                             2018 IL App (2d) 160975 

                                  No. 2-16-0975

                            Opinion filed March 7, 2018 

______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

KELLI RITSCHEL BOEHLE, Individually       ) Appeal from the Circuit Court
and as Administrator of the Estate of     ) of Winnebago County.
Nikolas Ritschel, Deceased,               )
                                          )

       Plaintiff-Appellee,                )

                                          )

v.                                        ) No. 15-L-390
                                          )
OSF HEALTHCARE SYSTEM, d/b/a Saint        )
Anthony Medical Center-Rockford and d/b/a )
OSF Medical Group; BERNARD E.             )
O’MALLEY, M.D.; ROY K. WERNER, M.D.; )
ROCKFORD RADIOLOGY ASSOCIATES, )
P.C.; JOSEPH P. MICHO, M.D.; MICHAEL G.)
MYERS, M.D., ERIC TREFELNER, M.D.,        )
INC., d/b/a Nightshift Radiology;         )
and MARSHALL P. MALLORY, M.D.,            ) Honorable
                                          ) J. Edward Prochaska,

       Defendants-Appellants.             ) Judge, Presiding.

______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion. 

       Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.


                                            OPINION

¶1     In this appeal involving a medical malpractice case, we address the following questions

certified pursuant to Illinois Supreme Court Rule 308 (eff. July 1, 2017):

               “(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
2018 IL App (2d) 160975


       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?”

¶2     Although the questions seem to call for straightforward answers through their either/or

and yes/no phrasing, our interpretation of Illinois Supreme Court Rule 219(e) (eff. July 1, 2002)

and consideration of relevant case law preclude such a result.      Regarding the first question, we

conclude that nothing in Rule 219(e) prevents a plaintiff from attempting to use a voluntary

dismissal to avoid the consequences of a court order denying the plaintiff’s motion to disclose an

additional witness, or to avoid the effect of court-ordered sanctions for discovery violations or

other misconduct.    However, the trial court has the discretion to sanction the plaintiff for

misconduct or unreasonable noncompliance by ordering expenses paid to the defendant as a

condition of granting the voluntary dismissal, and the trial court could additionally or

alternatively bar or limit witnesses and/or evidence in the refiled action.         As to the second

question, we conclude that Rule 219(e) does not prevent the plaintiff from disclosing a new

expert witness in a refiled action.   Still, it is within the trial court’s discretion whether to bar or

otherwise limit that witness’s testimony in the refiled case.

¶3                                      I. BACKGROUND

¶4      On February 4, 2011, plaintiff, Kelli Ritschel Boehle, and her son, Nikolas Ritschel, filed

a medical negligence lawsuit against several defendants for allegedly failing to timely diagnose



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and treat Nikolas’s sarcoma of the spine, allegedly resulting in the spread of the cancer and the

increased likelihood of premature death. The trial court initially set a trial date of July 9, 2012.

Nikolas passed away on March 9, 2012, and on May 29, 2012, plaintiff filed a first amended

complaint, individually and on behalf of Nikolas’s estate. She thereafter disclosed four expert

witnesses, pursuant to defendants’ Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007)

interrogatories, who would each opine that defendants’ alleged deviations from the standard of

care proximately caused Nikolas’s death.

¶5     Plaintiff retained new counsel, and on January 16, 2014, the trial court granted plaintiff’s

motion for leave to supplement her Rule 213(f)(3) disclosures, over defendants’ objections; she

was to disclose her new experts by March 1, 2014. Plaintiff’s supplemental Rule 213(f)(3)

disclosures named two additional witnesses who would testify as to causation.

¶6     On August 7, 2014, the trial court rescheduled the trial date to September 14, 2015. It

ordered that all of plaintiff’s expert witnesses be deposed by September 18, 2014. Defendants

were to disclose their expert witnesses by November 18, 2014, and their depositions were to be

completed by February 18, 2015. Defendants later disclosed a total of 12 expert witnesses.

¶7     On June 25, 2015, plaintiff mailed notice of a motion to supplement her Rule 213(f)(3)

disclosures to add Leonard Wexler, a pediatric oncologist, to testify as to causation. Defendants

objected, and the trial court denied plaintiff’s motion on July 23, 2015. It stated that, when

plaintiff had switched law firms earlier, she had been given leave to name two new experts.

However, the case had now been pending for four years, all of the experts had been deposed, and

trial was two months away. The alleged failure to diagnose Nikolas’s cancer was the theory of the

case from the beginning, and plaintiff had chosen to name surgeons and neurosurgeons, as

opposed to oncologists, as experts, which was a matter of trial strategy. The trial court noted that



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2018 IL App (2d) 160975


plaintiff previously 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.”

¶8     Less than one month later, on August 19, 2015, the trial court granted plaintiff’s motion to

voluntarily dismiss the suit without prejudice.

