No. 2--01--0862

Defendants E. Reimer and Copley Memorial Hospital (Copley) (Ann West is notinvolved in this appeal) appeal an order of the circuit court of Kane Countydenying their motion to dismiss brought pursuant to section 2--619 of the CivilPractice Law (735 ILCS 5/2--619 (West 2000)). In their motion, defendantscontended, inter alia, that plaintiff's present action is barred by resjudicata. The trial court disagreed. Defendants then requested the trialcourt to make the necessary findings under Supreme Court Rule 308 (155 Ill. 2dR. 308) that would allow an interlocutory appeal. This request was granted andthe trial court certified the following question for review: "[U]nder thedoctrine of res judicata, is there an identity of cause of action inplaintiffs' [sic] prior and present suits[?]" We answer thisquestion in the affirmative.

BACKGROUND

Plaintiff, Lindsey Cload, by her mother and next friend, Gina Cload,instituted an action against Dr. Ann West, Dr. Philip Jacobsen, and Copley inthe circuit court of Cook County on March 3, 1995. The complaint sounded inmalpractice and concerned events related to the birth of Lindsey. Lindsey wasborn on June 13, 1991. Gina began experiencing labor pains that morning and wasadmitted to Copley at approximately 10 a.m. She was placed under the care ofWest, an obstetrician. At approximately 5:15 p.m., Lindsey was delivered.Lindsey was born with significant brain injuries and suffers from cerebralpalsy.

Lindsey contends that her injuries were a result of the negligence of variousindividuals involved in her birth. In an earlier action to which Gina was also aparty, Lindsey and Gina set forth a four-count complaint. Count I named Lindseyas the plaintiff and alleged three omissions by West and Jacobsen. First, itstated that the doctors failed to order a caesarian section despite evidence offetal distress. Second, it alleged that they failed to perform a caesariansection despite evidence of fetal distress. Third, it asserted that they failedto conduct tests necessary to diagnose Lindsey's condition. Count II was alsobrought in Lindsey's name and identified Copley as the defendant. In this count,it was alleged that Copley, through its servants and agents, failed to promptlynotify the doctors of evidence of fetal distress and failed to performappropriate tests to diagnose Lindsey's condition. Count III and count IVrepeated the allegations contained in the first two counts; however, Gina wasnamed as the plaintiff.

Copley moved for summary judgment on the first complaint. Copley argued thatplaintiff had failed to identify an expert witness that could testify as to howCopley deviated from the standard of care. The trial court granted Copley'smotion on August 28, 1997.

On July 24, 2000, an amended complaint was filed. Lindsey was listed as thesole plaintiff. As defendants, the complaint identified West, Copley, andReimer, who was a Copley employee. The complaint contained two counts. Count Iwas directed against West and was based on several omissions. First, it againalleged that West failed to order a caesarian section despite evidence offetal distress. Second, it again asserted that West failed to perform acaesarian section despite evidence of fetal distress. Third, it repeated theallegation that West failed to conduct tests necessary to diagnose Lindsey'scondition. Fourth, it alleged that West failed to take appropriate steps toclear Lindsey's airway "following delivery." Fifth, it maintained thatWest failed to have appropriate personnel present to attend to Lindsey"immediately following delivery." Finally, it stated that West wasotherwise careless and negligent.

The second count of the amended complaint was directed against Copley andReimer. This count was based on several acts or omissions occurring "uponthe delivery" of plaintiff. First, it asserted that defendants failed toproperly resuscitate Lindsey. Second, it alleged that defendants failed topromptly and adequately suction meconium from Lindsey's airways. Third, itmaintained that defendants failed to promptly intubate Lindsey. Fourth, italleged defendants failed to properly monitor and support Lindsey's respiration.Fifth, it stated that defendants were otherwise careless and negligent.

Defendants moved to dismiss plaintiff's amended complaint, arguing that thecurrent action was barred by res judicata. The trial court denieddefendants' motion. The court observed that the first two elements necessary toinvoke the doctrine--a final judgment on the merits and identity ofparties--were indisputably met. However, the court concluded that the finalelement, identity of cause of action, was lacking. The court first acknowledgedour supreme court's decision in River Park, Inc. v. City of Highland Park,184 Ill. 2d 290 (1998), which adopted the transactional test and rejected thesame-evidence test for determining whether an identity of cause of action existsfor the purpose of res judicata. The court then observed that the RiverPark, Inc. court found the parallels between factual allegations containedin the complaints in the two actions at issue were "a most tellingindication of identity of cause of action." In the present case, the courtreasoned, the allegations contained in the first complaint pertained exclusivelyto prenatal care and delivery of Lindsey. The second complaint, as it pertainedto defendants, concerned care rendered after delivery. Thus, the trial courtconcluded that an identity of cause of action did not exist and denieddefendants' motion.

