Doe v. Great America LLC ( 2021 )

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Appellate Court Date: 2022.03.31
10:22:34 -05'00'
Doe v. Great America LLC, 2021 IL App (2d) 200123Appellate Court JOHN DOE, Individually, as Independent Administrator of the Estate
Caption of Jane Doe, Deceased, and as Parent and Next Friend of James Doe,
a Minor, Plaintiff-Appellant, v. GREAT AMERICA LLC, d/b/a Six
Flags Great America, Defendant-Appellee.
District & No. Second District
No. 2-20-0123
Filed February 24, 2021
Decision Under Appeal from the Circuit Court of Lake County, No. 18-L-796; the
Review Hon. Jorge L. Ortiz, Judge, presiding.
Judgment Affirmed; cause remanded.
Counsel on Patrick L. Provenzale and Nemura G. Pencyla, of Ekl, Williams &
Appeal Provenzale LLC, of Lisle, for appellant.
John A. Terselic and Brett M. Henne, of Swanson, Martin & Bell,
LLP, of Libertyville, for appellee.
Panel JUSTICE McLAREN delivered the judgment of the court, with
opinion.
Justices Jorgensen and Hudson concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, John Doe, individually, as independent administrator for the estate of Jane Doe,
and as parent and next friend of James Doe, appeals the trial court’s order finding him in
contempt for refusing to comply with a motion by defendant, Great America LLC, to compel
the identity of Jane Doe’s mental health providers and allow discovery of her psychiatric
medical records. He asserts privilege under section 10 of the Mental Health and Developmental
Disabilities Confidentiality Act (Act) (740 ILCS 110/10 (West 2018)) and argues that Jane
Doe’s mental condition had not been introduced as an element of plaintiff’s wrongful death
claim to trigger an exception to the privilege. We determine that Jane Doe’s mental condition
was introduced as an element of plaintiff’s wrongful death claim when plaintiff alleged that,
as a proximate result of defendant’s acts or omissions, Jane Doe suffered a brain injury that
rendered her bereft of reason and caused her to commit suicide. Accordingly, we affirm and
remand for further proceedings.
¶2 I. BACKGROUND
¶3 In November 2017, plaintiff and Jane Doe filed a complaint seeking damages in connection
with a battery at defendant’s amusement park. The complaint alleged that a group of youths
viciously attacked their family at the park, causing serious injuries, and that park employees
failed to intervene. The complaint alleged premises liability, negligence, and a claim under
section 15(a)(1) of the Rights of Married Persons Act (750 ILCS 65/15(a)(1) (West 2016)).
¶4 During discovery, defendant submitted an interrogatory asking plaintiff and Jane Doe
whether they were claiming any psychiatric, psychological, or emotional injuries from the
incident and, if so, to provide the names of professionals providing treatment. The
interrogatory further asked plaintiff and Jane Doe whether they suffered any psychiatric,
psychological, or emotional injury before the incident occurred and, if so, to describe the nature
of any such injury. On February 22, 2019, plaintiff and Jane Doe responded that they were not
claiming any such injuries as described in the interrogatory. Plaintiff and Jane Doe also
objected to separate interrogatories about previous injuries or illnesses.
¶5 On May 5, 2019, Jane Doe committed suicide. On July 16, 2019, plaintiff filed an amended
complaint adding a wrongful death claim related to her suicide. Plaintiff alleged that, as a
proximate result of defendant’s acts or omissions, “Jane suffered severe, debilitating and
permanent physical injuries that caused her conscious pain and suffering, including physical
injuries to her brain that rendered her bereft of reason and suicidal.”
¶6 Defendant moved to dismiss the new claims, alleging that the suicide was an independent
intervening act and not a foreseeable result of defendant’s negligence. Defendant argued that
plaintiff did not allege sufficient facts that Jane Doe suffered a brain injury that caused her to
become bereft of reason and that he did not allege that Jane Doe was insane at the time of her
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suicide. Plaintiff responded that he properly pled, as an ultimate fact, “Jane Doe’s insanity and
loss of reason, to be proven at trial.” The trial court denied the motion to dismiss.
¶7 In a further interrogatory, defendant asked plaintiff to identify Jane Doe’s mental health
providers, and plaintiff refused. Defendant then filed a motion to compel plaintiff to completely
answer the interrogatory and withdraw plaintiff’s objection to a subpoena of medical insurance
records. Defendant argued that plaintiff had put Jane Doe’s mental health at issue by pleading
that defendant’s acts or omissions caused her to become insane and bereft of reason and
commit suicide. Defendant stated that it learned through pharmacy records that a psychiatrist
prescribed Jane Doe medications to treat symptoms of schizophrenia and depression, as well
as panic attacks, post-traumatic stress disorder, and obsessive disorders. Yet, plaintiff failed to
disclose the identification of that provider. Defendant alleged that the information was
necessary to defend the action. Plaintiff replied that the records were privileged under the Act.
Further, he was not seeking damages for any mental, emotional, or psychological injuries to
Jane Doe.
