KELLI RITSCHEL BOEHLE, Individually and as Administrator of the Estate of Nikolas Ritschel, Deceased, Plaintiff-Appellee, v. OSF HEALTHCARE SYSTEM, d/b/a Saint Anthony Medical Center-Rockford and d/b/a OSF Medical Group; BERNARD E. O’MALLEY, M.D.; ROY K. WERNER, M.D.; ROCKFORD RADIOLOGY ASSOCIATES, P.C.; JOSEPH P. MICHO, M.D.; MICHAEL G. MYERS, M.D.; ERIC TREFELNER, M.D., INC., d/b/a Nightshift Radiology; and MARSHALL P. MALLORY, M.D., Defendants-Appellants.
Docket No. 2-16-0975
Appellate Court of Illinois, Second District
March 7, 2018
2018 IL App (2d) 160975
JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.
Illinois Official Reports. Appeal from the Circuit Court of Winnebago County, No. 15-L-390; the Hon. J. Edward Prochaska, Judge, presiding. Judgment: Certified questions answered; cause remanded.
Julie A. Teuscher, of Cassiday Schade LLP, of Chicago, for appellants Michael G. Myers, M.D., Eric Trefelner, M.D., Inc., and Marshall P. Mallory, M.D.
Hinshaw & Culbertson LLP, of Chicago (Joshua G. Vincent, Jeffry S. Spears, Daniel E. Wiesch, and Carson R. Griffis, of counsel), for appellants OSF Healthcare System, Bernard O’Malley, M.D., and Roy K. Werner, M.D.
Cunningham, Meyer & Vedrine, PC, of Warrenville (Kevin J. Vedrine, Thomas J. Tomasik, and Robert L. Larsen, of counsel), for other appellants.
Robert P. Sheridan, Keith A. Hebeisen, Bradley M. Cosgrove, and Susan A. Capra, of Clifford Law Offices, P.C.,
OPINION
¶ 1 In this appeal involving a medical malpractice case, we address the following questions certified pursuant to
“(1) Does Supreme Court Rule 219(e) prevent the use of a voluntary dismissal to avoid the consequences of a court order denying plaintiff’s motion to disclose an additional Supreme Court Rule 213(f)(3) witness as untimely, or does it only prevent the use of a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery violations or other misconduct?
(2) Does Supreme Court Rule 219(e) prevent a party from disclosing new expert witnesses in a refiled action who
were not identified in Rule 213(f)(3) disclosures by a court-ordered deadline in an original action as an abuse of the voluntary dismissal process in order to avoid the consequences of orders in the original action?”
¶ 2 Although the questions seem to call for straightforward answers through their either/or and yes/no phrasing, our interpretation of
I. BACKGROUND
¶ 4 On February 4, 2011, plaintiff, Kelli Ritschel Boehle, and her son, Nikolas Ritschel, filed a medical negligence lawsuit against several defendants for allegedly failing to timely diagnose and treat Nikolas’s sarcoma of the spine, allegedly resulting in the spread of the cancer and the increased likelihood of premature death. The trial court initially set a trial date of July 9, 2012. Nikolas passed away on March 9, 2012, and on May 29, 2012, plaintiff filed a first amended complaint, individually and on behalf of Nikolas’s estate. She thereafter disclosed four expert witnesses, pursuant to defendants’
¶ 5 Plaintiff retained new counsel, and on January 16, 2014, the trial court granted plaintiff’s motion for leave to supplement her Rule 213(f)(3) disclosures, over defendants’ objections; she was to disclose her new experts by March 1, 2014. Plaintiff’s supplemental Rule 213(f)(3) disclosures named two additional witnesses who would testify as to causation.
¶ 6 On August 7, 2014, the trial court rescheduled the trial date to September 14, 2015. It ordered that all of plaintiff’s expert witnesses be deposed by September 18, 2014. Defendants were to disclose their expert witnesses by November 18, 2014, and their depositions were to be completed by February 18, 2015. Defendants later disclosed a total of 12 expert witnesses.
¶ 7 On June 25, 2015, plaintiff mailed notice of a motion to supplement her Rule 213(f)(3) disclosures to add Dr. Leonard Wexler, a pediatric oncologist, to testify as to causation. Defendants objected, and the trial court denied plaintiff’s motion on July 23, 2015. It stated that, when plaintiff had switched law firms earlier, she had been given leave to name two new experts. However, the case had now been pending for four years, all of the experts had been deposed, and trial was two months away. The alleged failure to diagnose Nikolas’s cancer was the theory of the case from the beginning, and plaintiff had chosen to name surgeons and neurosurgeons, as opposed to oncologists, as experts, which was
¶ 8 Less than one month later, on August 19, 2015, the trial court granted plaintiff’s motion to voluntarily dismiss the suit without prejudice.
