Opinion
Case No. 09-CV-2145.
December 29, 2009
ORDER
On November 24, 2009, two Reports and Recommendations (#34, #35) were filed by Magistrate Judge David G. Bernthal in the above cause. On December 8, 2009, Plaintiffs filed their Objections to the Reports and Recommendations (#36). Plaintiffs objected to Judge Bernthal's recommendations that Count VII and Count VIII of their Amended Complaint be dismissed. This court has carefully reviewed Judge Bernthal's Reports and Recommendations and Plaintiffs' Objections. Following this court's careful de novo review, this court agrees with and accepts Judge Bernthal's Reports and Recommendations (#34, #35).
As far as Count VII, this court agrees that Plaintiffs' loss of consortium claim in Count VII should be dismissed and Plaintiffs should be allowed to amend their constitutional claims to include damages for loss of consortium. As far as Count VIII, this court notes that Plaintiffs have cited no authority in support of their argument that an allegation in the Amended Complaint can be considered an "affidavit" for purposes of 735 Ill. Comp. Stat. 5/2-622. This court concludes that, under § 2-622, "an affidavit must be provided." See Hill v. C.R. Bard, Inc., 582 F. Supp. 2d 1041, 1046 (C.D. Ill. 2008), quoting Hobbs v. Lorenz, 786 N.E.2d 260, 263 (Ill. App. Ct. 2003). This court therefore agrees with Judge Bernthal that Plaintiffs did not satisfy the requirements of § 2-622 by making allegations in the complaint. Judge Bernthal correctly stated that "under any circumstances, a plaintiff must file an affidavit; an allegation in the complaint does not satisfy the statutory requirement." This court also rejects Plaintiffs' request that the dismissal of Count VIII be without prejudice. Plaintiffs clearly failed to comply with the requirements of § 2-622 and the statute of limitations has passed. See Hill, 582 F. Supp. 2d at 1048-49. Therefore, this court concludes that dismissal of Count VIII with prejudice is proper in this case.
IT IS THEREFORE ORDERED THAT:
(1) The Reports and Recommendations (#34, #35) are accepted by this court.
(2) The Motion to Dismiss Count VII (#6) filed by Defendants City of Urbana, Sylvia Morgan, Matthew Bain, and Angela Menocci is GRANTED. Plaintiffs are allowed to amend the prayers for relief for the Section 1983 claims to incorporate damages for loss of consortium.
(3) The Motion to Dismiss Counts I, II, IV, V, VI, VII and VIII of Plaintiffs' Amended Complaint (#17) filed by Defendants Daniel Walsh, Health Professionals Ltd. and Champaign County is GRANTED as to Counts I, VII, and VIII and DENIED as to Counts II, IV, V, and VI. The dismissal of Count I as to Defendant Walsh is without prejudice and Plaintiffs are allowed leave to amend their complaint to correct their pleading error and allege personal involvement. Again, because of the dismissal of Count VII, Plaintiffs are allowed to amend the prayers for relief for the Section 1983 claims to incorporate damages for loss of consortium. Count VIII is dismissed with prejudice. In addition, Defendants' motion to strike the reference to negligence in Count IV is DENIED; Defendants' motion to strike Plaintiffs' prayer for punitive damages in Count VI is GRANTED; Defendants' motion to strike Plaintiffs' request for punitive damages in the Section 1983 claims is GRANTED as to Defendant Champaign County and Defendant Walsh in his official capacity and DENIED as to Defendant Health Professionals Ltd.; Defendants' motion to disqualify the estate administrator is DENIED; and Plaintiffs' request for sanctions is DENIED.
(4) Plaintiffs are allowed fourteen (14) days to file their amended complaint.
(5) The Motion for Summary Judgment (#8) filed by Defendants City of Urbana, Sylvia Morgan, Matthew Bain and Angela Menocci remains pending and will be decided in due course.