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Winfrey v. Walsh

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION


December 21, 2007

GEORGIA M. WINFREY, ADMINISTRATOR OF THE ESTATE OF QUENTIN LARRY, DECEASED, PLAINTIFF,
v.
DANIEL WALSH, STEPHEN WINTERS, HEATHER GILL, DEPUTY HEATH, DEPUTY SGT. JOHNSON, ALLISON QUICK, NURSE ADAMS, HEALTH PROFESSIONALS, LTD., AND COUNTY OF CHAMPAIGN, ILLINOIS, DEFENDANTS.

The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

On December 3, 2007, Magistrate Judge David G. Bernthal filed five Reports and Recommendations (#58, #59, #60, #61, #62) in this case. On December 11, 2007, Plaintiff, Georgia M. Winfrey, filed her Objections (#63) to two of the Reports and Recommendations (#59, #62). On December 17, 2007, Defendants Health Professionals, Ltd., and Nurse Adams filed their Memorandum in Opposition to Plaintiff's Objections (#64). This court has conducted a careful and thorough de novo review of the Magistrate Judge's reasoning, Plaintiff's Objections and the Memorandum in Opposition. Following this review, this court agrees with and accepts the Magistrate Judge's recommendation contained in Reports and Recommendations #59 and #62 that Count IV of Plaintiff's Amended Complaint be dismissed without prejudice. No other objections have been filed and the time for filing objections has elapsed. See 28 U.S.C. § 636(b)(1). Therefore, all of the other Recommendations of the Magistrate Judge are accepted by the court. See Video Views, Inc. v. Studio 21, Ltd, 797 F.2d 538 (7th Cir. 1986).

ANALYSIS

Plaintiff has objected to the recommendation that Count IV of her Amended Complaint, filed against Defendants Health Professionals, Ltd. and Nurse Adams, be dismissed for failure to file a certificate of merit pursuant to Section 2-622 of the Illinois Code of Civil Procedure (735 Ill. Comp. Stat. 5/2-622 (West 2006)). In her Objections, Plaintiff argued that the requirement to file a certificate of merit is an Illinois "pleading requirement." She therefore argued that this state law pleading requirement should not apply to a medical malpractice claim filed in federal court because federal courts are required to use the Federal Rules of Civil Procedure for pleadings. Plaintiff also noted that several district courts have not required a certificate of merit for claims filed in federal court, finding that this Illinois pleading requirement conflicts with the liberal pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.

In his Reports and Recommendations (#59, #62), Judge Bernthal addressed this argument. Judge Bernthal noted that, in Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000), the Seventh Circuit accepted without question that Section 2-622 applies to medical malpractice claims filed in federal court in Illinois. Judge Bernthal recognized that Sherrod's seemingly clear language did not end the debate in Illinois courts on this issue. However, Judge Bernthal concluded that the message of Sherrod is that federal courts should apply Section 2-622 to medical malpractice claims. This court agrees with this reasoning. See Chapman v. Chandra, 2007 WL 1655799, at *3 (S.D. Ill. 2007) (the Seventh Circuit's decision in Sherrod "creates a strong implication that the Seventh Circuit favors district courts applying § 2-622 to medical malpractice claims"); see also Robar v. Wexford Health Sources, Inc., 2007 WL 401363, at *2 (C.D. Ill. 2007) (applying requirements of § 2-622).

IT IS THEREFORE ORDERED THAT:

(1) The Reports and Recommendations (#58, #59, #60, #61, #62) are accepted by this court.

(2) The Motion to Strike and Dismiss Counts I, II and III of Plaintiff's Amended Complaint (#40) filed by Defendants Daniel Walsh, Heather Gill, Deputy Heath, Deputy Johnson and Champaign County is DENIED.

(3) The Motion to Dismiss (#42) filed by Defendant Nurse Adams is GRANTED in part and DENIED in part.

(4) The Motion to Dismiss (#46) filed by Defendant Allison Quick is DENIED.

(5) The Motion to Strike and Dismiss Counts I, II and III of the Plaintiff's Amended Complaint (#53) filed by Defendant Stephen Winters is DENIED.

(6) The Motion to Dismiss (#44) filed by Defendant Health Professionals, Ltd. is GRANTED.

(7) Count IV of Plaintiff's Amended Complaint is dismissed without prejudice. Defendant Health Professionals, Ltd. is terminated as a party to this action.

(8) Any Defendants who have not filed an Answer to the remaining counts of Plaintiff's Amended Complaint (#37) are allowed twenty-one (21) days to do so.

(9) This case is referred to the Magistrate Judge for further proceedings.

20071221

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