dissenting:
Plaintiffs’ attorney (1) did not respond to interrogatories served upon him on September 14, 1995, (2) did not comply with an agreement to disclose expert by January 31, 1996, (3) did not answer interrogatories served on him apparently on February 1, 1996, and (4) did not comply with a case management order to disclose expert by April 28, 1996. If counsel had responded to the interrogatories, the response would apparently have been that plaintiff had not yet retained an expert. No cutoff date for disclosure of experts had been established when the interrogatories were served. Nevertheless, discovery was conducted in this case. Depositions were taken of all witnesses except the experts on both sides, and there was other discovery as well. It appears the parties were able to resolve their differences voluntarily, as they are encouraged to do by Rule 201(k). For example, defendant filed a motion to compel on November 16, 1995, but that motion was withdrawn. Defendant filed a second motion to compel at the time of the case management conference, March 29, 1996, which was apparently resolved at that time.
Plaintiffs’ attorney suggests (1) his expert was the same physician with whom he had consulted when he filed his affidavit pursuant to section 2 — 622 of the Code (735 ILCS 5/2 — 622 (West 1994)), (2) he had delayed naming the physician as his expert because he wanted the physician to examine depositions taken in August and September 1995 to see if they altered his opinion, (3) the physician had not gotten back to him, and (4) contact with the physician was difficult because the physician had relocated his offices to Florida.
Although plaintiffs’ attorney had apparently not complied with some of defendant’s requests for discovery, the only court order that had not been complied with was the case management order setting a deadline of April 28, 1996, for the disclosure of opinion witnesses. When plaintiff failed to comply with that portion of the case management order, defendant did not file a motion for sanctions as in Clymore v. Hayden, 278 Ill. App. 3d 862, 663 N.E.2d 755 (1996), but instead filed a motion for summary judgment.
Summary judgments are not entered as sanctions. They are entered where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 1994). Nevertheless, where plaintiff in a medical malpractice case is unable to procure the necessary expert testimony, summary judgment for the defendant is appropriate. Stevenson v. Nauton, 71 Ill. App. 3d 831, 835, 390 N.E.2d 53, 57 (1979); see Addison, 124 Ill. 2d at 295-96, 529 N.E.2d at 556; Pogge v. Hale, 253 Ill. App. 3d 904, 917, 625 N.E.2d 792, 800 (1993). The basis for such a summary judgment is that plaintiff is unable to procure an expert, not that plaintiff is in technical violation of some discovery schedule. Where plaintiff indicates she will be able to obtain an expert, she must be given every opportunity to do so. See Stevenson, 71 Ill. App. 3d at 835, 390 N.E.2d at 56; Addison, 124 Ill. 2d at 299, 529 N.E.2d at 557 (no claim plaintiff did not have sufficient time to procure expert). Of course, the trial court is not required to accept plaintiff’s promise that an expert will be forthcoming and may set a deadline for production. The basis for the summary judgment, however, is the trial court’s determination that no expert will be produced. In Addison, the supreme court specifically refused to uphold summary judgment on the basis that the Rule 220 deadline had passed. See Addison, 124 Ill. 2d at 295-96, 529 N.E.2d at 556.
There is no indication in the present case that the trial court was convinced that plaintiffs could not obtain an expert. Instead, the trial court stated the motion was granted by default but also indicated the motion could have been granted "on the merits,” because the time frame in which to disclose the expert had expired "and I think under those circumstances, absent some good cause, that apparently would not be present here, that period would not have been expanded by the Court.” Accordingly, even if plaintiffs had appeared, plaintiffs would have been "without any means of defending the motion for summary judgment.”
The failure to disclose an expert by April 28, 1996, may have been a basis for the imposition of sanctions, but it was not a basis for the entry of summary judgment. Brandeis, 206 Ill. App. 3d at 36, 563 N.E.2d at 1029 (granting summary judgment as a discovery sanction improper). Dismissal is a possible sanction, but such a drastic sanction should only be employed as a last resort. See Clymore, 278 Ill. App. 3d at 867-68, 663 N.E.2d at 757-58 (repeated violations of court orders and rules, first motion to dismiss denied, second granted). There was no court order in this case requiring disclosure of an expert until the case management conference on March 29, 1996. The case management conference set a trial date of March 31, 1997. That trial date had not been jeopardized. "The purpose of imposing sanctions is to coerce compliance with court rules and orders, not to punish the dilatory party.” Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68, 651 N.E.2d 1071, 1081 (1995). A trial court abuses its discretion by imposing the most severe sanction possible when it could have achieved its goals by fining defense counsel several hundred dollars. See People v. Foster, 271 Ill. App. 3d 562, 566-68, 648 N.E.2d 337, 340-41 (1995).
The majority suggests that allowing plaintiffs to proceed to trial, because they should not be penalized for their lawyer’s omissions, would be visiting the sins of plaintiffs’ lawyer upon the defendant. 288 Ill. App. 3d at 548. I do not understand that statement. Defendant has no right to a summary judgment in this case if plaintiffs are able to produce an expert witness. Defendant has expended resources for nearly three years in defending this action, but there has been no showing those expenses were caused by the improper actions of plaintiffs’ attorney. Every defendant incurs expenses in defending an action. If this defendant has been put to additional expense because of the delays of plaintiffs’ attorney, those expenses can be recovered through money sanctions.
The majority complains that plaintiffs’ attorney did not explain his failure to file a response to the motion for summary judgment. 288 Ill. App. 3d at 543. As the trial court noted, plaintiffs’ attorney did explain that he received the motion and notice of hearing among a group of other pleadings from defendant, overlooked them, and failed to enter the date on his calendar. Plaintiffs’ attorney stated that in the county where he regularly practices, the court calendars motions and that motions are not set by an attorney filing a notice of hearing. There is no indication the trial court disbelieved those representations.
The majority complains that plaintiffs’ attorney was given the opportunity to explain his omissions, and possibly obtain a continuance, when he was contacted on the hearing date, but he did not do so. 288 Ill. App. 3d at 547. When plaintiffs’ attorney, who practices in Madison County, did not appear at the hearing in Coles County, the trial court directed defendant’s attorney to call plaintiffs’ attorney. The substance of that conversation is not in the record, but plaintiffs’ attorney states he asked defense counsel to continue the case, to explain that the missed date was accidental, and to apologize to the trial court. Defense counsel responded that he could not agree to a continuance and indicated the court would not grant a continuance. In the absence of a record we should not assume anything to the contrary. Plaintiffs’ attorney did not just file a motion to set aside the judgment on July 18, 1996. In addition, plaintiffs’ attorney answered the Rule 220 interrogatories, disclosed his expert, and made him available for deposition on any Saturday in August 1996. Plaintiffs’ attorney had fully complied with all court orders and requests for discovery when he filed his motion to set aside.
Under the rule announced today, a single missed setting can result in dismissal where the trial court, in hindsight, concludes that the attorney could have worked harder on the case. Sanctions imposed in hindsight serve to punish but do little to further the goal of achieving compliance. We have here what Jeremy Bentham referred to as "dog law,” the " 'age-old method of training dogs by waiting until they do what they are to be forbidden to do and then kicking them.’ [2 N. Singer, Sutherland on Statutory Construction § 41.02, at 340-41 (Sands 4th ed. 1986).]” Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 309, 522 N.E.2d 1195, 1198 (1988) (discussing the preference for prospective application of statutes).