¶ 9 On December 9, 2015, plaintiff refiled her case against the same defendants. She subsequently moved to disclose 10 experts, including Dr. Wexler and 4 other experts not named in the original action. Defendants moved to strike the motion, arguing that Rule 219(e) prohibited plaintiff from using a voluntary dismissal to avoid compliance with the trial court’s July 23, 2015, discovery order, which denied her leave to name Dr. Wexler as a witness. Defendants argued that plaintiff should also not be allowed to name the other new expert witnesses.
¶ 10 On June 22, 2016, the trial court denied defendants’ motion to strike. It stated as follows. Plaintiff dismissed her original action as “a strategic voluntary dismissal *** because [she] was not allowed to disclose Dr. Wexler *** because we were too close to trial.” Plaintiff dismissed her initial action in order to be able to name her choice of experts in the refiled action, including Dr. Wexler. However, Rule 219(e) did not prohibit “dismissing a case for strategic reasons and then naming a new or additional expert upon re-filing.” To bar plaintiff’s new expert witnesses under Rule 219(e), the trial court would have to find “discovery violations in the prior case,” “misconduct in the prior case,” or “a deliberate disregard of the court’s authority in the underlying case,” none of which was present. It did “not see any reason under Supreme Court Rule 219(e) to bar the plaintiffs [sic] from viewing this as a new case and for strategic reasons naming some new and additional expert witnesses.” To rule otherwise would be to read conditions into
¶ 11 Defendants then sought to certify the aforementioned questions for immediate appeal under
“[Plaintiff] voluntarily dismissed [her] case when I denied [her] request to name a new additional expert witness, this oncologist. I made that ruling at the time and I stand by it because it was too late. We were very close to the final pretrial conference. *** I denied it in my discretion. And then [she] made [her] motion for voluntary dismissal.
I have no doubt and I’ve even said it on the record *** I call it a strategic voluntary dismissal. *** [She] wants to name a couple of new experts in this newly filed case and so I have to look at where, where it was in the litigation and I felt like, again, in my discretion, after reviewing Supreme Court Rule 219(e), *** there was nothing preventing [her] from doing that. I don’t think [she] was violating any orders that I had entered in the previous case. In particularly [sic], *** it’s important to the Court that [she] wasn’t doing anything that was going to save [her] case from an imminent defeat and by that I mean summary judgment or directed verdict.
* * *
And so, I, in every case, look at where *** are we along the path to trial?
And in this particular case I didn’t feel that we were far enough long [sic] the path to trial in the prior case to say that [plaintiff] could not voluntarily dismiss, refile, and name a couple of new experts. I felt that was in my discretion. I allowed it.”
The trial court stated that the issue defendants raised in their proposed certified questions was whether its ruling improperly allowed plaintiff to avoid the effects of its order denying her motion for leave to add Dr. Wexler as an expert witness. The issue involved the interplay of section 2-1009, Rule 219(e), and a trial court’s discretion to make discovery rulings when a case is refiled. Therefore, the trial court granted the motion to certify, over plaintiff’s objection.
¶ 12 We initially denied defendants’ application for leave to appeal. However, on May 24, 2017, our supreme court issued a supervisory order directing us to vacate our denial of defendants’ application and to consider the questions certified by the trial court. We followed the supreme court’s directive and granted defendants leave to appeal.
II. ANALYSIS
¶ 14
¶ 15
¶ 16 Defendants do not dispute that a plaintiff has the right to voluntarily dismiss and refile his or her action. Rather, the parties disagree about a plaintiff’s ability to name witnesses in a refiled action who were not previously named or were named untimely. This question involves the interpretation of
“A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, expert witness fees, reproduction costs,
travel expenses, postage, and phone charges.” Ill. S. Ct. R. 219(e) (eff. July 1, 2002).
The committee comments to the rule state:
“Paragraph (e) addresses the use of voluntary dismissals to avoid compliance with discovery rules or deadlines, or to avoid the consequences of discovery failures, or orders barring witnesses or evidence. This paragraph does not change existing law regarding the right of a party to seek or obtain a voluntary dismissal. However, this paragraph does clearly dictate that when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred. The consequences of noncompliance with discovery deadlines, rules or orders cannot be eliminated by taking a voluntary dismissal. Paragraph (e) further authorizes the court to require the party taking the dismissal to pay the out-of-pocket expenses actually incurred by the adverse party or parties. *** Paragraph (e) does not provide for the payment of attorney fees when an action is voluntarily dismissed.”
