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Docket No. 91072-Agenda 25-November 2001.

SHIRLEY ROBIDOUX, Indiv. and as Ex'r of the Estate of HarveyRobidoux, 

Deceased, Appellee, v. URETZ J.OLIPHANT,

M.D., et al. (Uretz J. Oliphant, M.D., et al., Appellants).

Opinion filed June 20, 2002.

JUSTICE McMORROW delivered the opinion of the court:

This appeal stems from the death of Harvey Robidoux, whowas injured in a motorcycle accident on July 15, 1995, and wassubsequently taken to the Carle Foundation Hospital (the Hospital)in Urbana. While there, he was treated by, inter alia, defendantUretz J. Oliphant, M.D., an employee of defendant Carle ClinicAssociation (the Clinic). Harvey Robidoux died at the Hospital thesame day. In June 1997, plaintiff Shirley Robidoux, Harvey'swidow, sued Oliphant and the Clinic, along with several otherswho are not parties to this appeal, in the circuit court ofChampaign County. In 1999, following defendants' motions forsummary judgment, plaintiff filed a response to which sheattached the affidavit of David Richards, M.D., plaintiff's expertwitness. On October 4, 1999, Oliphant filed a supplemental replyto plaintiff's response and a motion to strike Richards' affidavit.The next day, October 5, the trial court granted Oliphant's motionto strike, as well as his "unrefuted" motion for summary judgment.The trial court subsequently granted the Clinic's motion forsummary judgment. Plaintiff appealed, and the appellate courtreversed. No. 4-00-0105 (unpublished order under Supreme CourtRule 23). We allowed defendants' petition for leave to appeal. 177Ill. 2d R. 315. For the reasons set forth below, we reverse thejudgment of the appellate court.

BACKGROUND

The following facts are taken from the pleadings and othermaterials of record, including Richards' affidavit and Oliphant'sdeposition. On July 15, 1995, plaintiff's decedent, HarveyRobidoux (decedent), was injured in a motorcycle accident andwas taken to the Hospital. He arrived at the emergency roomshortly after 12 p.m. Oliphant, the head of the Hospital's traumadivision, was not in the emergency room when decedent arrived,and took no part in his initial care and treatment. At 12:32 p.m., itwas ordered that decedent undergo a computed tomography (CT)scan. During this scan, decedent went into cardiac arrest. Oliphant,who arrived at the emergency room about this time, ordered theCT scan halted, and decedent was taken to the operating room.

Oliphant, who is a board-certified general surgeon, beganoperating on decedent at about 1:15 p.m. He testified in hisdeposition that he found a large, ruptured hematoma, or blood clot,extending from decedent's pelvis upward and spreading over halfhis abdomen. Oliphant determined that decedent's iliac vein⁽¹⁾ wascompletely severed, and he believed that all of decedent's iliacvessels on one side were torn. Decedent died a short time later.According to Oliphant, the cause of death was intra-abdominalbleeding from the severed or injured iliac vessels.

In his deposition, Oliphant was asked if alternative measures,including starting surgery earlier, might have saved decedent'slife. Oliphant answered that because of the severity of decedent'sinjuries, he did not believe it would have made any difference.Oliphant also stated that his treatment of decedent on July 15,1995, was within the appropriate standard of care.

In counts I through III of her fourth amended complaint,plaintiff alleged that Oliphant was negligent in failing timely to (1)institute appropriate fluid resuscitation therapy, (2) diagnoseinternal bleeding, (3) treat internal bleeding, and (4) diagnose anunstable pelvic fracture. In counts X through XII plaintiff soughtto hold the Clinic, Oliphant's employer, vicariously liable forOliphant's actions.

Oliphant and the Clinic filed motions for summary judgment.In Oliphant's motion, to which he attached excerpts from hisdeposition, Oliphant asserted that he was not involved in the initialtreatment of decedent and there was no negligence in hissubsequent treatment of decedent. Plaintiff's response was filedseven days after the initial deadline set by the trial court, butwithin an extended deadline that was set by the court sua sponte.⁽²⁾Plaintiff asserted in her response that there were genuine issues ofmaterial fact as to whether Oliphant acted within the standard ofcare. Attached to plaintiff's response was Dr. Richards' signedaffidavit, which stated in full:

"The undersigned, being first duly sworn under oath,deposes and states as follows:

1. I am a physician licensed to practice medicine in theState of Ohio and a board certified general surgeon;

2. I have been treating trauma patients with injuriessimilar to those of Harvey Robidoux and have practicedin the same area of health care medicine that is at issue inthis case in excess of six years;

3. I have reviewed the records of Ford-BaierAmbulance Service and Carle Foundation Hospital, aswell as various depositions, including the deposition ofUrtez [sic] J. Oliphant, M.D.;

4. That in my opinion, based upon a reasonable degreeof medical certainty, the care and treatment provided byDr. Oliphant to Harvey Robidoux at Carle FoundationHospital on July 15, 1995, fell below the standard of care.In my opinion, Dr. Oliphant failed to recognize in a timelyfashion that the patient had a[n] unstable pelvic fracturethat was the most probable source of the bleeding, failedto take appropriate measures to provide adequate fluidresuscitation therapy and failed to take appropriatemeasures to immobilize and repair the damages [sic]blood vessels;

5. In my opinion, based upon a reasonable degree ofmedical certainty, had the patient received appropriatefluid resuscitation in a timely manner, and appropriatetreatment to immobilize and repair the damage to bloodvessels in the pelvic region, it is more probably true thannot that the patient would have survived.

