, we conclude that no physician-patient relationship exists, and thus, no duty of care 

could have extended from Dr. Sweet to the plaintiff. As a consequence, the circuit court 

properly dismissed count I of the amended complaint alleging medical negligence against Dr. 

Sweet. 

¶ 21 We next consider the plaintiff’s argument that the circuit court erred in dismissing his 

breach of fiduciary duty claim as pled in count III of his amended complaint. In response, the 

defendants maintain that the plaintiff’s claim was properly dismissed because it is duplicative 

of his medical negligence claim. We agree with the defendants. 
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¶ 22 In Neade v. Portes, 193 Ill. 2d 433, 444-45 (2000), our supreme court stated that the 

elements of breach of fiduciary duty overlap with those of medical negligence to such an extent 

that the former claim would “boil down” to the latter in any case arising out of the same 

operative facts. Because the elements are closely related, the court held that, if both claims are 

derived from the same operative facts and result in the same injury, the breach of fiduciary duty 

claim should be dismissed as duplicative. Id. 

¶ 23 In this case, the operative facts of both the plaintiff’s medical negligence claim and his 

breach of fiduciary duty claim are based exclusively upon statements made in Dr. Sweet’s 

original and supplemental reports. Both claims allege that Dr. Sweet failed to correctly 

diagnose the plaintiff’s brain injury and that the plaintiff was harmed because he failed to seek 

“treatment and rehabilitation, which could have enhanced his quality of life.” Distilled to their 

essence, both counts are based upon the same operative facts and the breach of fiduciary duty 

claim alleges no facts and no injury beyond those alleged in the medical negligence claim. 

Accordingly, the plaintiff’s breach of fiduciary duty claim is duplicative of his medical 

negligence claim and was properly dismissed by the circuit court. 

¶ 24 Lastly, the plaintiff argues that the circuit court erred by dismissing count II of his amended 

complaint, which alleged common law fraud. 

¶ 25 Before proceeding to the merits, we note that the circuit court dismissed the plaintiff’s 

amended complaint based upon its finding that Dr. Sweet owed no duty of care to the plaintiff. 

While this may have been a proper basis to dismiss the medical negligence and breach of 

fiduciary duty claims, it was not a proper basis to dismiss the plaintiff’s common law fraud 

claim, since duty of care is not an element of the cause of action. See Connick v. Suzuki Motor 

Co., 174 Ill. 2d 482, 496 (1996) (setting forth the five elements of common law fraud). 

Nevertheless, because our review is de novo, we may affirm the circuit court’s judgment on 

any basis in the record, regardless of the circuit court’s reasoning. Beacham v. Walker, 231 Ill. 

2d 51, 60-61 (2008). We, therefore, address the parties’ disagreement as to whether Dr. Sweet 

is immune from civil liability. 

¶ 26 As a general rule, witnesses enjoy an absolute privilege from civil suit for statements made 

during judicial proceedings. Ritchey v. Maksin, 71 Ill. 2d 470, 476 (1978). The purpose of the 

rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. 

Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 969 (1991). In Jurgensen v. 

Haslinger, 295 Ill. App. 3d 139, 141-42 (1998), the court explained:

“The doctrine of absolute privilege rests upon the idea that conduct that otherwise 

would be actionable is permitted to escape liability because the defendant is acting in 

furtherance of some interest of social importance, which is entitled to protection even 

at the expense of uncompensated harm to an injured party. [Citation.] Absolute 

privilege provides complete immunity from civil action, even though the statements 

are made with malice, because public policy favors the free and unhindered flow of 

information. [Citations.] In the absence of such a privilege, a witness might be reluctant 

to come forward to testify, or, once on the stand, the witness’s testimony might be 

distorted by the fear of subsequent liability. [Citation.]”

