Doe v. Dilling

• Decision Date: 22 December 2006
• Docket Number: No. 1-04-2372.,1-04-2372.
• Citation: 861 N.E.2d 1052,308 Ill.Dec. 487
• Parties: Jane DOE, Plaintiff-Appellee and Cross-Appellant, v. Elizabeth DILLING, Individually, and as Executor of the Estate of Kirkpatrick Dilling, Deceased, Defendants-Appellants and Cross-Appellees (Dilling and Dilling, Defendant).
• Court: United States Appellate Court of Illinois

861 N.E.2d 1052

308 Ill.Dec. 487

Jane DOE, Plaintiff-Appellee and Cross-Appellant, v. Elizabeth DILLING, Individually, and as Executor of the Estate of Kirkpatrick Dilling, Deceased, Defendants-Appellants and Cross-Appellees (Dilling and Dilling, Defendant).

No. 1-04-2372.

Appellate Court of Illinois, First District, Sixth Division.

December 22, 2006.

David A. Novoselsky, Leslie J. Rosen, Novoselsky Law Offices, Chicago, for Appellant/Cross-Appellee.

C. Barry Montgomery, Alyssa Campbell, Williams, Montgomery & John, Ltd. and Hall Adams III, Law Offices of Hall Adams LLC, Chicago, for Appellee/Cross Appellant.

Ann Hilton Fisher, AIDS Legal Council of Chicago and Christopher C. Dickinson, David W. Austin, Jenner & Block LLP, Chicago, Amicus Curiae of AIDS Legal Council of Chicago.

Justice JOSEPH GORDON delivered the opinion of the court:

Plaintiff Jane Doe contracted HIV from her fiancé, Albert Dilling (Albert). Three weeks after Doe tested positive for HIV, Albert died of AIDS. Doe sued Albert's estate and his elderly parents, Elizabeth (Betty) and Kirkpatrick (Kirk), alleging that Albert, Betty and Kirk had misrepresented Albert's condition to her, which caused her to become infected with HIV.¹ It was soon discovered that Albert's estate had no assets and a negative net worth, and Doe dropped it as a defendant. In the course of pretrial proceedings, Doe amended her complaint a number of times. At the time of trial, there were two counts directed at Betty and Kirk (collectively, the Dillings) which are at issue in this appeal: count I, alleging negligent misrepresentation against both Dillings, and count II, alleging fraudulent misrepresentation against both Dillings. Those counts were tried before a jury. At the end of the trial, the judge entered a directed verdict in the Dillings' favor on the fraudulent misrepresentation count. The negligent misrepresentation count ended in a mistrial due to a hung jury, and the case was returned to a trial call and assigned to a different judge. Before the second trial commenced, Kirk died, and his estate was substituted as a defendant. At the second trial, Doe's theory of the case was that because of the Dillings' misrepresentations, she was unaware that Albert had infected her with HIV and, consequently, she failed to get treatment that would have prevented much of the irreparable damage she sustained to her immune system. At the close of evidence, the second judge directed a verdict in defendants' favor on the negligent misrepresentation count, the count that had originally ended in a mistrial and submitted the fraudulent misrepresentation count to the jury. The jury found for Doe and awarded her $2 million in compensatory damages. For the reasons that follow, we vacate the judgment entered on the jury's verdict finding defendants liable for fraudulent misrepresentation and awarding Doe compensatory damages. We affirm the remainder of the judgment.

BACKGROUND

In her latest (fifth amended) complaint, Doe alleged that she met and began to date Albert in April of 1996. Doe would later testify that she and Albert, who unbeknownst to her was HIV-positive, began to have unprotected sex in August of 1996. Doe alleged that between the spring of 1997, when she first met the Dillings, and November of 1999, when she independently learned that Albert had AIDS, the Dillings negligently (count I) or fraudulently (count II) misrepresented to her Albert's condition by telling her, on many occasions, that Albert was suffering from heavy metal poisoning and/or from Lyme disease. Doe further alleged that she reasonably relied, to her detriment, on the Dillings' representations. Doe asserted that had she learned in the spring of 1997 the true nature of Albert's ailment, she would have immediately obtained HIV testing for herself and, if she was then already infected, would have immediately commenced treatment.

Both parties state in their briefs that at the end of the first trial, in April of 2003, Judge Devlin entered a directed verdict in the Dillings' favor on the fraudulent misrepresentation count. However, as defendants acknowledge, the record on appeal does not include an order to that effect. Neither party asserts that a finding was ever made, pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a) (2002)), that the directed verdict on the count of fraudulent misrepresentation constituted a final and appealable judgment. Our examination of the record revealed no reference to such finding ever being made.

