dissenting:
I concur with the first part of the majority’s decision that the trial court erred in granting the motion for a voluntary dismissal without prejudice. I agree with the majority that section 2 — 1009 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1009) is not designed “to provide a party with two bites at the apple.” However, I dissent from the second part of the decision to remand and afford the plaintiff a new trial. I dissent because the decision grants the plaintiff “two bites at the apple.” Also, although the majority seeks to limit the plaintiff to calling only Dr. Richard Herbert again as a potential expert witness at a new trial if “Dr. Herbert is reasonably available to plaintiff as her witness,” this remedy does wrong to the defendant. (254 Ill. App. 3d at 978-79.) I dissent because it is saliently clear in this case that the defendant should not be burdened with the convenience and expense of another trial. Here, substantial and significant trial proceedings were had before the trial was aborted on the motion filed by the plaintiff. The court even granted the plaintiff a continuance to the following day in order for plaintiff to determine if his expert could “meet the standard.”
The opinion states:
“Northern Trust did not dogmatically require that the expert practice in the same specialty, it did not necessarily foreclose Dr. Herbert’s testimony in this case so long as that expert could demonstrate sufficient knowledge and experience concerning the applicable standards which his testimony addressed. This is particularly true here since the standard addressed does not involve an esoteric area of practice. Rather, it addresses generally the duty of a physician to advise a patient of a collateral condition relatively unrelated to the condition for which his help was sought by the patient.” 254 Ill. App. 3d at 977.
I agree with the first part of this statement. However, I disagree with the conclusional part of the statement which states: “This is particularly true here since the standard addressed does not involve an esoteric area of practice. Rather, it addresses generally the duty of a physician to advise a patient of a collateral condition relatively unrelated to the condition for which his help was sought by the patient.” 254 Ill. App. 3d at 977.
The conclusional part of the statement is utterly without foundation. It is an opinion which we, being judges and not doctors, are not qualified to enunciate. There is no evidence which supports the conclusion that it is “the duty of a physician to advise a patient of a collateral condition relatively unrelated to the condition for which his help was sought by the patient.” 254 Ill. App. 3d at 977.
The opinion also posits that “[i]n fact, under those circumstances it is obvious that she would not have substituted certain dismissal on the merits in place of the mere risk of such disposition if she had waited for a ruling by the trial court with respect to the objection raised as to her expert’s qualification.” (254 Ill. App. 3d at 978-79.) This assertion is not based on any facts and should not be a consideration in any way in this appeal. Perforce, I dissent.
A witness may testify as an expert in a particular area outside of his or her specialty if the witness has sufficient training and experience to give an opinion as to the standard of care. (See Northern Trust Co. v. Upjohn Co. (1991), 213 Ill. App. 3d 390, 572 N.E.2d 1030.) Even so, a witness may not testify out of the blue. There must be a predicate for the expert testimony. First, it must be shown that the expert is licensed in the same “school of medicine” to which the defendant-doctor belongs. Secondly, the expert must demonstrate that he is otherwise qualified to give expert testimony in the case. (Northern Trust Co., 213 Ill. App. 3d at 406.) The record in this case indicates that no predicate existed for Dr. Herbert to testify regarding the standard of care required of the defendant. (See Thomas v. University of Chicago Lying-In Hospital (1991), 221 Ill. App. 3d 919, 583 N.E.2d 73.) The trial court erred in refusing to grant defendant’s request for a dismissal with prejudice. (See Thomas, 221 Ill. App. 3d 919.) The majority decision now compounds the error in that it circumvents the intent and purpose of section 2 — 1009. See Gibellina v. Handley (1989), 127 Ill. 2d 122, 136-37, 535 N.E.2d 858.
My dissent in this case does not conclude that Northern Trust mandates that plaintiff’s expert, Dr. Herbert, be precluded from testifying because “Dr. Herbert was not licensed in the same school of medicine to which the defendant doctor belongs.” My dissent does indicate that the evidence establishes that Dr. Herbert “is incompetent to testify as an expert.” The trial court proceedings had in this case clearly indicated his incompetency to testify because he did not fulfill the second requirement of the Northern Trust case. The testimony established that Dr. Herbert was unable to “demonstrate that he is otherwise qualified to give expert testimony.”
To support a decision to remand this case for further proceedings, the majority opinion cites the case of Cummings v. Simmons (1988), 167 Ill. App. 3d 544, 521 N.E.2d 634. However, Cummings is inapposite. There, only jury selection proceedings were conducted. Here, the jury was selected, the defendant disclosed his defense in opening statement, and testimony, particularly the testimony of Dr. Herbert, was heard. Further, the reason why the appellate court denied the defendants’ prayer for directed verdict in Cummings was because none of the defendants had filed a motion for directed verdict in the trial court. In this case, defendant opposed plaintiff’s motion for voluntary dismissal without prejudice and requested the trial court to dismiss the case with prejudice. Rather than grant the relief to which the appellant is entitled in this appeal, the majority has constructed a disposition that neither the appellant nor the appellee has requested.
Courts have inherent power to formulate remedies to prevent injustice. (See Department of Public Works & Buildings v. Vogt (1988), 51 Ill. App. 3d 770, 779, 366 N.E.2d 310.) However, even resort to this doctrine would be improper in this case.
Here, justice will be ill-served by remand for a new trial on any theory. See Thomas, 221 Ill. App. 3d 919, 583 N.E.2d 73.
The proper disposition of this appeal pursuant to Supreme Court Rule 366(a)(5) is to reverse and remand with instructions to vacate the order of voluntary dismissal without prejudice and enter an order granting defendant’s motion for dismissal with prejudice. Accordingly, I respectfully dissent.