Illinois Appellate Court Examines Expert Witnesses in Refiled Case

Under the Illinois Code of Civil Procedure Section 2-1009, an Illinois plaintiff is allowed to voluntarily dismiss all or part of a claim without prejudice before a trial or a hearing begins. The statute allows this process upon payment of costs. Related to Section 2-1009 is Illinois Supreme Court Rule 219(e), which states, “A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit.”

Continuing, Rule 219 says: “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. . .”

In the case of Boehle v. OSF Healthcare System, a medical-malpractice lawsuit, the claim was for a failure to diagnose and treat a cancerous growth in the spine of the patient.
The alleged medical negligence led to the death of the plaintiff’s son.

The plaintiff’s first lawyer disclosed four controlled expert witnesses (Illinois Supreme Court Rule 213(f)(3)) to testify on causation. The plaintiff later retained a new lawyer who sought and received leave of the court to supplement the controlled expert witness disclosures. The court allowed this; two additional causation experts were disclosed. To support the defendants’ position, they disclosed twelve controlled expert witnesses.

There was nothing in the Boehle appellate court decision as to the plaintiff having the right to identify rebuttal witnesses to the defendants’ expert witnesses. After depositions were completed and within 90 days of trial, the plaintiff filed a motion to supplement her controlled expert disclosures. The plaintiff wanted to add a pediatric oncologist to testify regarding causation. The defendants objected and the motion to add the additional expert was denied.

Having been refused the disclosure of a new expert witness, the plaintiff filed a motion for voluntary dismissal without prejudice for which that motion was granted. The plaintiff then refiled the claim and disclosed ten controlled experts. These witnesses included that same pediatric oncologist who had been barred from the original lawsuit. The plaintiff also identified four controlled expert witnesses who were not part of the first case. The defense motion to strike the plaintiff’s witness disclosure was denied.

The trial court reasoned that to bar a witness under Rule 219(e), there needs to be a discovery violation, misconduct or a deliberate disregard of the court’s authority. None of those elements were found to be present.

The issue of adding these new witnesses and considering Supreme Court Rule 219(e) was certified for appeal to the Illinois Appellate Court.

The first question on appeal asked: Where there is no discovery violation or other misconduct, does the Rule 219(e) prohibition against using the voluntary dismissal to avoid compliance with discovery rules, deadlines or orders, apply when the witness disclosure was untimely?

In the Boehle opinion, the court answered that Rule 219(e) does not prevent the plaintiff from “attempting” to use the voluntary dismissal statute as a means to avoid the consequences of an adverse order.

The second question on appeal in the case was: Does Rule 219(e) prohibit a party from disclosing a new expert witness in a refiled action, who was not disclosed in the original case?

The appellate court answered by stating that a party can disclose a new expert, but the trial court has discretion to bar or limit evidence in the refiled case. As to whether the trial court, applying its discretion, should allow or disallow a new expert witness in the refiled case, the criteria are: surprise, prejudice, the nature of the testimony, the diligence of the adverse party, the timeliness of the objection and the good faith of the party seeking to add the new witness.

In the other case that dealt with expert witnesses in a refiled case is in Freeman v. Crays where the decedent Terrence Freeman died at age 37 from cardiac arrest. His wife, as special administrator of the estate, brought a medical-malpractice lawsuit against the family physician who had been treating her husband. The case was centered on the defendant choosing not to refer Freeman to a cardiologist. Proximate cause in a medical negligence lawsuit must be established by expert witness testimony to a reasonable degree of medical certainty.

In the Freeman case, the plaintiff’s only medical expert was a family practice physician. At the deposition of this physician, the doctor testified that a cardiologist could have administered a number of different treatments to Freeman. However, he was unable to provide specifics as to how a cardiologist would have treated Freeman because of his lack of expertise in cardiology. The trial judge barred the family practice physician from testifying that a cardiologist would have prevented Freeman’s sudden death. The plaintiff then voluntarily dismissed the case without prejudice before a jury had been selected. The defendant did not object and the motion was granted with each party to pay their own costs.

The plaintiff subsequently refiled the case and the defendant asked to enforce the prior discovery and evidentiary court orders from the initial litigation. That defense motion was granted. This effectively barred the plaintiff in presenting expert testimony. The trial court subsequently entered summary judgment in favor of the defendant dismissing plaintiff’s complaint with prejudice. The trial court, in dismissing the Freeman case, relied on the decision in Jones v. Chicago Cycle Center, 391 Ill.App.3d 101 (1st Dist. 2009).

In the Jones case, the plaintiff was ordered to pay $181,256 in costs under Rule 219(e) if the plaintiff chose to refile the case. On appeal, the Jones trial court decision was affirmed.

In the Freeman appeal, the court ruled that Smith v. PACE, 323 Ill.App.3d 353 (1st Dist. 2001) controls when the issue is to determine whether a witness should be barred from testifying. In the PACE case the court identified the same criteria that the trial court’s discretion applies to.

As a result, the Freeman dismissal was reversed because it applied the wrong legal standard in entering the summary judgment.

These cases are important in that often after expert witnesses are disclosed and deposed, it is evident that a missing link in causation is present. This eventuality leads the plaintiff and sometimes the defendant, in medical malpractice cases particularly, to request that additional experts be allowed to provide opinion testimony. These decisions are an aid to understanding the perils of the nonsuit and naming of new experts in the refiled lawsuit.

Boehle v. OFS Healthcare System, 2018 IL App (2d) 160975; Freeman v. Crays, 2018 IL App (2d) 170169.

Kreisman Law Offices has been handling medical malpractice lawsuits, birth injury lawsuits, birth trauma injury cases and brain injury lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Palatine, Rolling Meadows, Prospect Heights, Northbrook, Northfield, Wilmette, Glenview, Park Ridge, Melrose Park, Elmhurst, Villa Park, Crestwood, Robbins, Oak Lawn, Harvey, Chicago (Pilsen, Oz Park, Old Town Triangle, Chinatown, Bucktown, Beverly, Belmont Central, Avondale, Archer Heights, Horner Park, Jefferson Park, Kilbourn Park, Lincoln Park, Printer’s Row), Waukegan, Lake Forest, Lockport, Morton Grove, Niles and Round Lake Beach, Ill.