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March 18, 1993

JOSEPH KAMINSKY, individually, etc., Plaintiff,

The opinion of the court was delivered by: MILTON I. SHADUR

 Joseph Kaminsky ("Joseph"), both individually and as Special Administrator for the Estate of his late wife Helen ("Helen"), has brought a double-barreled malpractice action: against Condell Memorial Hospital ("Condell") for its allegedly negligent handling of Helen while she was a patient there, and against Balkin and Doran, Ltd. ("B&D") and its former associate Mark Adler ("Adler") for their allegedly negligent conduct of the litigation against Condell when they were the lawyers for Helen and then Joseph. All defendants have now opposed Joseph's proposed filing of a Third Amended Complaint ("TAC"), *fn1" albeit for different reasons:

1. Condell objects to the TAC's insertion of a wrongful death claim.
2. Both B&D and Adler want to get out of the action entirely.

 With the motions having been fully briefed, this Court grants each of them for the reasons stated in this memorandum opinion and order.


 Because defendants' attacks target the claimed legal insufficiency of the TAC, the substantive factual allegations in that pleading are accepted as true for present purposes. In brief, Helen was hospitalized at Condell for a routine procedure in early April 1987. During her stay she fell from her bed--the direct result of Condell's failure to supervise and monitor her and to restrain her in a Posey vest. That fall led to her disability and a prolonged stay in a nursing home, where she died on March 13, 1989.

 What creates the current problems is not so much the matters affecting Helen--which will have to be sorted out before a jury--but rather the checkered history of this and earlier litigation between the parties, both in the state courts and here. About a week before Helen's death, B&D and their then associate Adler filed suit on her behalf against Condell in the Circuit Court of Lake County (Case No. 89 L 290). After Helen's death Lake County Circuit Court Judge Bernard Drew appointed Joseph as special administrator and authorized the filing of an amended complaint. On that same day (June 1, 1989) B&D filed the Amended Complaint--it substituted Joseph as plaintiff and, in referring to Helen's death to explain the reason for that substitution, its Paragraph 11 said this:

That on March 13, 1989, the plaintiff, Helen Kaminsky, died of causes unrelated to this incident.

 Over two years later (on September 16, 1991) Joseph changed lawyers to the same attorney (Kenneth Chessick) whose firm now represents him before this Court. *fn2" Three months later Chessick sought to file a Second Amended Complaint inserting a wrongful death claim into the state court action. After that motion had been fully briefed by the parties, on March 11, 1992 Judge Drew denied leave to file because he found that the new claim was untimely under Ill. Rev. Stat. ch. 70, P 2, rejecting Chessick's argument that the wrongful death claim related back to the time of filing of the original Complaint under Ill. Rev. Stat. ch. 110, P 2-616 ("Paragraph 2-616"). Then on April 23, 1992 Judge Drew ordered that the revised Second Amended Complaint that Joseph's lawyers had then tendered (a revision that had omitted the wrongful death claim) still had to retain the already-quoted language negating a causal relationship between Condell's asserted malpractice and Helen's death. Then on April 30 Judge Drew granted Condell's motion to strike the Second Amended Complaint entirely, though with leave to replead.

 In May 1992 the case went to trial. But after Judge Drew had ruled on several motions in limine, Chessick opted instead to move for voluntary dismissal under Ill. Rev. Stat. ch. 110, P 2-1009 ("Paragraph 2-1009"). Judge Drew granted that motion and ordered "the cause dismissed without prejudice, and with leave to refile." At that point Joseph and Chessick moved over to this forum, filing this lawsuit as a diversity action on August 17, 1992.

 Condell's Motion

 Since this litigation first found its way into this District Court, the error of Judge Drew's decision on the limitations issue has been confirmed by the opinion written by Justice Mary Ann McMorrow for the Illinois Appellate Court for the First District in Sompolski v. Miller, No. 1-91-4098, 239 Ill. App. 3d 1087, 1992 Ill.App. LEXIS 1978, 180 Ill. Dec. 932, 608 N.E.2d 54 (1st Dist. Dec. 3). *fn3" That case involved circumstances on all fours with the situation here--the insertion of a wrongful death claim, more than two years after death, into a timely personal injury lawsuit--and Sompolski expressly applied Paragraph 2-616(b) to relate the claim back to the time of original filing. Even though the decision emanated from the First Appellate District, while Lake County is in the Second Appellate District, under Illinois law a trial court in Lake County is bound by an Appellate District decision anywhere in the state ( State Farm Fire & Cas. Co. v. Yapejian, 152 Ill.2d 533, 539-40, 605 N.E.2d 539, 542, 178 Ill. Dec. 745 (1992)).

 Once the specter of a limitations bar had thus been dissipated by Sompolski, this Court urged Chessick to consider refiling the lawsuit in the state court, among other reasons to enable Joseph and Chessick to take issue with Judge Drew's treatment of the original allegation about "unrelated causes" as though it were a binding judicial admission. Although that determination appeared to this Court to be clearly wrong as a matter of substantive Illinois law, this Court warned Chessick that it could well be bound by that ruling as a procedural matter (as a state appellate court would not be). Chessick resisted ...

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