6. This affidavit is based on my education, training andexperience, as well as my review of the various materialsreferenced herein and that, if sworn as a witness, I can andwill testify competently to the facts and opinions statedherein, to a reasonable degree of medical certainty."

Oliphant filed a supplemental reply to plaintiff's response anda motion to strike Richards' affidavit. In his motion, Oliphantalleged that Richards' affidavit was improper and in violation ofSupreme Court Rule 191 (145 Ill. 2d R. 191). Oliphant assertedthat the affidavit was undated and unverified, and therefore did notcontravene Oliphant's summary judgment motion, which wassupported by his sworn deposition testimony. According toOliphant, there was no indication in Richards' affidavit "ofverification or swearing under oath by any proper official or notarypublic." Oliphant added that Richards' affidavit consisted of"vague conclusions" and contained no admissible facts, and thusdid not comply with Supreme Court Rule 191, which requires thatsuch affidavits set forth with particularity "the facts" upon whichthe affiant relied. 145 Ill. 2d R. 191. In addition, Oliphant pointedto a Rule 191 requirement that sworn or certified copies of allpapers upon which the affiant relies must be attached to theaffidavit. No such papers were attached to Richards' affidavit.

The trial court granted Oliphant's motion to strike, explainingthat Richards' affidavit "is not verified and does not comport withthe requisites of Supreme Court Rule 191." The court then grantedOliphant's motion for summary judgment, which the court held"stands unrefuted in effect." Plaintiff filed a motion to reconsider,to which she attached Richards' supplemental affidavit. Oliphantfiled a response to plaintiff's motion to reconsider and a motion tostrike Richards' supplemental affidavit.

Because the original judge who granted Oliphant's motion forsummary judgment had since retired, a different judge presidedover a joint hearing on plaintiff's motion to reconsider, Oliphant'smotion to strike Richards' supplemental affidavit, and the Clinic'smotion for summary judgment. Despite finding that Richards'supplemental affidavit was "adequate to create a genuine issue ofmaterial fact," the trial court nevertheless granted Oliphant'smotion to strike, "not because [the affidavit] is defective underRule 191, but because it is not timely." The court therefore deniedplaintiff's motion to reconsider and held that the summaryjudgment in favor of Oliphant remained "in full force and effect."The court also granted the Clinic's motion for summary judgment.Finally, the court found, pursuant to Supreme Court Rule 304(a)(155 Ill. 2d R. 304(a)) that, as to all of these rulings, there was nojust reason to delay enforcement or appeal.

Plaintiff appealed, and the appellate court reversed andremanded. No. 4-00-0105 (unpublished order under SupremeCourt Rule 23). The appellate court first held that the striking ofan affidavit for noncompliance with Rule 191 should be reviewedde novo and not under the "abuse of discretion" standard. Thecourt then found that, while Richards' original affidavit mighthave violated Rule 191 in a technical sense, it was neverthelesssubstantively in compliance and should not have been stricken.This affidavit, the appellate court further held, presented a genuineissue of material fact as to whether Oliphant's treatment ofdecedent fell below the standard of care. Accordingly, theappellate court determined that the trial court improperly grantedsummary judgment in favor of Oliphant and the Clinic. Weallowed defendants' petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

The question before us is one of statutory construction. Weare asked to determine the precise scope of the requirements setforth in Rule 191(a). It is well settled that the construction of ourrules is comparable to this court's construction of statutes. Thecommittee comments to Supreme Court Rule 2 state that "thesame principles that govern the construction of statutes areapplicable to the rules." 134 Ill. 2d R. 2, Committee Comments;cf. Bright v. Dicke, 166 Ill. 2d 204, 210 (1995) (supreme courtrules are neither aspirational nor are they suggestions; "[t]hey havethe force of law, and the presumption must be that they will beobeyed and enforced as written"). As is the case with statutes, ourprimary task in construing a rule is to ascertain and give effect tothe intent of its drafters. In re Estate of Rennick, 181 Ill. 2d 395,404-05 (1998). "The most reliable indicator of intent is thelanguage used, which should be given its plain and ordinarymeaning." Rennick, 181 Ill. 2d at 405. The construction of a statuteis a question of law and is reviewed de novo. In re Estate ofDierkes, 191 Ill. 2d 326, 330 (2000). We therefore review theinterpretation of Rule 191(a) de novo.

Rule 191(a) states in pertinent part:

"Affidavits in support of and in opposition to a motion forsummary judgment under section 2-1005 of the Code ofCivil Procedure *** shall be made on the personalknowledge of the affiants; shall set forth with particularitythe facts upon which the claim, counterclaim, or defenseis based; shall have attached thereto sworn or certifiedcopies of all papers upon which the affiant relies; shall notconsist of conclusions but of facts admissible in evidence;and shall affirmatively show that the affiant, if sworn asa witness, can testify competently thereto." 145 Ill. 2d R.191(a).

Plaintiff directs our attention to this court's decision in Wilsonv. Clark, 84 Ill. 2d 186 (1981), and argues that, in light of thisdecision, the requirements of Rule 191(a) cannot be given literaleffect. We disagree.

