APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
506 N.E.2d 634, 153 Ill. App. 3d 1013, 106 Ill. Dec. 834 1987.IL.356
Appeal from the Circuit Court of Madison County; the Hon. A. A. Matoesian, Judge, presiding.
Presiding Justice Karns delivered the opinion of the court. Kasserman and Welch, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS
Defendants, William E. Knaus, Stanton Schiller, and Belleville Emergency Medical Services, Ltd., have appealed under Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)) from the judgment of the circuit court of Madison County which granted plaintiff's motion of voluntary dismissal of his medical malpractice action under section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). Pending at that time and set for hearing were defendants' motions for summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005).
This cause is before the court on a stipulation of facts and the common law record. The complaint alleges that in 1976 the minor plaintiff, when 14 months old, suffered serious and permanent injury when administered an unreasonably dangerous product manufactured by defendant, Merck, Sharp and Dohme, a vaccine to immunize against measles, mumps, and rubella, at the Memorial Hospital Well Baby Clinic at Belleville, Illinois. Acts of negligence and medical malpractice are alleged against the appellants, Drs. Knaus and Schiller, and Belleville Emergency Medical Services, Ltd.
The original complaint was filed on September 30, 1980. Witnesses were deposed and the extensive hospital records were produced in discovery. On April 26, 1985, a pretrial order was entered requiring plaintiff to identify and produce for deposition his expert medical witnesses by June 15, 1985. Defendants were ordered to identify and produce for deposition their expert witnesses within 90 days thereafter, later changed by order to 90 days after motions for summary judgment were disposed of. In response to this order plaintiff named Dr. Robert Mendelson and Dr. Gerald Sugarman as expert witnesses.
After the depositions of plaintiff's expert medical witnesses were taken, defendants filed motions for summary judgment supported by the depositions of plaintiff's expert witnesses, the emergency-room nurse, and hospital records. After several continuances, the motions for summary judgment were set for hearing on March 21, 1986. On that date, prior to hearing on the pending summary judgment motions, and over objection of defendants, the court granted plaintiff's motion of voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009) as to these defendants, finding that no trial or hearing had begun and by order found no just reason for delaying enforcement or appeal. The cause is appealable under the holdings in Dillie v. Bisby (1985), 106 Ill. 2d 487, 478 N.E.2d 1338, and Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.
Defendants argue that the voluntary dismissal procedure may not be utilized if a defense motion which would terminate the litigation if allowed is on file until such motion is first heard and ruled upon. Defendants advocate "a principle that there should be no infringement upon the fundamental exclusive authority of the judiciary to render judgments."
Section 2-1009 of the Code of Civil Procedure provides that "[t]he plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause." Ill. Rev. Stat. 1985, ch. 110, par. 2-1009.
Defendants do not argue, nor does any authority suggest, that the filing of a motion for summary judgment is the commencement of a trial or hearing. (Matthews v. Weiss (1958), 15 Ill. App. 2d 530, 146 N.E.2d 809.) It has been broadly held that the voluntary dismissal statute grants plaintiffs the absolute privilege to dismiss regardless of the circumstances or motive. See, e.g., Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787; Davis v. International Harvester Co. (1985), 139 Ill. App. 3d 264, 487 N.E.2d 385; Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 484 N.E.2d 522.
While defendants acknowledge that prior case law would support plaintiff's privilege of voluntary dismissal, they reason the intent of the General Assembly in the use of the expression "trial or hearing" "was to include any proceeding which would determine the merits of the case" and result in a dismissal with prejudice. In support of their arguments defendants cite Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 60 N.E.2d 442. Before the court in Bernick was a motion filed under section 48 of the former Civil Practice Act (Ill. Rev. Stat. 1943, ch. 110, par. 48), now section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), alleging that the action then pending was barred by a prior judgment on the same cause of action. Unlike motions for summary judgment, which are directed to the presence or absence of genuine issues of material fact (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c)), which may change as a cause is prepared for trial, motions under section 2-619 are directed to defects or defenses which may not be cured by subsequent pleadings or the development of additional evidence. The holding in Bernick has been limited to its facts in subsequent decisions. See North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664; Matthews v. Weiss (1958), 15 Ill. App. 2d 530, 146 N.E.2d 809.
The defendants argue that recent decisions of the supreme court support their argument and signal a change in the law. In O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, and Kiven v. Mercedes-Benz of North America, Inc. (1986), 111 Ill. 2d 585, 491 N.E.2d 1167, the court considered Supreme Court Rule 103(b) (87 Ill. 2d R. ...