an additional ninety days in the face of the statute of limitations while the suit was pending she consulted with the physician we don't have that report in the laughter but what we do know is that two weeks later she voluntarily dismissed a year later she filed again without a certificate of merit the affidavit said i need another ninety days it did not say that the case had not been voluntarily dismissed and at this point it was a full three years since the claim malpractise now the statute that had been in the acted and rolled and on the books for years since one nine hundred ninety eight provided that the affidavit had to say there was no prior voluntary dismissal which  not permit that additional ninety day extension defendant's move to dismiss the plaintiff opposed on a single basis and equal protection it did not the plaintiff did not urge for a change in the law  instead at the hearing when asked directly by the trial court the plaintiffs said yes you have two options dismiss this case on the motions to dismiss which were a statutory construction or find it unconstitutional the court court dismissed the case on reconsideration the plaintiffs started raising new issues and five months after the dismissal the plaintiff took back its agreement that this statute applied the this case would be pretty routine i think it's straightforward it would involve statutory construction and it would also involve the due process or the equal protection clause but i believe that what makes this case extraordinary is the the first issue i'd like to address briefly today is the fact that the plaintiff expressly forfeited and abandoned any challenge to this statute except for equal protection the appellate court treated this as if it were point this court has recently reiterated that one of the two most important tasks that a reviewing court hands is to determine what issues if any have been forfeited and while forfeited identification of forfeited issues might seem mundane i submit it's critical to the judicial process it promotes judicial economy efficiency but i would also submit what it prevents is a court from taking and advocates role on issues where the attorney who is supposed to be the advocate has chosen not to raise an issue and of course it promotes finality i'm in litigation thus there's only one issue that the court that the plaintiff preserved for a few and that is equal protection your honour's you have repeatedly upheld the constitutionality of two dash six twenty two a bad issue has would submit that there is one trial court decision in cook county and i believe the boat champ case in the first district follows cargo so really i can't say because the first time that you had a break from that precedent and i would submit your honor that the fourth district since then has come out with the cold case and it said moreover ruling on castle so i think you have a fourth district that's perhaps divided but that the courts generally and the annoy at least the reviewing courts up until a cassock work consistent identify all the forfeited issues the appellate court then faced decades of established principles on statutory construction it face this court's decision in delgado and it says the standard of review in rulings of rulings on motions to reconsider is abuse of discretion and to get around these the lamas the majority found there was a new development since cargo which had been the precedent in the fourth district was decided and it looked to  language of the nine hundred ninety eight or tort reform language had disappeared with the best and was never resurrected there is of course a faulty premise to this argument because the legislature doesn't place these parents that it calls it does not indicate legislative intent it's an informational note placed by the legislative reference bureau the appellate court's reliance on this  amendment to establish the legislative intent raises a whole host of issues including the fact that in one thousand nine hundred eight the general assembly was different than the one sitting in two thousand and five it also the  court also or majority of the fourth district decision failed to give effect to the plain words of the two thousand and five amendment which express lee said oh no this only applies to two cases that are filed after the effective date which was august of zero five and finally it raises separation of powers concerns among other issues if this quote has no questions on those issues then i will  mean please the court my name is christopher l no white and i represent dr emerson in this case the bottom line basis for the ok sick majority's decision is simply this that according to the subsequently enacted statute two thousand and five the civil reform language disappeared with best and was never reenacted this holding a two to one holding basically  did the cargill decision it reversed the trial court's decision in which we were allowed our motion to dismiss and also reversed the lower court's decision to deny the motion to reconsider this was all in spite of the fact that we had cargill that carville was the same fourth district that cargill had the same identical statute that cargill dealt with the same identical facts and that it's quite clear  in looking at cargill that the court very clearly went through all of what they needed to do at that time to come to its decision the cargill case has never been reversed by this court it has been cited with favor with the b pace referenced earlier this case this court in ok sick in spite of the rules of statutory construction as well which clearly favor the point intent of the statute and on top of it all this statute had was was on for seven full years before the ok sic decision came through and then what may have been the final thing is the the ok sic decision actually in essence overruled its own decision in cargill effects on our legal system and i've referenced this in the brief the effects of the legal system and how we do things could be extraordinarily changed by this decision the ripple effect has already been felt with our with the crawl decision that was issued approximately four months ago by the same fourth district that looked at the whole thing again and actually  in essence overruled the ok sick majority the majority has decision and it's thought process needs to either be confirmed as the law of the land or reject it at the moment we likely have a number of courts one included as our lower court in mclean county we have likely have a lot of litigants who still may be dealing with this question scratching their head confused because what we might be having here is not a ripple but what we may have is a wave