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FOURTH DIVISION
December 21, 2000

Plaintiff, Martha Ellen Wynne, filed this lawsuit seeking damages based upon claims for defamation per se (count I),defamation per quod (count II), false light (count III), public disclosure of private information (count IV), intentionalinfliction of emotional distress (count V) and negligent infliction of emotional distress (count VI). Defendants filed amotion for summary judgment which was granted in favor of all defendants on all six counts. Plaintiff filed a motion toreconsider and that motion was denied. Plaintiff appeals both of these orders, as well as the denial of her motions to reopendiscovery, a motion to reconsider that ruling and to obtain additional discovery pursuant to Illinois Supreme Court Rule191(b) (134 Ill. 2d R. 191(b)).

The issues presented for review are (1) whether the trial court properly granted summary judgment in favor of defendantson all six counts of plaintiff's second amended complaint; and (2) whether there was a manifest abuse of discretion in thetrial court's refusal to extend discovery past the cutoff or in the denial of plaintiff's motion for additional discovery pursuantto Supreme Court Rule 191(b).

In 1989, defendant Robert Roemer joined Loyola as the Dean of the School of Education and served in that position until1996. As dean, Roemer was responsible for managing the School of Education, which also included the resolution ofdisputes between faculty members. He reported directly to Loyola's vice president and Dean of Faculties, James Wiser. One of Wiser's responsibilities was to help deans and department chairs resolve faculty disputes. Wiser was assisted withthese responsibilities by Lorraine Serwatka, the Associated Vice President for Faculty Administration.

In the fall of 1993, Loyola was considering a reorganization of its School of Education to centralize all programs related toteacher education into one department, to be called the "Curriculum Instruction and Educational Psychology Department"(CIEP Department). Among the subjects being discussed was the selection of a chairperson for the new department.

Dean Roemer thought Wynne would be a good department chair for the new CIEP Department and asked if she wasinterested. Although Wynne said that she was not, Roemer stated that he hoped to change her mind.

In January 1994, Loyola formally announced its plans to reorganize the School of Education and, among other things,create the CIEP Department. The change would take effect in the fall term of 1994. Both Wynne and defendant JoyRogers taught core courses central to the teacher-education curriculum and both were assigned toCIEP.

Sometime in January 1994, Rogers heard from one of her CIEP colleagues, Ronald Morgan, that Wynne was interested inbecoming the chair of the CIEP Department and had Roemer's support. Rogers then called another CIEP colleague, JackKavanagh, who also told Rogers that he had heard about Wynne's possible candidacy for chair. Rogers then spoke with asenior member of the CIEP Department, Barney Berlin, who confirmed that he had heard similar talk.

Rogers believed that Wynne would be an unsuitable chair and wanted to inform new members of the CIEP Department thereasons for her belief. On or about February 2, 1994, Rogers composed a memorandum to Barney Berlin about Wynne'sfitness to serve as chair of the CIEP Department. She addressed the memorandum to Berlin because he was to be the mostsenior professor in the CIEP Department and knew many of the newer faculty members who would be asked to assessWynne's candidacy.

The memorandum discussed how, over the 15 years that Rogers and Wynne worked at Loyola, Wynne brought personalproblems, including her fertility and psychiatric difficulties, into the workplace and how, in Roger's opinion, Wynne couldnot work well with colleagues. Rogers reported that Dr. Hablutzel told her about calls from Wynne requesting that she andDr. Harding come to her home and chase her around to give her injections of a fertility drug. Rogers stated that Wynne hadcalled her, as well as Drs. Harding and Hablutzel, informing them that she was on the inpatient psychiatric unit at EvanstonHospital due to a sleep disorder. When Wynne appeared at work within a day or two after these calls, she stated she hadsigned herself out of the hospital because they had failed to help her sleep. Wynne asked Rogers to provide her with a copyof the Illinois Mental Health Code Confidentiality Act which Wynne stated was for the purpose of learning how to obtaincopies of her psychiatric records. Rogers also complained about Wynne's stewardship of a new M.Ed. program in theCIEPS department, which Rogers stated was never approved by CIEPS. Rogers also discussed what she saw as Wynne'slongtime tendency to "wheedle, persuade, nag, and domineer for incremental changes ***," although "nothing ever seemedto satisfy her." Rogers believed that "[t]here seemed no room for compromise or consensus building." Rogers concludedby listing those traits which she considered essential for effective leadership of a department and concluding that Wynnelacked those traits.

