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Another Limit on Refiling Voluntarily Dismissed Cases

100 Illinois Bar Journal 498, September 2012

2 Pages Posted: 8 Sep 2012 Last revised: 24 Sep 2012

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: September 7, 2012


In Illinois, civil litigants enjoy an express statutory right to dismiss a pending civil case and refile it within a year regardless of any prohibitive time limits. 735 ILCS 5/13-217. Such a right is not found in the federal district courts or in many American state courts. This right has been limited by the res judicata doctrine. Hudson v. Chicago, 228 Ill.2d 464 (2008). Now, in a “case of first impression,” an appellate court has recognized another significant limit, judicial estoppel.

In Smeilis v. Lipkis, 2012 IL App (1st) 103385, the court estopped the plaintiffs as they “have (1) taken two positions, (2) that are factually inconsistent, (3) in separate . . . proceedings, (4) with intent the trier of fact accept the facts alleged as true, and (5) have succeeded in the first proceeding and received some benefit from it.” In Smeilis, the plaintiffs initially sued a hospital and a nursing home for medical malpractice. They settled with the hospital after presenting a neurosurgeon as an expert who said the patient needed surgery while at the hospital, and that any later surgery, while at the nursing home after the hospital stay, would likely not have helped.

Plaintiffs voluntarily dismissed after settlement and timely refiled against the nursing home. There, the plaintiffs presented a new expert, a neurologist, who said surgery within days after the transfer to the nursing home would have left the patient “in a better condition than her current state.”

In finding judicial estoppel barred the second suit notwithstanding the statutory right, the court distinguished earlier cases where parties were not judicially estopped from using different experts to opine differently in two cases. Here, the two experts were said to differ on a fact, not an opinion. The court ruled that when a patient first exhibits a “neurological abnormality” is a fact, though requiring expert witness testimony. A dissent was not sure plaintiffs benefitted from the inconsistency and found troubling the distinction between a pleading amendment (allowed) and a refiling (not allowed).

After Hudson and Smeilis, the dangers in voluntary dismissals and refiling are great. Claimants should avoid utilizing their statutory right whenever possible.

Keywords: civil procedure, voluntary dismissal, judicial estoppel, res judicata, refiled complaints, Illinois civil procedure, claim preclusion, fact testimony, opinion testimony, expert testimony

Suggested Citation

Parness, Jeffrey A., Another Limit on Refiling Voluntarily Dismissed Cases (September 7, 2012). 100 Illinois Bar Journal 498, September 2012. Available at SSRN:

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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