Ill. S. Ct. R. 219(e) , Committee Comments (rev. June 1, 1995).
¶ 17 We construe supreme court rules according to the same principles that govern the interpretation of statutes. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 22. Our primary goal is to ascertain and give effect to the drafters’ intent, which is best indicated by the plain and ordinary meaning of the language used. Id. We will interpret a rule such that no part of it is rendered meaningless or superfluous, and we will not depart from the rule’s plain language by reading into it exceptions, limitations, or conditions that conflict with the drafters’ expressed intent. Id. If the rule’s language is ambiguous or susceptible to more than one reasonable interpretation, we may look to the committee comments for guidance in ascertaining the reason and purpose for the rule. A.M. Realty Western L.L.C. v. MSMC Realty, L.L.C., 2016 IL App (1st) 151087, ¶ 73. The interpretation of a rule presents a question of law, which we review de novo. Doe v. Coe, 2017 IL App (2d) 160875, ¶ 10.
¶ 18 Defendants OSF Healthcare System; Bernard E. O’Malley, M.D.; and Roy K. Werner, M.D. (collectively OSF defendants), argue that
¶ 19 OSF defendants cite Jones v. Chicago Cycle Center, 391 Ill. App. 3d 101 (2009), and Valdovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill. App. 3d 255, 271 (2002), as examples of cases where the appellate court held that Rule 219(e) allows a court to impose sanctions or bar evidence when a plaintiff uses the right to voluntarily dismiss the lawsuit as a means to avoid the consequences of an order excluding evidence. In Jones, the plaintiffs sought to obtain additional opinion testimony from one of their experts, based on the decline in the primary plaintiff’s condition. Jones, 391 Ill. App. 3d at 103-04. The trial court questioned why the plaintiffs had not previously disclosed the decline or their plan to elicit new opinion testimony from an expert last deposed two years before. Id. at 104. The trial court
¶ 20 In Valdovinos, the trial court similarly granted the plaintiffs’ motion for a voluntary dismissal but ordered them to pay costs of over $100,000 to the defendants. Valdovinos, 328 Ill. App. 3d at 263-64. The appellate court affirmed, stating that the assessment of expenses was proper “where the plaintiffs exercised their right to voluntarily dismiss the action without prejudice in order to avoid the effects of pretrial evidentiary rulings based on their own failure to comply with discovery deadlines.” Id. at 271. In particular, due to untimely disclosures, the plaintiffs were barred from presenting certain witnesses and from using a computer animated videotape. Id.
¶ 21 OSF defendants note that, like the trial courts in Jones and Valdovinos, the trial court here originally excluded Dr. Wexler’s testimony because plaintiff had disclosed him “too late” and it found that plaintiff had voluntarily dismissed her lawsuit to avoid the consequences of that discovery order. OSF defendants argue that the trial court wrongly believed that it could bar Dr. Wexler’s testimony under
¶ 22 OSF defendants argue that those cases in which
¶ 23 OSF defendants argue that the trial court’s ruling in this case contradicts
¶ 24 Defendants Michael G. Myers, M.D.; Eric Trefelner, M.D., Inc., d/b/a Nightshift Radiology; and Marshall P. Mallory, M.D. (collectively Nightshift defendants), present arguments similar to those of OSF defendants. They argue that
¶ 25 Nightshift defendants further argue that, even if
¶ 26 Defendants Rockford Radiology Associates, P.C., and Joseph P. Micho, M.D. (Rockford Radiology defendants) adopt the arguments set forth by OSF defendants and Nightshift defendants.
¶ 27 Plaintiff responds that, although certified questions are supposed to present questions of law, defendants are actually seeking to have us review the propriety of the trial court’s order denying their motions to bar Dr. Wexler and the other new expert witnesses. Plaintiff argues that, given the trial court’s discretion under
¶ 28 Plaintiff contends that defendants wrongly describe Dr. Wexler as having been barred in the original case. She argues that instead she simply asked for leave to disclose him after discovery was closed, and the trial court denied the motion solely because it was too close to trial. Plaintiff argues that, although the trial court described her voluntary dismissal as “strategic,” all such dismissals are strategic and the trial court explicitly stated that she had done nothing improper or sanctionable. Plaintiff maintains that she had the right not only to dismiss her case but also to refile it and that it is well established that a refiled case is not a continuation of the original case but instead a new action. See Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997) (“We note that the refiled action is an entirely new and separate action, not a reinstatement of the old action.”). Plaintiff argues that, aside from exceptions not applicable here, a refiled case should not be treated as a continuation of the old case and should therefore not be burdened with the proceedings of the old case, or else the right to dismiss and refile would be pointless. Plaintiff contends that, although defendants focus on Rule 219(e)’s language that parties “shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit,” such policy language is ordinarily not considered in determining the scope of an enactment. See Brown v. Kirk, 64 Ill. 2d 144, 152 (1976). She also points out that the rule further specifies that the trial court shall consider discovery undertaken, any misconduct, and the orders entered. Plaintiff argues that the trial court was not required to apply previous orders in the refiled case, as there is no rule that such orders must be reinstated upon refiling.
