                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                  Rodgers v. Cook County, Illinois, 2013 IL App (1st) 123460




Appellate Court            DAVID RODGERS, as Special Administrator of the Estate of Edward J.
Caption                    Rodgers, Deceased, Plaintiff-Appellant, v. COOK COUNTY, ILLINOIS,
                           SUNITA WILLIAMSON, M.D., and CLIFFORD OLIVER, Defendants-
                           Appellees.



District & No.             First District, Fifth Division
                           Docket No. 1-12-3460


Filed                      September 30, 2013


Held                       In an action arising from the death of plaintiff’s father while an inmate in
(Note: This syllabus       a county jail after he was allegedly deprived of his prescription
constitutes no part of     medication, the dismissal of plaintiff’s state court action on the ground
the opinion of the court   that a duplicative federal action was pending was reversed and the circuit
but has been prepared      court was directed to stay the proceedings until the federal court ruled on
by the Reporter of         whether the two-year statute of limitations would bar plaintiff’s medical
Decisions for the          malpractice and negligence claims against the individual physician and
convenience of the         the mental health specialist who dealt with his father, since the state court
reader.)
                           would then be in a better position to rule on the motion to dismiss the
                           state action against the individual defendants.


Decision Under             Appeal from the Circuit Court of Cook County, No. 12-L-08742; the
Review                     Hon. Eileen Mary Brewer, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                 Kenneth N. Flaxman, of Chicago, for appellant.
Appeal
                           Anita M. Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr.,
                           Jeffrey McCutchan, Sandra J. Weber, and Francis J. Catania, Assistant
                           State’s Attorneys, of counsel), for appellee Cook County.


Panel                      PRESIDING JUSTICE GORDON delivered the judgment of the court,
                           with opinion.
                           Justices McBride and Palmer concurred in the judgment and opinion.




                                             OPINION

¶1           Plaintiff David Rodgers is the special administrator of the estate of his deceased father,
        Edward J. Rodgers, and he appeals the circuit court’s dismissal under section 2-619 of the
        Code of Civil Procedure of his action against defendants Cook County, Illinois; Dr. Sunita
        Williamson, a physician; and Clifford Oliver, a mental health specialist. 735 ILCS 5/2-
        619(a)(3) (West 2008). The complaint alleges that the decedent died as a result of the denial
        of his prescription medicine while an inmate at Cook County jail. In dismissing the
        complaint, the circuit court found that the state lawsuit was duplicative of a 42 U.S.C. § 1983
        action already pending in federal court. The federal action was brought by the same plaintiff
        against defendants Cook County, Illinois, and the sheriff of Cook County, but not against the
        individual defendants named in the state action. Following the dismissal of the state action,
        the federal court granted plaintiff leave to amend the federal complaint to add Dr.
        Williamson and Oliver as defendants. The federal action was then stayed pending the
        outcome of this appeal.
¶2           On appeal, plaintiff claims that the circuit court improperly granted defendants’ motion
        to dismiss because the two lawsuits were against different defendants, and that discretionary
        factors concerning prejudice weigh in favor of keeping the state malpractice and negligence
        claims in state court. Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447-48
        (1986). Specifically, plaintiff argues that he would be unable to obtain complete relief if the
        state action was dismissed because the two-year statute of limitations could bar him from
        maintaining an action against Dr. Williamson and Oliver in federal court. 745 ILCS 10/8-
        101(b) (West 2008). In response, defendants claim that both the federal and state lawsuits
        involve the same cause of action and that plaintiff cannot bring two wrongful death claims
        at the same time. For the following reasons, we reverse and remand with instructions to the
        trial court to stay the state proceedings until the federal court decides the statute of
        limitations issue.


