In this case of medical malpractice, the trial court refused to allow the plaintiff to name a pediatric oncologist as one of her expert witnesses. The plaintiff, Kelli Boehle, used what is called a “strategic voluntary dismissal” in order to name a new additional expert. Right after refiling the case under Section 13-217 of the Illinois Code of Civil Procedure, Boehle listed the same pediatric oncologist that the trial court had originally denied as being tardy.
The defendants relied on Illinois Supreme Court Rule 219(e), which lists a set of authorized consequences for “refusal to comply” with discovery/pretrial rules and orders. They moved to bar Boehle from using the oncologist as an expert in the refiled case.
Although the trial judge denied the motion because Boehle had not engaged in any sanctionable conduct in the first case, the judge certified two questions for immediate review under Illinois Supreme Court Rule 308. Both questions raised to call for yes/no answers focused on whether Rule 219(e) should be interpreted to “prevent Boehle from naming the oncologist as one of her experts in the revived litigation.
“Regarding the first question, we conclude that nothing in Rule 219(e) prevents a plaintiff from attempting to use a voluntary dismissal to avoid the consequences of a court order denying the plaintiff’s motion to disclose an additional witness, or to avoid the effect of court-ordered sanctions for discovery violations or other misconduct. However, the trial court has the discretion to sanction the plaintiff for misconduct or unreasonable noncompliance by ordering expenses paid to defendant as a condition to grant the voluntary dismissal, and the trial court could additionally or alternatively bar or limit witnesses and/or evidence in the refiled action.
As to the second question, we conclude that Rule 219(e) does not prevent the plaintiff from disclosing a new expert witness in the refiled action. Still, it is within the trial court’s discretion that it would bar or otherwise limit the witness’s testimony in the refiled case.”
As to the first question, the appeals panel stated that the trial court would have the discretion to sanction the plaintiff for 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 filed action using the same standards applicable to sanctions under Section 219(c).
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?”
The court ruled that nothing in Rule 219(e) would prevent the plaintiff from disclosing a new expert witness in the refiled action. Rather, “when a case is refiled, the rule requires the court to consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred.” Morrison v. Wagner, 191 Ill.2d 162, 166 (2000).
Finally, the appeals panel stated that it is within the trial court’s discretion whether to bar a witness in a refiled action and that the trial court should apply the same factors used to determine whether barring a witness is an appropriate sanction in an original action.
For the reasons stated above, the certified questions were answered and the case as remanded for further proceedings consistent with the appellate court’s opinion.
Boehle v. OSF Healthcare System, 2018 IL App (2d) 160975 (March 7, 2018).
Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, brain injury lawsuits and birth trauma injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Tinley Park, Antioch, Long Grove, Winfield, Olympia Fields, Evergreen Park, Evanston, Richton Park, Orland Park, Worth, Alsip, Highland Park, Lake Bluff, Gurnee, Chicago (Midway, Old Town, Greek Town, Chinatown, West Town, South Loop, Bucktown, Logan Square), Arlington Heights, Wheeling and Des Plaines, Ill.
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