In Wilson, this court adopted Rules 703 and 705 of the FederalRules of Evidence pertaining to an expert's testimony at trial. Rule703 states in pertinent part:

"The facts or data in the particular case upon which anexpert bases an opinion or inference may be thoseperceived by or made known to the expert at or before thehearing. If of a type reasonably relied upon by experts inthe particular field in forming opinions or inferences uponthe subject, the facts or data need not be admissible inevidence in order for the opinion or inference to beadmitted." Fed. R. Evid. 703.

The court in Wilson noted that, in a trial context, "[b]oth Federaland State courts have interpreted Federal Rule 703 to allowopinions based on facts not in evidence." Wilson, 84 Ill. 2d at 193. Rule 705 states:

"The expert may testify in terms of opinion or inferenceand give reasons therefor without first testifying to theunderlying facts or data, unless the court requiresotherwise. The expert may in any event be required todisclose the underlying facts or data on cross-examination." Fed. R. Evid. 705.

In accordance with Rule 705, we held in Wilson that, at trial,"an expert may give an opinion without disclosing the factsunderlying that opinion." Wilson, 84 Ill. 2d at 194. "Under Rule705 the burden is placed upon the adverse party during cross-examination to elicit the facts underlying the expert opinion."Wilson, 84 Ill. 2d at 194. We explained in Wilson that our"following of Federal Rules 703 and 705 comports with themodern trend liberalizing certain trial procedures." Wilson, 84 Ill.2d at 195. Thus, under Wilson, an expert testifying at trial mayoffer an opinion based on facts not in evidence, and the expert isnot required on direct examination to disclose the facts underlyingthe expert's opinion.

Plaintiff at bar argues in essence that there is an inconsistencybetween Wilson and the plain language of Rule 191(a). As noted,under Wilson, an expert's opinions may be offered at trial in theform of conclusions. However, under the plain language of Rule191(a), an expert's affidavit in support of or in opposition to amotion for summary judgment must consist not of conclusions butof facts admissible in evidence, and it must set forth these factswith particularity. Plaintiff thus appears to contend that we shouldconstrue Rule 191(a) not according to its plain language, but ratherin conformity with the more relaxed standard established inWilson.

The difficulty with plaintiff's contention is that Wilson dealswith an expert's testimony at trial, while Rule 191(a) deals withaffidavits in support of or in opposition to motions for summaryjudgment. As was explained by our appellate court in Kosten v. St.Anne's Hospital, 132 Ill. App. 3d 1073 (1985), these twoprocedural settings are very different. In Kosten, the plaintiffraised the same argument as does plaintiff at bar, contending that,in light of this court's decision in Wilson, her expert's affidavit"need not state any facts but may set forth only conclusions."Kosten, 132 Ill. App. 3d at 1080. In rejecting this argument, ourappellate court explained:

"Wilson has no relevance to summary judgmentprocedure. An affidavit utilized in summary judgmentprocedure is totally different from testimony at trial. Theaffidavit cannot be cross-examined as can a witness attrial.

Supreme Court Rule 191 is specific in mandating thataffidavits cannot consist of conclusions but must set forthfacts admitted in evidence. [Citation.] Wilson did notoverrule or modify Rule 191." Kosten, 132 Ill. App. 3d at1080.

Accord Landeros v. Equity Property & Development, 321 Ill. App.3d 57, 63 (2001); Woolums v. Huss, 323 Ill. App. 3d 628, 636(2001); Northrop v. Lopatka, 242 Ill. App. 3d 1, 8 (1993).⁽³⁾

We agree with the reasoning of the court in Kosten. Summaryjudgment is appropriate where "the pleadings, depositions, andadmissions on file, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law." 735ILCS 5/2-1005(c) (West 1998); Gilbert v. Sycamore MunicipalHospital, 156 Ill. 2d 511, 517-18 (1993). The purpose of summaryjudgment is not to try a question of fact, but to determine if oneexists. Gilbert, 156 Ill. 2d at 517. Although a plaintiff is notrequired to prove his case at the summary judgment stage, in orderto survive a motion for summary judgment, the nonmoving partymust present a factual basis that would arguably entitle the partyto a judgment. Allegro Services, Ltd. v. Metropolitan Pier &Exposition Authority, 172 Ill. 2d 243, 256 (1996). An affidavitsubmitted in the summary judgment context serves as a substitutefor testimony at trial. Fooden v. Board of Governors of StateColleges & Universities, 48 Ill. 2d 580, 587 (1971). Therefore, itis necessary that there be strict compliance with Rule 191(a) "toinsure that trial judges are presented with valid evidentiary factsupon which to base a decision." Solon v. Godbole, 163 Ill. App. 3d845, 851 (1987).

Further support for the position taken by the court in Kostencan be found in the federal court of appeals decision in Hayes v.Douglas Dynamics, Inc., 8 F.3d 88 (1st Cir. 1993), whichaddressed an issue similar to the Rule 191-Wilson question. InHayes, the court considered the interplay between Rule 705 of theFederal Rules of Evidence (one of the rules adopted in Wilson) andRule 56(e) of the Federal Rules of Civil Procedure. Rule 56(e), asubsection of the federal rule governing motions for summaryjudgment in federal court, is similar to our Rule 191(a). Rule 56(e)states in pertinent part:

"Supporting and opposing affidavits shall be made onpersonal knowledge, shall set forth such facts as would beadmissible in evidence, and shall show affirmatively thatthe affiant is competent to testify to the matters statedtherein. Sworn or certified copies of all papers or partsthereof referred to in an affidavit shall be attached theretoor served therewith." Fed. R. Civ. P. 56(e).

