HUNDLEY LAW GROUP » 1st Dist

Some Post-Hudson Clarity – Green v. Northwest Community Hospital

HLG — Thu, 06 May 2010 16:30:14 +0000

Green v. Northwest Community Hospital, No.1-09-2233 (April 28, 2010). In the uncertain post-Hudson landscape of when a plaintiff’s voluntary dismissal does or does not prevent a re-filing, this First District decision provides some clarity as to dismissal language that will steer clear of the “claim splitting” addressed in the Illinois Supreme Court’s case of Hudson v. City of Chicago. That language: “plaintiff is granted leave to voluntarily dismiss with leave to reinstate as a matter of right.” Since this language was held to be a clear pronouncement that the voluntary dismissal was an exception to claim-splitting, the refiled counts not finally disposed of in the original action were permitted to proceed. (The plaintiff also re-filed counts for which summary judgment was granted in the original case. Those counts, not surprisingly, were not allowed to survive.) For those of us who write appeals, the case also affirms the pronouncement in Sup. Ct. R. 341(h)(7): that points raised by an appellant for the first time in a reply brief are waived.

People v. Hammonds

HLG — Tue, 23 Feb 2010 22:30:50 +0000

People v. Hammonds, No. 1-08-0194 (February 11, 2010). In a criminal case, appellate court seems to have upheld the “Cook County Rule” that it is not error for the trial court to have allowed police officers to testify about radio messages they received from other officers, as the other officers were also trial witnesses.

Martinez v. Elias, M.D.

HLG — Tue, 23 Feb 2010 21:00:58 +0000

Martinez v. Elias, M.D., No. 1-08-0265 (December 28, 2009). Court properly denied motion in limine to bar evidence of financial motive to perform surgery, which plaintiff claimed was unnecessarily performed by defendant orthopedic surgeon, therefore deviating from the standard of care. Motion for new trial was denied, but the court reversed a remittitur for $100,000 because the testimony was sufficient to support jury’s award of $100,000 for non-itemized future medical expenses.

Long v. Elborno

HLG — Tue, 23 Feb 2010 17:07:04 +0000

Long v. Elborno, No. 1-08-1733 (January 21, 2010). In a refiled action in which the court had previously found Plaintiff failed to exercise reasonable diligence in serving Hospital, collateral estoppel applies to prevent Plaintiff from asserting that she was reasonably diligent in serving physician. (Plaintiff’s actions were identical for both parties during this time, and physician was not served for an additional four months after service on Hospital.) The amount of time necessary to obtain a Section 2-622 reviewing physician’s report does not mitigate against the deadline for reasonable diligence of service.

Also, court weighed in on the “law of the case doctrine,” find that refiling of an action is not a continuation of previous action, but an entirely new action. Thus, the law of the case doctrine does not apply.

New v. Pace Suburban Bus Service

HLG — Tue, 09 Feb 2010 21:46:09 +0000

New v. Pace Suburban Bus Service, Nos. 1-08-3605 & 1-08-3606 (January 27, 2010). Although plaintiff’s counsel was denied j.n.o.v. following a defense verdict, the appellate court upheld Rule 219 discovery sanctions of $17,000 for plaintiff’s counsel’s attorney’s fees and costs relating to deposition of defense medical expert who “resigned” after deposition, as defendant had prior knowledge that expert was refusing to respond to deposition subpoena for his tax records and could have been withdrawn prior to deposition.

The court also found proper the use of both common carrier and ordinary driver jury instructions as to negligence.

Agins v. Schonberg

HLG — Fri, 08 Jan 2010 00:26:11 +0000

Agins v. Schonberg, No. 1-08-3207 (1st Dist. Dec. 23, 2009). Counsel for estate of deceased physician who was suing another physician for malpractice waived the protections of the Dead Man’s Act (which prevents a living party from testifying to certain things that occurred during the life of, and in the presence of, the deceased) by eliciting testimony from witnesses about details of decedents visit to on defendant physician’s office.

However, the decedent’s widow was prevented from offering the hearsay testimony as to why decedent decided against treating with one of the defendant doctors.