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Help for Plaintiffs Lawyers Who Don’t Disclose the Right Expert – Voluntary Dismissal

Illinois law permits a plaintiff to dismiss his or her case and refile it later. Typically, plaintiff, often because they are missing a witness or have some other fatal flaw in their case, dismisses the case without prejudice. The plaintiff then has a year to refile the case. This is especially useful if you are missing a witness who cannot be found, but the judge will not continue the case.

This came up in a medical malpractice case entitled Freeman vs. Crays. In Freeman the plaintiff had hired a primary care doctor to testify that the defendant in the case should have referred plaintiff’s decedent to a cardiologist. The plaintiff did not hire a cardiologist to testify about what might have happened after the plaintiff’s decedent got cardiologist. In other words, it was unclear whether a referral to a cardiologist would have likely saved plaintiff’s decedent. It was also unclear what the likelihood was.

Right before trial the defense asked for directed findings because the plaintiff could not prove causation. The trial court that without a cardiologist plaintiff could not win, so plaintiff dismissed and refiled.

In the second case the plaintiff named the cardiologist. The trial court then ruled that plaintiff could not hire a new expert because plaintiff had failed to hire one the first time. Plaintiff appealed the second dismissal. The lawyer was probably worried about malpractice.

The appellate court reversed the trial court. It found that the trial court had abused its discretion in applying the wrong legal standard. The appellate court did suggest that the trial court could have barred the witness.

The trial court must consider its several factors in determining whether to exclude a witness in a second file case. These are surprise, prejudice, nature of testimony, diligence, whether objection to the witness’s testimony was timely, and the good faith of the party calling the witness.

The appellate court ruled that there are two mechanisms under Rule 219(e). The first allows monetary sanctions where a plaintiff dismisses. The second requires the trial court to consider the prior litigation to determine the scope of the refiled action. The appellate court said the trial court improperly relied on a case called Jones and improperly applied standards that govern the imposition of monetary sanctions associated with the voluntary dismissal.

The trial court had found that the Jones case was “exactly what we have here.” The appellate court disagreed with that. The appellate court found that because plaintiff was “essentially a compliant litigant” who failed to just pick the trial court’s ruling in the original action that he should be allowed to rename a witness. It distinguished Jones because there was bad conduct on the plaintiff’s part in Jones.

In Jones the plaintiff had waited until trial to let the court know that the plaintiff’s condition had deteriorated. The trial court in Jones had allowed that victim’s deterioration for two months before trial, which seems to be a fairly short period. The plaintiff in Jones had not disclosed witness that would testify as to future medical expenses.

The defendant in Freeman had argued the plaintiff had not complied with some discovery deadlines because things had been extended by court order. The appellate court ruled that is not sufficient because the trial court had allowed those extensions.

The appellate court in Freeman found that the defendant would not have been prejudiced because could not been surprised by the introduction of the second doctor.

Freeman is helpful for plaintiffs’ lawyers who are in a position where the court rules that have not disclosed enough experts to win their case.

Hire Ackerman Law Office for personal injury and medical neglect cases.

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