specially concurring:
The majority states that following our supreme court’s decision in Sullivan, as I would do in this case, is “retrogressive” because Sullivan is not “logical and sound” beyond its particular facts. 373 Ill. App. 3d at 94. Thus, the majority apparently takes a retrogressive view of judicial hierarchy, wherein the appellate court decides the soundness of a supreme court decision and then decides whether it should be precedential or limited to its particular facts. If the supreme court’s decisions are meant to be limited to their facts, then it has squandered' considerable time and paper detailing the policy ramifications of rulings that affect only the parties to each case the supreme court reviews, and, if the supreme court’s function is one of error correction confined to a particular case rather than policy determination to guide lower courts such as ours, then the supreme court’s practice of straining through myriad petitions for leave to appeal to sift out the cases worthy of its review is arbitrarily cruel. Despite what may be the wisdom of the majority’s belief that licensure alone should not he dispositive in determining whether an expert health-care witness is qualified, I must admit that I lack the temerity to declare a supreme court decision illogical and unsound and on those grounds decline to follow it. For the reasons I detail below, I believe our supreme court was clear in stating in Sullivan that licensure is a “ ‘foundational requirement[ ]’ ” (Sullivan, 209 Ill. 2d at 114, quoting Jones v. Young, 154 Ill. 2d 39, 43 (1992)) for the admission of expert health-care testimony, and I would follow that supreme court precedent in this case.
Plaintiff challenges the trial court’s decision barring Dr. Benson’s testimony on the ground that he lacked a medical license at the time he gave his evidence deposition.
Our supreme court has developed common-law requirements for the competency of a medical expert. In Dolan v. Galluzzo, 77 Ill. 2d 279, 285 (1979), the supreme court held:
“[I]n order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein. Once the fact of such license has been established, it lies within the sound discretion of the trial court to determine if the witness is qualified to testify as an expert regarding the standard of care. [Citation.]”
The supreme court reaffirmed the common-law licensure requirement in Purtill v. Hess, 111 Ill. 2d 229, 243 (1986) (“It must be established that the expert is a licensed member of the school of medicine about which he proposes to express an opinion”). Recently, in Sullivan, the supreme court dismissed the notion that its decisions since Dolan and Purtill eroded the requirement “that a health professional expert witness must always be a licensed member of the school of medicine about which the expert proposes to testify.” Sullivan, 209 Ill. 2d at 114. The plaintiff in Sullivan argued that the supreme court’s prior decision in Jones “retreat[ed] from any rigid, formalistic rule” on licensure. Sullivan, 209 Ill. 2d at 114. Surveying its past decisions on the qualifications of expert medical witnesses, the court responded:
“We cannot accept this argument. Jones clearly reaffirms this court’s decision in Purtill describing two foundational requirements: that the health-care expert witness must be a licensed member of the school of medicine about which the expert proposes to testify; and that the expert must be familiar with the methods, procedures, and treatments ordinarily observed by other healthcare providers in either the defendant’s community or a similar community. *** It is only after determining that both foundational requirements are satisfied that the court proceeds to evaluate whether the allegations of negligence concern matters within the expert’s knowledge and observation.” (Emphasis in original.) Sullivan, 209 Ill. 2d at 114-15.
Plaintiff cites Witherell v. Weimer, 118 Ill. 2d 321 (1987), a preSullivan medical malpractice case where the supreme court applied a “prejudice” test to the admission of opinion testimony from an unlicensed physician. In Witherell, the court wrote:
“Language in Dolan, which was criticized in a dissenting opinion, suggested *** that an expert must actually hold a license in order to testify. (See also Purtill v. Hess (1986), 111 Ill. 2d 229, 243; cf. Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282.) Whether or not a license is in fact required, we are unable to perceive how the fact that [the physician] did not hold such a license prejudiced the defendant here.” Witherell, 118 Ill. 2d at 334.
Although Sullivan did not include Witherell in its survey of prior decisions, I consider Witherell’s approach no longer valid after Sullivan. The supreme court in Sullivan reaffirms as unexceptionable the requirement that a medical expert hold a license in the school of medicine about which the expert proposes to give opinion testimony. Sullivan forecloses the notion that the admission of opinion testimony from a witness unlicensed in the relevant school of medicine can be considered harmless error, as was held in Witherell. Plaintiff, in fact, fully admits that Sullivan conflicts with Witherell, acknowledging that Sullivan “overlook[s] the commonsensical and equitable considerations that actuated the [Witherell] court[ ] to permit medically expert testimony from unlicensed individuals who were nevertheless astute and competent expert witnesses.” Plaintiff urges us to follow Witherell, but our allegiance should be to Sullivan.