Not all statements, however, are encompassed by the doctrine of absolute privilege. Rather, 

only statements that are “pertinent and material to the matter in controversy” are entitled to 

absolute privilege. Spaids v. Barrett, 57 Ill. 289, 291 (1870); Macie v. Clark Equipment Co., 8 

Ill. App. 3d 613, 615 (1972). 
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¶ 27 In this case, the plaintiff contends that his claims are premised on the reports that Dr. Sweet 

prepared prior to his testimony and, as a consequence, the statements were not made in a 

“judicial proceeding.” He also argues, as he did before the circuit court, that the doctrine of 

absolute privilege is limited to “court appointed or court mandated” experts and that Dr. Sweet 

was not a court-appointed expert at the time he authored the reports. We find that none of these 

arguments have merit. 

¶ 28 To begin with, courts in Illinois recognize that the doctrine of absolute privilege is not 

limited to what a witness may say under oath while on the witness stand. McNall v. Frus, 336 

Ill. App. 3d 904, 907 (2002) (stating that “nontestimonial acts performed outside the 

courtroom have been protected in Illinois”). The privilege has been extended to statements 

made prior to initiation of judicial proceedings (Parrillo, Weiss & Moss v. Cashion, 181 Ill. 

App. 3d 920 (1989)), to out-of-court communications between attorney and client related to 

pending litigation (Weiler v. Stern, 67 Ill. App. 3d 179 (1978)), and to postlitigation statements 

an attorney made to a client (Golden v. Mullen, 295 Ill. App. 3d 865, 870-71 (1997)). 

¶ 29 In our view, absolute privilege must extend to reports prepared by an expert witness that 

form the basis of the witness’s testimony. If we held otherwise, the policies underlying such 

immunity would be undermined. Indeed, an expert’s courtroom testimony is the last act in a 

long, complex process of evaluation and consultation with the litigant. There is no way to 

distinguish the testimony from the acts and communications on which it is based. See Kahn v. 

Burman, 673 F. Supp. 210, 212 (E.D. Mich. 1987) (“Physicians’ reports are so inextricably 

intertwined with medical malpractice actions that it would be illogical to hold that such reports 

are not ‘relevant’ to the underlying judicial proceedings.”). Unless the whole, integral 

enterprise falls within the scope of immunity, the chilling effect of threatened litigation will 

result in the adverse effects described above, regardless of the immunity shielding the 

courtroom testimony. As a consequence, the absolute privilege of an expert witness extends 

not only to his or her testimony, but also to acts and communications that occur in connection 

with the preparation of that testimony. Any other rule would be unrealistically narrow, would 

not reflect the realities of litigation, and would undermine the gains in forthrightness on which 

the rule of absolute privilege rests. 

¶ 30 The plaintiff also asserts that “[i]t is abundantly clear only court appointed or court 

mandated experts in Illinois enjoy absolute immunity.” He cites Davidson v. Gurewitz, 2015 

IL App (2d) 150171, in support of his contention. Davidson, however, does not stand for such 

a proposition. In fact, the court in Davidson found that the defendant, an attorney, was 

absolutely immune from liability related to his services as a child representative in a child 

custody proceeding. Id. ¶¶ 10, 16. Nowhere in Davidson did the court state that absolute 

immunity was limited to “court appointed” or “court mandated” experts.

¶ 31 In any case, we find the decision in McNall, 336 Ill. App. 3d at 906-07, to be instructive. In 

that case, the plaintiff filed a negligence action against the defendant, an expert witness, who 

testified in a child custody proceeding that the plaintiff suffered from alcoholism and was a 

neglectful parent. Id. at 905. On appeal, the court held that the defendant was immune from 

civil liability on grounds of absolute privilege. Id. at 906-07. In so holding, the court rejected 

the plaintiff’s assertion that an exception should be made for experts retained by an adverse

party pursuant to Rule 213. The court noted that the doctrine of absolute privilege is broad in 

scope, that the doctrine has been “liberally protected” by Illinois courts, and that an 

expert-witness exception to the doctrine would require the court to “break with Illinois 
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precedent *** [and] go beyond the most far-reaching precedents in any jurisdiction.” Id. at 

907. 

¶ 32 We agree with the decision in McNall and see no reason to depart from its holding. The fact 

that Dr. Sweet was retained by an adverse party, as opposed to being appointed by the court, 

should not deprive him of immunity. Under either circumstance, the fact remains that Dr. 