¶9     On December 9, 2015, plaintiff refiled her case against the same defendants.              She

subsequently moved to disclose 10 experts, including Dr. Wexler and 4 other experts not named in

the original action. Defendants moved to strike the motion, arguing that Rule 219(e) prohibited

plaintiff from using a voluntary dismissal to avoid compliance with the trial court’s July 23, 2015,

discovery order, which denied her leave to name Dr. Wexler as a witness. Defendants argued that

plaintiff should also not be allowed to name the other new expert witnesses.

¶ 10   On June 22, 2016, the trial court denied defendants’ motion to strike. It stated as follows.

Plaintiff dismissed her original action as “a strategic voluntary dismissal *** because [she] was

not allowed to disclose Dr. Wexler *** because we were too close to trial.” Plaintiff dismissed

her initial action in order to be able to name her choice of experts in the refiled action, including

Dr. Wexler. However, Rule 219(e) did not prohibit “dismissing a case for strategic reasons and

then naming a new or additional expert upon re-filing.” To bar plaintiff’s new expert witnesses

under Rule 219(e), 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,” none of which was present. It did “not see any reason under Supreme Court Rule 219(e) to

bar the plaintiffs [sic] from viewing this as a new case and for strategic reasons naming some new

and additional expert witnesses.” To rule otherwise would be to read conditions into section

2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2016) (allowing




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voluntary dismissals)). However, the trial court would reserve ruling on whether two of the

newly named experts, a radiologist and a neurosurgeon, were cumulative witnesses.

¶ 11     Defendants then sought to certify the aforementioned questions for immediate appeal

under Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016). At the hearing on the motion to certify,

the trial court stated that the situation at hand involved a recurring issue. It stated:

               “[Plaintiff] voluntarily dismissed [her] case when I denied [her] request to name a

       new additional expert witness, this oncologist. I made that ruling at the time and I stand

       by it because it was too late. We were very close to the final pretrial conference. *** I

       denied it in my discretion. And then [she] made [her] motion for voluntary dismissal.

               I have no doubt and I’ve even said it on the record *** I call it a strategic voluntary

       dismissal. *** [She] wants to name a couple of new experts in this newly filed case and

       so I have to look at where, where it was in the litigation and I felt like, again, in my

       discretion, after reviewing Supreme Court Rule 219(e), *** there was nothing preventing

       [her] from doing that. I don’t think [she] was violating any orders that I had entered in the

       previous case. In particularly [sic], *** it’s important to the Court that [she] wasn’t doing

       anything that was going to save [her] case from an imminent defeat and by that I mean

       summary judgment or directed verdict.

                                                         ***

               And so, I, in every case, look at where *** are we along the path to trial? And in

       this particular case I didn’t feel that we were far enough long [sic] the path to trial in the

       prior case to say that [plaintiff] could not voluntarily dismiss, refile, and name a couple of

       new experts. I felt that was in my discretion. I allowed it.”




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The trial court stated that the issue defendants raised in their proposed certified questions was

whether its ruling improperly allowed plaintiff to avoid the effects of its order denying her motion

for leave to add Dr. Wexler as an expert witness. The issue involved the interplay of section

2-1009, Rule 219(e), and a trial court’s discretion to make discovery rulings when a case is refiled.

Therefore, the trial court granted the motion to certify, over plaintiff’s objection.

¶ 12    We initially denied defendants’ application for leave to appeal. However, on May 24,

2017, our supreme court issued a supervisory order directing us to vacate our denial of defendants’

application and to consider the questions certified by the trial court. We followed the supreme

court’s directive and granted defendants leave to appeal.

¶ 13                                        II. ANALYSIS

¶ 14    Rule 308 allows for the permissive interlocutory appeal of an order involving “a question

of law as to which there is substantial ground for difference of opinion” and where “an

immediate appeal from the order may materially advance the ultimate termination of the

litigation.”   Ill. S. Ct. R. 308 (eff. July 1, 2017).   Our review is generally limited to answering

the questions certified, as opposed to examining the propriety of an underlying trial court order.

Combs v. Schmidt, 2015 IL App (2d) 131053, ¶ 6.           Because a certified question under Rule 308

presents a question of law, our review is de novo.       Bowman v. Ottney, 2015 IL 119000, ¶ 8.

¶ 15    Section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2016)) allows a plaintiff to

voluntarily dismiss his or her action without prejudice at any time before trial or hearing begins,

provided that the plaintiff provides notice to each party and pays costs.               “When a party

complies with the requirements of section 2-1009(a), her right to a voluntary dismissal without

prejudice is, with very limited exceptions, unfettered.” Smith v. Bartley, 364 Ill. App. 3d 725,




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2018 IL App (2d) 160975


727 (2006).   Section 13-217 of the Code (735 ILCS 5/13-217 (West 2016)) permits a plaintiff

to refile a voluntarily dismissed action within one year of the dismissal date.