Rogers faxed the memorandum to Berlin at the department fax machine in the Loyola Skyscraper Building. This machinewas used by Loyola faculty and Loyola employees who worked in the building.

The memorandum was retrieved from that fax machine by Sister Mary Wojnicki, a Loyola staff member in the School ofEducation. Wojnicki telephoned the chair of her department, Judith Ingram, at home that same evening to report findingthe memorandum. Wojnicki copied the memorandum and placed the original in a blue "confidential" envelope for BarneyBerlin, the intended recipient. Ingram arranged to meet Wojnicki the next morning to retrieve the one copy.

The next morning, prior to Ingram's meeting with Wojnicki, Ingram received a phone call from Wynne. Wynne informedIngram that another Loyola employee, Janet Pierce-Ritter, had found the first page of the Rogers memorandum in the copymachine and had telephoned Wynne to report the discovery. Wynne directed Ingram to place the entire Rogersmemorandum in a blue "confidential" envelope and give it to Pierce-Ritter for delivery to Wynne, which Ingram did.

After speaking with Wynne, Ingram called Roemer to report the incident. Roemer was attending a meeting with Wiser andother administrators at Loyola's Water Tower Campus. After conferring with Lorraine Serwatka, Loyola's Associate VicePresident of Faculty Administration, Roemer asked Ingram to fax a copy of the memorandum to Serwatka, who waited overthe fax machine to receive it. Roemer himself did not see the Rogers memorandum until he returned to the School ofEducation. At that time, he reviewed the memorandum with Ingram, but Ingram kept the one copy.

Wynne called Roemer to complain about the content of the Rogers memorandum and the method by which it had beentransmitted. Roemer expressed his view that the Rogers memorandum said more about Rogers than it did about Wynne. When Wynne still remained upset, Roemer conferred with Wiser about how to allay Wynne's concerns. He explained thecircumstances generally but did not give Wiser a copy of the memorandum.

Roemer met with Rogers, who brought her colleague, Professor Jack Kavanagh, to the meeting. During the meeting,Rogers maintained that the statements in the memorandum were true. Roemer informed Rogers that he viewed themethod of transmission as inappropriate.

Wynne claims that after she learned of the existence of the memorandum, it was difficult to work around CIEP co-workers. In fact, she became nauseated to the point of vomiting because she thought her co-workers had read the memorandum. Wynne's symptoms worsened during the spring of 1994, abated over the summer months but worsened again when Loyola'snext semester started in the fall of 1994. On August 24, 1994, Wynne skipped the faculty meeting for the School ofEducation because she felt ill.

At this time, Wynne and Professor Allan Ornstein, the Acting Chair of the CIEP Department, developed a disagreement. They met once, shortly after the August 24, 1994, faculty meeting and argued about whether Wynne should be required toattend department meetings, which Wynne claimed made her "symptomatic." Wynne never attended a CIEP Departmentmeeting that semester. Ornstein, treated these absences as "unexcused," and Wynne eventually complained to Roemerabout Ornstein's insistence that she attend CIEP Department meetings. Roemer granted Wynne an exemption fromattendance at department meetings because of her condition. However, her symptoms continued to worsen, and on January15, 1995, Wynne's psychiatrist requested a medical leave for her.

Wynne filed her complaint on December 21, 1994. In response to defendants' motion to dismiss the original pleading,Wynne withdrew her original complaint. She then filed her first amended complaint on May 9, 1995. Defendants movedto dismiss that complaint and, on November 21, 1995, the trial court granted the motion as to Loyola, ruling that the IllinoisWorker's Compensation Act barred all of Wynne's claims against her employer. Wynne filed the present complaint onDecember 19, 1995.

Shortly after Wynne filed her first complaint, her original counsel withdrew, and the firm of Michael H. Postilion Ltd.substituted in as counsel for Wynne. The Postilion firm withdrew in January 1998, after two depositions had beenconcluded. After a period of time, the firm of Susan E. Loggans & Associates substituted in on behalf of Wynne. TheLoggans firm represented Wynne through the close of discovery on February 1, 1999.

In the course of discovery, Wynne entered into a stipulation and filed responses to Loyola's requests to admit, in which sheadmitted the following facts:

"Wynne was a psychiatric inpatient at Evanston Hospital;

Wynne experienced sleeping difficulties that caused her to admit

herself as a psychiatric inpatient;

Wynne had fertility problems;

Wynne took injections of infertility medication;

To accommodate her fear of injections, Wynne had someone hold

her while she received infertility injections;

Another Loyola professor, Dr. Nancy Hablutzel, assisted Wynne

with the infertility injection procedure, which Wynne admits was

'strange';

Wynne discussed her fertility problems with her colleagues at

Loyola."

