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Moomaw v. Mentor H/S, Inc., No. 4-99-0548

4th District, 22 May 2000

JUSTICE GARMAN delivered the opinion of the court:

This cause was remanded to the circuit court of Champaign County after having been removed to the United States DistrictCourt for the Central District of Illinois. After remand to state court, Dr. James Kurley and Christie Clinic Association(Christie) (Kurley and Christie are hereinafter referred to collectively as respondents), who were named in the originalcomplaint as respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-402(West 1998)), sought to terminate their status as respondents in discovery. The trial court denied the motion and found thatrespondents remained respondents in discovery upon remand. Plaintiff, Sherron Moomaw, subsequently moved the court toconvert respondents into defendants. The trial court denied the motion, finding that plaintiff failed to show probable causeto convert. Plaintiff argues on appeal that the trial court erred in refusing to convert respondents into defendants because (1)she had properly converted them from respondents in discovery to defendants in federal court pursuant to section 2-402 ofthe Code, and (2) she had, in fact, submitted sufficient evidence of probable cause. We reverse and remand for furtherproceedings.

I. BACKGROUND

In February 1996, Kurley, a plastic surgeon, implanted tissue expanders into plaintiff's breasts. Kurley had previouslyperformed full mastectomies of plaintiff's breasts. The tissue expanders deflated repeatedly and, as a result, plaintiffunderwent several additional surgical procedures by Kurley. Plaintiff also incurred a staph infection and suffered recurringcellulitis in her right breast.

At all relevant times, Kurley was employed by Christie. Kurley performed all of the surgical procedures at CovenantMedical Center (Covenant). The manufacturers of the tissue expanders are Mentor H/S, Inc. (Mentor), and McGhanMedical Corporation (McGhan).

On February 6, 1998, plaintiff filed a complaint for products liability and negligence against Mentor and McGhan, seekingcompensation for the pain, suffering, disability, and lost wages that she incurred as a result of the failed tissue expanders.Plaintiff named Kurley, Christie, and Covenant as respondents in discovery pursuant to section 2-402 of the Code. OnlyKurley and Christie are parties to this appeal.

Section 2-402 of the Code provides that a plaintiff in any civil action may designate as respondents in discovery thoseindividuals or entities believed by the plaintiff to have information essential to the determination of what parties shouldproperly be named as additional defendants in the action. 735 ILCS 5/2-402 (West 1998). A plaintiff may, within sixmonths of naming a respondent in discovery, and upon a showing of probable cause, add the respondent in discovery as adefendant. 735 ILCS 5/2-402 (West 1998). A respondent in discovery is required to respond to discovery by the plaintiff inthe same manner as a defendant. 735 ILCS 5/2-402 (West 1998).

In March 1998, Mentor and McGhan successfully moved to remove this case to federal court on the grounds of diversityjurisdiction. Moomaw v. Mentor H/S, Inc., No. 98-2077 (C.D. Ill.). On June 18, 1998, plaintiff filed a motion to addrespondents and Covenant as defendants in federal court. Plaintiff attached to her motion (1) a proposed amended complaintcontaining counts of medical malpractice against Kurley and Covenant and respondeat superior against Christie, (2) aphysician's report stating that the reviewing physician believed to a reasonable degree of medical certainty that respondentsand Covenant caused or contributed to plaintiff's damages, and (3) an affidavit by plaintiff's attorney, Robert Auler,attesting to the qualifications of the physician and the merits of plaintiff's claims. Respondents did not respond to thismotion.

On July 24, 1998, the federal court granted plaintiff's motion to add. Moomaw v. Mentor H/S, Inc., No. 98-2077 (C.D. Ill.)(order of July 24, 1998). On July 30, 1998, plaintiff filed a motion to remand to state court, arguing that the joinder ofrespondents and Covenant had destroyed diversity jurisdiction. Respondents did not respond to the motion to remand. OnAugust 25, 1998, the federal court issued an order granting plaintiff's motion to remand. Moomaw v. Mentor H/S, Inc., No.98-2077 (C.D. Ill.) (order of August 25, 1998).

On November 4, 1998, in state court, respondents filed a motion to terminate their status as respondents in discovery.Respondents made several arguments in support of termination, including that termination was appropriate because plaintiffhad failed to file a motion to convert by August 6, 1998, the six-month deadline provided in section 2-402 of the Code.Plaintiff argued in response that her motion to add in federal court, which she filed well before the August 6, 1998,deadline, sufficed as a motion to convert under section 2-402. She argued that she could not have filed a motion to convertin state court because removal had divested the trial court of its jurisdiction. In their reply, respondents argued that noprocedure exists in federal court for converting respondents in discovery to defendants. The only way of adding them wasby joinder under Rule 20 of the Federal Rules of Civil Procedure (federal rules) (see 28 U.S.C. app. Fed. R. Civ. P. 20(1994)). To vest the federal court with personal jurisdiction over respondents, Rule 4 of the federal rules required plaintiffto serve them with a summons and a copy of the complaint after the federal court granted her motion to add. See 28 U.S.C.app. Fed. R. Civ. P. 4 (1994). Plaintiff failed to so do and respondents were, therefore, not converted to defendants infederal court.