¶ 16   Defendants do not dispute that a plaintiff has the right to voluntarily dismiss and refile his

or her action. Rather, the parties disagree about a plaintiff’s ability to name witnesses in a

refiled action who were not previously named or were named untimely.         This question involves

the interpretation of Rule 219(e), which is titled “Voluntary Dismissals and Prior Litigation” and

provides:

               “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 ruling 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. The court may, in addition to the assessment of costs, require

       the party voluntarily dismissing a claim to pay an opposing party or parties reasonable

       expenses incurred in defending the action including but not limited to discovery expenses,

       expert witness fees, reproduction costs, travel expenses, postage, and phone charges.” Ill.

       S. Ct. R. 219(e) (eff. July 1, 2002).

The committee comments to the rule state:

               “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



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2018 IL App (2d) 160975


        barred. The consequences of noncompliance with discovery deadlines, rules or orders

        cannot be eliminated by taking a voluntary dismissal. Paragraph (e) further authorizes the

        court to require the party taking the dismissal to pay the out-of-pocket expenses actually

        incurred by the adverse party or parties. *** Paragraph (e) does not provide for the

        payment of attorney fees when an action is voluntarily dismissed.” Ill. S. Ct. R. 219(e),

        Committee Comments (rev. June 1, 1995).

¶ 17    We construe supreme court rules according to the same principles that govern the

interpretation of statutes.   Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 22.

Our primary goal is to ascertain and give effect to the drafters’ intent, which is best indicated by

the plain and ordinary meaning of the language used.     Id.   We will interpret a rule such that no

part of it is rendered meaningless or superfluous, and we will not depart from the rule’s plain

language by reading into it exceptions, limitations, or conditions that conflict with the drafters’

expressed intent. Id.     If the rule’s language is ambiguous or susceptible to more than one

reasonable interpretation, we may look to the committee comments for guidance in ascertaining

the reason and purpose for the rule. A.M. Realty Western L.L.C. v. MSMC, L.L.C., 2016 IL App

(1st) 151087, ¶ 73.    The interpretation of a rule presents a question of law, which we review de

novo.   Doe v. Coe, 2017 IL App (2d) 160875, ¶ 10.

¶ 18    Defendants OSF Healthcare System; Bernard E. O’Malley, M.D.; and Roy K. Werner,

M.D. (collectively OSF defendants), argue that Rule 219(e)’s plain language prohibits a party

from avoiding compliance with discovery deadlines or orders by voluntarily dismissing a lawsuit

and that the committee comments likewise state that the rule prohibits the use of voluntary

dismissals to avoid complying with discovery orders.




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¶ 19   OSF defendants cite Jones v. Chicago Cycle Center, 391 Ill. App. 3d 101 (2009), and

Valdovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill. App. 3d 255, 271 (2002), as

examples of cases where the appellate court held that Rule 219(e) allows a court to impose

sanctions or bar evidence when a plaintiff uses the right to voluntarily dismiss the lawsuit as a

means to avoid the consequences of an order excluding evidence.             In Jones, the plaintiffs

sought to obtain additional opinion testimony from one of their experts, based on the decline in

the primary plaintiff’s condition.   Jones, 391 Ill. App. 3d at 103-04.    The trial court questioned

why the plaintiffs had not previously disclosed the decline or their plan to elicit new opinion

testimony from an expert last deposed two years before.      Id. at 104.   The trial court stated that

based on the trial date it was “too late” to disclose additional opinion testimony, but it continued

the defendants’ motion in limine to bar the testimony until after the deposition.           Id.   The

plaintiffs moved to voluntarily dismiss their case the next day.    Id.    The trial court found that

the plaintiffs sought a voluntary dismissal in order to avoid the trial court’s rulings on motions in

limine and to avoid witnesses and evidence being barred as untimely.          Id. at 114.   The trial

court ordered the plaintiffs to pay costs of over $180,000 as a condition of granting their motion

for a voluntary dismissal. Id. at 106. The appellate court affirmed, stating that, although the

record did not show “that plaintiffs deliberately violated case management, preservation or

protective orders or failed to comply with the court’s discovery orders or deadlines,” the trial

court clearly found that they were using the voluntary dismissal “ ‘to avoid the consequences of

discovery failures or orders barring witnesses or evidence.’ ” (Emphasis omitted.) Id. at 114

(quoting Ill. S. Ct. R. 219(e), Committee Comments (rev. June 1, 1995)).

¶ 20     In Valdovinos, the trial court similarly granted the plaintiffs’ motion for a voluntary

dismissal but ordered them to pay costs of over $100,000 to the defendants.         Valdovinos, 328



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Ill. App. 3d at 263-64. The appellate court affirmed, stating that the assessment of expenses

was proper “where the plaintiffs exercised their right to voluntarily dismiss the action without

prejudice in order to avoid the effects of pretrial evidentiary rulings based on their own failure to

comply with discovery deadlines.” Id. at 271.         In particular, due to untimely disclosures, the

plaintiffs were barred from presenting certain witnesses and from using a computer animated

videotape.   Id.

