A Granite City attorney is being sued by his client after voluntarily dismissing an underlying lawsuit involving an alleged faulty glycometer and then refiling the lawsuit one day beyond the applicable statute of limitations, causing the case to be dismissed with prejudice.
Plaintiff William Kevin Tomerlin filed the complaint on Oct. 4 in the Madison County Circuit Court against attorney Ronald A. Roth and his firm Roth Law Offices LLC.
Tomerlin’s complaint is filed through attorney Kevin Rogers of Chicago.
“Plaintiff seeks recovery for the damages he incurred in the underlying cause that were lost as a proximate result of the negligence of the defendants,” Rogers wrote.
According to the complaint, Tomerlin is afflicted with diabetes and required a glycometer to give him regular blood readings so he could regulate his glucose with injections when necessary.
In fall 2016, Tomerlin obtained a new glycometer from Arkray USA Inc. During the first week of February 2017, Tomerlin claims the glycometer began giving inaccurate readings, causing him to give himself injections based on those readings.
Tomerlin claimed in his underlying suit that Arkray knew that when it provided the glycometer to Tomerlin, “he would rely upon the accuracy of the readings to safely administer to himself proper amounts of insulin.”
Additionally, he claims Arkray knew the glycometer was giving inaccurate readings to patients and that administering improper amounts of glucose could cause severe injuries.
On Feb. 3, 2017, Tomerlin claims he administered improper amounts of glucose as a result of an inaccurate reading. He allegedly became ill and was hospitalized at St. Anthony’s Health Center in Alton, where he suffered adverse symptoms and began developing hallucinations.
Tomerlin claims he retained Roth to prosecute his claims against Arkray for negligence, violation of Illinois’ state product liability law, and breaching the implied warranty for a particular purpose.
Roth filed a lawsuit in Madison County Circuit Court on behalf of Tomerlin on Jan. 18, 2019, which was removed to the U.S. District Court for the Southern District of Illinois on March 1, 2019.
Arkray filed a motion to dismiss the complaint. Roth then voluntarily dismissed the lawsuit on Sept. 16, 2019. The court issued the order dismissing the case on Sept. 20, 2019.
Roth refiled the case on behalf of Tomerlin on Sept. 17, 2020, in the Madison County Circuit Court. Arkray again removed the refiled lawsuit to federal court on Oct. 7, 2020.
Arkray filed another motion to dismiss for failure to state a claim. Arkray also argued that the refiled case was time-barred.
In response, Roth argued that the statute of limitations did not begin to accrue until the date on which the clerk entered the dismissal of the case
Magistrate Judge Gilbert Sison granted dismissal on May 28, dismissing the case with prejudice. He found that the refiled case was untimely filed.
“As such, the proper method of calculating the date on which accrual of the statute of limitations begins and the date on which it expires are ‘part and parcel’ of the statute of limitations, and are appropriately determined through the application of state law,” Sison wrote.
“Illinois law provides those who voluntarily dismiss their complaints with a ‘savings’ period; a plaintiff may commence a new case after a voluntary dismissal within one year or within the remaining statute of limitations, whichever is a greater period of time,” he added.
Sison wrote that Illinois courts have historically interpreted the year-long statute of limitations period of time as beginning on the date of the “triggering event” and concluding 365 days later.
“When applying this method, the day on which plaintiff’s one-year deadline began was September 16th, 2019, and the last day on which plaintiff could refile his complaint under the savings statute was September 15th, 2020,” he wrote.
However, Sison added that modern courts have interpreted the one-year statute of limitations as expiring on the “corresponding anniversary of the entry of the order or judgment,” even during leap years.
“Regardless of whether the court applies the calendar method or anniversary method in order to calculate the beginning and end of plaintiff’s one-year savings statute deadline, plaintiff’s September 17, 2020, refiling is untimely,” Sison concluded.
Tomerlin argues in his legal malpractice suit that Roth knew he had to strictly follow the statute of limitations when refiling the complaint against Arkray and breached his duty by allowing the suit to be dismissed with prejudice.
Tomerlin claims he would have “prevailed in his cause of action, obtained economic relief and otherwise been made whole,” and that he “lost any recovery which he would have had.”
Tomerlin seeks an order finding that he would have prevailed in his claims against Arkray, “but for the negligent acts and omissions” of the defendants. He also asked the court to find that the defendants failed to exercise a reasonable degree of skill and care and were professionally negligent.
The plaintiff seeks an award in excess of $50,000, plus court costs, interest and all other relief the court deems just.
Roth could not be reached for comment.
Madison County Circuit Court case number 21-L-1203