Prior to discovery closing in February of 1999, Wynne admitted that she urged her colleague Carol Harding to read theRogers memorandum, even though Harding was not involved in the initial incident. Harding initially refused to read thememorandum, but Wynne insisted that she do so, and this was how Harding learned that Wynne had been an inpatient in apsychiatric ward.

By the end of fact discovery, the parties had deposed 12 different Loyola witnesses, all but two of whom were taken onnotices issued by defendants. By January 1997, Wynne had noticed the depositions of eight Loyola witnesses, includingSister Mary Wojnicki, Lorraine Serwatka and Allan Ornstein.

On December 22, 1998, the court set a final discovery deadline for February 1, 1999, with dispositive motions to be filedshortly thereafter. Wynne did not pursue any depositions or initiate any discovery between December 22, 1998 and theFebruary 1, 1999, cutoff. The day after discovery closed, February 2, 1999, Wynne's counsel, Susan E. Loggans &Associates, moved to withdraw. Nearly two months later, Catherine Postilion sought leave to substitute back in asWynne's counsel. The court permitted this supplemental appearance on the express condition that it would not delay thecase any further. The court granted the motion on March 22, 1999, and set new deadlines for Wynne's responses to theoverdue damage discovery requests and the requests to admit. When Wynne's counsel sought permission during that samehearing to reopen fact discovery, however, the court refused this request as untimely. The court cautioned Postilion thatthere would be no extensions based on prior counsel's strategic decisions, which plaintiff's counsel acknowledged.

On April 19, 1999, Wynne moved for reconsideration of the trial court's refusal to reopen discovery and asked to deposethree Loyola witnesses (Sister Wojnicki, Serwatka, and Ornstein) and one third-party witness (Phillip Hablutzel). Wynnehad not noticed up that motion for hearing at the time defendants moved for summary judgment on all counts on May 10,1999.

On May 27, 1999, Wynne filed a Rule 191(b) motion to depose Wojnicki, Serwatka, Ornstein, and Hablutzel. She did notnotice up that motion for immediate hearing, instead waiting until one week before the summary judgment motions werefully briefed.

On July 19, 1999, the trial court denied both Wynne's Rule 191(b) motion and motion to reconsider the court's refusal toreopen discovery. The court found Wynne's requests for discovery untimely and reminded Wynne that she had years totake the requested depositions before discovery closed. Turning to Wynne's Rule 191(b) motion, the court ruled thatWynne's "affidavit does not contain the necessary disclosures required under the rule." The court also ruled that "plaintiffhas had ample opportunity to discover facts in opposition to defendant's motion for summary judgment." In addition, thecourt found that additional discovery might prejudice defendants, who had spent considerable time and money completingdiscovery and briefing the summary judgment motions based on the factual record as it stood on May 10, 1999, whichcould jeopardize the existing trial date.

On July 21, 1999, the court entered summary judgment in favor of all defendants on all counts of the complaint. OnAugust 18, 1999, Wynne moved to reconsider the trial court's decision, which the court denied.

Plaintiff first argues that the trial court erred in granting summary judgment as to all six counts of her second amendedcomplaint. Defendants respond that since there was no genuine issue of material fact, they were entitled to summaryjudgment.

The purpose of a summary judgment is not to try an issue of fact, but to determine whether a triable issue of fact exists. Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1057, 728 N.E.2d 726 (2000). Summary judgment is adrastic means of disposing of litigation and should be employed only when there is no genuine issue as to any material factand the movant is entitled to judgment as a matter of law. Bloom Township High School v. Illinois Commerce Comm'n,309 Ill. App. 163, 177, 722 N.E.2d 676 (1999).

Under counts I (defamation per se) and II (defamation per quod), plaintiff is required to prove that defendant made a falsestatement concerning plaintiff, that there was an unprivileged publication of the defamatory statement to a third party bydefendant and that plaintiff was damaged. Cianci v. Pettibone Corp., 298 Ill. App. 3d 419, 424, 698 N.E.2d 674 (1998). Statements can be either defamatory per quod, i.e., requiring extrinsic facts to explain the defamatory character of thestatements, or defamatory per se. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 201, 206 (1992). Four categories of statements are considered defamatory per se: (1) words that impute the commission of a criminaloffense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability toperform or want of integrity in the discharge of duties of office of employment; and (4) words that prejudice a party, orimpute a lack of ability, in his or her trade, profession, or business. Bryson v. News America Publications, Inc., 174 Ill. 2d77, 88, 672 N.E.2d 1207 (1996). Wynne contends that the statements imputed an inability to perform her job as a professorat Loyola.

