 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cothren v. Thompson3/14/2005
nt included an attorney affidavit requesting a 90-day extension to file the appropriate certificate and written report. However, plaintiff did not file the certificate or written report within the 90 days. Plaintiff also did not seek an extension of time to file the documents. When plaintiff did file the affidavit and report, neither contained the name and address of the health professional as required by section 2- 622(a)(1) of the Procedure Code (735 ILCS 5/2-622(a)(1) (West 2002) ("report shall include the name and the address of the health professional")). Further, plaintiff did not seek leave of court to file those documents. See Sawyier v. Young, 198 Ill. App. 3d 1047, 1052, 556 N.E.2d 759, 762 (1990) (answer or counterclaim could be treated as a nullity because "mere act of filing a late pleading in the clerk's office does not place the late pleading properly before the court"). Thus, plaintiff failed to comply with the statute.
Although plaintiff failed to file the documents in a timely manner, "trial courts may, in deciding whether to dismiss a complaint with prejudice for failure to comply with section 2-622, consider whether there was a showing of good cause for a late filing of the required documents." Premo v. Falcone, 197 Ill. App. 3d 625, 630, 554 N.E.2d 1071, 1076 (1990); see also 134 Ill. 2d R. 183 (trial court may extend time for filing "for good cause shown").
"Allowing trial courts to consider whether good cause exists for noncompliance with the deadlines for filing the required documentation in section 2- 622 is consistent with the objectives of that statute because it encourages compliance with the deadlines set forth therein and encourages filing the required documentation as expeditiously as possible in the event compliance is not possible." Premo, 197 Ill. App. at 631, 554 N.E.2d at 1076.
In this case, plaintiff has failed to establish good cause in the late filing of the required documents. The fact that plaintiff's attorney chose an incarcerated health professional to determine if a meritorious cause existed and had difficulty communicating with him because of his incarceration does not amount to good cause.
Plaintiff also complains the delay was caused by defendant's attorney's failure to respond to a letter from plaintiff's attorney. The November 2003 letter asked defense counsel to inform plaintiff's local attorney if he decided to cancel the motion to dismiss. Plaintiff states defense counsel did not write or call to indicate the direction he was taking. However, at the March 2004 hearing, plaintiff's local counsel admitted that defense counsel advised him he was proceeding on the motion. Thus, plaintiff has not shown defense counsel caused a prejudicial delay.
Plaintiff's attorney argues the delay was excusable, as Dr. Illes's letter was merely misfiled and later found. However, " istake, inadvertence, or simple attorney neglect cannot constitute the sole basis for a good cause determination." Glasco v. Marony, 347 Ill. App. 3d 1069, 1073, 808 N.E.2d 1107, 1110 (2004). Further, plaintiff argued in the trial court that defendant has not shown he was substantially prejudiced by the delay. Our supreme court has noted, however, that "the mere absence of inconvenience or prejudice to the opposing party is not sufficient to establish good cause under Rule 183." Bright v. Dicke, 166 Ill. 2d 204, 209, 652 N.E.2d 275, 277 (1995).
" determination of good cause must be based upon the facts of each case and is within the discretion of the trial court." Bright v. Dicke, 260 Ill. App. 3d 768, 771, 633 N.E.2d 1283, 1285 (1994). This case was not about defendant's alleged delay or a discovery sanction but instead focused on p
Page 1 2 3 4 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|