Mankowski v. Keith Nemec & Total Health Inst., P.C. (In re Estate of Mankowski)

30 N.E.3d 1111

In re ESTATE OF Walter MANKOWSKI (Susan Mankowski, as Special Administrator of the Estate of Walter Mankowski, Plaintiff–Appellee,

v. Keith Nemec and Total Health Institute, P.C., Defendants–Appellants).

No. 2–14–0154.

Appellate Court of Illinois, Second District.

Dec. 24, 2014.

Terrence J. Madden and Tina M. Paries, both of Bryce Downey & Lenkov LLC, of Chicago, for appellants.

Margaret Morrison Borcia, of Morrison & Morrison, P.C., of Waukegan, for appellee.

OPINION

Justice HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 On March 30, 2009, Walter Mankowski was admitted to the hospital following an eight-day inpatient treatment stay at the Total Health Institute (the Institute), and he subsequently died. On March 25, 2011, Walter's wife, Susan Mankowski, as special administrator of the estate of Walter Mankowski, and Walter's son, David Mankowski, filed a complaint alleging that defendants, Keith Nemec, D.C., and the Institute, acted negligently in providing care for Walter. As amended, the complaint sought relief pursuant to the Wrongful Death Act (the Act) (740 ILCS 180/1 et seq. (West 2008)) and alleged breach of contract. The contract claim was later voluntarily dismissed, leaving Susan as the only plaintiff. A jury found in favor of plaintiff and assessed damages of $2,522,847. The trial court entered judgment on the jury's verdict, plus costs. Defendants filed a posttrial motion, which, following a hearing, the trial court denied. Defendants filed a timely notice of appeal, raising three central contentions: (1) the trial court's appointment of plaintiff as special administrator was improper, and therefore the judgment should be vacated because it was entered on Wrongful Death Act claims that were nullities; (2) alternatively, this court should remand for a new trial because of trial court errors; and (3) alternatively, this court should reduce the award of damages. We affirm.

¶ 2 I. BACKGROUND

¶ 3 According to the complaint, on or about March 3, 2009, Walter was a patient at Skokie hospital and was diagnosed with stage IV gastric carcinoma with metastasis to his liver. The family decided to pursue alternative treatments to chemotherapy. They viewed the Institute's website and met with Nemec. Nemec indicated that four weeks of treatment would cost $22,847; David agreed and paid for the treatment. Walter was discharged from the hospital on March 20, 2009, and admitted to the Institute on March 23, 2009. While at the Institute, Walter's condition deteriorated, and on March 30, 2009, David transported Walter back to the hospital, where Walter later died, on April 7, 2009.

¶ 4 On March 25, 2011, Susan and David filed a four-count complaint against defendants. The caption identified the complaint as being brought by “Susan Mankowski, Special Administrator of the Estate of Walter Mankowski, deceased, and David Mankowski.” Count I alleged a cause of action sounding in negligence pursuant to the Act (740 ILCS 180/1 et seq. (West 2008)) and was brought by Susan against Nemec. Count II was similar to count I but was brought by Susan against the Institute. Counts III and IV alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 2008) ) but were later dismissed. Count III was amended to allege breach of contract against Nemec, but was later voluntarily dismissed. Thus, Susan was the only plaintiff remaining.

¶ 5 On September 10, 2013, plaintiff filed a motion seeking leave to file a petition for the appointment of a special administrator. Plaintiff acknowledged that, in a wrongful death action, first the administrator of the decedent's estate should be appointed and then the action filed, but she alleged that the failure to do so was not fatal to her wrongful death action, citing Nagel v. Inman, 402 Ill.App.3d 766, 342 Ill.Dec. 81, 931 N.E.2d 1264 (2010). Plaintiff also requested that the appointment relate back to when the suit was filed, citing Nagel and Jablonski v. Rothe, 287 Ill.App.3d 752, 223 Ill.Dec. 100, 678 N.E.2d 1108 (1997).