¶ 21    OSF defendants note that, like the trial courts in Jones and Valdovinos, the trial court

here originally excluded Dr. Wexler’s testimony because plaintiff had disclosed him “too late”

and it found that plaintiff had voluntarily dismissed her lawsuit to avoid the consequences of that

discovery order.    OSF defendants argue that the trial court wrongly believed that it could bar

Dr. Wexler’s testimony under Rule 219(e) only if it found that plaintiff had committed

“discovery violations in the prior case,” “misconduct in the prior case,” or “a deliberate disregard

of the court’s authority in the underlying case.” OSF defendants argue that, although Rule 219(e)

requires the trial court to consider “any misconduct” in the prior case (Ill. S. Ct. R. 219(e) (eff. July

1, 2002)), it does not require misconduct before relief may be imposed. OSF defendants maintain

that case law provides that “unreasonable noncompliance” or “misconduct” is sufficient to justify

imposing costs or other sanctions under Rule 219(e). See Jones, 391 Ill. App. 3d at 115; see also

Ramos v. Kewanee Hospital, 2013 IL App (3d) 120001, ¶ 112; Scattered Corp. v. Midwest

Clearing Corp., 299 Ill. App. 3d 653, 659 (1998).         OSF defendants point out that in Jones the

trial court equated unreasonable noncompliance with the plaintiffs voluntarily dismissing their

case to avoid the consequences of discovery orders.       Jones, 391 Ill. App. 3d at 115.

¶ 22    OSF defendants argue that those cases in which Rule 219(e) relief was found to be

inappropriate involved situations where either there was no discovery order that the plaintiff



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sought to avoid through voluntary dismissal or the trial court did not find that the dismissal was

designed to avoid an adverse discovery ruling.      See In re Marriage of Webb, 333 Ill. App. 3d

1104, 1106 (2002) (trial court erred in assessing expenses against the plaintiff as a condition for

allowing her to voluntarily dismiss her action, because it did not make a preliminary

determination that she engaged in discovery misconduct); Scattered Corp., 299 Ill. App. 3d at

660-61 (trial court erred in imposing expenses for voluntary dismissal, because it made no

finding of misconduct or unreasonable noncompliance with any court order).

¶ 23   OSF defendants argue that the trial court’s ruling in this case contradicts Rule 219(e)’s

express purpose, as the rule states that a party “shall not be permitted to avoid compliance with

discovery *** orders *** by voluntarily dismissing a lawsuit.” Ill. S. Ct. R. 219(e) (eff. July 1,

2002). They argue that, by imposing the additional requirement of violations or misconduct, the

trial court inadvertently encouraged the very gamesmanship that Rule 219(e) seeks to prohibit.

See Scattered Corp., 299 Ill. App. 3d at 660 (“Rule 219(e) targets those strategic and tactical

litigation decisions which, having crossed the line of vigorous advocacy, become decisions aimed

no longer at besting the opposing party but rather at undermining the integrity of the judicial

system.”). OSF defendants contend that we should answer both certified questions by holding

that Rule 219(e) prohibits a strategic voluntary dismissal designed to avoid the effect of an order

denying as untimely a plaintiff’s motion to disclose an expert witness in prior litigation.

¶ 24   Defendants Michael G. Myers, M.D.; Eric Trefelner, M.D., Inc., d/b/a Nightshift

Radiology; and Marshall P. Mallory, M.D. (Nightshift defendants), present arguments similar to

those of OSF defendants.     They argue that Rule 219(e)’s plain language prohibits a party from

avoiding compliance with discovery deadlines and court orders by voluntarily dismissing a

lawsuit and that the rule is not limited to circumstances where a party is guilty of misconduct.



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They argue that Rule 219(e)’s committee comments are similarly unambiguous.                Nightshift

defendants argue that the trial court’s order denying defendants’ motions to bar Dr. Wexler and

the other new expert witnesses in the refiled action allowed plaintiff to accomplish precisely

what Rule 219(e) prohibits, i.e., avoiding compliance with discovery deadlines and court orders

by voluntarily dismissing a lawsuit. Nightshift defendants cite our supreme court’s statement

that, “[i]nstead of limiting a party’s right to voluntarily dismiss his claims without prejudice prior

to trial, Rule 219(e) prevents voluntary dismissals from being used as an artifice for evading

discovery requirements” (Morrison v. Wagner, 191 Ill. 2d 162, 166 (2000)) and its statement that

a plaintiff “cannot use the voluntary dismissal and refiling provisions to accomplish in the

[refiled] suit what she was precluded from doing in the [original] suit” (Bowman, 2015 IL

119000, ¶ 25).

