Ratkovich By and Through Ratkovich v. Smith Kline, s. 90-1015
| Decision Date | 27 December 1991 |
| Docket Number | Nos. 90-1015,90-1443,s. 90-1015 |
| Citation | 951 F.2d 155 |
| Parties | Diana RATKOVICH, By and Through her legal guardian, John RATKOVICH, Plaintiff-Appellant, v. SMITH KLINE, French Laboratories, A Division of Smithkline Beckman Corporation and McNeil Pharmaceutical, a Division of McNeilab, Incorporated, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James T. Ball, Goldberg & Goldberg, Chicago, Ill. (argued), for plaintiff-appellant.
Francis D. Morrissey, Michael A. Pollard (argued), Thomas R. Nelson, Richard B. Foster, III, Baker & McKenzie, Michael K. Lulich, Andrea J. Barron, Stephen C. Debboli, Modesto, Reynolds & McDermott, Barbara M. DeCoster (argued), Michael W. Davis, Peter M. Felitti, Sidley & Austin, Chicago, Ill., for defendants-appellees.
Before COFFEY, EASTERBROOK and MANION, Circuit Judges.
John Ratkovich, guardian of Diana Ratkovich, appeals the dismissal of his suit with prejudice against Smith Kline and French Laboratories and McNeilab, Inc. Ratkovich alleged that the defendant laboratories manufactured the drugs that caused Diana to suffer severe brain damage. We affirm.
John Ratkovich filed a thirty-two count complaint in the Circuit Court of Cook County, Illinois, on March 25, 1988, alleging that his daughter, Diana Ratkovich, sustained severe brain damage as the result of her mother's prescribed use of the drug Dexadrine, a drug manufactured by Smith Kline and French Laboratories ("Smith Kline") during pregnancy. The complaint also alleged that Diana sustained additional injuries as the result of her prescribed use of Haldol, a drug manufactured by McNeil Pharmaceutical, Inc. ("McNeil") while she was confined in two hospitals. Diana's three siblings also joined in the suit alleging loss of consortium. 1 The plaintiff's causes of action asserted claims under the theories of negligence, strict liability, and breach of warranty.
The plaintiff concedes that since filing this case in March of 1988, he has been unable to obtain documentation that Mrs. Ratkovich was either prescribed or ingested Dexadrine, or that Diana was prescribed or used Haldol. In contrast, the defendants exerted considerable time and expense in preparing their respective cases, including unnecessary efforts and expenses incurred as a result of the plaintiff's lack of cooperation in the trial of this lawsuit. Following the district court's grant of Smith Kline's motion for removal of the action to federal court, both defendants served requests for discovery interrogatories on the plaintiff. After the plaintiff repeatedly failed to comply with the defendants' request for verified answers to their interrogatories, McNeil was forced to file a motion to compel verified answers. After obtaining discovery responses, the defendants began their search for the extensive medical records of Diana Ratkovich, covering a period of twenty-nine years and including treatment from more than sixty different physicians, hospitals, and clinics in a number of states. The defendants also collected records of Diana's attendance at special schools. However, due to the significant passage of time, many of the records were unavailable. Because of the lack of cooperation on the part of Mr. and Mrs. Ratkovich, the defendants were also required to file motions to compel in order to obtain their depositions.
After the district court entered an order setting a cutoff date for discovery, the defendants filed a motion requesting the plaintiff to identify his expert witnesses, which the plaintiff objected to on the grounds that substantial discovery was needed before his experts could confirm their opinions and that disclosure would thus be premature. The district court disagreed and ordered the plaintiff to disclose the identity of the experts by November 30, 1989. Sometime in mid-November 1989, the plaintiff's counsel contacted the defendants and informed them of the plaintiff's intention to voluntarily dismiss the case because he was unable to comply with the deadline to disclose his experts. The parties were not able to agree to the terms of dismissal, and on November 30, 1989, the plaintiff brought a motion to voluntarily dismiss the case without prejudice. The district court allowed the motion to dismiss but granted it with prejudice after 30 days. The parties, at the plaintiff's request, were allowed the opportunity to brief the question of whether the suit should be dismissed with prejudice.
On February 2, 1990, the district court entered a final judgment dismissing the plaintiff's case with prejudice. The judge reasoned that the plaintiff "clearly demonstrated a lack of diligence in pursuing this case and perhaps even bad faith," in obtaining evidence to support the allegations of the complaint and in failing to comply with discovery requests. The court also noted that the plaintiff had been unable to gather a sufficient quantum of evidence for his experts to formulate an opinion on the case after nearly two years of discovery, and that the defendants had expended considerable effort and expense in defending the case. Furthermore, the court granted McNeil's Rule 11 request for costs and attorney fees in the amount of $3,545 incurred in defending the plaintiff's Rule 11 motion. 2 The plaintiff appeals the district court's dismissal of his complaint with prejudice.
The plaintiff argues that the trial court erred in substituting her motion for voluntary dismissal to a dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(2). Rule 41(a)(2) provides in pertinent part:
(emphasis added). The dismissal of a plaintiff's complaint under Rule 41(a)(2) is always within the discretion of the trial court, and reversal will be granted only if plaintiff can demonstrate an abuse of that discretion. United States v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986). "Accordingly, reversal [of a district court's dismissal with prejudice] will be granted only if [the plaintiff] can demonstrate that the discretion of the trial judge was abused." Tyco Laboratories, Inc. v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir.1980). We have previously noted that a district court may impose such terms and conditions as it believes necessary to protect the other parties from prejudice and that "terms and conditions are the 'quid pro quo of allowing the plaintiff to dismiss his suit....' " Brandt v. Schal Associates, Inc., 854 F.2d 948, 955 (...
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