CHICAGO — An Illinois state appeals court's recent decision will give plaintiffs' lawyers "another arrow in their quiver" to keep previously dismissed defendants and marginal parties roped into litigation, in the hope of securing a settlement payment, an attorney said.
"These decisions enhance [the] plaintiff’s ability to keep parties in litigation who have only a marginal role or exposure to the claims at issue," said Christopher Barth, an attorney at Locke Lord. "Further, these decisions give plaintiffs another arrow in their quiver to obtain discovery from marginal parties to pursue their central claims against the main defendants in multiparty litigation."
The central question in the case was whether state law stipulates a defendant who has already been dismissed from a lawsuit without prejudice can be first converted into a "respondent in discovery," and then become a defendant again, based on what may be found in later court-ordered discovery.
Christopher Barth | Locke Lord
Recently, a three-justice panel of the Illinois Second District Appellate Court in west suburban Elgin answered this question in the affirmative.
And that, Barth said, "increase[s] the likelihood the re-introduced party will want to buy its peace through settlement, and [it] eases the plaintiff’s discovery burdens in that a respondent is more in the direct line of fire when it comes to court enforcement of discovery obligations in comparison to a non-party responding to a discovery subpoena."
In the case considered by the Second District court, plaintiff Prinova Solutions brought suit against Process Technology Corporation in DuPage County Circuit Court for alleged breach of contract and breach of implied warranty, claiming food blending and processing equipment it had obtained from the defendant was defective.
John Witterschein, owner of Process Technology, was named individually as a defendant in the case, but was dismissed from the suit because he was not named in the contract between Prinova Solutions and Process Technology Corporation.
Prinova later filed an amended complaint and included Witterschein as a respondent in discovery. Witterschein attempted to be removed from the case again because he had previously been dismissed.
The Second District Appellate Court ruled against Witterschein. The court cited a 2016 decision in the Illinois First District Appellate Court, Westwood Construction Group Inc. v. Irus Property LLC, and found that “the plaintiff can, in fact, name former defendants as respondents in discovery."
"Clearly, these decisions permit plaintiffs to keep parties involved in litigation, enhancing the possibility of securing nuisance or cost-of-defense settlements from marginal parties," Barth said.