On February 4, 1999, the trial court held a hearing on the motion to terminate. The trial court found that plaintiff failed tojoin respondents as defendants in federal court because she had failed to serve a summons upon them. However, the trialcourt found that because plaintiff had endeavored to convert respondents into defendants within the six-month deadline byfiling her motion to add, regardless of the fact that the motion may have been improperly styled, termination of respondents'status as respondents in discovery was not warranted. The trial court concluded that respondents remained respondents indiscovery upon remand to state court and the only remaining issue was whether plaintiff had submitted sufficient evidenceto support probable cause to convert. However, because the trial court did not have before it a motion to convert, it did notmake a finding on the probable cause issue. Plaintiff then attempted to make an oral motion to convert. The trial courtdeclined to rule on the oral motion and stated that the plaintiff would have to seek conversion in accordance with Illinoisprocedures.

On June 2, 1999, over respondents' objections, the trial court held a hearing on plaintiff's oral motion to convert. At thehearing, the trial court recognized that plaintiff had not filed a written motion to convert in state court or requested anevidentiary hearing to determine probable cause. The court also noted that plaintiff had never engaged in any formaldiscovery with respect to respondents. However, rather than resolving the issue on procedural grounds, the trial court statedthat it had considered whether plaintiff had submitted sufficient evidence of probable cause and found that she had not. Thetrial court found that the physician's report submitted by plaintiff in federal court was not only undated and the signatureillegible, it contained only bald conclusions regarding the respondents' alleged negligence.

This appeal followed.

II. MOTION TO STRIKE AND DISMISS

Before addressing the merits of this appeal, we first address respondents' motion to strike and dismiss, which we orderedtaken with the case. Respondents argue that this court should strike plaintiff's brief and dismiss this appeal because plaintiff(1) failed to state the applicable standard of review for each issue as required by Supreme Court Rule 341(e)(3) (177 Ill. 2dR. 341(e)(3)), (2) included argument and referred to matters outside the record on appeal in her statement of facts inviolation of Supreme Court Rule 341(e)(6) (177 Ill. 2d R. 341(e)(6)), and (3) referred to matters outside the record onappeal in her argument sections in violation of Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)).

Respondents are correct that plaintiff failed to state the applicable standard of review for each issue raised. However, thestriking of an appellate brief, in whole or in part, is a harsh sanction and is appropriate only when the alleged violations ofprocedural rules interfere with or preclude review. People v. DeRossett, 237 Ill. App. 3d 315, 325, 604 N.E.2d 500, 507(1992). We find that our review is not hindered by plaintiff's error and decline to strike her brief on that basis.

With respect to plaintiff's statement of facts, we do not perceive those statements referenced by respondents to be undulyargumentative. Although it is possible to glean negative inferences from some of plaintiff's factual statements, this alone isnot sufficient to qualify the statements as argumentative. We also do not agree that the statement of facts or the argumentsections reference matters outside the record on appeal. The record on appeal contains all of the documents necessary forour review. The fact that the full federal court record itself was not included in the record on appeal, and that some of thenecessary documents were attached as exhibits to documents filed in state court, is irrelevant. Accordingly, respondents'motion to strike and dismiss is denied.

III. ANALYSIS

Plaintiff first contends that the trial court erroneously found that respondents were not converted to defendants in federalcourt. Plaintiff argues that she properly converted them to defendants pursuant to section 2-402 of the Code by filing hermotion to add in federal court within six months of filing her original complaint. As they did in the trial court, respondentsrespond that (1) section 2-402 is inapplicable in federal court, (2) plaintiff was required to follow the procedure for joinderset forth in the federal rules, and (3) because plaintiff failed to serve respondents as required by Rule 4, they were neverproperly joined. Because the trial court's decision was based on legal conclusions, we review it de novo.

Upon our review of the record and the relevant law, we agree with plaintiff that the trial court erred in finding thatrespondents were not converted to defendants in federal court. It is apparent from reviewing the transcript of the trial courthearings that the trial court based its finding, in part, on the belief that section 2-402 of the Code is inapplicable in federalcourt. Specifically, the trial court stated that "[plaintiff's attorney] was caught in the [f]ederal [c]ourt without the procedureallowed under Illinois law." It further stated that respondents "were never summoned in [to federal court], and so theyremain [r]espondents in [d]iscovery."

Contrary to the trial court's belief, we find that section 2-402 was indeed applicable in the federal court. We acknowledgethat the court in Murphy v. Schering Corp., 878 F. Supp. 124 (N.D. Ill. 1995), found otherwise. In Murphy, the court stated: