from the Circuit Court of McHenry County.No. 16-LA-51
Honorable Thomas A. Meyer, Judge, Presiding.
JUSTICE JORGENSEN delivered the judgment of the court, with
opinion. Justices Burke and Schostok concurred in the
judgment and opinion.
1 The trial court dismissed on grounds of res
judicata the medical malpractice suit filed by
plaintiff, Robert Kantner, against defendants, Ladonna Jo
Waugh, M.D., Mercy Health System Corporation, Mercy Harvard
Hospital, Inc., Mercy Center for Metabolic and Bariatric
Surgery, and Mercy Alliance, Inc. The court noted that
res judicata bars claim-splitting, and it determined
that plaintiff split his claims. It stated that, under the
instant facts, no exception to res judicata's
bar against claim-splitting applied. Plaintiff appeals,
acknowledging that he split his claims, but arguing,
inter alia, that the agreement-in-effect exception
applied. We agree. The trial court misunderstood the law to
require an express agreement. Accordingly, we reverse and
2 I. BACKGROUND
3 In 2008, plaintiff filed a multi-count medical malpractice
suit against defendants based on permanent injuries following
bariatric surgery. Specifically, plaintiff set forth counts
alleging (1) informed consent and (2) negligence. In 2009,
defendants moved to dismiss the informed-consent claim, and
the trial court granted their motion. Plaintiff proceeded to
trial on the negligence claim.
4 A. December 7, 2015
5 On December 7, 2015, before the first day of trial began,
plaintiff moved to continue. Two business days earlier, on
December 3, 2015, plaintiff's counsel had been battered
by her son, a military veteran returned from Afghanistan. The
court and the parties discussed the basis for the continuance
off the record.
6 Back on the record, defense counsel objected to the
continuance: "We're not unsympathetic, Judge. But we
do object." Defense counsel noted that plaintiff's
counsel had not given him notice that she would ask for a
continuance. Defense counsel was concerned that his experts
would charge a cancellation fee.
7 The court "tipped its hand, " stating that it
would grant the continuance, provided that plaintiff assumed
the associated cancellation fees. The court told plaintiff to
choose the course of action, either continue the case and
assume the cancellation fees or go to trial. Plaintiff's
counsel stated: "I don't know what to do. I mean, am
I talking $10, 000? Am I talking [$1, 000]? What am I
talking?" Plaintiff's counsel complained that
defense counsel sought "carte blanche" to
collect an indeterminate fee amount. Defense counsel stated
that he could not provide an estimate; he was just preserving
his clients' rights. The court prodded, "some
experts tell you what their cancellation fee is going to
be." Defense counsel answered: "I don't get
involved in that. That's my secretary. *** There may not
be any. I don't know at this point." The court again
asked plaintiff's counsel what she wanted to do:
"[Plaintiff's Counsel]: I mean, I don't know
what to do, to tell you the truth. I don't.
[Plaintiff's Counsel]: My-my client's certainly not
going to pay any of these [cancellation fees]. I'm going
to have to take this on. This is not through any of my
[Defense Counsel 1]: And I think we have offered to
not object to a motion to voluntarily dismiss this case. And
we would not seek any reimbursement on costs now or upon
[Plaintiff's Counsel]: So how's that any different?
THE COURT: It's cheaper.
[Plaintiff's Counsel]: But the question is[, ] how
quickly can I get it back up for trial if we do that?
THE COURT: *** As soon as you got the case back in front of
me, I would set it for trial because there's-there is no
need for further discovery. [Vis-a-vis the
continuance option, if you voluntarily dismiss and refile, ]
you would go to trial probably at the same time or thirty
days later ***.
[Plaintiff's counsel asked for a moment to confer with
plaintiff. The court again assured plaintiff's counsel
that the trial date would be approximately the same under
either the continuance option or the
voluntarily-dismiss-and-refile option. Based ...