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05/10/88 Betsy Ruklick Et Al., v. Julius Schmid

May 10, 1988

BETSY RUKLICK ET AL., PLAINTIFFS-APPELLANTS

v.

JULIUS SCHMID, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 1208, 169 Ill. App. 3d 1098, 120 Ill. Dec. 297 1988.IL.718

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS* delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiffs Betsy Ruklick and Joseph Ruklick, her husband, appeal from orders dismissing with prejudice their personal-injury negligence and product-liability complaint, refusing to vacate the dismissal order, and denying them leave to file an amended complaint. Defendants Julius Schmid, Inc., Schmid Products Company, and Schmid Laboratories, Inc. (collectively the Schmid defendants), are the product-liability defendants, and defendant David Cromer, M.D., is the physician of whose alleged malpractice plaintiffs complain. The dismissed complaint had been refiled within one year after voluntary dismissal of plaintiffs' previous complaint, which itself had represented their fourth amendment of their original complaint. The dismissal with prejudice was entered after defendants raised a statute-of-limitations defense. The amended complaint that the circuit court then denied leave to file would have been plaintiffs' seventh attempt to plead their cause of action, though only the second through their present counsel.

The issues are:

(a) Whether exercise, within one year after an unappealed voluntary dismissal, of plaintiffs' right to refile should have operated to prevent defendants from pleading the statute of limitations as to the refiled complaint.

(b) If not, whether plaintiffs' complaint as refiled was barred by the terms of the statute of limitations.

(c) If so, whether the trial court abused its discretion in denying plaintiffs leave to file an amended complaint.

Facts

In 1981, plaintiffs filed a complaint for personal injuries to plaintiff Betsy Ruklick (plaintiff) allegedly arising from manufacture and sale of a defective and unreasonably dangerous intrauterine device and its use by plaintiff at the negligent instance of defendant Cromer. After plaintiffs' fourth amended complaint was filed, they secured its voluntary dismissal on May 25, 1984. Thereafter, on May 24, 1985, they refiled their complaint through new counsel.

The fourth amended complaint alleged that as a result of the defective IUD, plaintiff developed an abdominal infection that caused her to

Plaintiffs' 1985 refiled complaint alleged that in July 1971 and thereafter, plaintiff was treated by Cromer, who negligently performed numerous acts related to her treatment and the IUD, as a result of which she suffered pelvic inflammatory disease and abdominal infection that caused her to require extensive medical care on November 22, 1980. The refiled complaint also alleged that plaintiff initially sued Cromer on October 13, 1982, "within the applicable statute of limitation," and that on May 25, 1984, plaintiffs secured voluntary dismissal of their complaint. The refiled complaint also alleged that Schmid defendants' manufacture and sale of the IUD prior to May 1971, resulting in plaintiff's disease and treatment on November 22, 1980. The refiled complaint also alleged that plaintiffs initially sued the Schmid defendants on July 2, 1981, "within the applicable statute of limitations," and that on May 25, 1984, they secured voluntary dismissal. Plaintiff's husband's loss-of-consortium claims were also included.

Defendants filed motions to dismiss the refiled complaint on statute-of-limitations grounds. After response by plaintiffs, the trial court dismissed their refiled complaint with prejudice. After plaintiffs moved to vacate the dismissal with prejudice and allow filing of an amended complaint, and after Cromer's response to the motion and a hearing, the trial court denied the motion. This timely appeal followed.

Opinion I. REFILING'S EFFECT ON STATUTORY LIMITATIONS

Plaintiffs contend that, because defendants did not appeal or otherwise object when plaintiffs procured a voluntary dismissal order as to their fourth amended complaint, defendants were subsequently precluded from raising the statute of limitations as a bar when plaintiffs exercised their right to refile their complaint within one year after the voluntary dismissal. Particularly in view of the statutory language conferring on plaintiffs their right to refile, the statement of their contention almost provides its own refutation. Existing case law dispels any remaining doubt., ...


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