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The newsletter of the ISBA’s Young Lawyers Division

April 2011, vol. 55, no. 5

Voluntarily dismissing a lawsuit and later refiling is not an escape hatch through which to disclose new witnesses if witness disclosure deadlines already passed in the original lawsuit

After taking a voluntary dismissal of a lawsuit where Rule 213 witness disclosure deadlines have passed, can a litigant re-file the lawsuit and disclose new witnesses? Section 2-1009 of the Code of Civil Procedure allows a plaintiff to dismiss their lawsuit without prejudice at any time before trial or hearing begins (upon notice and payment of costs). However, if and when the plaintiff re-files the matter, the litigants do not have carte blanche to reopen witness disclosures, if witness disclosure deadlines passed in the original lawsuit. This is due to the interplay between the Supreme Court’s requirement of strict adherence for Rule 213 witness disclosures and the protections afforded within Supreme Court Rule 219(e). Accordingly, an attorney must take great care when dealing with Rule 213 witness disclosure deadlines, as a voluntary dismissal will not remedy omissions by simply re-filing the lawsuit and disclosing the omitted witness(es).

I. Rule 213 disclosure requirements are mandatory and subject to strict compliance

The Illinois Supreme Court in Sullivan v. Edward Hospital, 209 Ill. 2d 100, 806 N.E.2d 645, 282 Ill. Dec. 348 (2004) explicitly stated that, “[t]he Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Id. at 109. The Sullivan court further stated:

Rule 213 permits litigants to rely on the disclosed opinions of opposing experts and to construct their trial strategy accordingly. The supreme court rules represent this court’s best efforts to manage the complex and important process of discovery. One of the purposes of Rule 213 is to avoid surprise. To allow either side to ignore Rule 213’s plain language defeats its purpose and encourages tactical gamesmanship.

Id. at 109-10; see also Dalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper and Kramer, Inc., 372 Ill. App. 3d 362, 370, 865 N.E.2d 442, 310 Ill. Dec. 118 (1st Dist. 2007); Foley v. Fletcher, 361 Ill. App. 3d 39, 47-48, 836 N.E.2d 667, 296 Ill. Dec. 916 (1st Dist. 2005); Spurgeon v. Mruz, 358 Ill. App. 3d 358, 361, 832 N.E.2d 321, 295 Ill. Dec. 170 (1st Dist. 2005); Bill Marek’s The Competitive Edge, Inc. v. Mickelson Group, Inc., 346 Ill. App. 3d 996, 1007, 806 N.E.2d 280, 282 Ill. Dec. 305 (2nd Dist. 2004).

II. Rule 219(e) Voluntary Dismissals and Prior Litigation

Rule 219(e) provides in pertinent part:

A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and rulings on permissible discovery and testimony, the Court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party.

Committee Comments to Rule 219(e) provide as follows:

Paragraph (e) addresses the use of voluntary dismissals to avoid compliance with discovery rules or deadlines, or to avoid the consequences of discovery failures, or orders barring witnesses or evidence. This paragraph does not change existing law regarding the right of a party to seek or obtain a voluntary dismissal. However, this paragraph does clearly dictate that when a case is refiled, the Court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred. The consequences of noncompliance with discovery deadlines, rules or orders cannot be eliminated by taking a voluntary dismissal.

A. Morrison v. Wagner

The Illinois Supreme Court noted that Rule 219(e) “prevents voluntary dismissals from being used as an artifice for evading discovery requirements.” Morrison v. Wagner 191 Ill. 2d 162, 166, 729 N.E.2d 486, 246 Ill. Dec.113 (2000). Rule 219(e) prevents such action by discouraging the abuse of voluntary dismissals by attaching additional adverse consequences later when the party who obtained the dismissal seeks to refile. Id. at 167. 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. Id.

B. Smith v. P.A.C.E.

In the original lawsuit in Smith v. P.A.C.E., 323 Ill. App. 3d 1067, 753 N.E.2d 353, 257 Ill. Dec.158 (1st Dist. 2001), the plaintiff had failed to respond to discovery requests and listed several expert witnesses in his disclosures, but failed to reveal these experts’ opinions. Id. at 1070-71. Upon a motion by the defendant, the trial court barred the plaintiff from calling any witnesses at trial. Id. at 1071. The plaintiff then voluntarily dismissed his original lawsuit. Id. Shortly thereafter, plaintiff refiled his lawsuit. Id. The trial court for the refiled action barred plaintiff from calling trial witnesses. Id. The First District agreed that the plaintiff had disregarded the discovery process and had voluntarily dismissed his original action to avoid the sanction order that had been entered against him. Id. at 1074-75. Moreover, the First District noted that the trial court in the refiled action had the power to restrict the plaintiff’s ability to call witnesses in the refiled action based upon what occurred in the original action. Id.

C. Jones v. Chicago Cycle Ctr.

In Jones v. Chicago Cycle Ctr., 391 Ill. App. 3d 101, 908 N.E.2d 150, 330 Ill. Dec. 298 (2009), on the eve of trial, the plaintiff attempted to disclose new medical conditions and new expert testimony, but was barred from doing so by the trial court Id. at 103-04. The following day, the plaintiff sought a voluntary dismissal of the action pursuant to Section 2-1009(a). Id. at 104. The trial court granted plaintiff’s voluntary dismissal, but also imposed costs upon the plaintiff that were to be paid prior to any refiling of the plaintiff’s action. Id. Citing to Rule 219(e) and the Committee Comments to that Rule, the First District found that the plaintiff’s voluntary dismissal was an attempt to avoid the consequences of discovery failures or orders barring witnesses or evidence. Id. at 114. The First District held that such an attempt to avoid the consequences of discovery failures was sufficient evidence to show unreasonable non-compliance and/or misconduct. Id. at 114-15.

III. Discovery Can Be Limited in the Re-filed Lawsuit

Rule 219(e) makes clear that a party cannot avoid the consequences of non-compliance with discovery deadlines, orders, or rules by voluntarily dismissing a lawsuit. The policy concerns behind this are obvious. If litigants were permitted to simply voluntarily dismiss a lawsuit after discovery and witness disclosures were completed and then get a “second bite” at disclosing more witnesses, documents or opinions, such conduct would avoid the clear rules laid out in our Code of Civil Procedure and the Supreme Court Rules. Particularly, such conduct would avoid the mandatory requirements of Rule 213 witness disclosures that are subject to strict compliance. See Sullivan, 209 Ill. 2d at 109-10.

Rule 219(e) is not limited to situations where a litigant has disregarded the discovery process and been sanctioned. The Comments to Rule 219(e) provide that the Rule not only addresses a situation where a party attempts to avoid a court-imposed sanction, but it also addresses the use of a voluntary dismissal to avoid compliance with discovery rules or deadlines, or get around the consequences of discovery failures.

Furthermore, Rule 219(e) does not require the court in the refiled action to find bad faith or scienter on the part of the parties to limit the discovery in the re-filed action. The relevant factors are that the litigants made their witnesses disclosures and the witness disclosure deadline passed. Permitting any further discovery or disclosures than those already made in the original lawsuit would violate the strict adherence requirements of Supreme Court Rule 213. See also Sullivan, 209 Ill. 2d at 109-10. It would also encourage tactical gamesmanship and interfere with the Supreme Court’s clear goal of allowing litigants to rely on disclosed opinions and construct trial strategy accordingly. Id. Furthermore, permitting a party to essentially get an unfettered “do-over” would be a waste of judicial time, money and resources. ■