if we analyze the majority's decision it's clear that it was simply using the subsequently enacted statute in two thousand and five to interpret the earlier statute in ninety eight ju connecting his dissenting opinion which is only one page long but it said during this timeframe between ninety eight and two thousand and five the law required an affidavit for a ninety day extension along with a statement on the that the case had not been voluntarily dismissed but the ok six majority said no the legislation after the legislation in question did not intend for the statute to be what it was seven years before and so we should use this next statute the majority in essence overturns what we understand and what i've understood for years to be the law and that is when you have a subset you cannot use the subsequently enacted statute to determine legislative to intent if the statute is unless it's an ambiguous or unless it has an absurd result none of those are effective here counsel has has admitted such in his brief in essence because the ok six majority believes there was some type of error with the statute and which multiple cases have been determine then the ok sick majority believe they need to do something they need to rectify the problem and we learned that at the time of the appellate court argument when it was suggested to me by one of the counsels that this entire period of time was a hoax which of course i i did not agree with  problem however that the ok sic majority had was it had to fight through cargill it had to fight through case law on the subject it had to fight through the statutory constructions that we all use in order to come down to th and that it did the ok sic majority would have us believe in essence that the statute never existed and that is what my opponent has said in in their brief is well if the law never existed then we've got the cargill court we've got beauchamp we've got gilgo which was one was done earlier than cargill and now we've got croll all looking at this statute back in ninety eight which apparently never existed dissenting judge connect stated again in this is a very simple point but i think it's very poignant that even if there were a mistake even if there were a mistake it was the law of the land for seven years and you can't go back now and undo the law as if it didn't exist interestingly the a case in majority does give credence to the starry decisis of course they do cite with approval statutory construction but to come again to its conclusion it needed to go through the roadblocks of cargill and its progeny it also had to deal with just how are we going to get to that that bottom line so it said well the cargill decision was done before the two thousand and five amendment and so the cargill court couldn't have known what was going to happen that's completely flawed logic in my opinion with due respect to the court and that is that's assuming the cargill court would do that that they would look at the two thousand and five statute and then determine from what really was occurring back in ninety eight and that's exactly what you had connected saying shouldn't have been done and that's the other side of this practically speaking judge connect wouldn't have done it we know that since he has ruled in cargill and then subsequent to that he has agreed in kroll and he has disagreed in ok sick so what we've got here is that the majority has in essence created a new rule of statutory construction in which the legislature is determined to know and interpret its earlier legislation we know that that cannot be that it is the judiciary that determines what the legislature has said this must be the job of the judiciary and this must be confirmed and i thought a lot about this case and  i do believe that it's it's almost as big if not bigger in issues not only because of my client dr emerson of course who i represent but the question must be here how are we going to construe statutes in the future and do we in the future use starry decisis as the law of the land i'm asking this court we are asking this court to overturn the ok si full twenty minutes and lesser questions from from the court before i begin i would like to express on behalf of karla thompson her family in my office the prescience for appearing before the court today i would also if i could ask for a small indulgence for the court express appreciation of illinois attorney mary brady my colleague and my wife was particularly grateful that i'm here today as i was otherwise committed to a sports related expedition in nevada may please the court nothing that the defendants have said nor anything they could say could possibly justify letting stand that in truth and in fact never existed the reason for that finding and the support for that finding are expertly and excellently addressed by judges cook in his decision and judge ward and there are only a few comments that i can make that would assist the court in in reviewing that analysis and preparing for argument today your honor i did particularly detail timeline which i think is is useful for the court to consider the senate bill one twenty which was the initiation  human experience tell us that the government is focused on a number of things during the christmas hanukkah new year season but not necessarily on the advance kay sheets from from th eight because of the testimony of representative burke who also confirmed and this is february ninety eight the best decision having just been passed december eighteenth representative burke again no december the bill being passed in february and i think that as we look back now with the clarity of hindsight give some explanation in the language of the law yet and they use in the context of the statute on statutes which clearly indicates that change portions or are to be stricken and added were shin's to be i tell a size and as both judges cook in ward indicate when read in that context there is a seamless construction or seamless interpretation of six to two as having added only knepper path and so yes your honor if it's clear that what has been applied is a statute which the legislatures did not intend and i would ask the court to take to what it what import mr tankard creed was the fact that the best case found the core provisions of eighty nine seven unconstitutional and voided the entire act on the principle of severability and specifically this court invited the legislature to reenact those portions of the public that were not on how old are unconstitutional in section two six two two was not specifically held unconstitutional but was instead held unconstitutional per on principles of severability should we i mean we don't