What a Long, Strange Trip It's Been: Illinois Supreme Court Upholds Decision That Res Judicata Does Not Apply to Involuntary Dismissal of Multiple Prior Complaints Spanning Ten YearsJuly 23, 2019 | Terrence O'Toole, Jr. and John Beard
Plaintiff Gerald Ward originally sued Decatur Memorial Hospital in 2009 alleging medical malpractice in the treatment of his brother who developed a post-surgery bed sore that became infected. Plaintiff alleged that his brother died from complications associated with a bacterial infection approximately one month after the Hospital discharged him..
Plaintiff initially filed a nine-count complaint against the Hospital, Decatur Memorial Hospital Home Health Services, and unknown employees of the Hospital. The trial court granted the Hospital’s Motion to Dismiss the majority of the counts but gave Plaintiff permission to refile. Plaintiff then filed first and second amended complaints. The court again dismissed both but with permission to refile. After plaintiff filed a third amended complaint, the Hospital filed responsive pleadings and the parties continued with discovery towards trial.
In 2015, nearly four years later and only twenty days before the scheduled trial, the Hospital learned that the plaintiff intended to call a rebuttal expert not previously disclosed. The Hospital moved to bar the newly disclosed rebuttal expert, arguing that plaintiff had ample time during the six-year pendency of the case to obtain and properly disclose experts. Before the trial court ruled on the motion to bar, plaintiff moved for leave to file a fourth amended complaint to “more correctly and succinctly describe the alleged negligence of defendant’s nurses as a result of facts developed throughout discovery.”
Taking the motions together, the trial court granted the Hospital’s motion to bar the proposed rebuttal expert witness and denied plaintiff’s motion for leave to file a fourth amended complaint. The court cited the age of the case and noted that the allegations in the third amended complaint were substantially different from those in the proposed fourth amended complaint. Plaintiff then voluntarily dismissed the action.
Four months later, plaintiff refiled the action and asserted nearly identical allegations as those set forth in the disallowed fourth amended complaint in the prior action. The Hospital moved to bar plaintiff from disclosing witnesses who had been barred in the previous case and to limit other witnesses to the opinions they gave in the initial action, arguing that plaintiff violated Illinois Supreme Court Rule 219(e) by using the dismissal and refiling to avoid having to comply with the previous court’s order. The trial court partially granted the Hospital’s motion and limited the opinions of witnesses to those provided in the prior case, but denied the Hospital’s request to bar the rebuttal witnesses.
The Hospital then moved for summary judgment on the basis of res judicata, arguing that the trial court had dismissed “numerous counts of various iterations” of plaintiff’s complaint in the prior action and that he elected not to replead the counts. The Hospital asserted those dismissals constituted final adjudications on the merits as the complaints had been dismissed because of legal impediments, such that it was entitled to summary judgment on the basis of res judicata.
Plaintiff opposed the motion, asserting that medical negligence was the sole cause of action in all the iterations of the complaint and no final judgment had been entered in the first action. The trial court ultimately granted the Hospital’s motion for summary judgment based on res judicata after initially denying the motion.
On appeal, the Fourth District Appellate Court reversed the trial court’s grant of summary judgment. It concluded that “by granting the plaintiff permission to file an amended complaint, the trial court vacated any suggestion of ‘with prejudice’ in its dismissal of individual counts of the original complaint.” The appellate court further observed that the trial court had permitted the plaintiff to amend “over and over again, all the way to the third amended complaint…which remained pending and completely unadjudicated at the time of the voluntary dismissal.”
The Illinois Supreme Court affirmed the decision of the appellate court, concluding that res judicata was inapplicable and did not prohibit plaintiff’s refiled lawsuit because there had not been a final judgment on the merits. Each previous dismissal had been dismissals without prejudice and with permission given to refile. As such, the dismissals were not final, did not terminate the litigation, and did not firmly establish the parties’ rights.
Despite affirming the decision, the Court criticized the “tortured history of litigation” and lack of urgency on the part of the parties and the trial judge to resolve the matter in a timely or efficient manner. Additionally, while conceding that a plaintiff has the absolute right to refile a dismissed complaint, the Court cited the admission made by plaintiff’s counsel on the record that he voluntarily dismissed the initial action because of his disagreement with the trial court’s rulings. Noting that Rule 219(e) “strikes the delicate balance between preserving a plaintiff’s absolute right to refile, while discouraging noncompliance with the trial court’s orders,” the Court commented that while the Rule does not change the existing law as to a plaintiff’s right to seek a voluntary dismissal, “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.”