¶8 The trial court granted the motion to compel, finding an exception to the privilege applied
because Jane Doe’s mental health had been placed “at issue” when plaintiff alleged that the
incident caused her to become bereft of reason. In doing so, the court distinguished cases
applying the Act that found that the exception did not apply when a plaintiff sought damages
for a physical brain injury instead of a psychological injury. The court stated that “[i]f bereft
of reason isn’t psychological damage, then, you know, I don’t know what is.” The court then
noted that it was required to:
“conduct an in camera review of [Jane Doe’s] mental health records for the purpose of
considering their relevance, whether they’re probative, whether they’re otherwise
clearly admissible, whether there’s other satisfactory evidence that is not available
regarding the facts sought to be established, and that disclosure is more important to
the interests of substantial justice than protection of any injury which disclosure is
likely to cause.”
¶9 Plaintiff refused to comply, and the trial court found him in direct friendly civil contempt
and fined him $100. Plaintiff appeals.
¶ 10 II. ANALYSIS
¶ 11 Plaintiff contends that the trial court erred in finding him in contempt. He argues that the
trial court improperly ordered discovery, because the medical records sought by defendant are
privileged under the Act and no exception applies. In particular, he argues that he is seeking
damages not for a psychological injury but only for a physical brain injury.
¶ 12 “Where an individual appeals a finding of contempt for violating a discovery order, the
contempt finding is final and appealable, presenting to a reviewing court the propriety of the
discovery order.” Sparger v. Yamini, 2019 IL App (1st) 180566, ¶ 16. “ ‘If the discovery order
is invalid, then the contempt order, for failure to comply with that discovery order, must be
reversed.’ ” Id. (quoting In re D.H., 319 Ill. App. 3d 771, 773 (2001)). The applicability of a
statutory evidentiary privilege and any exceptions is a matter of law that we review de novo.
Id.-3-
¶ 13 The Act provides that
“[e]xcept as provided herein, in any civil, criminal, administrative, or legislative
proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on
behalf and in the interest of a recipient, has the privilege to refuse to disclose and to
prevent the disclosure of the recipient’s record or communications.” 740 ILCS
110/10(a) (West 2018).
Section 10(a)(2) of the Act provides an exception to the privilege, stating that
“[r]ecords or communications may be disclosed in a civil proceeding after the
recipient’s death when the recipient’s physical or mental condition has been introduced
as an element of a claim or defense by any party claiming or defending through or as a
beneficiary of the recipient, provided the court finds, after in camera examination of
the evidence, that it is relevant, probative, and otherwise clearly admissible; that other
satisfactory evidence is not available regarding the facts sought to be established by
such evidence; and that disclosure is more important to the interests of substantial
justice than protection from any injury which disclosure is likely to cause.” Id.§ 10(a)(2).
¶ 14 “A party may introduce his or her mental condition in several ways during the course of
litigation, including, e.g., in the pleadings, answers to written discovery, a deposition, in briefs
or motions, in argument before the court, or by stipulation.” Reda v. Advocate Health Care,
199 Ill. 2d 47, 61 (2002). “Ordinarily, a party’s prayer for pain and suffering damages will not
introduce mental condition as an element of the party’s claim.” Deprizio v. MacNeal Memorial
Hospital Ass’n, 2014 IL App (1st) 123206, ¶ 18. Also, the allegation of a neurological injury
does not automatically introduce mental condition as an element. Reda, 199 Ill. 2d at 58.
¶ 15 For example, in Reda, the plaintiff brought a medical malpractice action against a hospital
and doctors after developing an acute thrombosis and an apparent stroke. In depositions, the
plaintiff and his wife disclosed that he suffered from “headaches, loss of memory, decline in
comprehension, difficulties in performing daily activities, and changes in personality.” Id. at
57. During discovery, the plaintiff’s counsel refused to comply with a pretrial discovery order
requiring him to produce his psychiatric records, arguing that the records were privileged under
the Act. The trial court held the plaintiff’s counsel in friendly civil contempt, and the plaintiff
appealed. The appellate court affirmed in part. Id. at 53.
¶ 16 Our supreme court reversed. The court held that the plaintiff did not introduce his mental
condition as an element of the cause of action by discussing during depositions his headaches,
loss of memory, decline in comprehension, difficulties in performing daily activities, and
changes in personality, because such alleged injuries were physical/neurological and could be
separated from psychological damage. Id. at 57-58. In particular, the court noted that a
neurological injury is not synonymous with psychological damage, nor does a neurological
injury directly implicate psychological damage. Id. at 58. The court stated that, if it were
otherwise, then in every case in which the plaintiff claimed damages stemming from a physical
brain injury, the door to discovery of the plaintiff’s mental-health records would automatically
open and the limited exception of the Act would effectively eviscerate the privilege. Id.¶ 17 Likewise, in Sparger, the First District held that evidence of cognitive impairments
consistent with a traumatic brain injury did not place the plaintiff’s mental condition at issue.