                                                 -2-
¶3                                       BACKGROUND
¶4        The issue raised by plaintiff on appeal concerns the propriety of the circuit court’s
     dismissal of plaintiff’s state action due to his pending federal lawsuit. In the federal action,
     plaintiff sued defendants Cook County, Illinois, and the sheriff of Cook County, alleging that
     its policies at Cook County jail led to the death of the decedent, who died from cardiac arrest
     on August 6, 2010, while an inmate there. Specifically, plaintiff alleges that the decedent
     waited three days without his blood pressure medication due to the jail’s policy that an
     inmate must be examined by a physician at the jail prior to receiving prescription medication.
     Exactly two years after the decedent’s death, plaintiff filed a separate action in the circuit
     court of Cook County against defendants Cook County, Illinois; Dr. Sunita Williamson, a
     physician; and Clifford Oliver, a mental health specialist. In the state action, plaintiff claims
     that Dr. Williamson’s and Oliver’s negligent conduct was the proximate cause of the death
     of the decedent. Specifically, plaintiff alleges that Dr. Williamson, a medical physician,
     prescribed the wrong medicine, and, then, Oliver, a jail health worker, failed to notify
     medical personnel after observing the decedent’s deteriorating condition. The circuit court
     of Cook County subsequently granted defendants’ section 2-619(a)(3) motion to dismiss the
     state action (735 ILCS 5/2-619(a)(3) (West 2008)), finding that both lawsuits “are the same”
     and that discretionary factors weighed in favor of dismissal. Kellerman, 112 Ill. 2d at 447-48.

¶5                                 I. The State Court Complaint
¶6        Plaintiff filed the state action on August 6, 2012, against defendants Cook County,
     Illinois, Dr. Sunita Williamson, and Clifford Oliver. The complaint names “Cook County,
     Illinois,” as a defendant; however, County of Cook filed an appearance that it was incorrectly
     named in the suit as Cook County. Also, the state complaint alleges that defendant Cook
     County is “an Illinois municipal corporation”; however, the County of Cook is a “body
     politic.” 55 ILCS 5/5-1001 (West 2006); Turnipseed v. Brown, 391 Ill. App. 3d 88, 89
     (2009). Plaintiff has not yet amended his complaint to correct the errors.
¶7        The state complaint alleges that, when the decedent entered the Cook County jail on July
     31, 2010, he was 61 years old and had serious health problems. At the time he had an
     implanted defibrillator and required a variety of prescription medication to maintain his
     health, and reported this need to the jail’s intake personnel. The next day, the decedent was
     transported to the Cermak infirmary emergency room, which in turn referred him to Stroger
     Hospital, where he remained overnight. On August 2, 2010, physicians at Stroger determined
     that he should continue to take the medications that he had been prescribed before entering
     jail. The physicians identified the medications that the decedent required based on his
     medical records, and the medication was returned to the jail, along with the decedent, later
     that day.
¶8        Despite the physicians’ recommendation that the decedent receive medication, a policy
     at the Cook County jail prohibited him from receiving any medication until he was examined
     by a physician at the jail. The decedent then waited an additional three days without
     medication until Dr. Sunita Williamson, a jail physician, examined him on August 5, 2010.
     After the examination, Dr. Williamson prescribed the wrong medication, directing that he


                                               -3-
       receive hydroxyzine pamoate, a muscle relaxant, instead of hydralazine, a hypertension
       (blood pressure) medicine.
¶9         The next day, a correctional officer observed that the decedent was exhibiting bizarre
       behavior, so he sent him to Clifford Oliver, a mental health specialist employed by Cook
       County, for a psychological evaluation. After examining the decedent, Oliver determined that
       he did not have any psychological problems and that his behavior was the result of a medical
       issue, not a mental health issue. Oliver did not take any action to ensure that the decedent
       received medical attention, and the decedent died several hours later, shortly before
       midnight. The cause of death was documented as cardiac arrest without an autopsy.
¶ 10       The state complaint does not specifically plead the Wrongful Death Act (740 ILCS
       180/0.01 et seq. (West 2008)) or the Survival Act (755 ILCS 5/27-6 (West 2008)), and
       instead seeks claims for medical malpractice and negligence. In count I, plaintiff alleges a
       claim of medical malpractice against Dr. Williamson, alleging that she negligently prescribed
       the decedent the wrong medication, which led to his death. In count II, plaintiff alleges that
       Oliver was also negligent for failing to refer the decedent for a medical evaluation after
       observing that he had a medical issue. Both counts allege that the individual defendant
       breached his or her duty, which proximately caused the death of the decedent. Neither count
       alleges specific damages other than the fact that the decedent died.
¶ 11       The state complaint does not mention the two policies named in the federal action and
       does not list a count or a cause of action against the other defendant named in the federal
       action, the sheriff of Cook County. However, the state complaint does allege that Dr.
       Williamson and Oliver were employed by Cook County, which is named in both the prayer
       for relief and the caption.
¶ 12       Defendant Cook County was served and filed an appearance in the state action.
       Defendant Dr. Williamson was never served, but Cook County’s counsel filed an appearance
       and jury demand on her behalf. Defendant Oliver was neither served, nor did he file an
       appearance. Also, Cook County did not file an appearance on Oliver’s behalf.