Thus, while the Supreme Court reaffirmed a plaintiff’s absolute right to refile a dismissed complaint, the Court’s dictum regarding the applicability of Rule 219(e) offers hope to litigants defending refiled actions regarding the potential for limiting the scope of evidence in the face of demonstrated noncompliance with prior orders.
Asbestos litigation in Illinois is generally trending down.
Although 2018 data is still populating, according to the KCIC Asbestos Litigation: 2018 Year in Review, asbestos litigation, overall, is in a downward trend. Filings are down approximately 11% from 2017 and 17% from 2016. Even though many of the main venues for asbestos litigation saw major decreases, the only notable increase occurred in St. Clair County, IL. St. Clair County experienced a 30% increase with 207 cases filed in 2017 to 268 in 2018. Madison County, IL remains the epicenter for asbestos litigation making up 27% of all 2018 filings.
Mesothelioma remains the main disease type, but it did experience about a 6% decrease; however, the largest decreases were from non-malignant and other cancer filings, which are down 40% and 31%, respectively, compared to 2017. Of note, even though asbestos filings as a whole are decreasing there is a notable increase in the number of females filing suit and not only in talc cases.
Madison and St. Clair County remain popular venues for asbestos filings.
Even with the slight decrease in filings, Illinois, specifically Madison and St. Clair Counties, remains the most popular venue. The vast majority of those claims filed in Illinois are “tourist filings” with only 7% of the complaints filed in Illinois by Illinois residents, with the remaining 93% of filings by non-residents. According to KCIC, although “tourist filings” are still the norm they have noticed the same plaintiff filing multiple lawsuits, for the same claim, in several jurisdictions which may be the result of recent personal jurisdiction rulings. While KCIC states that this has not become common practice, should it become more common it does have the potential to increase the number of asbestos lawsuits filed.
Bankruptcy and recent legislation regarding trust claims may be impacting the number of asbestos filings.
Bankruptcy and recent legislation addressing trust claims could be another reason we are seeing a decrease in asbestos filings. Many asbestos claims are now paid out through post-bankruptcy trusts as many of the original asbestos defendants have declared bankruptcy. This has brought attention to how the bankruptcies affect solvent defendants left in the litigation and the recovery plaintiff’s collect. Unlike the tort system, these trusts may have as many as 18,000 non-malignant claims per year. The higher volume of claims is attributed to lower evidentiary standards and transactional costs. Therefore, State legislatures have focused their attention on BTT litigation by creating a more transparent trust claim submission process. This process requires plaintiffs to share certain information in the torts system regarding their trust filing history and, sometimes, even mandating certain time restrictions for such filings. These submissions include listing all personal injury claims they have made or anticipate making against a trust and require the plaintiff to consent to discovery of trust information. In some jurisdictions, including Kansas and Michigan, failure to comply with these requirements is sanctionable conduct. Kansas, North Carolina, and Michigan are the latest states enacting legislation, bringing the total count to sixteen states nationwide.
Talc litigation is bucking the trend.
Talc litigation is the one area of asbestos litigation that is not decreasing. There was a 68% increase in filing of Talc claims from 2017 to 2018. Talc use is widespread; therefore, it carries a risk of an enormous potentially exposed population. There are claims that the cosmetic use of the talc itself caused ovarian cancer; while, there are also claims that asbestos within talc caused mesothelioma or lung cancer. It has been easier for courts to focus on personal jurisdiction in these types of cases because there are fewer defendants. Therefore, suits tend to be filed where defendants do business rather than forum shopping as they do in Mesothelioma cases. Still, the top venue for Talc litigation is St. Louis, MO, with Madison and St. Clair County close behind.
The plaintiffs’ bar continues to find ways to keep asbestos litigation alive.
Original forecasting models did not consider alternative or non-traditional routes of exposure; therefore, there has not been the reported decrease that historical studies initially predicted. While overall mesothelioma incidence is decreasing, the propensity to sue, especially for females, is actually increasing which can be attributed to increase in cosmetic talc exposure and it allegedly causing ovarian cancer. KCIC reports that women make up the majority of secondary exposure claims with Madison County, IL, becoming the top jurisdiction for female claimants alleging secondary exposure only. Madison County is also the top jurisdiction for claims of non-occupational exposure filed in 2018.
While 2018 showed the usual course for asbestos litigation, there were some fluctuations. The most significant change is the potential effects of talc-related filings and state legislatures taking an active role in BTT litigation.
