Does the Discovery Rule Apply to Claims Brought Under the Wrongful Death Act or Pursuant to the Survival Act?

Supreme Court Watch M. Elizabeth D. Kellett HeplerBroom LLC, Edwardsville Does the Discovery Rule Apply to Claims Brought Under the Wrongful Death Act or Pursuant to the Survival Act? Moon v. Rhode, No. 119572, 3d Dist. No. 3-13-0613 The plaintiff is the executor of his mother s estate. Moon v. Rhode, 2015 IL App (3d) 130613, 1. The plaintiff s mother died on May 29, 2009. Moon, 2015 IL App (3d) 130613, 4. Approximately nine months later, the plaintiff requested and received his mother s medical records. Id. 6. The plaintiff provided these records to a medical consulting firm and the firm determined that the plaintiff s mother s surgeons were negligent. Id. The plaintiff filed a medical negligence action against his mother s surgeons on May 10, 2011. Id. In February 2013, three years and nine months after his mother s death, the plaintiff sent his mother s radiographs to a doctor for review in connection with the lawsuit against his mother s surgeons. Id. 8. After reviewing the radiographs, the doctor provided the plaintiff with a report stating that the radiologist failed to properly read and interpreted the CT scan and that this failure contributed to the plaintiff s mother s injury and death. Id. On March 18, 2013, the plaintiff filed wrongful death and survival claims against his mother s radiologist and the radiologist s employer. Id. The defendants filed a motion to dismiss, arguing that the two-year statutes of limitation for both claims had expired. Id. 9. The defendants argued in the alternative that the complaint was untimely even if the discovery rule applied. Id. The discovery rule tolls the relevant status of limitations until the plaintiff knows or reasonably should know that an injury was caused by the defendant s wrongful conduct. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249 (1994). The trial court granted the defendants motion to dismiss, finding that the date of death was the date from which the two-year statute should be measured. Id. The trial court further held that even if we give everybody the benefit of the doubt and try to fix a date at which a reasonable person was placed on inquiry as to whether there was malpractice, even that was long gone by the time the complaint was filed. Id. The plaintiff appealed. Reviewing the case under the de novo standard, the Illinois Appellate Court, Third District, affirmed the trial court s order and denied the plaintiff s petition for rehearing. Id. 10, 30. Justice Lytton dissented, stating that the motion to dismiss should have been denied because the discovery rule applies to wrongful death and survival actions and that a disputed question of fact remains about when the plaintiff possessed sufficient information to know that his mother s death was wrongfully caused. Id. 35, 60. In the majority opinion, the Third District first acknowledged that two cases Young v. McKiegue, 303 Ill. App. 3d 380 (1st Dist. 1999) and Wells v. Travis, 284 Ill. App. 3d 282 (2d Dist. 1996) hold that the discovery rule applies to wrongful death suits against physicians. Id. 14. However, the Third District found that these cases were wrongly decided because they read language into section 13-212(a) which is clearly not there. Id. The Third District then analyzed the Wrongful Death Act (740 ILCS 180.01 et seq.). The Wrongful Death Act states that [e]very such action shall be commenced within two years of knowledge of the death of such person. Id. 14 (citing 740 ILCS 180/2). The Third District noted that because the Wrongful Death Act creates a new cause of action IDC Quarterly Volume 26, Number 1 (26.1.54) Page 1

in derogation of the common law, the court must first look at and strictly construe the plain language of the Wrongful Death Act. Id. 17. While the General Assembly could have provided a limitations period in the Wrongful Death Act based on knowledge of the negligent conduct, because no such discovery rule was included in the Wrongful Death Act, the Third District refused to read one into the Act. Id. 18. Based on this analysis, the Third District found that Young and Wells, as well as several other cases that held that the discovery ruled applies to wrongful death cases, were wrongly decided. Id. 19. After holding that the discovery rule does not apply to the Wrongful Death Act, the Third District turned to the limitation period in section 13-212(a). Section 13-212(a) states that the two year statute of limitations for actions for damages for injury or death against physicians cannot be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first. (Emphasis added.) 735 ILCS 5/13-212)(a). The Third District found that the plain language of section 13-212(a) provides that the clock starts ticking upon knowledge or notice of the injury or death, not upon notice of a potential defendant s negligent conduct. Id. 22. Because it was undisputed that the plaintiff filed his complaint more than two years after learning of his mother s death, the Third District held that the trial court properly granted the defendants motion to dismiss. Id. 20. Finally, the Third District briefly addressed the plaintiff s survival action (755 ILCS 5/27-6). Again, the Third District looked to section 13-212(a) and found that the statute of limitations began to run when the plaintiff knew or should have known of his mother s death. Id. 26. Therefore, as with the wrongful death claim, the survival action was properly dismissed. At the end of its decision, the Third District recognized that the holding creates a split in the districts and stated, therefore, we anticipate at some point hearing from the supreme court on the issue. Id. 30. The plaintiff seeks review in the Illinois Supreme Court. First, the plaintiff details the history of the discovery rule being applied to medical malpractice cases. The plaintiff argues that the Limitations Act (1965 Ch. 83 Ill.Rev.Stat. 21.1), section 13-212(a), and thirty years of case precedent support the application of the discovery rule to medical malpractice cases. For example, in Young v. McKiegue, the First District held Section 13-212(a) has been read within the context of the discovery rule to mean that the two-year malpractice statute of limitations begins to run when the party knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. Young, 303 Ill. App. 3d at 387. The plaintiff also points to Young when arguing that section 13-212(a) is applicable to wrongful death claims. Id. at 386 ( the limitations period set forth in 2 (of the Wrongful Death Act) is inapplicable in cases where the wrongful death claim is predicated upon a claim of medical malpractice that was not apparent to the plaintiff at the time of death ). The plaintiff next argues that this is an issue of statutory interpretation and, whereas here, the legislature has chosen not to alter the outcome of a line of cases that have applied the discovery rule to cases brought pursuant to section 13-212(a) and the Wrongful Death Act, the construction becomes part of the fabric of the statute. The plaintiff notes that while the supreme court has not directly decided this issue, several courts have determined that the supreme court would likely apply the discovery rule to wrongful death cases. The plaintiff then turns briefly to the Survival Act claim and notes that Nola v. Johns-Manvilel Asbestos makes clear that the discovery rule should be applied in Survival Act cases. See Wyness v. Armstrong World Indus., 131 Ill. 2d 403, 412 (1989). The plaintiff s second main argument is that the Third District wrongly held that dismissal was proper even if the discovery rule were to be applied. The Third District failed to explain its reasoning or provide a date on which the statute IDC Quarterly Volume 26, Number 1 (26.1.54) Page 2

should have begun to run. The plaintiff argues that the issue of when the plaintiff became aware that his mother s death was wrongly caused was a question of fact that should have been presented to the trier of fact. Third, the plaintiff argues that the Third District erred when it decided sua sponte that the discovery rule does not apply to the Wrongful Death Act or Survival Act. The defendants never argued that the discovery rule did not apply. Rather, the defendants argued that there was no need for the discovery rule because the plaintiff had all of the necessary facts on the date of his mother s death. Because the issue of whether the discovery rule applies was not raised by the trial judge or the defendants, the plaintiff argues that he should have been granted the opportunity to fully brief the issue. Finally, the plaintiff argues that the defendants waived the issue of whether the discovery rule applies to the Wrongful Death Act or Survival Act because the defendants never raised this argument. If Claims are Involuntarily Dismissed with Leave to Amend and Plaintiff Fails to Amend Within the Allotted Time, Does the Dismissal Become a Final Judgement on the Merits? Richter v. Prairie Farms Dairy, Inc., No. 119518, 4th Dist. No. 4-14-0613 The plaintiffs are owners of a dairy farm that was a member of the defendant cooperative. Richter v. Prairie Farms Dairy, Inc., 2015 IL App (4th) 140613, 5. When the plaintiffs joined the cooperative, they purchased $15 worth of shares of common stock issued by the defendants and entered into a Milk Marketing Agreement whereby the plaintiffs would provide the defendant with whole milk and the defendant would market and sell the milk. Richter, 2015 IL App (4th) 140613, 5. On October 6, 2005, the defendant notified the plaintiffs that it was terminating the Milk Marketing Agreement and tendered $15 to the plaintiffs to redeem the common stock shares. Id. 6. The plaintiffs rejected the tender and filed a three-count complaint against the defendant. Id. 6. The defendant filed a motion to dismiss all claims (Richter I). Id. 9. The trial court denied the motion to dismiss as to count I and granted the motion to dismiss as to counts II and III. Id. The plaintiffs were given leave to file an amended complaint within 30 days. Id. The trial court then granted to the plaintiffs an additional 120 days to file an amended complaint. Id. Instead of amending their complaint, the plaintiffs chose to proceed with the remaining claim. Id. On September 7, 2012, the plaintiffs voluntarily dismissed their claim without prejudice. Id. 12. On September 6, 2013, the plaintiffs refiled their action against the defendant. Id. 14. The new complaint included counts I and III from the prior complaint and two new claims (Richter II). Id. The defendant filed a motion to dismiss Richter II, arguing in part that Richter I constituted a final adjudication on the merits and res judicata barred not only matters raised in the first action, but also matters that could have been determined in the original action. Id. 16. In a docket entry, the trial court granted the defendant s motion to dismiss. Id. 17. The plaintiffs appealed. Reviewing the case under the de novo standard, the Illinois Appellate Court, Fourth District, reversed the trial court s order and held that res judicata did not bar the plaintiffs refiled suit because the defendant failed to carry its burden of proving a final judgment was entered on the merits. Id. 36. The Fourth District first explained that an order dismissing a complaint but grating leave to replead is not final until the trial court enters an order dismissing the suit with prejudice. Id. 25. Because the trial court granted to the plaintiffs leave to amend their complaint and did not provide any indication IDC Quarterly Volume 26, Number 1 (26.1.54) Page 3

that the dismissal of the other counts was absolute and final, the Fourth District found that the trial court s dismissal order was not a final order. The Fourth District next rejected the defendant s argument that, under Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578 (2003), the dismissal order became final when the plaintiffs failed to amend their complaint within the allotted time. Id. 27. The Fourth District refused to give Smith such a narrow reading and further noted that the trial court could have allowed the plaintiffs more time to amend their pleading if they had sought leave to do so. Id. 29. The Fourth District likewise rejected the defendant s reliance on Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996) and Hudson v. City of Chicago, 228 Ill. 2d 462 (2008). Id. 30-32. In both cases, the trial court dismissed some claims with prejudice before the plaintiffs voluntarily dismissed the remaining claims. Here, because the claims were not dismissed with prejudice in Richter I, the Fourth District found this case distinguishable from Rein and Hudson. Id. 32. Moreover, because the dismissal orders were not final, they did not become final when the remaining claims were voluntarily dismissed by the plaintiffs. Id. 33. Finally, the Fourth District noted that, in the five years between when the plaintiffs were given leave to file an amended complaint and the voluntary dismissal, the defendant could have but did not take any steps to have the dismissed claims converted to dismissals with prejudice. Id. 35. The defendant seeks review in the Illinois Supreme Court, first arguing that the Fourth District s decision conflicts with Rein and Hudson and weakens the equitable doctrine of res judicata. According to the defendant, Rein and Hudson stand for the proposition that where portions of a complaint are involuntarily dismissed and the remaining portions are voluntarily dismissed, res judicata will bar the plaintiff s attempt to refile claims that were already decided in the first action and claims that could have been filed in the first action. The defendant notes that the Fourth District s decision creates a new rule requiring the defendant to file a second motion seeking to re-dismiss already properly dismissed claims. The defendant s second argument is that the Fourth District s ruling conflicts with Illinois Supreme Court Rule 273, which provides: Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits. Ill. S. Ct. R. 273. According to the defendant, a dismissal with leave to amend invokes the otherwise specifies language of Rule 273. Therefore, once the leave period expired and no action was taken by the plaintiffs, Rule 273 operated to default the involuntary dismissal order as an adjudication on the merits. The defendant argues that the Fourth District s ruling means that an involuntary dismissal with temporary leave to amend can never be an adjudication on the merits. Moreover, the ruling means that there are no consequences for a plaintiff s failure to act within the leave period. Without consequences, the defendant argues, an involuntary dismissal with leave to amend is no different than a dismissal without prejudice. The defendant s third argument is that the Fourth District s decision directly conflicts with Illinois Supreme Court and Appellate Court opinions, including Rein, Hudson, and Smith. In Smith, the defendant argues, the court stated that an involuntary dismissal would have become a final adjudication on the merits if the plaintiff decided to stand on his complaint and not amend during the leave period. See Smith v. Cent. Illinois Reg l Airport, 207 Ill. 2d 578, 588-89 (2003). IDC Quarterly Volume 26, Number 1 (26.1.54) Page 4

The Fourth District ignored this language when they held that the trial court s dismissal order did not become final when the plaintiffs failed to amend their complaint. The defendant s final argument is that the Fourth District improperly created a new rule imposing a burden upon the defendant to re-dismiss claims that had already been dismissed upon the merits. The defendant argues that this rule conflicts with Rule 273 and improperly shifts to the defendant burdens that properly belong to the plaintiffs. About the Author M. Elizabeth D. Kellett is an associate at HeplerBroom LLC. Ms. Kellett is a litigation attorney with a primary emphasis in the defense of complex, multi-party civil cases and class actions, including all aspects of product liability, particularly pharmaceutical drugs and devices. Prior to joining HeplerBroom, Ms. Kellett practiced law in Washington, D.C. and represented institutions of higher learning in administrative hearings and proceedings before the U.S. Department of Education. She also represented insurance and financial corporations and individuals in proceedings before the Securities and Exchange Commission, civil and criminal litigation, and in matters of corporate governance and compliance. Ms. Kellett earned her B.A. from Georgetown University in Washington D.C. in 2002 and her J.D. from Georgetown University Law Center in 2006. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org or contact us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org. IDC Quarterly Volume 26, Number 1 (26.1.54) Page 5