¶ 13                                    II. The Federal Action
¶ 14                             A. Original Complaint and Dismissal
¶ 15        Plaintiff had filed an action against Cook County and the sheriff of Cook County in the
       United States District Court for the Northern District of Illinois on July 28, 2011, alleging
       that policies at the Cook County jail led to the death of the decedent. Although the federal
       complaint does not appear in our appellate record, the parties do not dispute what it says. On
       June 11, 2012, the federal district court dismissed the federal action because it was
       duplicative of a federal class action lawsuit, Parish v. Sheriff, No. 07-CV-4369 (hereinafter,
       Parish), to which plaintiff was a class member. In Parish, a former prisoner at Cook County
       jail sued Cook County and the sheriff of Cook County, alleging a systemic failure to provide
       detainees with previously prescribed medication. The federal district court found that
       plaintiff’s federal lawsuit involved the same parties, claims, and remedies as the Parish class
       action, and it dismissed plaintiff’s federal case without prejudice and allowed him 30 days
       to amend his complaint.

                                                -4-
¶ 16                                B. Second Amended Complaint
¶ 17       Plaintiff then amended his federal complaint on June 18, 2012, and again on August 27,
       2012. In his second amended federal complaint, plaintiff “asserts federal and state law
       claims” against Cook County and the sheriff of Cook County, and he pleads that jurisdiction
       is conferred by 28 U.S.C. § 1343 and 28 U.S.C. § 1367. The second amended complaint
       alleges that it is a civil action arising under 42 U.S.C. § 1983, not divided into individual
       counts.1 Plaintiff claims that the decedent died as a direct and proximate result of two
       policies enforced at Cook County jail. Plaintiff alleges that the first policy prohibits detainees
       from receiving medication prior to being evaluated by a jail physician and that this policy led
       to the decedent’s death because he was required to endure three days without needed and
       required prescription medication. Second, plaintiff alleges that the jail’s policy of relying on
       unqualified persons to assess prisoners who exhibit bizarre behavior was a proximate cause
       of the death of the decedent because an unlicensed “psych worker” did not ensure that he
       received medical attention despite his determination that he had medical problems. The
       federal complaint does not name Dr. Williamson as a defendant or name her anywhere in its
       allegations and does not allege that the decedent was examined by a jail physician,
       misdiagnosed, and given the wrong medication. The complaint also does not name Oliver
       as a defendant or name him in its allegations. Instead, it refers to him namelessly as a “psych
       worker” employed by defendant Cook County.

¶ 18                                   III. Procedural History
¶ 19       On August 22, 2012, defendant Cook County filed a motion to dismiss the state action
       pursuant to section 2-619(a)(3) of the Illinois Code of Civil Procedure (735 ILCS 5/2-
       619(a)(3) (West 2008)), claiming that the state case is duplicative of plaintiff’s federal action
       because it involves the same parties, cause, and nucleus of operative facts. Defendant also
       argues that the discretionary factors set forth by the Illinois Supreme Court weighed in favor
       of dismissal because: (1) no additional relief could be granted in the state action that could
       not be granted in the federal action; (2) a multiplicity of efforts threatened to subject the
       parties to duplicative depositions; and (3) a res judicata issue could be raised if the state and
       federal courts issue contrary decisions on the matter. Kellerman, 112 Ill. 2d at 447-48.
¶ 20       Plaintiff responded that he filed a second amended complaint in the federal action five
       days after defendant moved to dismiss the state action and that the lawsuits now present
       independent claims: the culpability of Dr. Williamson and Oliver is at issue in the state
       action as opposed to the federal challenge of policies enforced at Cook County jail. Plaintiff
       also argues that Dr. Williamson and Oliver were not parties to the federal action and that
       dismissing the instant case would allow the two-year statute of limitations to run on



               1
                 Since federal courts follow a notice pleading standard, plaintiff is not required set out in
       detail specific facts upon which his claim is based. People ex rel. Madigan v. Tang, 346 Ill. App. 3d
       277, 286 (2004) (citing Redfield v. Continental Casualty Corp., 818 F.2d 596, 605 (7th Cir. 1987)).

