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Tipsord v. Smith & Nephew, Inc.

United States District Court, C.D. Illinois

May 24, 2017

CAROL and MICHAEL TIPSORD, Plaintiffs,
v.
SMITH & NEPHEW, INC., Defendant.

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge

         This matter is now before the Court on Defendant Smith & Nephew's Motion [6] for Summary Judgment. For the reasons set forth below, Defendant's Motion [6] is DENIED.

         Background

         The 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.

         Plaintiffs 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.

         Legal Standard

         Summary 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).

         Analysis

         Plaintiffs 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.

         Defendant 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 charges.

Ill. Sup. Ct. Rule 219(e).

         Defendant's 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 case.”).

         Notably, 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 ...


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