The plaintiffs in Hayes raised essentially the same argumentas did the plaintiff in Kosten and plaintiff in the case at bar, i.e.,that under Federal Rule of Evidence 705, the conclusory assertionsmade in their experts' affidavits were sufficient to withstand amotion for summary judgment. The court in Hayes disagreed, andaffirmed the trial court's granting of summary judgment.According to the Hayes court, such affidavits submitted inopposition to a motion for summary judgment must meet thestandards of Rule 56(e), which "requires that the nonmoving party'set forth specific facts showing that there is a genuine issue fortrial.' " Hayes, 8 F.3d at 92, quoting Fed. R. Civ. P. 56(e). Thecourt added that the plaintiffs' reliance upon Rule 705 was"largely inapposite" because that rule "was designed to apply inthe context of a trial, where cross-examination provides anopportunity to probe the expert's underlying facts and data and totest the conclusions reached by the expert." Hayes, 8 F.3d at 92.

The court in Hayes further stated:

"The evidentiary rules regarding expert testimony at trialwere 'not intended *** to make summary judgmentimpossible whenever a party has produced an expert tosupport its position.' [Citation.] We are not willing toallow the reliance on a bare ultimate expert conclusion tobecome a free pass to trial every time that a conflict offact is based on expert testimony. As with all otherevidence submitted on a motion for summary judgment,expert affidavits must be reviewed in light of [Rule] 56."Hayes, 8 F.3d at 92.

See also Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673(D.C. Cir. 1977) ("To hold that Rule 703 prevents a court fromgranting summary judgment against a party who relies solely on anexpert's opinion that has no more basis *** than *** theoreticalspeculations would seriously undermine the policies of Rule 56.We are unwilling to impose the fruitless expenses of litigation thatwould result from such a limitation on the power of a court togrant summary judgment"); Evers v. General Motors Corp., 770F.2d 984, 986 (11th Cir. 1985) (concluding that Rules 703 and 705"do not alter the requirement of [Rule] 56(e) that an affidavit mustset forth specific facts in order to have any probative value").

In light of these authorities, we conclude that Rule 191(a)should be construed according to the plain and ordinary meaningof its language. Its requirements should be adhered to as written.See Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). If we were tolessen these requirements and interpret Rule 191(a) in conformitywith the more relaxed standard established in Wilson, we would bemaking "summary judgment impossible whenever a party hasproduced an expert to support its position." Merit Motors, 569F.2d at 673. We decline to construe Rule 191(a) in this manner. Notwithstanding the foregoing, plaintiff points to the specialconcurrence in Woolums v. Huss, 323 Ill. App. 3d 628 (2001),which asserts an essential equivalence between expert opiniontestimony at trial and an expert's affidavit in a summary judgmentcontext. The special concurrence argues that, given this court'sdecision in Wilson, "the admission of an expert opinion underRule 191 at the summary judgment stage requires a greatershowing of foundation than is required for admission of the sameexpert opinion at trial." Woolums, 323 Ill. App. 3d at 642(Steigmann, P.J., specially concurring). According to the specialconcurrence, this is an inconsistency for which there is no soundbasis.

We find this argument unconvincing. As noted, Federal Rules703 and 705 were designed to apply to an expert's testimony attrial. Rule 191, on the other hand, was drafted to apply to pretrialproceedings, including summary judgment. For purposes of ouranalysis, there is no equivalence between these two proceduralcontexts. Accordingly, there is no inconsistency in having onestandard for admission of an expert's testimony at trial and adifferent, more stringent standard for admission of an expert'saffidavit in support of or in opposition to a motion for summaryjudgment. As noted, such an affidavit serves as "a substitute fortestimony taken in open court." Fooden v. Board of Governors ofState Colleges & Universities, 48 Ill. 2d 580, 587 (1971). Giventhat cross-examination is unavailable as a means to test anaffidavit, it is not surprising that the standard for admission of anaffidavit in a summary judgment context would be higher than forthe admission of an expert's opinion at trial. Cf. Solon v. Godbole,163 Ill. App. 3d 845, 851 (1987) ("strict compliance with SupremeCourt Rule 191(a) is necessary to insure that trial judges arepresented with valid evidentiary facts upon which to base adecision").

For the reasons set forth above we conclude that Wilson isinapplicable to a summary judgment situation. Therefore, anexpert's affidavit in support of or in opposition to a motion forsummary judgment must adhere to the requirements set forth inthe plain language of Rule 191(a).

Plaintiff next argues that even if Wilson does not apply, andRule 191(a) therefore is construed according to its plain meaning,the rule's provision requiring that supporting documents beattached to the affidavit need not be strictly followed. Accordingto plaintiff, the failure to attach such papers to the affidavit ismerely a technical violation of the rule and should be disregardedif the affiant is competent to testify at trial. We disagree.