                                                    -5-
       plaintiff’s claims against them.2 Additionally, plaintiff argued that the witnesses need only
       be deposed once and that the lawsuits would not result in inconsistent findings in the state
       and federal actions since the state lawsuit concerned medical malpractice and negligence by
       a health worker and the federal action concerned policies administered by the Cook County
       jail that affected the civil rights of the decedent.
¶ 21        Following arguments on defendant’s motion, the circuit court dismissed the state action
       on October 9, 2012, finding that “[plaintiff’s state and federal] cases are the same,” and that
       the discretionary factors “certainly weigh in the favor of dismissal here.” Plaintiff now
       appeals the circuit court’s dismissal of his case.
¶ 22        On appeal, both parties acknowledge in their briefs that, on February 19, 2013, the
       federal district court granted plaintiff leave to add Dr. Williamson and Oliver as defendants
       in the federal action and stayed the federal proceedings pending the disposition of this
       appeal. The federal district court did not address defendants’ statute of limitations defense
       and advised them that they may challenge plaintiff’s claims on that basis after the stay is
       lifted. Although the federal district court’s order does not appear in the record on appeal, the
       parties do not dispute what it says.
¶ 23        At oral argument, plaintiff stated that, though defendant Cook County may be liable for
       the medical malpractice and negligence claims under the doctrine of respondeat superior,
       a judgment against the employer could not provide complete relief because there is “social
       value” in obtaining a judgment against the medical personnel “who killed someone.” Also,
       when discussing at oral argument the potential outcome of this appeal, defendant stated, “I
       don’t have a problem with a stay,” and plaintiff stated that a stay would be “consistent with
       what we wanted.”

¶ 24                                           ANALYSIS
¶ 25       Plaintiff appeals the circuit court’s dismissal of his state action, arguing that his federal
       lawsuit involves different causes of action and that discretionary factors and prejudice weigh
       in favor of maintaining the claims against the individual defendants in the state circuit court.
       Kellerman, 112 Ill. 2d at 447-48. In response, defendants claim that both of plaintiff’s
       lawsuits involve the same cause of action because both actions rely on the substantially same
       set of facts and that plaintiff is not allowed to bring two wrongful death actions at once. As
       a preliminary matter, we need to determine first whether plaintiff’s state complaint stated a
       cause of action before we decide whether the state and federal actions are duplicate causes
       of action that require the state action to be dismissed.



               2
                 Plaintiff filed his suit exactly two years after the death of the decedent. While plaintiff does
       not identify which statute of limitations is applicable to his cause of action, we note that wrongful
       death actions must be brought within two years after the victim’s death. 740 ILCS 180/2(c) (West
       2008). The statute of limitations on a medical malpractice claim is two years from the time the
       plaintiff reasonably knew that malpractice occurred with a maximum of four years from the date that
       the malpractice occurred. 735 ILCS 5/13-212(a) (West 2008).