have to go into the legislative intent to look at our own case law that indicates that the only reason to sixty two was out of the box was on principles of severability so why is it unclear to us that the legislature would maybe w would have no problem in the provision that included this voluntary dismissal situation wait your honor the legislative history is clear that the legislative intent was was just just the opposite there's absolutely no evidence as is required words that's what justice governments and why do we get past the clear language to get into this legislative intent is specially as i said when we get the best case that doesn't even overrule that provision for any other reason than severability but it was overruled though your honor and as such the entire law was declared  provision which has been nullified it has to do do so by express intent and there must be evidence of that express intent either in the language of the legislation itself or in the legislative history and what is decisive here your honor is that in this case there is neither there is absolutely not one scintilla of evidence and no indication either in the east language of the statute itself or the legislative history of the express intent which is required under illinois law as articulated by this court us name and that is absolutely just dispositive your honor the other matter which i think is is useful is to look at the timeframe over surrounding the motions to dismiss the carville case came at the end of two thousand and four more ships to dismiss were filed in  february and march and were decided in april this was truly a legal research nightmare your honor we put tremendous resources on it we would like to feel that  the versions of six to two published by a number of publications including those by west did not reflect the tort reform language i had the honor of of apprenticing under edward bradley sr thirty two years ago your honor and as a as a discipline we check our statutes before we file complaints i would ask the court to accept on judicial notice or offer proof that the version that we checked did not contain the tort reform language and in fact i think if the court would check that they would see that the versions there were versions of two thousand and four that did not reflect that because the interpretation was that tort reform had been rejected by the court in best in terms of public policy considerations such as the waiver issue we certainly note as address body of president president obviously has has the ability to do justice in terms of is it appropriate for us to consider that this case is over later by the fourth district  mean that they were wrong again and wrong with with some wonder standing his is the again the legislative history in the course of events here were very complicated consider the fact that the cargill decision created a legislative train wreck which resulted in nine hundred cases one thousand eight hundred motions to dismiss consolidated or front of judge warden disposed of as far as cook county i had the good fortune to be in mclean county and i'm here today as far as equal protection goes your honor it's worth noting that what we are focusing on is the fact that it is an illegal discrimination to deny medical malpractise plaintiffs the rights afford every other plaintiff by volunteer you dismissal there is no logical nexus between denying the medical malpractise plaintiff the same right of every other  leslie your honor in terms of evaluating the public policy is just to clarify i was just talking from per from public policy purposes which i thought you were getting into what you were relat  corrected it went back to prior prior to or or it reflected the existence of the law as as it did in truth and in fact it was again if one looks at what was underlined and what was i tell a size and in the two thousand five legislator it is clear that the let the illinois legislator legislature was saying this is the law as we understand it to beat and any any other understandings or some someone else's mistake but certainly not ours again your honor to cut cut down to exactly what happened here during the rush of the holiday season someone made an interpretation and application of the responsibilities under article four eight to provide a proper context now maybe this given of the judicial resources that have been expended on this legislation on this train wreck maybe there is some type of systemic correction that's necessary maybe there needs to be some automatic communication a red flag t legislature one who was overruled by by this court but clearly what happened here is that during the rush of that holiday season there was an interpretation and application of what was required to provide context in th given the same context that we have we have with this case your honor i would say yes and the context is the includes the statute that's best seven years later that says that they they met with out i'm not quite sure if i may guess what part passed in the language is what the language is and it's clear which cuts off any further examination of legislative intent and that's the argument you're faced with it you can't get around us that bank   a statute that had been stricken and i would read respectfully submit that to the court finally your honor i would ask the court to consider the fact that karla thompson had a wife she had a prescriptions ordered but not given her life had value that was taken from her even though she was a mentally retarded ward of the state who knows what advances might have improved her life all she has left your honor is i would like to address us bank your honour's we fully brief this in our in our in our brief the u s bank is as justices properly indicated is not a here it did this case did not involve a repeal of a statute in fact the largest the best court invited the legislature to reenact provisions of the reform act hundred five and of course the legislature is said to know what case law and what provisions have been done in the way of the court system before they make it this is not a us bank case and i will tell you this going through the u s bank it's a confusion to me about preemption issues and all of that i can't even begin to think about that part of it but the point is this is not implicitly repealed situation in fact as been pointed out from the bench it is expressly not that you have a situation where best needed to throw the whole thing up because of the severability clause and as a result we end up with a statute which was reenacted it's not employed politically repealed and we we strongly believe that reliance on us bank is completely misapplied