We have already held that Rule 191(a)'s requirements are tobe construed according to the plain language of the rule. Here, theplain language clearly requires that such papers be attached to theaffidavit. Moreover, supreme court rules, like statutes, should beconstrued as a whole, with individual provisions interpreted inlight of other relevant provisions. See Michigan Avenue NationalBank v. County of Cook, 191 Ill. 2d 493, 504 (2000). The Rule191(a) provisions barring conclusionary assertions and requiringan affidavit to state facts with "particularity" would have littlemeaning were we to construe the attached-papers provision asmerely a technical requirement that could be disregarded so longas the affiant were competent to testify at trial.

In support of her position, plaintiff relies upon Beals v.Huffman, 146 Ill. App. 3d 30 (1986), which held that the failure toattach to an affidavit the papers on which an affiant relies is atechnical violation of Rule 191(a). According to the court in Beals,such technical interpretations are not favored, and technicalinsufficiencies such as the failure to attach documents should bedisregarded if it appears that the affiant would be a competentwitness at trial. Beals, 146 Ill. App. 3d at 39. For the reasons setforth above, we decline to construe the attached-papers provisionin this manner. As we stated in Bright v. Dicke, 166 Ill. 2d 204,210 (1995), the rules of this court neither are aspirational nor arethey mere suggestions; "[t]hey have the force of law, and thepresumption must be that they will be obeyed and enforced aswritten."

Plaintiff next urges that an affidavit need not be notarized inorder to comply with the requirements of Rule 191(a). We agree. We note initially that there is no express requirement in Rule191(a) that an affidavit be notarized. As was noted in Northrop v.Lopatka, 242 Ill. App. 3d 1, 7 (1993), "Supreme Court Rule 191does not expressly require that affidavits include evidence of theadministration of an oath to the affiant." What is required is thatthe "affidavit must be signed by the deponent or his name mustappear therein as the person who took the oath." Northrop, 242 Ill.App. 3d at 7.

The signed affidavit at issue in Northrop recited that theaffiant, " 'after being duly sworn upon [his] oath[,] depose[s] andstate[s] as follows.' " Northrop, 242 Ill. App. 3d at 7. The court inNorthrop held that this affidavit was "minimally sufficient, as thedeponent's name appears as one having taken an oath." Northrop,242 Ill. App. 3d at 7. In the instant case, Richards' affidavit, whichwas also signed, presents a similar recitation, stating that "[t]heundersigned, being first duly sworn under oath, deposes and statesas follows." The appellate court below relied upon Northrop inconcluding that Richards' affidavit did not violate Rule 191(a),even though the affidavit lacked notarization. We agree with thisinterpretation of the rule.

Notwithstanding the foregoing, defendants argue that in orderto comply with Rule 191(a), an affidavit must appear to have beensworn to before an officer of the court. In support, defendantspoint to decisions by our appellate court in People v. Smith, 22 Ill.App. 3d 377 (1974), and Hough v. Weber, 202 Ill. App. 3d 674(1990). Defendants' reliance upon these decisions is misplaced.

Smith contains an assertion that an affidavit must appear tohave been sworn to before an officer. The court in Hough cites toSmith in making essentially the same assertion. However, neitherof these decisions involves Rule 191(a), which by its terms appliesto "[a]ffidavits in support of and in opposition to a motion forsummary judgment under section 2-1005 of the Code of CivilProcedure, affidavits submitted in connection with a motion forinvoluntary dismissal under section 2-619 of the Code of CivilProcedure, and affidavits submitted in connection with a specialappearance to contest jurisdiction over the person, as provided bysection 2-301(b) of the Code of Civil Procedure."⁽⁴⁾ 145 Ill. 2d R.191(a).

In Smith, the "affidavit" in question stated, allegedly falsely,that the person named in an accompanying ballot application was"physically incapable of being present at the polls on electionday." Smith, 22 Ill. App. 3d at 378. This affidavit was thecenterpiece of an indictment charging the defendants, includingthe physician who signed the affidavit, with conspiracy to commitperjury. The affidavit did not fall within the scope of Rule 191(a).It was not filed in support of or in opposition to a summaryjudgment motion, nor was it submitted in connection with aspecial appearance to contest jurisdiction over the person or inconnection with a section 2-619 motion to dismiss. The same istrue of Hough, which dealt with a dispute between a widow andher husband's adult children over the disinterment of thehusband's remains. The widow sued to prevent the disinterment,and the trial court issued a preliminary injunction in her favor. Thedefendants subsequently filed a motion for rehearing and a motionto preserve the evidence, both of which were denied. The affidavitin question was submitted in support of the motion to preserveevidence. As was the case in Smith, this affidavit was not withinthe scope of Rule 191(a). These decisions provide no support fordefendants' argument that Rule 191(a) requires an affidavit to benotarized.

Defendants also attempt to distinguish Northrop v. Lopatka,242 Ill. App. 3d 1 (1993), where, as noted, an affidavit was foundto be "minimally sufficient" under Rule 191 even though theaffidavit was not notarized. Defendants note that the affiant inNorthrop, unlike Richards in the instant case, "had already givensworn deposition testimony, but had thereafter filed a defectiveaffidavit." The appellate court below rejected this same argument,correctly concluding that "[t]he fact that Richards had not yet beendeposed is irrelevant." As the appellate court noted, "[t]he court[in Northrop] actually found the affidavit sufficient because theaffiant had taken an oath, not because he had been deposed." Thisconclusion by the appellate court below is supported by thelanguage used by the court in Northrop, which stated: "Wenevertheless conclude that the affidavit here was minimallysufficient, as the deponent's name appears as one having taken anoath." Northrop, 242 Ill. App. 3d at 7.

We now apply our construction of Rule 191(a) to Richards'original affidavit, which, as previously indicated, was stricken bythe trial court. We note initially that, contrary to the trial court'sassertion that the affidavit was "not verified," we find that itshowed sufficient signs of verification to meet the requirements ofRule 191(a). As discussed previously, an affidavit need not benotarized in order to comply with Rule 191(a). Instead, it must besigned by the affiant, or "his name must appear therein as theperson who took the oath." Northrop v. Lopatka, 242 Ill. App. 3d1, 7 (1993). Here, Richards' affidavit was signed, and his nameappeared as one having taken an oath. Lack of notarization did notrender this affidavit insufficient.

As to the requirement that facts be set forth with particularityand that the affidavit consist not of conclusions but of factsadmissible in evidence, Richards' initial affidavit does appear tobe somewhat conclusionary. However, we are not convinced thatthe affidavit is as devoid of factual support as defendants maintain.In his affidavit Richards mentions, for example, decedent's"unstable pelvic fracture," which, according to Richards, Oliphantfailed to recognize in a timely fashion as the most probable sourceof bleeding. Richards also points to "damage to blood vessels inthe pelvic region," opining that there should have been"appropriate treatment to immobilize and repair" such damage.

Nevertheless, it is undisputed that the affidavit did not haveattached "sworn or certified copies of all papers upon which theaffiant relie[d]." 145 Ill. 2d R. 191(a). As noted, this requirementis inextricably linked to the provisions requiring specific factualsupport in the affidavit itself. It is not a mere technicalrequirement. Were we to relax this attached-papers requirementand construe it in conformity with the more lenient standardestablished in Wilson, we would be lowering the bar and allowingthe avoidance of summary judgment whenever a party is able toproduce an expert to support its position. See Merit Motors, Inc.v. Chrysler Corp., 569 F.2d 666, 673 (D.C. Cir. 1977). We areunwilling to allow the simple production of an expert's conclusion"to become a free pass to trial" in such a context. Hayes v.Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993).

Notwithstanding the foregoing, plaintiff asserts that the trialcourt's decisions to strike Richards' initial affidavit and grant themotion for summary judgment were taken without a hearing.Plaintiff therefore argues that she "was deprived of anyopportunity to correct deficiencies in the original affidavit beforeit was stricken or, most importantly, to submit a supplementalaffidavit prior to the trial court['s] ruling on the motion forsummary judgment."

Plaintiff did not raise this issue in her motion to reconsider,nor was it raised during the hearing on this motion. "Questions notraised in the trial court cannot be argued for the first time onappeal." Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d342, 355 (1998). Plaintiff therefore has waived this issue. Inaddition, under the local circuit court rules, "[t]he allowance oforal arguments upon motions [is] discretionary with the court,"which may "decide a motion without hearing oral arguments." 6thJudicial Cir. Ct. R. 2.1(c) (eff. February 6, 1997). According tothese rules, it was within the court's discretion to grant the motionto strike the affidavit and the motion for summary judgmentwithout conducting a hearing.

For the reasons set forth above, we conclude that, under anystandard of review, Richards' initial affidavit clearly did not meetthe plain-language requirements of Rule 191(a). It was thereforenot error for the trial court to strike this affidavit and grantsummary judgment in favor of defendants.

Plaintiff next argues that the trial court erred in strikingRichards' supplemental affidavit and denying plaintiff's motionfor reconsideration. We disagree.

We note initially that while the supplemental affidavit statesthat "copies of the records and depositions that [Richards]reviewed and relied upon in support of [his] opinions are attachedhereto as Group Exhibit B," we could find no such Group ExhibitB attached to the supplemental affidavit in the record. This exhibitis referred to during the hearing on plaintiff's motion toreconsider, but its absence from the record on appeal leaves us tospeculate as to whether the appropriate documents were attachedto the affidavit, as required by Rule 191(a).

Plaintiff correctly notes that the judge at the hearing on themotion to reconsider held that the supplemental affidavit wasadequate under Rule 191(a). The judge stated that "this time in thesupplemental affidavit Dr. Richards incorporates *** certainspecific facts upon which he's relying in arriving at his opinion,"and the judge concluded that this affidavit "would be adequate tocreate a genuine issue of material fact." However, the judge struckthe affidavit "not because it is defective under Rule 191, butbecause it is not timely." The judge stated that "[t]here is simplyno explanation, much less a good one tendered, as to why thesupplemental affidavit *** was not submitted" prior to the trialcourt's decision on the motion for summary judgment.

In reaching this conclusion, the trial judge cited Gardner v.Navistar International Transportation Corp., 213 Ill. App. 3d 242(1991), where the court stated:

"Trial courts should not permit litigants to stand mute,lose a motion, and then frantically gather evidentiarymaterial to show that the court erred in its ruling. Civilproceedings already suffer from far too many delays, andthe interests of finality and efficiency require that the trialcourts not consider such late-tendered evidentiarymaterial, no matter what the contents thereof may be."(Emphasis in original.) Gardner, 213 Ill. App. 3d at 248-49.

