Doe v. Great America LLC , 2021 IL App (2d) 200123 ( 2021 )

2021 IL App (2d) 200123No. 2-20-0123
Opinion filed February 24, 2021
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JOHN DOE, Individually, as Independent ) Appeal from the Circuit Court
Administrator of the Estate of Jane Doe,
) of Lake County.
Deceased, and as Parent and Next Friend of
)
James Doe, a Minor, )
)
Plaintiff-Appellant, )
)
v. ) No. 18-L-796
)
GREAT AMERICA LLC., d/b/a )
Six Flags Great America, ) Honorable
) Jorge L. Ortiz,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
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
2020 IL App (2d) 200123exception 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.”
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2020 IL App (2d) 200123¶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
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
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2020 IL App (2d) 200123psychological 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.¶ 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
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2020 IL App (2d) 200123and 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
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2020 IL App (2d) 200123requiring 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, 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,
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2020 IL App (2d) 200123¶ 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
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2020 IL App (2d) 200123become 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 “[sane]”). Thus, her mental condition was introduced as an
element of the wrongful death claim, making her mental health records discoverable. 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
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2020 IL App (2d) 200123of 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.
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2020 IL App (2d) 200123No. 2-20-0123
Cite as: Doe v. Great America LLC, 2021 IL App (2d) 200123Decision Under Review: Appeal from the Circuit Court of Lake County, No. 18-L-796;
the Hon. Jorge L. Ortiz, Judge, presiding.
Attorneys Patrick L. Provenzale and Nemura G. Pencyla, of Ekl, Williams
for & Provenzale LLC, of Lisle, for appellant.
Appellant:
Attorneys John A. Terselic and Brett M. Henne, of Swanson, Martin &
for Bell, LLP, of Libertyville, for appellee.
Appellee:
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