                                                     -6-
¶ 26        To state a cause of action in the state court, a complaint must set forth a legally
       recognized cause of action and plead facts bringing the claim within that cause of action.
       Vincent v. Williams, 279 Ill. App. 3d 1, 15 (1996) (citing Misselhorn v. Doyle, 257 Ill. App.
       3d 983, 985 (1994)). When determining whether the complaint sufficiently states a cause of
       action, a court must accept as true all well-pleaded facts in the complaint and all reasonable
       inferences which can be drawn from those facts, interpret the allegations in the light most
       favorable to the plaintiff, and determine whether the allegations are sufficient to set forth a
       cause of action upon which relief may be granted. Oravek v. Community School District 146,
       264 Ill. App. 3d 895, 898 (1994) (citing Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d
       1, 8-9 (1992), and Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 505 (1990)).
¶ 27        In the case at bar, plaintiff’s complaint alleges two causes of action: (1) count I raises a
       medical malpractice claim against defendant Dr. Williamson; and (2) count II states a claim
       of negligence for the actions of defendant Oliver. Both counts allege that the individual
       defendants breached a duty that proximately caused the death of the decedent. However, “[a]t
       common law there was no cause of action to recover damages for the wrongful death of a
       decedent ***, except as provided by the legislature.” Kessinger v. Grefco, Inc., 251 Ill. App.
       3d 980, 982 (1993) (citing Wilbon v. D.F. Bast Co., 73 Ill. 2d 58, 61 (1978), and Li Petri v.
       Turner Construction Co., 36 Ill. 2d 597, 600 (1967)). Also, at common law, a decedent’s
       cause of action for negligence abated upon death. Kessinger, 251 Ill. App. 3d at 982 (citing
       National Bank of Bloomington v. Norfolk & Western Ry. Co., 73 Ill. 2d 160, 172 (1978)). See
       Bryant v. Kroger Co., 212 Ill. App. 3d 335, 336 (1991) (“At common law, the death of either
       party abated tort actions.”).
¶ 28        To recover damages for the harm to the decedent, plaintiff must bring an action under
       either the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2008)) or the Survival Act
       (755 ILCS 5/27-6 (West 2008)). The Wrongful Death Act creates a cause of action for the
       survivors of a decedent to recover damages from the party which negligently or wrongfully
       caused the decedent’s death. 740 ILCS 180/1 (West 2008). The damages are limited to the
       survivors’ “grief, sorrow, and mental suffering” that result from the decedent’s death. 740
       ILCS 180/2 (West 2008); Smith v. Mercy Hospital & Medical Center, 203 Ill. App. 3d 465,
       481-82 (1990) (holding that the legislature clearly intended for survivors to be compensated
       for their loss resulting from the death of the decedent); Cooper v. Chicago Transit Authority,
       153 Ill. App. 3d 511, 517-18 (1987) (holding that the Wrongful Death Act only allows for
       recovery of pecuniary losses). The Illinois Appellate Court for the Third District has held that
       adult children may recover pecuniary damages under the Wrongful Death Act for the loss of
       a parent’s “guidance, love and affection.” In re Estate of Keeling, 133 Ill. App. 3d 226, 228
       (1985). This court has followed that holding and allows adult children to recover pecuniary
       losses for the death of parents. Cooper, 153 Ill. App. 3d at 518.
¶ 29        The Survival Act (755 ILCS 5/27-6 (West 2008)), on the other hand, preserves causes
       of action on behalf of decedents that would otherwise be rendered moot upon the death of
       the decedent. In other words, the Wrongful Death Act covers injuries suffered by the next
       of kin because of and after the decedent’s death, whereas the Survival Act allows for the
       recovery of damages for injury sustained by the deceased up to the time of death. Wyness v.
       Armstrong World Industries, Inc., 131 Ill. 2d 403, 410 (1989). The Survival Act does not

                                                 -7-
       create a cause of action; rather, it allows a representative of the decedent to continue an
       existing cause of action after the decedent’s death. Wyness, 131 Ill. 2d at 410-11 (citing
       National Bank of Bloomington v. Norfolk & Western Ry. Co., 73 Ill. 2d 160, 172 (1978)). In
       a typical Survival Act claim, the representatives of the decedent would have a cause of action
       for medical expenses and pain and suffering of the decedent up to the date of death. Murphy
       v. Martin Oil Co., 56 Ill. 2d 423, 431 (1974). Litigants may bring wrongful death and
       survival actions simultaneously setting them up in separate courts. Wyness, 131 Ill. 2d at 410.
¶ 30        In the instant case, however, plaintiff’s state complaint neither pleads a clear Wrongful
       Death Act, nor does it make any reference to the lawsuit being one for “wrongful death” of
       the decedent. Instead, his state complaint seeks only claims of medical malpractice and
       negligence. While the state complaint does not explicitly plead wrongful death, we will look
       to whether the allegations are sufficient to set forth a cause of action pursuant to the
       Wrongful Death Act. Oravek, 264 Ill. App. 3d at 898.
¶ 31        In order to maintain a claim under the Wrongful Death Act, plaintiff must allege: (1)
       defendant owed a duty to the decedent; (2) defendant breached that duty; (3) the breach of
       duty proximately caused the decedent’s death; and (4) that pecuniary damages occurred to
       persons designated under the Wrongful Death Act. Bovan v. American Family Life Insurance
       Co., 386 Ill. App. 3d 933, 938 (2008) (citing Leavitt v. Farwell Tower Ltd. Partnership, 252
       Ill. App. 3d 260, 264 (1993)). Since the first three elements of a wrongful death claim are
       similar to the elements of a negligence action, both counts in plaintiff’s complaint satisfy the
       requirement of alleging that the individual defendants owed and breached a duty to the
       decedent, which proximately caused his death. See Beetle v. Wal-Mart Associates, Inc., 326
       Ill. App. 3d 528, 540 (2001) (Bowman, J., dissenting) (“A wrongful death action requires
       proof of the same elements *** as a common law negligence action, a classic action in
       tort.”).
¶ 32        Plaintiff’s state complaint does not allege survivors’ grief, sorrow, or mental suffering
       due to the decedent’s death, nor does it allege a loss of guidance, love and affection to
       plaintiff himself. In fact, the state complaint does not mention any damages at all other than
       the resulting death of the decedent. However, under Illinois law, plaintiff’s complaint for
       wrongful death is sufficient to withstand a motion to dismiss for prejudice. Gustafson v.
       Consumers Sales Agency, Inc., 414 Ill. 235, 244-45 (1953) (stating “[i]nasmuch as the
       Wrongful Death Act confers the right of action for the benefit of the surviving ‘next of kin’
       who have suffered pecuniary damages as a result of the death of the decedent, it is evident
       that good pleading would dictate that each of the next of kin should be named along with an
       allegation of their relationship to the deceased, and of their pecuniary injuries resulting from
       his death, so that the defendant may contest the pecuniary damages as any other fact at issue
       in the case. However, the chief importance of all such specific allegations is in connection
       with the question of the amount of damages, if any, to be assessed, and the only essential
       prerequisite to a statement of a cause of action, or basis for imposing liability, is an allegation
       of the survival of beneficiaries of the class who may recover under the statute.”).
¶ 33        Now that we have determined that plaintiff’s complaint is sufficient to withstand a
       motion to dismiss for prejudice, we now analyze whether the state court erred in dismissing
       the suit as duplicative of the federal action under the law. A section 2-619(a)(3) motion to