One who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true. Parkerv. Bank of Marion, 296 Ill. App. 3d 1035, 1038, 695 N.E.2d 1370 (1998). Only "substantial truth" is required for thisdefense. Cianci, 298 Ill. App. 3d at 424, 698 N.E.2d 674. While substantial truth is normally a question for the jury, whereno reasonable jury could find that substantial truth had not been established, the question is one of law. Hollymatic Corp.v. Daniels Food Equipment, Inc., 39 F. Supp. 2d 1115 (N.D. 1999).

Defendants contend that since Wynne has admitted certain facts in the Rogers memorandum, she cannot support herdefamation claims. Indeed Wynne has admitted the following: that she was a psychiatric inpatient at Evanston Hospital;that her sleeping difficulties caused her to admit herself as a psychiatric inpatient; that she had fertility problems and tookinjections of infertility medication; that her fear of injections required that someone hold her while she received infertilityinjections; that fellow Loyola professor, Dr. Nancy Hablutzel, assisted Wynne with her infertility injections and that Wynnefound this to be "strange"; and that Wynne discussed her fertility problems with her coworkers at Loyola. Inasmuch asWynne admits the foregoing facts, and inasmuch as the contents of the Rogers memorandum are "substantially true," herdefamation claims must fail.

In addition, a "pure opinion" contained in the memorandum is not actionable. While in one sense all opinions imply facts,the question of whether a statement of opinion is actionable as defamation is one of degree; the vaguer and moregeneralized the opinion, the more likely the opinion is nonactionable as a matter of law. Hopewell v. Vitullo, 299 Ill. App.3d 513, 521, 701 N.E.2d 99, 105 (1998).

Rogers, in her memorandum, made the following statements about Wynne: that Wynne made "bizarre telephone calls" toother colleagues regarding her infertility injections; Wynne's calls to her [Rogers] home after 10 p.m. "seemedinappropriate"; Wynne "appeared to wheedle, persuade, nag, and domineer" for changes in Loyola's Special EducationProgram; that "nothing ever seemed to satisfy [Wynne]"; Rogers found meetings involving Wynne to be "uniformlyunpleasant"; Wynne molded the Special Education Program "into her own view" which was "totally repugnant" to Rogers;that Wynne "began striking various deals" with Dean Roemer; and that Rogers "had to reach outside Loyola in order to geta fair hearing."

The emphasis in the test for determining the actionability of an allegedly defamatory statement of opinion is on whether thestatement contains an objectively verifiable assertion. Hopewell, 299 Ill. App. 3d at 519, 701 N.E.2d 99. None of thewords and phrases used by Wynne are capable of verification. In addition, Rogers at the start of her memorandum cautionsthat what follows "is simply a summary of my own feelings about my experiences with Dr. Wynne," and concludes that"[b]ased on my experiences, I don't believe that Dr. Wynne could be that type of chairman" that Rogers would seek. It isclear that Rogers was merely expressing her opinions in the memorandum.

Rogers also states the following in her memorandum concerning Wynne's stewardship of the Special Education Program:

"What began as a singularly forward-looking special education program

was gradually devolving into the kind of program which might have

operated prior to the 1975 passage of a major federal law in the field."

This statement should also be construed as Rogers' opinion of how Wynne was running the Special Education Program, andas such, is not actionable, nor do we look upon it as accusing plaintiff of violating a federal law, as argued in plaintiff'sbrief.

Counts III and IV of Wynne's complaint allege false light invasion of privacy and public disclosure of private information,respectively.

A successful cause of action for the public disclosure of private facts requires the plaintiff to prove that: (1) publicity wasgiven to the disclosure of private facts; (2) the facts were private and not public facts; and (3) the matter made public wouldbe highly offensive to a reasonable person. Johnson v. Kmart Corp., 311 Ill. App. 3d 573, 579, 723 N.E.2d 1192 (2000). In a case involving the public disclosure of private facts, "publicity" means "communicating the matter to the public atlarge or to so many persons that the matter must be regarded as one of general knowledge." Roehrborn v. Lambert, 277 Ill.App. 3d 181, 184, 660 N.E.2d 180 (1995) (citing Restatement (Second) of Torts