For more details and statistics regarding asbestos litigation in 2018, read the industry report from KCIC here.
* Kelly M. “Koki” Sabatés, Summer Law Clerk, assisted in the research and drafting of this post. Sabatés is a rising 3L student at the University of Missouri-Columbia.
On December 27, 2018 the Illinois Appellate Court for the First District affirmed an award of attorney’s fees and costs to plaintiff which was nearly twenty times the damages awarded at trial for an Illinois Wage Act claim. The Court ruled that the trial court did not abuse its discretion by awarding $178,449.97 in attorneys’ fees after a trial ending in a $9,226.52 judgment against the defendant.
Plaintiff Raymond Thomas sued defendant Weatherguard Construction Company, Inc. for $47,666.00 in commissions for contracts that he had procured on Weatherguard’s behalf. A key issue at trial was whether Weatherguard employed Thomas. Plaintiff claimed violations of the Illinois Sales Representative Act and the Illinois Wage Payment Act, breach of contract and unjust enrichment. The trial court granted summary judgment to Weatherguard on one count, and, after nearly ten years of litigation, the matter proceeded to trial on the remaining claims. The trial court found that Thomas was indeed an employee of Weatherguard, but awarded Thomas only $9,226.52. The verdict was upheld on appeal but remanded to the trial court for a determination of an attorneys’ fee award to Plaintiff pursuant to the Wage Payment Act. Upon briefs submitted by the parties, the trial court awarded plaintiff $178,449.97 in attorney’s fees and $1,124.68 in costs. Weatherguard appealed the award arguing that the award by the trial court was “excessive.” The Court of Appeals affirmed the award.
The Attorney Fee Award.
On appeal, Weatherguard argued, amongst other things, that the fee award was excessive because it represented work for claims for which there was no basis for Thomas to recover attorney fees. Weatherguard contended the recovery of fees should be limited only to work done to further the Wage Payment Act claim. Additionally, Weatherguard argued that the disparity between the amount of the damages award and the amount of the fee award constituted an abuse of discretion by the trial court. The Court rejected Weatherguard’s argument that Thomas was entitled only to fees for his statutory Wage Payment Act claim. The statute allows for employees successfully recovering under the Act to “also recover costs and all reasonable attorney’s fees.” Weatherguard argued that, because attorney fees are ordinarily not recoverable without contract or statutory authority, plaintiff should only be entitled to recover for work by his attorney directly attributable to pursuing the statutory Wage Act Claim.
The Appellate Court found that Thomas could recover fees and costs for all of his claims involving a common core of facts and related legal theories, even where he was successful only on some of the claims. The Wage Payment Act calls for recovery of “all reasonable attorney’s fees” in a “civil action.” The Court noted that the only limiting language in the statute was that the attorney fees be “reasonable,” and concluded that the statute did not contain an exception to the rule allowing for attorney fees for claims stemming from the same common core of facts and related legal theories. The Court stated that an exploited worker ordinarily would not be in a position to bring a civil action against his employer without the statutory incentive of fee recovery by the prevailing attorney.
The Court also determined that legislative history of the Wage Payment Act supported the finding that Thomas was entitled to fees for all of his claims. The Illinois legislature contemplated that litigation costs associated with bringing claims under the Act would not be borne by plaintiff employees.
The Court rejected Weatherguard’s argument that the vast difference between the amount of the damages award and the amount of the fee award constituted an abuse of discretion. Noting that in a matter involving fee shifting either by contract or statute an abuse of discretion does not automatically justify rejection of the amount sought in fees, the Court considered the conduct of Weatherguard in making the choice “to aggressively litigate the case” for ten years on a suit seeking “only $47,666 in commissions.” While courts may look to whether there is a reasonable connection between the fees and the amount involved in the litigation, the Appellate Court found that the “years of attorney time expended and the amount at issue was deemed reasonable by defendant” in defending the claims, and defendant “cannot be heard to complain now.”
Weatherguard also argued that Thomas only received a fraction of the recovery that he sought and should receive only a fraction of the fees incurred. While the Appellate Court agreed that the amount of the fees in relation to the benefit is a relevant consideration, it noted that Thomas was successful on the primary issues of employment and compensation. Accordingly, the Court found no abuse of discretion.
Guidance for the Future
This case underscores that when litigating cases involving either contractual or statutory fee-shifting provisions, it is possible that fees may be awarded far exceeding the damages award. This possibility should be considered when assessing case value.
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