concurring in part and dissenting in part:
The majority affirm an order of the circuit court of Will County awarding summary judgment in favor of all defendants, apparently including Dr. Warren Wunderlich, and against plaintiff Riten Sheth, M.D., based on their tacit agreement with an assertion made in Dr. Wunderlich’s affidavit — an assertion they have already found does not comply with Supreme Court Rule 191. I concur with the finding that paragraph 9 of Dr. Wunderlich’s affidavit is conclusory in nature and does not satisfy Rule 191. However, I dissent from the majority’s second finding that Dr. Wunderlich’s other assertions, in his affidavit and in his deposition testimony, conclusively show that none of the defendants is the proximate cause of any injuries sustained by Dr. Sheth.
Looking first at the affidavit, it consists of the following nine paragraphs:
“1.1 am an adult, of sound mind, and if called upon, I can testify to the following from my own personal knowledge.
2. I was the Chair of the Medicine Committee at Provena St. Joseph Medical Center in August 2000.
3. On or about that time, I reviewed the records of Dr. Riten Sheth, related to cases #21807854, #21842588, and #233137292.
4. Based on my review of these records, and in particular, the above cases, I felt that summary suspension was an appropriate and needed disciplinary measure for Dr. Sheth.
5. Based on my review of these records, and in particular, the above cases, I believed that Dr. Sheth posed a danger to his patients. I believed that failure to take prompt action may have resulted in immediate danger to the life, health or safety of his patients.
6. However, at that time, I was unfamiliar with the St. Joseph Bylaws.
7. Consequently, I was unaware that, as Chair of the Medicine Committee, I possessed the authority to summarily suspend Dr. Sheth unilaterally.
8. I have since reviewed the St. Joseph Bylaws and am aware that, in August 2000, I possessed the authority to summarily suspend Dr. Sheth unilaterally.
9. If I had reviewed and followed the St. Joseph Bylaws in August, I would have summarily suspended Dr. Sheth, unilaterally, based on my review of his records, in particular, cases #21807854, #21842588, and #233137292.”
The majority have found, properly in my opinion, that paragraph 9 is conclusory in nature and does not satisfy Rule 191. I also believe paragraphs 4 and 5 are not facts but self-serving conclusions as well. I therefore do not believe those statements can be deemed true or serve as a basis for summary judgment any more than could paragraph 9.
To the extent the majority rely on those paragraphs in reaching their conclusion that defendants could not be the proximate cause of plaintiffs asserted injuries (363 Ill. App. 3d at 254-55), I believe that reliance is misplaced. The court “ 1 “must ignore personal conclusions, opinions, and self-serving statements and consider only facts admissible in evidence.” ’ ” Parker v. House O'Lite Corp., 324 Ill. App. 3d 1014, 1030, 756 N.E.2d 286 (2001), quoting Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 407, 719 N.E.2d 1101 (1999), quoting Reuben H. Donnelley Corp. v. Krasny Supply Co., 227 Ill. App. 3d 414, 421, 592 N.E.2d 8 (1991).
But the majority also rely on Dr. Wunderlich’s deposition testimony and conclude, in light of that testimony and the first eight paragraphs of his affidavit, that the following “facts” are “undisputed”: “(1) Dr. Wunderlich reviewed three of Dr. Sheth’s cases; (2) based on his review of those cases, Dr. Wunderlich believed that Dr. Sheth should be summarily suspended; (3) Dr. Wunderlich believed that Dr. Sheth posed a danger to his patients; (4) Dr. Wunderlich brought Dr. Sheth’s cases before the medicine committee because he believed that only the medicine committee could summarily suspend Dr. Sheth; and (5) Dr. Wunderlich was unaware that he could unilaterally suspend Dr. Sheth.” (Emphasis added.) 363 Ill. App. 3d at 255.
There is no way that plaintiff (or anyone else) could have effectively refuted Dr. Wunderlich’s beliefs and denials of awareness. The truth and accuracy of such statements are significant issues of material fact that can only be assessed and accepted or rejected by the trier of fact. That has not happened in this case. Both the trial court and the majority have usurped the jury’s right to make that decision.
Having conferred “undisputed fact” status on Dr. Wunderlich’s beliefs, the majority then say those facts can yield only one reasonable conclusion — that his recommendation of summary suspension was tantamount to Dr. Wunderlich summarily suspending Dr. Sheth himself. Even assuming for the moment that we are dealing with undisputed facts, there is at least one other perfectly reasonable (and no less speculative) conclusion that can be drawn: caution and self-interest could have urged him to have his beliefs tested by other persons with similar knowledge and like concerns and he still would have submitted the matter of Dr. Sheth to thé committee. Given the subsequent vindication of Dr. Sheth when all of the facts were considered by committee, this course might have appealed to a prudent man.
It appears that the trial court based its decision on the affidavit of Dr. Wunderlich in which he asserted that he would have summarily suspended Dr. Sheth unilaterally had he known he had the authority to do so under the hospital’s bylaws. Because of this averment of what he would have done had he known that he could, the court determined that the action of the medical committee in actually issuing the summary suspension could not have been the proximate cause of Dr. Sheth’s alleged injuries. The majority base their identical conclusion on a combination of the affidavit, sans paragraph 9, and Dr. Wunderlich’s deposition testimony of his beliefs and awareness. In my opinion, not only is the reasoning of the trial court and the majority suspect and their determination of fact issues prohibited by statute and by case law, the decisions create and sustain an absurd result.
Ordinarily I do not like analogies, but in this case the argument is more easily articulated if we compare this situation to one where a person armed with accelerant and matches approaches a house intent on burning it down. He stumbles and falls, and before he can start the fire, sparks from a passing train ignite the house and the resulting fire destroys it. When the homeowner sues the railroad company for the loss of the house, the company defends by asserting that it cannot be the proximate cause of the loss of the house because, but for the happenstance of the sparks from the train, the arsonist would have destroyed the house. Nor can the potential arsonist be the proximate cause because he only wanted to burn the house — he did not do it.
Quite simply, neither the trial court nor the majority have any legal basis for the award of summary judgment in favor of defendants. The substance of defendants’ argument is that, because Dr. Wunderlich had the authority to summarily suspend Dr. Sheth but was unaware he had that authority and did not exercise it, the members of the medical committee — who did suspend Dr. Sheth and by that action actually caused whatever injury and damages he can prove — were nonetheless not the proximate cause of his injury. I can find no merit in that argument. To credit it would be to hold that neither the persons who took the challenged action nor the person who had the authority but did not act can be the proximate cause of any resultant injuries sustained by plaintiff.
Finally, proximate cause is, itself, an issue of fact which, in the presence of material factual disputes, must be determined by the trier of fact. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 44, 809 N.E.2d 1248, 1257 (2004); Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 804 N.E.2d 519 (2004). Because neither the affidavit of Dr. Wunderlich nor his deposition testimony eliminates the material factual dispute concerning causation and makes the resolution of that issue so clear that the trial court could determine it as a matter of law, we should find that there remain multiple material factual issues, including proximate cause, that preclude summary judgment in this case.
I believe this case should be reversed and remanded, and I therefore dissent.