Objection: Dental patient allegedly ‘judge shopped’ after dismissing claim on eve of trial, refiling and seeking new judge

An Alton dentist and dental practice argue that Illinois Supreme Court precedent prohibits a former patient from “judge shopping” by voluntarily dismissing her complaint prior to trial, refiling it and then seeking a new judge.

Edwardsville attorney Richard Hunsaker of Heyl Royster Voelker & Allen filed a motion to vacate Madison County Circuit Judge Chris Threlkeld’s order granting a substitution of judge on April 10. The case was assigned to Circuit Judge Sarah Smith following substitution.

Hunsaker argues that defendants Dr. Tyler Crews and Chapel and Keller Dentistry were not provided the opportunity to properly object to substitution.

“Depriving the defendants of their right to object is clearly error and, if the practice of ruling on such a motion prior to entry of appearance by defendants is countenanced, inappropriate judicial forum shopping will be encouraged to the prejudice of the defendants,” he wrote. “Vacating the order of transfer from Judge Threlkeld to Judge Smith is the only appropriate relief as it will allow the objection to [be] heard on its merits, consistent with the Illinois Supreme Court’s holding in the case of Bowman v Ottney.”

Plaintiff Lea Voorhees originally filed her complaint on Aug. 19, 2020, through attorney Keith Short of Keith Short & Associates PC in Alton (20-L-1188). Threlkeld was presiding and had set jury trial to begin on Aug. 14, 2023.

Voorhees alleged she saw Crews at Chapel and Keller Dentistry in Alton on Jan. 9, 2019, for the placement of a dental implant.

She claimed that the following day, she complained of prolonged anesthesia after the implant was placed. Crews and his dental assistants removed the implant on Jan. 11, the suit states.

Voorhees alleged the defendants negligently failed to properly insert the dental implant, causing her to suffer pain, numbness, tingling, burning and itching. She also alleged they failed to act in a timely fashion to refer her to a specialist in nerve repair after her symptoms failed to subside and failed to take a CBCT prior to placement of the implant.

As a result, Voorhees claimed she endured two surgeries without replacement of the missing tooth and experienced all of the attendant pain and suffering.

She sought compensation in excess of $50,000 for each count.

Prior to trial, Voorhees filed a motion for voluntary dismissal, which Threlkeld granted on July 31, 2023, over the defendants’ objections.

According to the defendants’ motion to vacate substitution of judge, Short allegedly emailed the defendants’ counsel on March 7 informing them that the case will be refiled in the Madison County Circuit Court. Short asked if the defendants’ counsel would accept service on behalf of the defendants.

The case was then filed on March 15 and was re-assigned to Threlkeld that same day.

Short immediately filed a motion for substitution of judge on March 18, arguing that Voorhees “desires to exercise her right to substitution of judge.”

The defendants’ counsel responded to the email regarding service on March 26 after conferring with the defendants. They agreed to accept service on behalf of Crews and Chapel and Keller Dentistry.

A file-stamped copy of the complaint was forwarded to the defendants’ counsel on March 28 but did not include the motion for substitution of judge nor the court’s order reassigning the case to Smith, which was filed two days earlier.

Hunsaker responded by filing an objection to the plaintiffs’ motion for substitution of judge on April 2.

He argues that the original case was substantially litigated before Threlkeld. He adds that seeking a new judge after voluntary dismissal is “inappropriate and inconsistent with the Illinois rule that once a judge has made a substantive ruling, a request for a change of judicial venue is improper and untimely.”

“This is particularly true in the present case, which was dismissed on the eve of trial, after hearing argument on the motion to dismiss and after defendants had opposed the motion,” Hunsaker wrote. “Furthermore, here Judge Threlkeld’s dismissal order was entered during the pretrial conference and after the parties had filed and briefed motions in limine and motions to bar.”

Hunsaker then filed the motion to vacate Threlkeld’s order granting substitution on April 10.

“It appears from the court file that the court granted the motion for substitution of judge, without notice or hearing, prior to the time when defendants were due to appear before the court,” he wrote.

He argues that the manner in which the substitution was handled, even inadvertently, deprived Crews and Chapel and Keller Dentistry from their right to object.

“Defendants should not be deprived of the opportunity to raise an appropriate objection to the motion for substitution of judge,” he wrote.

Hunsaker relies on the Illinois Supreme Court’s holding in Bowman v Ottney, in which it affirmed the denial of judicial substitution.

In Bowman, a medical malpractice case was voluntarily dismissed after substantive rulings were made. It was re-filed and assigned to the same judge. The plaintiff then sought a new judge. The state’s high court concluded that a party “may not judge shop until he finds one in total sympathy to his cause.”

Hunsaker asks the court to vacate its order reassigning the case to Smith and allow the defendants to present their arguments, “making an appropriate and detailed record.”

A case management conference is currently set for May 2 with Smith presiding.

This article was first published in Madison Record.

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