Sweet is a participant in a judicial proceeding, and it is that status on which absolute privilege 

rests. See Briscoe v. LaHue, 460 U.S. 325, 334 (1983) (the purpose of granting absolute 

privilege to participants in judicial proceedings is to preserve and enhance the judicial 

process). In this light, it is immaterial that an expert witness is retained by a party rather than 

appointed by the court. The basic policy of ensuring frank and objective testimony should 

prevail regardless of how the witness comes to court.2

¶ 33 In this case, the only wrongful conduct alleged in the plaintiff’s amended complaint arose 

out of Dr. Sweet’s written reports, in which he opined that the plaintiff did not suffer a brain 

injury. Because the reports were prepared during the course of the plaintiff’s underlying 

medical malpractice case against Advocate, and since there is no dispute that the statements 

contained in the reports were pertinent and material to the underlying judicial proceeding, such 

statements are absolutely privileged. We conclude, therefore, that Dr. Sweet is immune from 

civil suit based upon the statements made in the written reports prepared during the judicial 

proceedings and the circuit court did not err in dismissing the plaintiff’s common law fraud 

claim. 

¶ 34 Having found that the circuit court did not err in dismissing the plaintiff’s medical 

negligence, breach of fiduciary duty, and common law fraud claims against Dr. Sweet, we also 

affirm that portion of the court’s order dismissing the same three claims against North Shore 

Medical Group and North Shore University Health System, since those claims are derivative 

and necessarily dependent upon the claims against Dr. Sweet. See Kirk, 117 Ill. 2d at 533. 

¶ 35 Finally, the plaintiff argues that the circuit court abused its discretion when it denied him 

leave to file a second amended complaint. In his proposed pleading, the plaintiff seeks to delete 

the allegation that Dr. Sweet was retained as a controlled expert witness under Rule 213(f)(3). 

¶ 36 A circuit court has broad discretion in determining whether to allow an amendment to a 

complaint, and its ruling on the matter will not be disturbed on review absent an abuse of that 

discretion. Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 69. This court applies 

four factors in determining whether the circuit court abused its discretion in denying a party’s 

motion to amend, namely, (1) whether the proposed amendment would cure the defective 

pleading, (2) whether the other parties would sustain prejudice or surprise by virtue of the 

proposed amendment, (3) whether the proposed amendment is timely, and (4) whether the 

moving party had previous opportunities to amend. Id. In this case, our focus is upon the first 

factor. 

 

2The plaintiff devotes a significant portion of his brief to Dr. Sweet’s status at the time he authored 

his reports. While his amended complaint plainly states that Dr. Sweet was retained as a “controlled 

expert witness,” the plaintiff now maintains that Dr. Sweet was merely a “consultant” or “independent 

medical examiner.” These distinctions are irrelevant. Witness immunity exists in order to halt the 

chilling effect of the threat of subsequent litigation. The threat of subsequent litigation is the same 

regardless of whether Dr. Sweet was appointed by the court, retained by the plaintiff’s opponent, or 

whether he served as a “controlled expert,” “independent medical examiner,” or “consultant.”
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¶ 37 Here, the plaintiff’s proposed amendment does not cure the defect in his pleading. In 

support of their section 2-619 motion to dismiss, the defendants attached a transcript of Dr. 

Sweet’s deposition testimony in which he stated that he was retained as an expert witness by 

Advocate. The plaintiff’s proposed amendment, seeking to remove the allegation that Dr. 

Sweet was retained as a controlled expert witness, cures nothing. Because the plaintiff’s 

proposed amendment adds no facts that would cure defects in the pleading, we cannot say that 

the circuit court abused its discretion in denying the plaintiff’s motion for leave to file a second 

amended complaint. See McNall, 336 Ill. App. 3d at 907-08 (circuit court did not abuse its 

discretion where the proposed amendment simply restated the allegations in the original 

complaint). 

¶ 38 For the foregoing reasons, we affirm the judgment of the circuit court, which dismissed the 

plaintiff’s amended complaint with prejudice and denied his motion to file a second amended 

complaint. 

¶ 39 Affirmed.