The majority discounts the above precedent in favor of the statutory factors enumerated in section 8 — 2501 of the Code. There is no case from our supreme court employing section 8 — 2501 to determine whether a witness is a proper medical expert. However, though Dolan, decided in 1979, predated section 8 — 2501, which was enacted in 1985 (Pub. Act 84 — 7, eff. August 15, 1985), the remaining supreme court cases discussed above were decided after the enactment of section 8 — 2501. We are not free to depart from an unequivocal holding of our supreme court that licensure in the relevant school of medicine is an absolute requirement of a medical expert giving opinion testimony. The majority claims that I “disregard” section 8 — 2501 (373 Ill. App. 3d at 92). To the contrary, I have duly noted section 8 — 2501 and its import. However, “[i]t is fundamental to our judicial system that once our supreme court declares the law on any point, its decision is binding on all Illinois courts, and we cannot refuse to follow it, because we have no authority to overrule or modify supreme court decisions” (Du Page County Airport Authority v. Department of Revenue, 358 Ill. App. 3d 476, 486 (2005)). Thus, I cannot choose whom to follow here. The majority is exactly wrong when it says that I “inappropriate[ly] *** disregard statutory authority governing the admission of expert testimony.” 373 Ill. App. 3d at 92. On the contrary, it is the majority that inappropriately holds that supreme court precedent is unsound.
The majority states that I fail to “examine Sullivan in context.” 373 Ill. App. 3d at 93. It further claims that my position would inappropriately expand Sullivan beyond its facts in that the witness in Sullivan “was never licensed in the area [of medicine] in which he was presented to opine” (373 Ill. App. 3d at 93), but Dr. Benson was licensed in this area of medicine up to approximately five months before he gave his opinion testimony. The majority states that “[t]here is nothing in Sullivan or common experience that implies or concludes that expertise exists solely and dependently on the existence of a license and that, upon termination of the license, regardless of cause, the expertise fades to black and is lost until the license is renewed.” 373 Ill. App. 3d at 92. The first clause of this sentence may accurately state what “common experience” holds, but it does not accurately state what Sullivan holds. Sullivan holds that a “health-care expert witness must be a licensed member of the school of medicine about which the expert proposes to testify.” Sullivan, 209 Ill. 2d at 114. Thus, for the supreme court, a witness’s competence to testify in a given school of medicine is indeed dependent on the witness’s licensure in that school. As for the second clause of the sentence, I see no warrant for reading into Sullivan’s licensure requirement an exception for a witness who, though not licensed in the relevant school of medicine when he gives his testimony, had such a license at some prior time and is otherwise qualified to offer an opinion in light of his skill and knowledge. The supreme court held in Sullivan that “ ‘in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein.’ ” (Emphasis added.) Sullivan, 209 Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. If the supreme court did not intend to require that the licensure he concurrent with the testimony, it would have said that the witness “must be or have been licensed therein.” Regardless of “common experience,” Sullivan can be read but one way: the testimony of a witness cannot be considered competent medical opinion testimony unless the witness holds a medical license at the time of the testimony.
In fact, if ever there was a situation in which the supreme court would favor “common experience” over a per se rule requiring licensure for a medical witness, the particular facts of Sullivan itself presented it. The proposed witness in Sullivan was a doctor who sought to testify regarding the standard of care for nurses. “Common experience” tells us that there will be at least some doctors who have enough experience with the duties of nurses (which would be uncommon experience for the common person) to opine on the duties of nurses, since “common experience” tells us that, in no small measure, nurses do what doctors tell them to do. Nevertheless, even under its particular facts, Sullivan lays out a per se rule that, irrespective of a doctor’s experience, including for example his having been previously licensed as a nurse, the doctor is unqualified to testify regarding the standard of care for a nurse due to the lack of a current license in that school of medicine.
The majority persists that neither “Sullivan nor any other reported case is controlling or precedential” (373 Ill. App. 3d at 94), and in support of this approach the majority cites reflections on the nature of precedent by federal judges, including no less a figure than Chief Justice Marshall. 373 Ill. App. 3d at 94. If we were equals with our supreme court I might consider reading Sullivan as sharply as these authorities could be construed to warrant, but given our subordinate posture, it is best that we hew to a more narrow path. The supreme court may revise and limit Sullivan if it sees fit to do so, but we exceed our prerogative in doing the same.
The majority’s approach to precedent is strikingly reminiscent of the view vigorously advanced by the majority in People v. Luedemann, 357 Ill. App. 3d 411 (2005). The majority in Luedemann claimed that “every case like this one is sui generis in that no two factual situations are identical,” and so, though “[precedent may provide some insight ***, common sense must be our main guide.” (Emphasis added.) Luedemann, 357 Ill. App. 3d at 421. Similarly, the majority states that “Sullivan is logical and sound only as it applies to the particular facts in Sullivan” (373 Ill. App. 3d at 94). Where the majority in Luedemann invoked “common sense” as a guide in determining which cases were controlling, the majority here invokes “common experience” as the reason Sullivan does not control. 373 Ill. App. 3d at 92.