                                                  -8-
       dismiss is inherently procedural and urges the trial court to weigh several factors when
       deciding whether it is appropriate for the action to proceed. Overnite Transportation Co. v.
       International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
       332 Ill. App. 3d 69, 73 (2002); Hapag-Lloyd (America), Inc. v. Home Insurance Co., 312 Ill.
       App. 3d 1087, 1090 (2000). Thus, on appeal, a trial court’s decision to dismiss pursuant to
       section 2-619(a)(3) will not be overturned absent an abuse of that discretion. Continental
       Casualty Co. v. Radio Materials Corp., 366 Ill. App. 3d 345, 347 (2006). An abuse of
       discretion occurs when “ ‘the trial court’s ruling is arbitrary, fanciful, unreasonable, or where
       no reasonable person would take the view adopted by the trial court.’ ” Blum v. Koster, 235
       Ill. 2d 21, 36 (2009) (quoting People v. Hall, 195 Ill. 2d 1, 20 (2000)).
¶ 34        When moving to dismiss a duplicative action pursuant to section 2-619(a)(3), the movant
       has the burden to demonstrate through clear and convincing evidence that the two actions
       involve: (1) the same parties; and (2) the same cause. Hapag-Lloyd (America), Inc. v. Home
       Insurance Co., 312 Ill. App. 3d 1087, 1091 (2000); 735 ILCS 5/2-619(a)(3) (West 2008).
       Lawsuits present the same cause when “the relief requested is based on substantially the
       same set of facts.” Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 853 (2010); Skolnick
       v. Martin, 32 Ill. 2d 55, 57 (1964). The crucial inquiry to determine whether the relief
       requested is based on substantially the same set of facts is whether both actions arise out of
       the same transaction or occurrence, not whether the legal theory, issues, burden of proof, or
       relief sought materially differs between the two actions. Jackson v. Callan Publishing, Inc.,
       356 Ill. App. 3d 326, 337 (2005).
¶ 35        At oral argument before this court, defendant argued that, since federal courts follow the
       notice pleading standard, all of plaintiff’s claims are “already” in the federal action.
       However, defendant also admitted that he intends to move in federal court to dismiss the
       claims involving the medical personnel on statute of limitations grounds. At this point in
       time, we need not determine whether both actions include: (1) the same parties; and (2) the
       same cause.
¶ 36        Even if the “same cause” and “same parties” requirements are met, section 2-619(a)(3)
       would not mandate automatic dismissal. Combined Insurance Co. of America v. Certain
       Underwriters at Lloyds’ London, 356 Ill. App. 3d 749, 754 (2005). Rather, in exercising its
       discretion, the trial court is to weigh the prejudice that would result to the nonmovant if the
       motion is granted against the policy of avoiding duplicative litigation. Arthur Young & Co.
       v. Bremer, 197 Ill. App. 3d 30, 47 (1990) (citing Kellerman, 112 Ill. 2d 428). There are four
       discretionary factors that the trial court should consider: “(1) comity; (2) the prevention of
       multiplicity, vexation, and harassment; (3) the likelihood of obtaining complete relief in a
       foreign jurisdiction; and (4) the res judicata effect of a foreign judgment in the local forum.”
       Hapag-Lloyd (America), Inc., 312 Ill. App. 3d at 1091 (quoting Kellerman, 112 Ill. 2d at
       447-48, citing People ex rel. Department of Public Aid v. Santos, 92 Ill. 2d 120, 130 (1982)).
       These four factors are commonly known as the “Kellerman factors.” Combined Insurance
       Co. of America, 356 Ill. App. 3d at 754. However, courts are not required to apply all four
       Kellerman factors. Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill. App. 3d 780, 789
       (1998) (courts “should,” not “must,” consider them); Kellerman, 112 Ill. 2d at 447-48 (four
       “factors that a court should consider”); see, e.g., Doutt v. Ford Motor Co., 276 Ill. App. 3d

