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Strategic Discovery Leads to Summary Judgement

John Walsh recently won summary judgment for a nursing home client by raising a statute of limitations defense in a wrongful death case in which the plaintiff claimed “hidden/transferred” ownership of a nursing home, a “corporation shell game,” and reliance on Internet website information that allegedly was “untruthful” and misled him in his effort to file suit for his mother’s death. The plaintiff filed his initial complaint in 2012 against three hospitals and the management company of the nursing home. He alleged medical negligence and violation of the Nursing Home Care Act. Without serving any Summons or notifying any defendant of the lawsuit, 25 days later the plaintiff sought and was granted, voluntary dismissal of the case.

One year after that, the plaintiff refiled the complaint, naming the nursing home’s management company as the only defendant. After service of Summons, the management company contacted John for its defense. He answered the complaint and then filed a motion for summary judgment, supported by a principal’s affidavit stating, in part, that when the decedent was a resident of the facility in 2010, it did not own, operate, manage, or supervise any clinical personnel or clinical operations of the nursing home.

Plaintiff then filed an amended complaint, naming the nursing home as a defendant for the first time. When the amended complaint was served on the nursing home, more than four years had passed since the decedent’s last date of treatment and her date of death in 2010. Through the strategic use of requests to admit and a motion to deem facts admitted, John built the nursing home’s defense under the two-year statute of limitations.

In fighting against summary judgment, the plaintiff argued for “relation back” to the original filing date of the lawsuit in 2012, citing section 2-616(d) of the code of civil procedure; he additionally sought “equitable tolling” of the statute of limitations for the nursing home’s alleged “actively misleading” him, stating the allegations above. John argued that the plaintiff’s problems were “self-inflicted” by his own lack of diligence, citing American Family Mutual Ins. Co. v. Plunkett, 2014 IL App (1st) 131631, and public information available through the Illinois Department of Public Health. The trial court granted summary judgment. The plaintiff did not seek a rehearing or an appeal after the judgment, which is now final.

July 2015 | Firm News