The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Motion to Alter or Amend a Judgment (#46) filed by Plaintiffs, Patrick Hahn and Erik Redwood, Administrator of the Estate of Janet Louise Hahn, Deceased. This court has carefully considered Plaintiffs' Motion, Memorandum in Support (#47), and the Response (#48) filed by Defendant Health Professionals, Ltd. (HPL). Following this careful and thorough review, Plaintiffs' Motion (#46) is DENIED.
On June 18, 2009, Plaintiffs filed a Complaint (#1) against Defendants Daniel Walsh, Deputy McCallister, Unnamed Champaign County Correctional Officers, HPL, Unnamed Jail Nurse(s), County of Champaign, Illinois, Sylvia Morgan, Matthew Bain, Angela Menocci and City of Urbana, Illinois. Plaintiffs alleged that Janet Hahn (Janet) was arrested on June 15, 2007, and was taken to the Champaign County Jail. They alleged that Janet became seriously ill and required emergency medical and/or psychiatric care. Plaintiffs alleged that she was refused medical treatment and died on June 18, 2007. Plaintiffs alleged various causes of action against the Defendants. As is relevant here, Plaintiffs alleged in Count VIII that HPL and unnamed jail nurses were liable for wrongful death pursuant to 740 Ill. Comp. Stat. 180/1 et seq. Plaintiffs alleged that HPL "willfully, wantonly or negligently failed or refused to take action to provide Janet with medical and/or psychiatric care, thereby proximately causing, in whole or in part, her conscious pain and suffering and her death." Plaintiffs alleged that they "had been unable to secure the affidavit of a medical professional in support of the Complaint because Defendant Daniel Walsh failed and refused to respond to a duly served Freedom of Information Act Request for all records concerning Janet Louise Hahn and plaintiff does not have independent access to these medical records which are necessary for the review of a medical professional and the affidavit required." On July 15, 2007, Plaintiffs filed an Amended Complaint (#3). The allegations in Count VIII remained the same, however.
On September 1, 2009, Defendants filed a Motion to Dismiss (#17) and a Memorandum in Support (#18). Defendants asked, as is relevant here, that Count VIII be dismissed for failure to comply with the provisions of 735 Ill. Comp. Stat. 5/2-622. On November 24, 2009, Magistrate Judge David G. Bernthal entered two Reports and Recommendations (#34, #35) in this case. One of Judge Bernthal's recommendations was that the Motion to Dismiss should be granted as to Count
VIII. Judge Bernthal stated:
The Court disagrees with Plaintiffs' contention that they have satisfied the requirements of Section 2-622 by making allegations in the complaint. The statute provides that a plaintiff must file an affidavit declaring one of the following: (1) that the affiant has consulted and reviewed the facts of the case with a health professional; (2) that the affiant was unable to obtain a consultation with a health professional; or (3) that a request has been made by the plaintiff or his attorney for examination of records and the party required to comply has failed to produce such records within 60 days of the receipt of the request. 735 ILCS 5/2-622(a)(1-3). Under Section 2-622(a)(3), "the affidavit must state that counsel has made a request for records... and that the party to whom the request was made failed to comply within 60 days, whereupon the plaintiff is granted 90 days form the time the records are received to file the required report." Hobbs v. Lorenz, 786 N.E.2d 260, 263 (Ill. App. Ct. 2003). Thus, under any circumstances, a plaintiff must file an affidavit: an allegation in the complaint does not satisfy the statutory requirement.
Under Illinois law, if a plaintiff fails to satisfy the statutory filing requirement, dismissal is mandatory. 735 ILCS 5/2-622(g). However, courts have discretion to dismiss with or without leave to amend. Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). "Illinois courts have held that when a plaintiff fails to attach a certificate and report, then 'a sound exercise of discretion mandates that [the plaintiff] be at least afforded an opportunity to amend her complaint to comply with section 2-622 before her action is dismissed with prejudice'." Id. at 614. Illinois courts liberally construe Section 2-622 so that plaintiffs do not lose substantive rights merely because they have not strictly complied with the statute. Id. at 613.
Judge Bernthal stated that he took no position as to whether the dismissal of Count VIII should be with or without prejudice, leaving that to the discretion of the District Court.
On December 29, 2009, this court entered an Order (#40) which agreed with and accepted the Reports and Recommendations (#34, #35) filed by Judge Bernthal. This court noted that Plaintiffs had objected to the dismissal of Count VIII of their Amended Complaint. This court stated:
As far as Count VIII, this court notes that Plaintiffs have cited no authority in support of their argument that an allegation in the Amended Complaint can be considered an "affidavit" for purposes of 735 Ill. Comp. Stat. 5/2-622. This court concludes that, under § 2-622, "an affidavit must be provided." See Hill v. C.R. Bard, Inc., 582 F. Supp. 2d 1041, 1046 (C.D. Ill. 2008), quoting Hobbs v. Lorenz, 786 N.E.2d 260, 263 (Ill. App. Ct. 2003). This court therefore agrees with Judge Bernthal that Plaintiffs did not satisfy the requirements of § 2-622 by making allegations in the complaint. Judge Bernthal correctly stated that "under any circumstances, a plaintiff must file an affidavit; an allegation in the complaint does not satisfy the statutory requirement." This court also rejects Plaintiffs' request that the dismissal of Count VIII be without prejudice. Plaintiffs clearly failed to comply with the requirements of § 2-622 and the statute of limitations has passed. See Hill, 582 F. Supp. 2d at 1048-49. Therefore, this court concludes that dismissal of Count VIII with prejudice is proper in this case.
This court therefore dismissed Count VIII with prejudice. On January 12, 2010, Plaintiffs filed their Second Amended Complaint (#42) which added defendants but did not include a wrongful death claim.
On January 26, 2010, Plaintiffs filed a Motion to Alter or Amend a Judgment (#46) and a Memorandum in Support (#47). Plaintiffs asked this court to amend its Order as to Count VIII to make the dismissal without prejudice and allow Plaintiffs 30 days to file a Third Amended Complaint with the affidavit of a qualified health professional pursuant to 735 Ill. Comp. Stat. 5/2-622(a)(1). In their Memorandum, Plaintiffs argued that it is subsection 2 of section 2-622(a) that applies to this case. This subsection provides that a plaintiff may submit an affidavit stating that the affiant was unable to obtain the required consultation prior to the expiration of the statute of limitations.*fn1 Plaintiffs argued that this is clearly a "technical Illinois pleading requirement, not substantive law" so that this court is not bound by its requirement and should, instead, follow federal pleading standards. Plaintiffs also argued that this court's Order dismissing Count VIII with prejudice was a "clear error of Illinois law." Plaintiffs relied heavily on Cookson v. Price, 914 N.E.2d 229 (Ill. App. Ct. 2009), leave to appeal allowed (Jan. 27, 2010), and Simpson v. Ill. Health Care Servs., Inc., 588 N.E.2d 471 (Ill. App. Ct. 1992). Plaintiffs also argued that, based upon the Seventh Circuit's decision in Sherrod, this court should have allowed them leave to amend. In addition, Plaintiffs argued that they "demonstrated good cause for their failure to obtain the necessary records for the 2-622 Certificate of Merit." Plaintiffs stated, "[w]hile in retrospect, it would have ...