ANALYSIS

This case comes to us following the trial court's denial of a motion todismiss made pursuant to section 2--619 of the Civil Practice Law (735 ILCS5/2--619 (West 2000)); therefore, review is de novo. McGee v. StateFarm Fire & Casualty Co., 315 Ill. App. 3d 673, 680 (2000). In passingon a section 2--619 motion, a court may consider all pleadings, affidavits, anddepositions appearing in the record. Thompson v. Frank, 313 Ill. App. 3d661, 663 (2000). All pleadings and supporting documents are to be interpreted inthe light most favorable to the party opposing the motion (Henrich v.Libertyville High School, 186 Ill. 2d 381, 386 (1998)), and all well-pleadedfacts in the complaint are deemed admitted (Powers v. Arachnid, Inc., 248Ill. App. 3d 134, 138 (1993)).

The sole issue before us is whether the trial court correctly determined thatres judicata is inapplicable because no identity of cause of actionexists between plaintiff's prior and present claims. Res judicataprecludes subsequent litigation between the same parties on a claim after acourt renders final judgment on a matter. Torcasso v. Standard Outdoor Sales,Inc., 157 Ill. 2d 484, 490 (1993). In order to invoke this defense, thefollowing elements must be shown: (1) that a court of competent jurisdictionrendered a final judgment on the merits; (2) that there is an identity of theparties or their privies; and (3) that there is an identity of cause of action. Downingv. Chicago Transit Authority, 162 Ill. 2d 70, 73-74 (1994). The partyseeking to invoke the doctrine bears the burden of demonstrating that itapplies. Board of Education of Sunset Ridge School District No. 29 v. Villageof Northbrook, 295 Ill. App. 3d 909, 915 (1998). Res judicata barsnot only those issues that were actually litigated in a prior suit; it barsthose that could have been raised as well. Rein v. David A. Noyes & Co.,172 Ill. 2d 325, 334-35 (1996).

Our supreme court has adopted the transactional test for determining whethercauses of action are the same. River Park, Inc., 184 Ill. 2d at 309-11.Under this test, claims are part of the same cause of action if they arise fromthe same transaction or series of connected transactions. Altair Corp. v.Grand Premier Trust & Investment, Inc., 318 Ill. App. 3d 57, 61 (2000).Subsequent claims may be barred if they originate from a single group ofoperative facts. River Park, Inc., 184 Ill. 2d at 311. This propositionapplies regardless of whether the claims assert different theories of relief orare based on evidence that does not substantially overlap, as long as they arisefrom the same transaction. River Park, Inc., 184 Ill. 2d at 311.

Prior to River Park, Inc., Illinois employed both the same-evidencetest and the transactional test. Under the same-evidence approach, claims weredeemed part of the same cause of action if "the evidence needed to sustainthe second suit would have sustained the first, or if the same facts wereessential to maintain both actions." Rodgers v. St. Mary's Hospital,149 Ill. 2d 302, 312 (1992). Noting that the continued adherence to the morestringent same-evidence test would render its adoption of the transactional testmeaningless, our supreme court held that the same-evidence test no longerrepresented the law of Illinois. River Park, Inc., 184 Ill. 2d at 310-11.The supreme court also observed that adherence to both tests caused confusion inthe courts. River Park, Inc., 184 Ill. 2d at 310. Indeed, some case lawpredating River Park, Inc. is confusing, and, at times, the two testswere conflated. See Agriserve, Inc. v. Belden, 268 Ill. App. 3d 828,837-38 (1990) (Cook, J., specially concurring).

Despite the supreme court's rejection of the same-evidence test, the evidencenecessary to prove a claim remains relevant in a limited sense. In situationswhere the same-evidence test would preclude an action, the transactional testlikely bars the claim as well. The transactional test is a broader test fordetermining whether claims are part of the same cause of action. River Park,Inc., 184 Ill. 2d at 310-11. Thus, the nature of the evidence necessary toprove a claim remains relevant to the extent that a claim barred by thesame-evidence test would also be barred by the transactional test. RiverPark, Inc., 184 Ill. 2d at 311. The converse, however, is not true. Evenwhere evidence does not overlap, a claim may be considered part of the samecause of action under the transactional test. River Park, Inc., 184 Ill.2d at 311.

In determining whether claims are part of the same cause of action, RiverPark, Inc. directs that we consider the claims in factual rather thanevidentiary terms. River Park, Inc., 184 Ill. 2d at 309. We must examinethe facts that give rise to the plaintiff's right to relief (River Park, Inc.,184 Ill. 2d at 315) and assess whether they are linked in a manner such thatthey are part of a single transaction. The factors relevant to ascertainingwhether they are so linked include their relation in time, space, origin, andmotivation, whether they form a convenient trial unit, and whether theirtreatment as a single unit conforms to the parties' expectations and businessusage or understanding. River Park, Inc., 184 Ill. 2d at 312, citingRestatement (Second) of Judgments