¶ 6 Also on September 10, 2013, defendants filed a motion to dismiss the action pursuant to sections 2–619(a)(1) and (a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2–619(a)(1), (a)(2) (West 2012)). Defendants argued that, although the caption always identified plaintiff as “Special Administrator of the Estate of Walter Mankowski, deceased,” there were no factual allegations in the complaint itself relating to plaintiff's appointment as special administrator nor was there attached to the complaint any order appointing her. Defendants argued that plaintiff had no standing or right in her individual capacity to file a wrongful death action on behalf of Walter. Defendants argued that, because “Susan Mankowski, Special Administrator of the Estate of Walter Mankowski, deceased” did not exist, the original complaint was improperly filed, the complaint was void ab initio, and the trial court never had subject matter jurisdiction over the claims. Defendants further argued that, after David's claim in count IV of the original complaint was dismissed, on November 3, 2011, no valid claims remained; since no appeal was taken, the present action terminated and the order permitting the filing of an amended complaint was void and the current pleading a legal nullity. Defendants concluded that, because no special administrator was appointed before the action was filed, and because the action thus was invalid, any subsequent attempt to add a special administrator could not relate back and should fail.

¶ 7 The parties fully briefed the issue, and, following a hearing, the trial court denied defendants' motion to dismiss; granted plaintiff leave to file her petition for appointment as special administrator; granted her petition; and entered an order appointing her as special administrator, for the purpose of prosecuting the present action.

¶ 8 Before trial, the trial court issued the following rulings on specific motions in limine pertinent to this appeal: (1) barring the admission of defendants' exhibit Nos. 5 and 6, which were copies of a statement by the Institute, signed by Walter and David when Walter entered the Institute; (2) barring any claim or reference during the trial to fraud by the Institute; and (3) permitting plaintiff's expert witness Tracey Thomas to give opinions during the trial.

¶ 9 The case proceeded to a jury trial on September 24, 2013. After opening statements, defendants asked the trial court to reconsider its ruling on plaintiff's motion in limine regarding the statement signed by Walter and David. The statement reflected, “We do not treat any disease or condition at the Total Health Institute.” Plaintiff responded that the statement was irrelevant because it was not a release. The trial court determined, as it had before, that the statement had no relevance if it was not asserted to be a release. The trial court further stated, “under the balancing of Rule 403, any probative value was substantially outweighed by the prejudice concerning the document,” and upheld its prior ruling.

¶ 10 Plaintiff called Christopher Holland, who was the senior pastor for the Seventh–Day Adventist church in Gurnee. Walter was a member of the church. Holland testified that Walter knew how much time he had left to live and that he planned for a new house and a few trips. Holland saw Walter just before Walter's admission to the Institute and he testified that Walter appeared to be in good health and “under his own power got into the vehicle.” Holland saw Walter again on March 30, 2009, after his time at the Institute, and he observed that Walter had “sunken cheeks, labored breathing” and “looked like he was about to die.”

¶ 11 Nemec next testified as an adverse witness. Nemec was a licensed chiropractic physician and he did business under the name of Total Health Institute. His website stated that the Institute was “one of the leading alternative healing facilities in the country,” where “[t]housands of patients have been restored to their total health and overcome cancer, * * * to name a few.” There were inpatient and outpatient programs, but there were no medical doctors affiliated with the Institute in March 2009. Nemec typically saw inpatients three times per week, but, aside from that, there were no other medical professionals monitoring the patients. Nemec recalled that Walter was enrolled in a four-week inpatient fasting detoxification program. Nemec knew that Walter had cancer, but he did not inquire further. He did not request any medical records or speak to any of Walter's physicians. Walter's kidneys were functioning fairly normally when he was admitted. Nemec gave Walter an “exam” on March 23, 2009, which was a “treatment” to rebalance his neurological levels. On March 25, 2009, Nemec gave Walter another treatment and wrote a comment that the “[p]atient felt better.” On March 28, 2009, Nemec wrote “no change” and performed an adjustment to balance Walter's nervous system. It appeared that Walter received two colonic hydrotherapy and two lymphatic sessions while he was an inpatient. Walter also received a nutritional program with supplements.

¶ 12 Nemec denied knowledge of Walter's alleged vomiting, severe abdominal pain, or bloody diarrhea. Nemec recalled that Walter had jaundice when he arrived at the Institute but that otherwise he was walking without assistance and “cognitive.” On Friday, he received a call from his staff relaying that Walter seemed a little more fatigued and had “brain fog,” described as confusion caused by the detox products. Nemec did not see Walter on Friday or call a medical doctor on Friday or Saturday. Nemec recalled getting a phone call from David on Saturday, indicating that Walter seemed to be getting worse, and Nemec's response was to “just watch him.” David called Nemec a couple of times on Sunday, indicating that Walter was getting worse. Nemec did not see Walter...