                                                 -9-
       785, 788-89 (1995) (not considering any of the Kellerman factors); Schnitzer v. O’Connor,
       274 Ill. App. 3d 314, 318-22 (1995) (same). In fact, not all four Kellerman factors necessarily
       apply to every case. Kapoor, 298 Ill. App. 3d at 789-90.
¶ 37        Since the trial court granted the section 2-619(a)(3) motion in the state action, plaintiff
       may suffer prejudice because the two-year statute of limitations may bar him from pursuing
       medical malpractice and negligence claims against Dr. Williamson and Oliver in the federal
       action. Arthur Young & Co., 197 Ill. App. 3d at 47; 745 ILCS 10/8-101(b) (West 2008). In
       the federal case, plaintiff requested leave to amend his complaint to add Dr. Williamson and
       Oliver as individual defendants, to which defendants objected, arguing that plaintiff could
       not bring medical malpractice and negligence actions because the statute of limitations had
       not been tolled. The federal district court declined consideration of defendant’s statute of
       limitations argument and instead granted plaintiff leave to amend and stayed the proceedings
       pending the outcome of this appeal. During oral arguments on this appeal, defendants stated
       their intention to pursue a motion in the federal action to dismiss the newly added claims
       against Dr. Williamson and Oliver. If defendants prevail on a motion to dismiss in the federal
       case, then plaintiff may be unable to obtain complete relief because his claims against these
       individual defendants will be barred, which would not satisfy the third Kellerman factor
       concerning plaintiff’s ability to obtain complete relief in a foreign jurisdiction. Kellerman,
       112 Ill. 2d at 447. This factor weighs heavily in favor of reversing the dismissal.
¶ 38        Defendant argues that, even if the statute of limitations bars plaintiff from suing Dr.
       Williamson and Oliver, plaintiff may still obtain complete relief because both actions are
       filed against defendant Cook County, the proverbial “deep pocket,” and plaintiff’s action
       under the Civil Rights Act would provide sufficient damages. However, as plaintiff pointed
       out in his oral argument, there is an inherent social value in a plaintiff’s ability to bring a
       cause of action against particular defendants who allegedly committed the wrongful acts. If
       plaintiff is unable to bring his claims against Dr. Williamson and Oliver in federal court, then
       plaintiff will be denied an opportunity to hold responsible the individuals who he believes
       are culpable in his father’s death. Regardless of which defendant may ultimately pay
       damages, plaintiff is entitled to have his day in court.
¶ 39        By considering the Kellerman factors and weighing the prejudice to plaintiff, we find
       that, at this time, dismissal of plaintiff’s claims in federal court against the individual
       defendants tips the scales against dismissing the state suit and we reverse the trial court with
       directions to stay the proceedings until the federal court decides the question of the statute
       of limitations. At oral argument before this court, defendant stated, “I don’t have a problem
       with a stay,” and plaintiff stated that a stay would be “consistent with what we wanted.”
       After the federal court decides the statute of limitations issue, the trial court will be in a
       better position to decide whether the state action should be dismissed.

¶ 40                                      CONCLUSION
¶ 41       For the above reasons, the judgment of the circuit court of Cook County dismissing
       plaintiff’s complaint pursuant to section 2-619(a)(3) of the Code is reversed with directions



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       to stay the proceedings until the federal court decides the question of the statute of
       limitations.

¶ 42      Reversed and remanded with directions.




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