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Heyl Royster Prevails in Significant "Judge Shopping" Case

12/20/2015

In Bowman v. Ottney, 2015 IL 119000, a medical malpractice claim filed in 2009, the Illinois Supreme Court ruled in favor of a defendant in a case of judge shopping. There, the Court held, "in a case which previously had been voluntarily dismissed and refiled, a trial court has discretion to deny an immediately filed motion for substitution of judge based on the fact that the same judge to whom the motion is presented made substantive rulings in the previously dismissed case." Bowman, 2015 IL 119000, ¶ 29. The defendant had objected to an attempt to substitute away from a circuit court judge who had issued substantial rulings in a previously filed action, which had been voluntarily dismissed.

During the pendency of the first filing, the trial judge issued rulings on substantial issues such as the disclosure of certain materials in discovery. After these rulings, but prior to trial, the plaintiff voluntarily dismissed her complaint pursuant to section 2-1009(a) of the Code of Civil Procedure. Four months later, the plaintiff refiled her cause of action against the defendant. After the case was assigned to the same judge, the plaintiff promptly asked that the assigned judge be substituted, claiming that she was entitled to a "change of judge as a matter of statutory right" under 735 ILCS S12-1001.

In assessing the plaintiff's appeal, the Illinois Supreme Court ultimately agreed with the defense and concluded that the plaintiff's interpretation would lead to impermissible judge shopping. The court commented:

The narrow and literal interpretation of the phrase "in the case" suggested by Bowman creates a loophole that allows the purpose of the statute to be defeated. We conclude that the legislature did not intend such a construction. Contrary to Bowman's assertion, the voluntary dismissal and refilling of a cause of action does not "reset the clock" with respect to the substitution of a judge who previously made substantive rulings in the prior proceeding. Id., ¶ 21.

Thus, the Court found that the substitution of judge section must be read as referring to all proceedings between the parties in which the judge to whom the motion is presented has made substantial rulings with respect to the cause of action before the court.

The case was handled at the trial level by Richard Hunsaker, a partner in the firm's Edwardsville office, who concentrates in the defense of medical malpractice cases. The appeal was handled by Brad Elward, a partner in the firm's Peoria office, who concentrates in appellate practice.