Gamesmanship: Moving for Case Dismissal, Then Refiling to Get Expert Admitted

Moving for voluntary dismissal of a case after being denied the late addition of an expert witness, and then refiling and naming the additional expert can be a successful piece of litigation gamesmanship in Illinois.

In Boehle v. OSF Healthcare System, the plaintiff and her son filed a medical negligence lawsuit against OSF and others alleging that they failed to timely diagnose and treat the son's sarcoma of the spine, “resulting in the spread of the cancer and increased likelihood of premature death.” Shortly before the initially scheduled trial date, the plaintiff's son died.

Before trial, the plaintiff initially engaged an attorney who disclosed four controlled expert witnesses who were to opine on alleged deviations from the standard of care. After she retained a new attorney, the trial court allowed her to add two additional causation experts. The defendants named 12 controlled expert witnesses.

After all the depositions concluded and less than 90 days from trial, the plaintiff moved to add a pediatric oncologist expert witness, Dr. Leonard Wexlar, as a rebuttal expert to testify regarding causation.

The defendants objected. They noted that plaintiff had been allowed to name two new experts when she switched attorneys, the case had been pending for four years, and all of the experts had been deposed. The trial court agreed, noting that the plaintiff had ample opportunity to name an oncology expert if she felt that one was needed, but “now it's too late, trial is upon us.”

The plaintiff moved for voluntary dismissal of the suit without prejudice, which the trial court granted.

Some five months later, the plaintiff refiled her case against the same defendants, moving to disclose nine of the same expert witnesses, plus Dr. Wexler and four other experts not named in the initial case. The defendents moved to strike her motion, arguing that under Illinois Supreme Court Rule 219(e) she should not be allowed to add Dr. Wexler and the other new experts as plaintiffs are prohibited from using a voluntary dismissal to avoid compliance with the trial court's previous orders.

The trial court disagreed, although it did find that the plaintiff had dismissed her original action as “a strategic voluntary dismissal” to allow her to name new or additional experts upon refiling, that was not prohibited under Rule 219(e). To bar plaintiff's new expert witnesses under the Rule, 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.” It found none of those to be the case.

Defendants then sought to certify two questions for immediate appeal:

“(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?”

The Illinois Court of Appeals found neither of these questions could be answered in a simple yes-or-no fashion. Citing Smith¹, the appellate court said that trial courts:

… should look to the same factors that are used to determine whether barring a witness is an appropriate sanction in the original action, namely

1. surprise to the adverse party,
2. the prejudicial effect of the witness's testimony,
3. the nature of the testimony,
4. the adverse party's diligence,
5. the timeliness of the objection to the testimony, and
6. the good faith of the party calling the witness.

The appellate court also 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 Rule 219(e) in the refiled action. The court agreed with defendants that, according to the second sentence of Rule 219(e), misconduct in the prior action is a factor to consider when ruling on discovery issues in the refiled action, but that it is only one factor.

Answering the certified questions, the appellate court found that a plaintiff could use a voluntary dismissal to attempt to avoid the denial of additional witnesses, and a plaintiff could also attempt to avoid court-ordered sanctions for discovery violations or other misconduct. However, the trial court has the discretion to bar or otherwise limit witnesses and/or evidence in the refiled case.

While court rules may attempt to limit it, much of what happens in litigation is gamesmanship.