¶ 29 Plaintiff further argues that the cases cited by defendants do not support their position. Plaintiff argues that Morrison does not hold that the trial court is required to bar evidence, particularly considering that
¶ 30 Plaintiff also argues that defendants focus on the language of
¶ 31 Plaintiff argues that Scattered Corp. controls. There, the court stated that “
¶ 32 Plaintiff next argues that defendants ignore the fact that
¶ 33 OSF defendants reply that, although plaintiff concedes that
¶ 34 Having summarized the parties’ arguments, we now begin our own commentary. After briefing in this case was completed, this court decided Freeman v. Crays, 2018 IL App (2d) 170169, which touches upon many of the issues central to this case. There, the plaintiff brought suit against the defendant doctor, alleging that his negligent treatment of her husband’s cardiovascular disease proximately caused her husband’s death. Id. ¶ 1. Shortly before the trial, the trial court ruled that the plaintiff’s only medical expert witness was unqualified to offer an opinion on causation, which would have prevented the plaintiff from proving her case. Id. The plaintiff voluntarily dismissed and refiled her action, and she disclosed her intent to name an additional medical expert witness to testify on causation. Id. The defendant then moved to adopt the rulings from the original case and bar the testimony of any newly disclosed experts under
¶ 35 We first concluded that the trial court acted within its discretion in barring the original expert witness’s causation opinion. Id. ¶ 36. In addressing the second issue, we rejected the plaintiff’s argument that, because she was not sanctioned or found to have committed misconduct in the original action, it was improper for the trial court to apply
¶ 36 We ultimately held that the trial court abused its discretion in barring the plaintiff’s new expert witness in the refiled action because the trial court improperly applied the standards in Jones governing the imposition of expenses associated with a voluntary dismissal, instead of the framework set out in Smith for a refiled action. Id. ¶ 60. We remanded the cause for the trial court to reconsider the issue according to the proper standards. Id. ¶ 61.
¶ 38
¶ 39
discovery will be permitted, and what witnesses and evidence may be barred.”
¶ 40 We agree with defendants that, according to the second sentence of
¶ 41 The third sentence of
¶ 42 With these considerations in mind, we return to the first certified question, which states:
“(1) Does Supreme Court Rule 219(e) prevent the use of a voluntary dismissal to avoid the consequences of a court order denying plaintiff’s motion to disclose an additional Supreme Court Rule 213(f)(3) witness as untimely, or does it only prevent the use of a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery violations or other misconduct?” (Emphases added.)
As mentioned, the phrasing of this question is problematic because it presents either/or scenarios, neither of which is entirely correct.
¶ 43 Moreover, case law holds that “[t]he rule does not require, as a condition precedent to voluntary dismissal, that the plaintiff agree to be bound by prior discovery orders upon refiling the case” (Wright, 292 Ill. App. 3d at 955)2 and that
¶ 44 In sum, regarding the first half of the question, a plaintiff could use a voluntary dismissal to attempt to avoid the consequences of a court order denying as untimely a plaintiff’s motion to disclose an additional witness. Regarding the second half of the question, a plaintiff could attempt to use a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery violations or other misconduct. Still, upon a voluntary dismissal, the trial court would have the discretion to sanction the plaintiff through expenses paid to the defendant, and the trial court would also have the discretion to bar or otherwise limit certain witnesses and/or evidence in the refiled action using the same standards applicable to sanctions under
¶ 45 The second certified question states:
“Does Supreme Court Rule 219(e) prevent a party from disclosing new expert witnesses in a refiled action who were not identified in Rule 213(f)(3) disclosures by a court-ordered deadline in an original action as an abuse of the voluntary dismissal process in order to avoid the consequences of orders in the original action?” (Emphasis added.)
Again, nothing in
¶ 47 For the foregoing reasons, we answer the certified questions as detailed above, and we remand the cause for further proceedings consistent with this opinion.
¶ 48 Certified questions answered; cause remanded.