IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ELBERT WILLIAMS, ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) Case No. 12 C 1876 

 ) 

DANIELLE ERICKSON and ) 

WEXFORD HEALTH SOURCES, INC., ) 

 ) 

 Defendants. ) 

 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 Plaintiff Elbert Williams, a prisoner in the Illinois Department of Corrections, has 

asserted claims under federal and state law against Danielle Erickson and Wexford 

Health Sources, Inc. arising from his contention that he was repeatedly refused 

assistance in changing his colostomy bag over a four hour period. Defendants moved to 

dismiss Williams' amended complaint for failure to state a claim. The Court previously 

denied the motion as to all but one of Williams' claims. See Williams v. Erickson, No. 12 

C 1875, 2013 WL 4478684 (N.D. Ill. Aug. 21, 2013). In this decision, the Court deals with 

the remaining claim, Count 3, which involves an allegation of "healing art malpractice" 

under Illinois law. 

Discussion

 A provision of the Illinois Code of Civil Procedure requires that in any action for 

damages "by reason of medical, hospital, or other healing art malpractice," the plaintiff 

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must file with his complaint an affidavit stating that the affiant has reviewed the facts with 

a knowledgeable and qualified "health professional" who practices in the particular field 

and that the health professional has determined in a written report "that there is a 

reasonable and meritorious cause" for the filing of the lawsuit. A copy of the written 

report must also be included. See 735 ILCS 5/2-622(a). Williams provided no such 

affidavit or report with his amended complaint. Defendants seek dismissal of Count 3 on 

this basis. 

 Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny, when state 

law supplies the rule of decision for a case in federal court, the federal court applies state 

"substantive" law but federal "procedural" law. See, e.g., Gacek v. Am. Airlines, Inc., 

614 F.3d 298, 301 (7th Cir. 2010). "A substantive law is one motivated by a desire to 

influence conduct outside the litigation process, such as a desire to deter accidents, while 

a procedural law is one motivated by a desire to reduce the cost or increase the accuracy 

of the litigation process, regardless of the substantive basis of the particular litigation." 

Id. at 302. Williams argues, among other things, that section 2-622(a)'s requirements 

are procedural, not substantive, and thus do not apply because he filed suit in federal 

court. 

 There is no Seventh Circuit case that directly addresses section 2-622(a)'s 

applicability in federal court. Each side discusses the import of Sherrod v. Lingle, 223 

F.3d 605 (7th Cir. 2000), but the Court agrees with Williams that Sherrod does not 

address whether the Illinois statute applies in federal court. Rather, the court assumed 

that the statute applied and addressed only whether it was appropriate for the district 

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court to dismiss the plaintiff's claim with prejudice rather than allowing the plaintiff to cure 

the omission of the required certificate. The Court concluded that the district court 

abused its discretion in denying leave to amend. Id. at 614. In short, Sherrod cannot be 

read as holding that section 2-622(a) applies in federal court. The Court therefore 

respectfully disagrees with those district judges that have determined that Sherrod 

controls the issue at hand. 

 Despite this, the Court does not write on a clean slate. Another Seventh Circuit 

case, not found by either party, provides a clearer guide to the appropriate rule. In Hines 

v. Elkhart Gen. Hosp., 603 F.2d 646 (7th Cir. 1979), the court considered an Indiana 

statute that required submission of a medical malpractice claim to a medical review panel 

for its opinion prior to filing suit in court. The statute did not give the medical review panel 

a final or dispositive say on medical malpractice claims but rather, like the Illinois statute 

under consideration here, simply required the plaintiff to satisfy this prerequisite before 

filing suit in court. After thorough analysis, the Seventh Circuit concluded that, under 

Erie and its progeny, the Indiana statute applied to cases filed in federal court. See id. at 

647-49. The Seventh Circuit reaffirmed the ongoing vitality of Hines in S.A. Healy Co. v. 

Milwaukee Metro. Sewerage Dist., 60 F.3d 305, 310 (7th Cir. 1995). 

 Williams points out that in 2004, the Illinois Supreme Court made it clear that 

section 2-622(a) imposes "a pleading requirement," and "do[es] not rise to the level of [a] 

substantive element[ ] of a claim for medical malpractice." Sullivan v. Edward Hosp., 

209 Ill. 2d 100, 117, 806 N.E.2d 645, 656 (2004). The Court acknowledges this point, 

but a state's characterization of one of its rules as procedural does not control a federal 

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court's disposition of the Erie issue. As the Seventh Circuit noted in S.A. Healy, "where 

the state procedural rule, though undeniably 'procedural' in the ordinary sense of the 

term, is limited to a particular substantive area, such as contract law or tort law," it still 

poses a "pretty easy case[ ]" under Erie and its progeny, "[f]or then the state's intention to 

influence substantive outcomes is manifest and would be defeated by allowing parties to 

shift their litigation into federal court unless the state's rule was applied there as well." 

S.A. Healy, 60 F.3d at 310. As an example of one of these "pretty easy cases," the court 

cited Hines. See id. In Gacek, decided in 2010, the Seventh Circuit repeated and 

reaffirmed this general rule. Gacek, 614 F.3d at 302 (citing S.A. Healy "and cases cited 

there"). 

In sum, though Hines does not directly address the Illinois statute at issue in this 

case, it clearly indicates the Seventh Circuit's view regarding a very similar state rule 

applicable to medical malpractice cases. Following Hines, the Court concludes that 

section 2-622(a) does in fact apply to the present case. The Court therefore dismisses 

Count 3 of Williams' amended complaint and gives him 30 days, until November 8, 2013, 

to file an amended complaint that meets section 2-622(a)'s requirements. If Williams 

does not do so, the Court will dismiss his healing art malpractice claim with prejudice. 

Date: October 8, 2013 

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