¶ 25   Nightshift defendants further argue that, even if Rule 219(e) requires a finding of

misconduct, plaintiff’s failure to disclose Dr. Wexler and the other new expert witnesses by the

discovery deadline was a discovery violation. Nightshift defendants maintain that the trial court

conceded that its ruling allowed plaintiff to “get around” or “avoid” its prior orders. Nightshift

defendants argue that this consideration distinguishes the instant case from Webb and Scattered

Corp. Nightshift defendants argue that this case is far more analogous to Jones, where the

plaintiffs’ failure to timely disclose Rule 213(f) witnesses and their opinions was misconduct

sufficient to invoke Rule 219(e).

¶ 26   Defendants Rockford Radiology Associates, P.C.; and Joseph P. Micho, M.D. (Rockford

Radiology defendants), adopt the arguments set forth by OSF defendants and Nightshift

defendants.




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¶ 27     Plaintiff responds that, although certified questions are supposed to present questions of

law, defendants are actually seeking to have us review the propriety of the trial court’s order

denying their motions to bar Dr. Wexler and the other new expert witnesses.            Plaintiff argues

that, given the trial court’s discretion under Rule 219(e), both parts of the first certified question,

as well as the second certified question, should be answered in the negative.

¶ 28     Plaintiff contends that defendants wrongly describe Dr. Wexler as having been barred in

the original case.   She argues that instead she simply asked for leave to disclose him after

discovery was closed, and the trial court denied the motion solely because it was too close to

trial.   Plaintiff argues that, although the trial court described her voluntary dismissal as

“strategic,” all such dismissals are strategic and the trial court explicitly stated that she had done

nothing improper or sanctionable.      Plaintiff maintains that she had the right not only to dismiss

her case but also to refile it and that it is well established that a refiled case is not a continuation

of the original case but instead a new action.    See Dubina v. Mesirow Realty Development, Inc.,

178 Ill. 2d 496, 504 (1997) (“We note that the refiled action is an entirely new and separate

action, not a reinstatement of the old action.”).    Plaintiff argues that, aside from exceptions not

applicable here, a refiled case should not be treated as a continuation of the old case and should

therefore not be burdened with the proceedings of the old case, or else the right to dismiss and

refile would be pointless.    Plaintiff contends that, although defendants focus on Rule 219(e)’s

language that parties “shall not be permitted to avoid compliance with discovery deadlines,

orders or applicable rules by voluntarily dismissing a lawsuit,” such policy language is ordinarily

not considered in determining the scope of an enactment.         See Brown v. Kirk, 64 Ill. 2d 144,

152 (1976).    She also points out that the rule further specifies that the trial court shall consider

discovery undertaken, any misconduct, and the orders entered.           Plaintiff argues that the trial



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court was not required to apply previous orders in the refiled case, as there is no rule that such

orders must be reinstated upon refiling.

¶ 29   Plaintiff further argues that the cases cited by defendants do not support their position.

Plaintiff argues that Morrison does not hold that the trial court is required to bar evidence,

particularly considering that Rule 219(e) states that the trial court “may” require the plaintiff to

pay expenses (Ill. S. Ct. R. 219(e) (eff. July 1, 2002)).    Plaintiff argues that in Jones the trial

court found that the plaintiffs engaged in “egregious” discovery misconduct that warranted the

imposition of costs and expenses under Rule 219(e) (Jones, 391 Ill. App. 3d at 112), whereas

here the trial court found that plaintiff had not engaged in any discovery misconduct.       Plaintiff

cites the Jones court’s statement:    “In order for Rule 219(e) to apply, there must be some

misconduct on the plaintiff’s part.”         Id. at 111.      Plaintiff argues that Jones is also

distinguishable because there the trial court’s finding of misconduct was affirmed, whereas here

defendants seek to reverse the trial court’s ruling, and because Jones involved assessing costs as

opposed to barring witnesses.

¶ 30   Plaintiff also argues that defendants focus on the language of Rule 219(e) without

considering the remainder of the rule.     Plaintiff cites Rule 219(c), which relates to, among other

things, the unreasonable failure to comply with discovery and allows the trial court to impose

remedies, including sanctions.   Ill. S. Ct. R. 219(c) (eff. July 1, 2002). Plaintiff argues that Rule

219(e) clearly aims to carry that remedy provision into refiled cases and that both provisions

require a preliminary finding of misconduct.       See Jones, 391 Ill. App. 3d at 111 (trial court

must make a preliminary finding of misconduct before imposing expenses under Rule 219(e)).

¶ 31   Plaintiff argues that Scattered Corp. controls.     There, the court stated that “Rule 219(e)’s

reference to voluntary dismissals taken to ‘avoid compliance’ with ‘discovery deadlines, orders, or



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applicable rules’ (166 Ill. 2d R. 219(e)) requires the circuit court to make a preliminary finding of

misconduct, analogous to the ‘unreasonable noncompliance’ standard invoked in Rule

219(c) cases (166 Ill. 2d R. 219(c)), before imposing expenses pursuant to Rule 219(e).”

