United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge
matter is now before the Court on Defendant Smith &
Nephew's Motion  for Summary Judgment. For the reasons
set forth below, Defendant's Motion  is DENIED.
following facts are taken from Defendant's Statement of
Undisputed Material Facts. Doc. 6-1. Plaintiff Carol Tipsord
suffered from a deteriorating right hip with osteoarthritis.
On January 18, 2011, Dr. Khaled Saleh, Tipsord's treating
physician, performed a total hip arthroplasty on Tipsord
using Smith & Nephew's R3 Acetabular System hip
implant. However, in November 2011 Tipsord began experiencing
pain in her right hip, and on May 15, 2012, D r. Saleh
performed a total hip arthroplasty revision surgery where the
Smith & Nephew implant was removed and replaced with a
new implant. Plaintiffs claim that the original R3 Acetabular
System was defective, and the Complaint asserts claims by Ms.
Tipsord against Smith & Nephew for negligence, strict
liability, and breach of warranty. Mr. Tipsord asserts one
claim against Smith & Nephew for loss of consortium.
initially filed a lawsuit in this Court in 2014. In that
case, Plaintiffs had not disclosed any experts or opinions to
support their product liability claims by the fact discovery
deadline or Plaintiffs' expert disclosure deadline.
Thereafter, Defendant filed a motion for summary judgment
alleging that Plaintiffs had failed to produce any admissible
evidence in support of their legal theories. However, before
Plaintiffs' response was due, the Parties stipulated to
dismissal without prejudice with the condition that any
future refiling would be in the same district court. See
Tipsord v. Smith & Nephew, No. 14-3065 (C.D.
Ill. Sept. 2015). On September 12, 2016, Plaintiffs filed the
Complaint in instant case. Defendant subsequently answered
the Complaint and filed their Motion for Summary Judgment.
judgment is appropriate where the movant shows, through
“materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations … admissions, interrogatory
answers, or other materials” that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56. In resolving a motion for summary judgment, “[t]he
court has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of
fact that requires a trial.” Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). When presented with a motion for summary judgment,
the Court must construe the record “in the light most
favorable to the nonmovant and avoid the temptation to
decide which party's version of the facts is more likely
true.” Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003). If the evidence, however, is “merely
colorable, or is not significantly probative or merely raises
‘some metaphysical doubt as to the material facts,
' summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249-50. Thus, in order to overcome
the undisputed facts set forth in a defendants' motion
for summary judgment, a plaintiff cannot rest on the
allegations in his complaint but must point to affidavits,
depositions or other evidence of an admissible sort that a
genuine dispute of material fact exists between parties.
Fed.R.Civ.P. 56(e)(2); Behrens v. Pelletier, 516
U.S. 299, 309 (1996).
do not dispute any of the allegations in Defendant's
Statement of Undisputed Material Facts. Rather, the
Parties' dispute involves a question of law: Is a
plaintiff entitled to conduct discovery in a subsequent case
when she previously failed to conduct any discovery in before
stipulating to a dismissal under Federal Rule of Civil
Procedure 41(a)(1)(A)(ii)? The Court holds that under the
facts presented in this case, the answer is yes.
argues that Plaintiffs should not be allowed to
“circumvent prior court-ordered expert disclosure
deadlines and prior pending motions for summary judgment by
simply voluntarily dismissing their case.” Doc. 6-2, at
2. Defendant cites Illinois Supreme Court Rule 219(e) in
support of its position. That Rule states:
(e) Voluntary Dismissals and Prior Litigation. A party shall
not be permitted to avoid compliance with discovery
deadlines, orders or applicable rules by voluntarily
dismissing a lawsuit. In establishing discovery deadlines and
ruling on permissible discovery and testimony, the court
shall consider discovery undertaken (or the absence of same),
any misconduct, and orders entered in prior litigation
involving a party. The court may, in addition to the
assessment of costs, require the party voluntarily dismissing
a claim to pay an opposing party or parties reasonable
expenses incurred in defending the action including but not
limited to discovery expenses, expert witness fees,
reproduction costs, travel expenses, postage, and phone
Ill. Sup. Ct. Rule 219(e).
reliance on Ill. Sup. Ct. Rule 219(e) is misplaced for two
reasons. First, the nature of Rule 219 and the dearth of
Illinois federal courts applying it in diversity cases
suggests that Rule 219 is procedural, and thus inapplicable
under Erie R. Co. v. Tompkins and its progeny. 304
U.S. 64 (1938); see also Brandt v. Vulcan, Inc., 30
F.3d 752, 755 (7th Cir. 1994) (“Brandt also moved for
sanctions under Illinois Supreme Court Rule 219(c)(vi). Not
surprisingly, the District Court ruled that relief under that
provision was unavailable in federal court.”);
Grant Importing & Distrib. Co., Inc. v. Amtec
Int'l of N.Y. Corp., No. 09-6118, 2010 WL 706042, at
*4 (N.D. Ill. Feb. 24, 2010) (“Rule 219(e) relates only
to discovery, and therefore has no relevance in this
the single case Defendant cites to support its proposition
that federal courts “adopt and apply Illinois
Supreme Court Rule 219(e)” actually held that a
plaintiff's attempt to add a new claim in a refiled
action was barred by the statute of limitations. Schrott
v. Bristol-Myers Squibb Co., No. 03 C 1522, 2003 U.S.
Dist. LEXIS 18890, at *12 (N.D. Ill. Oct. 22, 2003). And
statutes of limitation have been considered substantive even
before Guaranty Trust Co. of N.Y. v. York, 326 U.S.
99, 110 (1945). Second, even if Rule 219(e) is considered a
substantive rule, summary judgment on this basis alone is not
mandated because the rule is discretionary: “In
establishing discovery deadlines and ruling on permissible
discovery and ...