The judge also noted that "there has been a chronic pattern [oftardiness] throughout this case which has truly infected theseproceedings." He then provided a chronology of plaintiff'stardinesses in the case:

"Two Motions for Judgment were filed by the defensebecause the Plaintiff had not filed amended pleadings incompliance with the time frames set by [the trial court].The first Motion for Judgment was filed March 22nd,1999, and [the trial court] granted the Plaintiff anextension of time to respond and granted that extension*** to April 13th of 1999. Again, the Plaintiff did not filein a timely fashion, so a second Motion for Judgment wasfiled April the 15th of 1999. Notwithstanding that, [thetrial court] granted leave to file a Third AmendedComplaint on May the 11th of 1999. On June 17th of1999 another Motion for Extension of Time was allowedthe Plaintiff [by the trial court], this time to respond to aMotion to Strike and Dismiss. Notwithstanding theextension of time, the response for the Motion to Strikeand Dismiss was filed eight days late. On July 21st of1999, nevertheless[,] the Plaintiff was given leave toamend the complaint again. *** On September 13th of1999 the Plaintiff's Motion for Leave to File a FourthAmended Complaint, quote 'belatedly,' closed quotes,was granted by [the trial court] over the objection of theDefendant, and the Plaintiff was given to September 22ndof 1999 to file a response to the Motions for SummaryJudgment that I am being asked to reconsider today. On[September] 27th of 1999, [the trial court], again,apparently ex parte, afforded the Plaintiff an opportunityto respond to September the 29th of 1999, and it was notuntil October 5th of 1999 that Summary Judgment wasgranted."

The judge concluded that "the sound exercise of the Court'sdiscretion dictates granting the Motion to Strike the SupplementalAffidavit simply on the basis of timeliness or lack thereof."

A ruling on a motion to reconsider is within the sounddiscretion of the trial court and will not be disturbed absent anabuse of that discretion. Williams v. Covenant Medical Center,316 Ill. App. 3d 682, 693 (2000); Higgens v. House, 288 Ill. App.3d 543, 546 (1997). Given the circumstances in this case, andgiven the sound policy reasons invoked by the trial judge, wecannot say that it was an abuse of discretion for the judge to strikethe supplemental affidavit. The trial court therefore did not err instriking the supplemental affidavit and in denying the motion forreconsideration.

For the reasons set forth above, we conclude that SupremeCourt Rule 191(a) should be construed according to the plain andordinary meaning of its language. Its provisions should be adheredto as written. In addition, an affidavit need not be notarized tocomply with Rule 191(a), so long as it is either signed by theaffiant or his name appears as one having taken an oath. Weconclude further that it was not error for the trial court to strikeRichards' original affidavit and grant the motions for summaryjudgment, nor was it error for the trial court to strike Richards'supplemental affidavit and deny plaintiff's motion forreconsideration. We therefore reverse the judgment of theappellate court, which reversed the judgment of the circuit court,and affirm the judgment of the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.

I respectfully dissent from the majority's sanctioning ofsummary judgment in this case when the trial court failed tocomply with the mandates of section 2-1005 of the Code of CivilProcedure (the Code) (735 ILCS 5/2-1005 (West 2000)).Specifically, the trial court granted summary judgment in this casewithout the benefit of "the hearing" specifically contemplated bythe Code. See 735 ILCS 5/2-1005(c) (West 2000).

Before setting out my opposition to the fundamental,procedural flaw in this case, I note my disagreement with themajority's interpretation of Rule 191's attachment requirement asit relates to the rule's particularity requirement. The linchpin of themajority's ultimate conclusion is that plaintiff's original affidavitfailed because the plaintiff did not attach documents in support ofthe affidavit. If all other matters were equal, the majority'sconclusion on that point would be correct. I contend, however, thatall else was not equal and that the plaintiff was not afforded a levelplaying field.

The attachment issue was first raised by the defendants afterplaintiff filed the original affidavit in opposition to the summaryjudgment motion. The defendants' supplemental replies andmotions to strike alleged that the plaintiff's affidavit was improperand in violation of Supreme Court Rule 191. The supplementalpleadings in reply were filed the day before the trial judge grantedsummary judgment. Without affording the plaintiff anyopportunity to respond to the new objections, the next day the trialcourt struck plaintiff's affidavit. After striking plaintiff's affidavit,the trial court then reasoned that summary judgment for defendantwas inescapable because plaintiff had, in effect, presented noopposition to the summary judgment motion. In short, the trialcourt permitted the defendants to blind-side the plaintiff byignoring the summary judgment hearing requirement anddepriving the plaintiff of the right to file a counteraffidavit orotherwise respond to the defendants' supplemental filings.

Section 2-1005 unequivocally contemplates a hearing onsummary judgment motions. Section 2-1005 provides that the"opposite party may prior to or at the time of the hearing on themotion file counteraffidavits." (Emphasis added.) 735 ILCS5/2-1005(c) (West 2000). If there is no hearing, how can thedeadline for filing counteraffidavits be established? Section2-1005 plainly grants the opposing party the right to presentcounteraffidavits at the time of the summary judgment hearing.Here, the opposing party (plaintiff) did not receive the benefit ofa hearing where he might have cured any defects in the originalresponse and affidavit.