Scattered Corp., 299 Ill. App. 3d at 659. The court stated that unreasonable noncompliance

occurs where “the noncomplying party shows a deliberate, contumacious or unwarranted disregard

for the court’s authority.” Id. Plaintiff points out that the supreme court cited Scattered Corp.

with approval in Morrison, 191 Ill. 2d at 166, and that the appellate court has cited it with

approval in other cases.   See Ramos, 2013 IL App (3d) 120001, ¶¶ 110-13; Jones, 391 Ill. App.

3d at 111-12; Webb, 333 Ill. App. 3d at 1111-12.

¶ 32     Plaintiff next argues that defendants ignore the fact that Rule 219(e) sanctions are

discretionary.   “Just as is the case with any sanction imposed under Rule 219, only a clear abuse

of discretion justifies a reversal on appeal of the trial court’s decision to bar evidence or the

testimony in a refiled case by reason of a party’s misconduct in his original action.” Smith v.

P.A.C.E., 323 Ill. App. 3d 1067, 1075 (2001).         Therefore, according to plaintiff, defendants

wrongly seek to have her experts barred as a matter of law.         Plaintiff argues that trial courts

generally have discretion regarding whether to bar witnesses and that Illinois courts recognize

that such action is a drastic sanction to be used sparingly.

¶ 33     OSF defendants reply that, although plaintiff concedes that Rule 219(e) applies to

unreasonable noncompliance in addition to misconduct, she never explains why an untimely

witness disclosure is not unreasonable noncompliance with a discovery order.         OSF defendants

and Nightshift defendants argue that the only issue here is whether a voluntary dismissal

designed to avoid an order denying the untimely disclosure of a witness is subject to Rule 219(e)

relief, despite the trial court’s belief here that it lacked discretion to provide such relief absent a



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discovery sanction in the original lawsuit. Rockford Radiology defendants argue, among other

things, that plaintiff’s analysis is flawed because Ramos, Jones, Webb, and Scattered Corp. all

involved whether the trial courts properly imposed monetary sanctions, which the third sentence

of Rule 219(e) addresses, whereas here the issue is whether the trial court should enforce its prior

order denying leave to disclose additional expert witnesses after the deadline had long passed,

which the first sentence of Rule 219(e) addresses.

¶ 34   Having summarized the parties’ arguments, we now begin our own commentary.               After

briefing in this case was completed, this court decided Freeman v. Crays, 2018 IL App (2d)

170169, which touches upon many of the issues central to this case.       There, the plaintiff brought

suit against the defendant doctor, alleging that his negligent treatment of her husband’s

cardiovascular disease proximately caused her husband’s death. Id. ¶ 1.           Shortly before the

trial, the trial court ruled that the plaintiff’s only medical expert witness was unqualified to offer

an opinion on causation, which would have prevented the plaintiff from proving her case.           Id.

The plaintiff voluntarily dismissed and refiled her action, and she disclosed her intent to name an

additional medical expert witness to testify on causation.      Id.    The defendant then moved to

adopt the rulings from the original case and bar the testimony of any newly disclosed experts,

under Rule 219(e). Id.      The trial court granted the defendant’s motion, leading the defendant

to request and receive summary judgment in his favor.          Id.    The plaintiff appealed, arguing

that (1) the trial court abused its discretion by barring her original medical expert witness from

testifying on causation and (2) the trial court improperly applied Rule 219(e) by barring her from

disclosing a new expert witness in the refiled action.   Id.

¶ 35   We first concluded that the trial court acted within its discretion in barring the original

expert witness’s causation opinion. Id. ¶ 36.      In addressing the second issue, we rejected the



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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.   Id. ¶¶ 44, 46, 50.   We recognized that Jones stated that, “ ‘[i]n order for Rule

219(e) to apply, there must be some misconduct on the plaintiff’s part.’ ” Id. ¶ 44 (quoting

Jones, 391 Ill. App. 3d at 111).       However, we noted that Jones and the cases it relied on,

namely Scattered Corp. and Webb, involved the imposition of expenses associated with a

voluntary dismissal, as opposed to the application of Rule 219(e) in a refiled case.         Id.   We

instead looked to Smith, 323 Ill. App. 3d at 1074, which did involve barring witnesses in a refiled

action, under Rule 219(e). We agreed with Smith’s holding that a party’s misconduct in the

original action is just one factor for the trial court to consider in the refiled action in determining

what evidence will be permitted. Freeman, 2018 IL App (2d) 170169, ¶ 49.           We further agreed

with Smith that in such a situation the trial court 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. Id. ¶ 52 (citing Smith, 323

Ill. App. 3d at 1076).