The negligent misrepresentation count ended in a mistrial due to a hung jury. Doe did not file a posttrial motion attacking the propriety of the directed verdict on the count of fraudulent misrepresentation.

The matter was returned to a trial call and reassigned to another judge, Judge Levin. Prior to the second trial, the parties' attorneys had some discussion with Judge Levin as to whether, in general, a directed verdict carries over to a second trial. That discussion occurred in the context of whether to allow the use of testimony from the first trial. However, defendants' attorneys did not argue that the directed verdict on the fraudulent misrepresentation count should stand and the matter be retried only with respect to the count which ended in a mistrial-namely, the negligent misrepresentation count.

The second trial was held in February and March of 2004. The jury was impaneled and heard the following testimony. To the extent that the parties bring to our attention any inconsistencies between the testimony at the first and the second trials, such inconsistencies will be noted below.

Doe testified as follows. She was college-educated, but received no medical training. Doe met Albert in April of 1996 through an ad in the Chicago Reader. At that time, she was 44 and he was 41. At the beginning of their courtship, Albert looked healthy. Doe and Albert saw each other frequently in June and July of 1996, but did not become physically intimate for some time. Doe had previously been tested for HIV in 1991, when she applied for a disability insurance. The test result was negative. Doe volunteered to Albert that she was disease-free and had practiced safe sex. Doe additionally told Albert that she was very aware of sexually transmitted diseases and did not want to expose herself to any. Doe then asked Albert if he had anything to tell her on the subject. She believed Albert's answers to her questions.²

Doe further testified that she expressed to Albert that she wanted to be married to him and have his child. With that in mind, Doe and Albert had unprotected sex in late August of 1996. Doe noticed that Albert's penis had dark-colored pigmentation which looked unusual to her. Doe asked Albert about it, and he told her that he had previously suffered from genital warts and had them surgically cauterized. Albert explained that he was a landscaper and would get warts on his hands from handling plant material; he claimed that the warts on his genitals were of similar origin. In August and September of 1996, Doe noticed a problem with Albert's ability to walk straight; he was a little unstable on his feet.

Doe's testimony continued as follows. In early September of 1996, Doe herself became ill. She had flu-like symptoms with high fever. Doe testified that, thinking it was just flu, she did not see a doctor. Doe stated that she made no connection between her flu-like illness and having had unprotected sex with Albert.

In the fall of 1996, Albert went to Wyoming to buy a bar/restaurant. According to Doe, when she visited Albert in Wyoming in early 1997, Albert looked "a little worn out. He was tired." Doe also noted that Albert was thin. In this regard, during the first trial Doe testified that Albert had lost quite a bit of weight, and his skin was very dry, almost ashen looking. Doe asked Albert about his appearance and believed his answer. During Doe's visit to Wyoming, Albert proposed to her. In spring of 1997, Albert invited Doe to Reno, Nevada. Doe understood that Albert was in Reno to see a doctor for heavy-metal poisoning. Doe went to Reno, but did not go to the clinic with Albert.

In mid-May of 1997, Doe met the Dillings for the first time. Doe either earlier or at that time learned that Kirk was a prominent attorney who specialized in food and drug litigation. During that first meeting, the topic of Albert's health and medical care came up. Doe testified that Betty had stated that she and Kirk were in charge of Albert's medical care; that Kirk was a medical expert in these matters and they were very concerned about Albert's health; and that Albert would be fine. In that context, Doe was told that Albert's only problem was heavy-metal poisoning.³

According to Doe, over the next 2 1/2 years the topic of Albert's health came up in numerous conversations with the Dillings, both in person and by phone. At no time was Doe told that Albert may have AIDS. Doe was told that Albert had heavy-metal poisoning and, later, Lyme disease. Doe testified to various specific instances when she had such conversations with the Dillings, which instances will be related here in the context in which the conversations occurred. For instance, when at Christmastime of 1997, Doe discussed the issue with Betty, Betty maintained that Albert's problem was heavy-metal poisoning and that he was in the care of the right doctors and would eventually be well. Kirk, in his evidence deposition which was read to the jury at the second trial, admitted that he never told Doe that Albert was HIV-positive.

According to Doe, the Dillings paid for most of Albert's medical care. Many of the doctors Albert saw were professional acquaintances of Kirk. Despite the care Albert received, his health continued to deteriorate. In October of 1998, Albert had a stroke and was taken by ambulance to a hospital. When at Christmastime of 1998, Doe and Albert visited with Doe's mother in Michigan, Albert had such...