The majority explains that the lack of a hearing in this case isof no moment because the local circuit court rules permit oralhearings on a discretionary basis and plaintiff waived the issue. Idisagree with both of these reasons. First, it is inexplicable howthe majority can countenance the usurpation of a statutoryrequirement by a local circuit court rule. The proceduralrequirements of section 2-1005 are plain and simple, legalrequirements, binding upon all Illinois trial courts.

Second, on the issue of waiver, we may consider issues notproperly preserved by the parties in order to ensure a just result.Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994).Summary judgment is a drastic means of disposing of litigationand the court has a duty to construe the record strictly against themovant and liberally in favor of the nonmoving party. Gilbert v.Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993).Moreover, summary judgment should be entered only when theright of the moving party is clear and free from doubt. Gilbert, 156Ill. 2d at 518.

In this case, waiver should not have been relied upon by themajority because of the procedural irregularities that occurredbelow. The trial court should have allowed plaintiff theopportunity to respond to defendants' supplemental objections,filed the day before it awarded summary judgment to defendant.The trial court procedure used here is tantamount to blindfoldingthe opponent and then asking the opponent to shoot at a movingtarget. In addition, while plaintiff's arguments concerning the lackof a hearing on the summary judgment motion were not raised ina written motion, those arguments were raised before the trialcourt by plaintiff during oral argument on the motion toreconsider. Because plaintiff afforded the trial court theopportunity to correct its own error, the rationale behind thewaiver rule is not present. See People v. Segoviano, 189 Ill. 2d228, 253 (2000) (Rathje, J., specially concurring); In re Marriageof Houghton, 301 Ill. App. 3d 775, 780 (1998); see also People v.Williams, 173 Ill. 2d 48, 85 (1996) (application of the waiver ruleis less rigid where the basis for the objection is the trial court'sconduct).

Furthermore, I also disagree with the majority's decisionregarding Rule 191 because of the practical implications of themajority's interpretation of the attachment requirement. AlthoughI agree with the majority that the attachment requirement is morethan a mere technicality, I do not believe that we should blindlydemand strict compliance. Rather, the attachment of documentsshould be enforced with an eye towards the practicalities ofmanaging a court file. For instance, at oral argument, plaintiff'scounsel clarified that the same documents relied upon by theplaintiff's doctor were already filed of record. Why then should werequire duplicative filings of the same documents relied upon bymultiple parties in support of or in opposition to a summaryjudgment motion? A party should be permitted to comply with theattachment provision by incorporating by reference theidentification of the pertinent papers.

Finally, on a minor point of reference by the majority, I alsorespectfully object to the notion that a litigant's right to trial couldbe equated with a " 'free pass to trial' " (slip op. at 16, quotingHayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993)).If anything, the "free pass" in this case is the unwarranted grant ofsummary judgment and the defendants' pass from trial. Everylitigant is entitled to a trial and that right may only be denied bysummary judgment when the right of the moving party is clear andfree from doubt. Gilbert, 156 Ill. 2d at 518.

Accordingly, for the reasons set forth in this separate opinion,I respectfully dissent.

CHIEF JUSTICE HARRISON joins in this dissent.

1. ¹The term "iliac vein" is defined as "any of three veins on each sideof the body corresponding to and accompanying the iliac arteries,"which are themselves defined as "either of the large arteries supplyingblood to the lower trunk and hind limbs." Webster's Third NewInternational Dictionary 1125 (1993). The term "iliac" is derived from"ilium," which is a bone in the pelvis. Webster's Third NewInternational Dictionary 1126 (1993).

2. ²Plaintiff was initially given until September 22, 1999, to respond tothe motions for summary judgment. On September 27, the trial courtextended the deadline to September 29, which is the date the responsewas filed.

3. ³This court has not directly addressed the issue of Rule 191 as itrelates to Wilson. However, in Majca v. Beekil, 183 Ill. 2d 407, 423-24(1998), we affirmed the striking of an expert's affidavit on the groundthat it was conclusory rather than fact based and thus did not meet therequirements of Rule 191. See also Bucheleres v. Chicago Park District,171 Ill. 2d 435, 462-63 (1996) (upholding the striking of an expert'saffidavit for failure to comply with Rule 191, where affidavit waschallenged as being "merely conjectural").

4. ⁴Defendants also point to Hamer Holding Group, Inc. v. Elmore, 244Ill. App. 3d 1069 (1993), which on its surface appears to implicate Rule191(a). There, the court held that the affidavits in question "lacked ***the seal of a notary and as such do not comport with Supreme CourtRule 191(a)." Hamer, 244 Ill. App. 3d at 1084. However, this holdingwas clearly judicial dictum, i.e., not essential to the decision. SeeBlack's Law Dictionary 465 (7th ed. 1999). In addition, it isquestionable whether these affidavits were of a type that is includedwithin the scope of Rule 191(a). Hamer dealt with the enforceability ofa covenant not to compete, and the affidavits in question were attachedto the defendant's petition seeking to bar enforcement of the covenanton the ground of a change in circumstances. They were not filed insupport of or in opposition to a summary judgment motion, nor do theyappear to have been filed in connection with a special appearance tocontest jurisdiction over the person or in connection with a section2-619 motion to dismiss.