In reversing our decision, the supreme court in Luedemann said:
“The central flaw in the appellate court’s opinion was its failure to consider and discuss the large body of case law addressing [the relevant issue]. The appellate court freed itself from the moorings of precedent by asserting that each of these cases is ‘sui generis in that no two factual situations are identical’ and that, while precedent may provide some insight, ‘common sense’ must be a court’s main guide. [Citation.] The court’s failure to consider the applicable case law resulted in the court’s finding a seizure based on factors that courts had not previously found to be coercive ***.
Although it is true that the facts of no two cases are ever exactly the same, that does not mean that a court is free simply to ignore an entire body of relevant case law and the principles and guidelines articulated therein.” (Emphasis added.) People v. Luedemann, 222 Ill. 2d 530, 551-52 (2006).
The majority also contends that my position conflicts with Thompson v. Gordon, 221 Ill. 2d 414 (2006). In Thompson, the supreme court held that a witness need not be licensed as an engineer in order to qualify as an expert on engineering issues. The court applied the general rule that “[e]xpert testimony *** is admissible ‘if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence.’ ” Thompson, 221 Ill. 2d at 429, quoting Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). The court stated that “[w]hile licensing may be a factor to consider in determining whether an engineer is qualified to testify as an expert witness, this court does not require an engineering license as a prerequisite to testifying.” Thompson, 221 Ill. 2d at 429. The majority contends that Dr. Benson’s qualifications, like those of the witness in Thompson, should be judged by the general principles governing the admissibility of expert testimony, according to which a witness’s licensure in the field about which he proposes to testify is only a factor in judging his competency as an expert. 373 Ill. App. 3d at 94-95. I cannot follow the majority’s recommendation without disregarding Sullivan. The approach the majority endorses was the very approach urged unsuccessfully by the plaintiff in Sullivan. The plaintiff asked the supreme court to shun a “rigid, formalistic rule” in judging the competency of a medical expert and instead hold that the witness’s lack of a license in the relevant school of medicine “should *** [go] only to the weight of his testimony and not its admissibility.” Sullivan, 209 Ill. 2d at 115. Against the plaintiffs urging, the supreme court held that licensure in the relevant school of medicine is an indispensable requirement for a medical expert. Thus, a medical witness is subject to a per se rule of licensure in the medical field about which the witness proposes to give opinions. Accordingly, medical testimony is an exception to the holistic approach that otherwise governs the admission of expert opinion testimony, including, as Thompson shows, testimony about the field of engineering.
I also note that the majority’s readings of Sullivan and Thompson cannot be reconciled. According to the majority, Sullivan at least sets up a per se rule that bars the testimony of “someone who had never been licensed in the school of medicine at issue.” 373 Ill. App. 3d at 93. The majority cannot maintain this interpretation of Sullivan while also believing that the “totality of the circumstances” approach of Thompson should apply to expert medical testimony, because that holistic approach does not allow for any per se requirement with respect to licensure.
The majority also relies on an amendment to section 8 — 2501 to support its position (see 373 Ill. App. 3d at 93), but I need not dwell long on that topic. The amendment allows medical expert testimony from retired witnesses who have not engaged in active practice, research, or teaching for up to five years prior to the testimony. To the extent the amendment overrules any part of Sullivan, it does not apply here, because Dr. Benson is not a retired expert and did not submit the requisite evidence of continuing education to be qualified under the amendment.
Finally, I must note my uncertainty as to why the majority affirms the exclusion of Dr. Benson’s opinion testimony. The majority argues at length that Dr. Benson’s testimony could not properly have been excluded for his lack of a license alone. The majority also derides the idea that Dr. Benson’s lack of licensure affected his expertise. The majority states that it would do “violence to the concept of memory” to conclude that a lack of licensure, regardless of its cause, affects expertise. 373 Ill. App. 3d at 92. However, when it comes time to consider whether to affirm the trial court’s exclusion of Dr. Benson’s testimony, the majority relies on the idea that “the trial court could have reasonably concluded that Dr. Benson was not qualified to testify as an expert due to the surrender of his medical license.” 373 Ill. App. 3d at 96. I am at a loss as to why, under the majority’s reasoning, impugning Dr. Benson’s expertise on the ground that his license was withdrawn for personal problems does not do “violence to the concept of memory” (373 Ill. App. 3d at 92) just as much as it would on the ground of any other loss of license for reasons unrelated to expertise.
Based on Sullivan’s strictures, I would conclude that the trial court did not err in barring the opinion testimony of Dr. Benson. The supreme court may very well someday revisit its holding in Sullivan, but it has not done so as of today. It is not our place to concern ourselves with the wisdom of the supreme court’s decisions for the purpose of deciding which ones we follow; it is our place to follow the supreme court’s decisions. I would do so in this case.