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Moomaw v. Mentor H/S

May 22, 2000

SHERRON MOOMAW, PLAINTIFF-APPELLANT,
v.
MENTOR H/S, INC.; MCGHAN MEDICAL CORPORATION; AND COVENANT MEDICAL CENTER, DEFENDANTS, AND JAMES KURLEY, M.D., AND CHRISTIE CLINIC ASSOCIATION, APPELLEES.



Appeal from Circuit Court of Champaign County No. 98L38 Honorable George S. Miller, Judge Presiding.

The opinion of the court was delivered by: Justice Garman

This cause was remanded to the circuit court of Champaign County after having been removed to the United States District Court for the Central District of Illinois. After remand to state court, Dr. James Kurley and Christie Clinic Association (Christie) (Kurley and Christie are hereinafter referred to collectively as respondents), who were named in the original complaint as respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West 1998)), sought to terminate their status as respondents in discovery. The trial court denied the motion and found that respondents remained respondents in discovery upon remand. Plaintiff, Sherron Moomaw, subsequently moved the court to convert respondents into defendants. The trial court denied the motion, finding that plaintiff failed to show probable cause to convert. Plaintiff argues on appeal that the trial court erred in refusing to convert respondents into defendants because (1) she had properly converted them from respondents in discovery to defendants in federal court pursuant to section 2-402 of the Code, and (2) she had, in fact, submitted sufficient evidence of probable cause. We reverse and remand for further proceedings.

I. BACKGROUND

In February 1996, Kurley, a plastic surgeon, implanted tissue expanders into plaintiff's breasts. Kurley had previously performed full mastectomies of plaintiff's breasts. The tissue expanders deflated repeatedly and, as a result, plaintiff underwent several additional surgical procedures by Kurley. Plaintiff also incurred a staph infection and suffered recurring cellulitis in her right breast.

At all relevant times, Kurley was employed by Christie. Kurley performed all of the surgical procedures at Covenant Medical Center (Covenant). The manufacturers of the tissue expanders are Mentor H/S, Inc. (Mentor), and McGhan Medical Corporation (McGhan).

On February 6, 1998, plaintiff filed a complaint for products liability and negligence against Mentor and McGhan, seeking compensation for the pain, suffering, disability, and lost wages that she incurred as a result of the failed tissue expanders. Plaintiff named Kurley, Christie, and Covenant as respondents in discovery pursuant to section 2-402 of the Code. Only Kurley and Christie are parties to this appeal.

Section 2-402 of the Code provides that a plaintiff in any civil action may designate as respondents in discovery those individuals or entities believed by the plaintiff to have information essential to the determination of what parties should properly be named as additional defendants in the action. 735 ILCS 5/2-402 (West 1998). A plaintiff may, within six months of naming a respondent in discovery, and upon a showing of probable cause, add the respondent in discovery as a defendant. 735 ILCS 5/2-402 (West 1998). A respondent in discovery is required to respond to discovery by the plaintiff in the same manner as a defendant. 735 ILCS 5/2-402 (West 1998).

In March 1998, Mentor and McGhan successfully moved to remove this case to federal court on the grounds of diversity jurisdiction. Moomaw v. Mentor H/S, Inc., No. 98-2077 (C.D. Ill.). On June 18, 1998, plaintiff filed a motion to add respondents and Covenant as defendants in federal court. Plaintiff attached to her motion (1) a proposed amended complaint containing counts of medical malpractice against Kurley and Covenant and respondeat superior against Christie, (2) a physician's report stating that the reviewing physician believed to a reasonable degree of medical certainty that respondents and Covenant caused or contributed to plaintiff's damages, and (3) an affidavit by plaintiff's attorney, Robert Auler, attesting to the qualifications of the physician and the merits of plaintiff's claims. Respondents did not respond to this motion.

On July 24, 1998, the federal court granted plaintiff's motion to add. Moomaw v. Mentor H/S, Inc., No. 98-2077 (C.D. Ill.) (order of July 24, 1998). On July 30, 1998, plaintiff filed a motion to remand to state court, arguing that the joinder of respondents and Covenant had destroyed diversity jurisdiction. Respondents did not respond to the motion to remand. On August 25, 1998, the federal court issued an order granting plaintiff's motion to remand. Moomaw v. Mentor H/S, Inc., No. 98-2077 (C.D. Ill.) (order of August 25, 1998).

On November 4, 1998, in state court, respondents filed a motion to terminate their status as respondents in discovery. Respondents made several arguments in support of termination, including that termination was appropriate because plaintiff had failed to file a motion to convert by August 6, 1998, the six-month deadline provided in section 2-402 of the Code. Plaintiff argued in response that her motion to add in federal court, which she filed well before the August 6, 1998, deadline, sufficed as a motion to convert under section 2-402. She argued that she could not have filed a motion to convert in state court because removal had divested the trial court of its jurisdiction. In their reply, respondents argued that no procedure exists in federal court for converting respondents in discovery to defendants. The only way of adding them was by joinder under Rule 20 of the Federal Rules of Civil Procedure (federal rules) (see 28 U.S.C. app. Fed. R. Civ. P. 20 (1994)). To vest the federal court with personal jurisdiction over respondents, Rule 4 of the federal rules required plaintiff to serve them with a summons and a copy of the complaint after the federal court granted her motion to add. See 28 U.S.C. app. Fed. R. Civ. P. 4 (1994). Plaintiff failed to so do and respondents were, therefore, not converted to defendants in federal court.

On February 4, 1999, the trial court held a hearing on the motion to terminate. The trial court found that plaintiff failed to join respondents as defendants in federal court because she had failed to serve a summons upon them. However, the trial court found that because plaintiff had endeavored to convert respondents into defendants within the six-month deadline by filing her motion to add, regardless of the fact that the motion may have been improperly styled, termination of respondents' status as respondents in discovery was not warranted. The trial court concluded that respondents remained respondents in discovery upon remand to state court and the only remaining issue was whether plaintiff had submitted sufficient evidence to support probable cause to convert. However, because the trial court did not have before it a motion to convert, it did not make a finding on the probable cause issue. Plaintiff then attempted to make an oral motion to convert. The trial court declined to rule on the oral motion and stated that the plaintiff would have to seek conversion in accordance with Illinois procedures.

On June 2, 1999, over respondents' objections, the trial court held a hearing on plaintiff's oral motion to convert. At the hearing, the trial court recognized that plaintiff had not filed a written motion to convert in state court or requested an evidentiary hearing to determine probable cause. The court also noted that plaintiff had never engaged in any formal discovery with respect to respondents. However, rather than resolving the issue on procedural grounds, the trial court stated that it had considered whether plaintiff had submitted sufficient evidence of probable cause and found that she had not. The trial court found that the physician's report submitted by plaintiff in federal court was not only undated and the signature illegible, it contained only bald conclusions regarding the respondents' alleged negligence.

This appeal followed.

II. MOTION TO STRIKE AND ...


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