¶ 36   We ultimately held that the trial court abused its discretion in barring the plaintiff’s new

expert witness in the refiled action, because the trial court improperly applied the standards in

Jones governing the imposition of expenses associated with a voluntary dismissal, instead of the

framework set out in Smith for a refiled action.     Id. ¶ 60.   We remanded the cause for the trial

court to reconsider the issue according to the proper standards.    Id. ¶ 61.




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¶ 37    Returning to the instant case, we look to the language of Rule 219. Rule 219 is titled

“Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial

Conferences.”     Ill. S. Ct. R. 219 (eff. July 1, 2002); see Michigan Avenue National Bank v.

County of Cook, 191 Ill. 2d 493, 506 (2000) (titles and headings cannot limit the plain meaning of

the text of a statute, but they can be considered if they shed light on an ambiguous word or phrase

within the text). As plaintiff points out, Rule 219(c) allows the trial court to impose sanctions if

a party “unreasonably” fails to comply with discovery orders or rules. Ill. S. Ct. R. 219(c) (eff.

July 1, 2002). Rule 219(e) extends the trial court’s enforcement of discovery orders to refiled

cases. See Scattered Corp., 299 Ill. App. 3d at 659 (purposes behind Rule 219(c) and Rule 219(e)

are similar).

¶ 38    Rule 219(e) begins: “A party shall not be permitted to avoid compliance with discovery

deadlines, orders or applicable rules by voluntarily dismissing a lawsuit.” (Emphasis added.)

Ill. S. Ct. R. 219(e) (eff. July 1, 2002). Plaintiff frames Rule 219(e)’s first sentence as policy

language that is largely irrelevant (see supra ¶ 28), but, unlike in the case she cites (see Brown, 64

Ill. 2d at 152), this language is not a separate policy section or preamble of a statute, but rather part

of a supreme court rule. Scattered Corp. found that the phrase “avoid compliance” rendered the

rule ambiguous, thereby allowing consideration of the committee comments to the rule.

Scattered Corp., 299 Ill. App. 3d at 658; see also Webb, 333 Ill. App. 3d at 1112 (agreeing with

Scattered Corp. that the phrase was ambiguous); Wright v. Desate, Inc., 292 Ill. App. 3d 952, 954

(1997) (finding rule to be ambiguous). Scattered Corp. determined that the statement in the

committee comments that “[t]he consequences of noncompliance with discovery deadlines, rules

or orders cannot be eliminated by taking a voluntary dismissal” (Ill. S. Ct. R. 219(e), Committee

Comments (rev. June 1, 1995)) indicated that the voluntary dismissal had to involve some



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disobedience by the plaintiff. Scattered Corp., 299 Ill. App. 3d at 659. It held that the inclusion

of the phrase “avoid compliance” required the trial court “to make a preliminary finding of

misconduct, analogous to the ‘unreasonable noncompliance’ standard invoked in Rule 219(c)
                                                                                      1
cases *** before imposing expenses pursuant to Rule 219(e).”                    Id.         Unreasonable

noncompliance occurs where the party shows a deliberate, contumacious, or unwarranted

disregard for the court’s authority. Id.; see also Shimanovsky v. General Motors Corp., 181 Ill. 2d

112, 120 (1998) (unreasonable noncompliance warranting sanctions occurs where there has been a

deliberate and pronounced disregard for a discovery rule). Whether unreasonable noncompliance

or misconduct occurred is a factual determination for the trial court. Jones, 391 Ill. App. 3d at

115. In Scattered Corp., the court stated that its construction of Rule 219(e) was “consistent with

the language and spirit of the authority vested in the circuit court pursuant to Supreme Court Rule

219 generally and Rule 219(c) in particular.” Scattered Corp., 299 Ill. App. 3d at 659.

¶ 39   We next consider the second sentence of Rule 219(e), which states:                 “In establishing

discovery deadlines and ruling 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.” Ill. S. Ct. R. 219(e) (eff. July 1, 2002). This sentence clearly

applies to discovery in the refiled action. See also Quintas v. Asset Management Group, Inc., 395

Ill. App. 3d 324, 335 (2009) (stating the same). Although plaintiff argues that her refiled case is

an entirely new action (see supra ¶ 28), this portion of the rule allows the trial court to consider the

prior action. The committee comments support this conclusion, as they state that, “when a case is

       1
           Scattered Corp. was interpreting the first sentence of Rule 219(e) in ruling on an award

of expenses, undermining Rockford Radiology defendants’ argument that an award of such

expenses relates only to the third sentence of the rule.   See supra ¶ 33.



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refiled, the court shall consider the prior litigation in determining what discovery will be

permitted, and what witnesses and evidence may be barred.” Ill. S. Ct. R. 219(e), Committee

Comments (rev. June 1, 1995). Our supreme court has also held that a refiled case is not an

entirely new and unrelated action for purposes of Rule 219(e). Bowman, 2015 IL 119000, ¶ 24.