Sparger, 2019 IL App (1st) 180566, ¶ 24. The court distinguished the case from one in which
the plaintiff alleged pain and anguish in both mind and body and claimed psychiatric,
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psychological, and/or emotional injuries. Id. ¶ 26 (citing Phifer v. Gingher, 2017 IL App (3d)
160170, ¶¶ 4, 6).
¶ 18 Plaintiff argues that, as in Reda and Sparger, he merely seeks damages for a condition
consistent with a physical brain injury, making the exception inapplicable. But Reda and
Sparger did not involve a suicide, which complicates the matter.
¶ 19 If the decedent had no right of action at the time of death, the personal representative also
has no right of action in a wrongful death action. Turcios v. The DeBruler Co., 2015 IL 117962,
¶ 17 (citing Williams v. Manchester, 228 Ill. 2d 404, 421 (2008)). Thus, the injury that the
personal representative alleges caused the decedent’s death must be the same injury that the
decedent suffered prior to death. Id. The general rule, applicable in negligence actions, is that
the injured party’s voluntary act of suicide is an independent intervening act, which is
unforeseeable as a matter of law and breaks the chain of causation from the tortfeasor’s
negligent conduct. Id. ¶ 20. Our supreme court has stated that “a suicide may result from a
complex combination of psychological, psychiatric, chemical, emotional, and environmental
factors.” Id. ¶ 41. Thus, “it is the rare case in which the decedent’s suicide would not break the
chain of causation and bar a cause of action for wrongful death.” Id. However, an exception
exists when, as the proximate result of a head injury caused by the negligence of another, the
injured person becomes “ ‘insane and bereft of reason’ ” and, while in that condition and as a
result of it, he or she commits suicide. Crumpton v. Walgreen Co., 375 Ill. App. 3d 73, 80
(2007) (quoting Stasiof v. Chicago Hoist & Body Co., 50 Ill. App. 2d 115, 122 (1964)). In such
a case, the act is not voluntary and therefore does not break the causal connection between the
suicide and the act that caused the injury. Id.¶ 20 Our supreme court has adopted this approach, in distinction from “[t]he universal rule
followed by most jurisdictions *** that the victim’s act of suicide is a new and independent
agency breaking the chain of causation from the negligent act and is not reasonably
foreseeable.” Little v. Chicago Hoist & Body Co., 32 Ill. 2d 156, 158-59 (1965). The court
noted that the “ ‘better view’ ” was expressed by Dean Prosser, who stated that
“ ‘[if] insanity prevents [the victim] from realizing the nature of his act or controlling
his conduct, his suicide is to be regarded either as a direct result and no intervening
force at all, or as a normal incident of the risk, for which the defendant will be liable.
*** But if the suicide is during a lucid interval when he is in full command of his
faculties but his life has become unendurable to him, it is agreed that his voluntary
choice is an abnormal thing, which supercedes the defendant’s liability.’ ” Id. at 159(quoting William L. Prosser, Handbook of the Law of Torts § 49, at 274 (2d ed. 1955)).
¶ 21 Here, for plaintiff to recover, he would be required to prove as an element of his cause of
action that, as the proximate result of Jane Doe’s head injury, she became insane and bereft of
reason and committed suicide while in that state. Such proof necessarily entails an examination
of her mental condition. Unlike cases such as Reda and Sparger, which involved a brain injury
without an intervening suicide, a suicide directly implicates a psychological condition or
psychological damage. “Bereft of reason” and “insanity” implicate a psychological injury.
“Insanity,” by definition, is indeed a “mental disorder.” Black’s Law Dictionary (11th ed.
2019). Likewise, a determination of whether Jane Doe was in a “lucid” state when she took
her life requires consideration of her mental condition. See Black’s Law Dictionary (11th ed.
2019) (defining “lucid” in part as being “[s]ane”). Thus, her mental condition was introduced
as an element of the wrongful death claim, making her mental health records discoverable.
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Accordingly, the trial court did not err when it granted the motion to compel and found plaintiff
in contempt.
¶ 22 Plaintiff also argues that the trial court applied the wrong statutory standard to find the
records discoverable. He argues that the court’s statement that he placed Jane Doe’s mental
health “at issue” showed that the court was applying a privilege found in a different statute,
namely section 8-802 of the Code of Civil Procedure (735 ILCS 5/8-802 (West 2018)). Thus,
plaintiff contends that the court failed to consider whether plaintiff introduced Jane Doe’s
mental condition as an element of the wrongful death claim. But the parties consistently
referenced the Act in their pleadings and when arguing before the court. The court also
discussed cases applying the Act and itself applied the Act’s language when it noted that it was
required to conduct an in camera review of the records. The court discussed no other statutory
privilege. Thus, plaintiff’s argument is unsupported by the record.
¶ 23 Finally, we recognize that, under certain circumstances, fundamental fairness may dictate
that the privilege yield. D.C. v. S.A., 178 Ill. 2d 551, 568 (1997). Because we determine that
plaintiff introduced Jane Doe’s mental condition as an element of his wrongful death claim,
we need not and do not determine whether fundamental fairness would also require the
privilege to yield in this case.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Lake County and
remand the cause for further proceedings.
¶ 26 Affirmed; cause remanded.
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