¶ 40   We agree with defendants that, according to the second sentence of Rule 219(e),

misconduct in the prior action is just one factor to consider when ruling on discovery issues in the

refiled action. As discussed, we arrived at this very conclusion in Freeman: “[T]he misconduct

of a party in the original action is merely a factor to be considered by the trial court in the refiled

action when it determines what witnesses and evidence will be permitted.” Freeman, 2018 IL

App (2d) 170169, ¶ 49.      In Freeman, we adopted the framework set forth in Smith for the trial

court to determine whether to bar a witness in the refiled action, that being consideration of the

same factors used to determine whether barring a witness is an appropriate sanction in the original

action. See supra ¶ 35. These factors are applied in imposing any sanction under Rule 219(c)

(see Enbridge Energy, Ltd. Partnership v. Fry, 2017 IL App (3d) 150765, ¶ 62), thus reinforcing

the relationship between Rules 219(c) and 219(e). Such an analysis includes consideration of “

‘the misconduct of a party in the original action and any sanctions entered against him therein.’ ”

Freeman, 2018 IL App (2d) 170169, ¶ 53 (quoting Smith, 323 Ill. App. 3d at 1074).

¶ 41   The third sentence of Rule 219(e) allows the trial court to impose expenses on the party

dismissing the action, and it is not debated here.

¶ 42   With these considerations in mind, we return to the first certified question, which states:

               “(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



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dismissal to avoid the effect of court-ordered sanctions for discovery violations or other

misconduct?” (Emphases added.)

As mentioned, the phrasing of this question is problematic because it presents either/or scenarios,

neither of which is entirely correct. Rule 219(e) does not limit or “prevent” a plaintiff’s ability to

voluntarily dismiss an action without prejudice prior to trial. Morrison, 191 Ill. 2d at 166;

Scattered Corp., 299 Ill. App. 3d at 660. The rule does, however, make the party subject to

paying costs as a condition of the voluntary dismissal and/or suffering adverse consequences if the

party chooses to refile. Morrison, 191 Ill. 2d at 166. That is, the rule “alters the consequences of

taking a voluntary dismissal rather than restricting a party’s right to obtain such a dismissal.” Id.

at 167.

¶ 43      Moreover, case law holds that “[t]he Rule does not require, as a condition precedent to

voluntary dismissal, that the plaintiff agree to be bound by prior discovery orders upon refiling the

case” (Wright, 292 Ill. App. 3d at 955) 2 and that Rule 219(e) “permits a voluntary dismissal even

when the dismissal is prompted by discovery sanctions” (id. at 953). In Gibellina v. Handley, 127

Ill. 2d 122, 134 (1989), the defendants argued that voluntary dismissals were being used to evade

the consequences of a failure to comply with discovery rules. Our supreme court noted that the

plaintiff had a limited opportunity to refile, would have to comply with current statutes, and would

be subject to various types of sanctions. Id. at 135.

¶ 44      In sum, regarding the first half of the question, a plaintiff could use a voluntary dismissal to

attempt to avoid the consequences of a court order denying as untimely a plaintiff’s motion to

disclose an additional witness. Regarding the second half of the question, a plaintiff could

          2
              Correspondingly, Rule 219(e) does not require the trial court to reimpose any sanctions

that were entered against the plaintiff in the original case. Smith, 323 Ill. App. 3d at 1074.



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attempt to use a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery

violations or other misconduct. Still, upon a voluntary dismissal, the trial court would have the

discretion to sanction the plaintiff through expenses paid to the defendant, and the trial court would

also have the discretion to bar or otherwise limit certain witnesses and/or evidence in the refiled

action using the same standards applicable to sanctions under section 219(c).

¶ 45     The second certified question states:

               “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?” (Emphasis added.)

Again, nothing in Rule 219(e) would prevent the plaintiff from disclosing a new expert witness in

the refiled action. See Wright, 292 Ill. App. 3d at 955. Rather, “[w]hen 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.” Morrison, 191 Ill. 2d at 167. This concept is

perfectly illustrated in Freeman, as the plaintiff sought to name a new medical expert witness in

her refiled action, and the defendant objected. Freeman, 2018 IL App (2d) 170169, ¶ 11. We

held that it was within the trial court’s discretion whether to bar a witness in a refiled action (id. ¶

39) and that the trial court should apply the same factors used to determine whether barring a

witness is an appropriate sanction in an original action (id. ¶ 52).      As discussed, these are the

same considerations that apply to sanctions under Rule 219(c).

¶ 46                                     III. CONCLUSION

¶ 47   For the foregoing reasons, we answer the certified questions as detailed above, and we

remand the cause for further proceedings consistent with this opinion.



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¶ 48   Certified questions answered; cause remanded.





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