Doe v. Dilling

• Decision Date: 03 April 2008
• Docket Number: No. 104049.,104049.
• Citation: 228 Ill.2d 324,888 N.E.2d 24
• Parties: Jane DOE, Appellant, v. Elizabeth DILLING, Indiv. and as Ex'r of the Estate of Kirkpatrick Dilling, et al., Appellees.
• Court: Illinois Supreme Court

888 N.E.2d 24

228 Ill.2d 324

Jane DOE, Appellant, v. Elizabeth DILLING, Indiv. and as Ex'r of the Estate of Kirkpatrick Dilling, et al., Appellees.

No. 104049.

Supreme Court of Illinois.

April 3, 2008.

Alyssa M. Campbell, C. Barry Montgomery, Barry L. Kroll, Williams Montgomery & John Ltd., and Hall Adams III, Chicago, for appellant.

David A. Novoselsky and Leslie J. Rosen, Chicago, for appellee.

Christopher C. Dickinson, Jenner & Block LLP, Ann Hilton Fisher, Chicago, for amicus curiae Aids Legal Council of Chicago.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion:

Plaintiff, Jane Doe, filed a complaint in the circuit court of Cook County against defendants Elizabeth and Kirkpatrick Dilling, for, inter alia, fraudulent and negligent misrepresentation. A jury found for Doe on the fraudulent misrepresentation claim and awarded her $2 million in compensatory damages. The appellate court vacated the judgment entered on the jury's verdict finding defendants liable for fraudulent misrepresentation and awarding Doe compensatory damages. The appellate court affirmed the remainder of the judgment of the circuit court. 371 Ill. App.3d 151, 308 Ill.Dec. 487, 861 N.E.2d 1052. We granted leave to appeal. 210 Ill.2d R. 315. For the reasons that follow, we affirm the judgment of the appellate court, although for reasons different than those expressed by that court.

BACKGROUND

On May 4, 2000, Doe filed a nine-count complaint in the circuit court of Cook County against the estate of her late fiancé, Albert Dilling (Albert), as well as Albert's parents, Elizabeth (Betty) and Kirkpatrick (Kirk),¹ after Albert had died from acquired immune deficiency syndrome (AIDS). In the course of pretrial proceedings, Doe amended her complaint several times, including dropping Albert's estate as a defendant,² and eliminating several of the original counts. By early 2004, Doe filed a fifth amended complaint, which contained two counts directed at Betty and Kirk³ (collectively, the Dillings), which are at issue in this appeal. Doe alleged that the Dillings had intentionally and falsely stated to her that Albert was not infected with the human immunodeficiency virus (HIV) and/or suffering from AIDS when they knew that, in fact, he was HIV-positive and had AIDS. Doe also alleged a claim of negligent misrepresentation against the Dillings on these same facts. In both instances, Doe alleged that the actions of the Dillings caused her to delay the discovery that she herself was infected with HIV, resulting in physical harm to her as she was unable to obtain timely medical treatment and she now has full-blown AIDS. Doe's case was tried before a jury in spring 2004.⁴

The Trial

Doe's Case in Chief

Doe testified that she met Albert in April 1996, when she was 44 years old and he was 41. Doe, a college-educated small-business owner, had responded to a personal ad placed by Albert in a free weekly local newspaper. Doe described Albert as looking "healthy" when they first met, and the couple thereafter began to date on a steady basis. Prior to her becoming more intimate with Albert, Doe initiated a discussion with him about sexually transmitted diseases. She informed Albert that she had practiced safe sex in the past, that she had previously had an AIDS test⁵ and that she was disease-free. Doe described herself as being "very aware of sexually-transmitted diseases" and concerned that she did "not want to expose [herself] to any." Doe asked Albert if he had anything to tell her on this subject. He answered her questions and she believed his answers.⁶

Doe first kissed Albert in July 1996, and, thereafter, they had sexual intercourse using a condom in late July or early August. When Doe saw Albert naked, she noticed unusual dark-colored pigmentation on his genitalia, and she asked him about it. Albert told her that he had previously suffered from genital warts and that he had them surgically removed by cauterization. Albert explained to her that because he had worked as a landscaper he handled plant and fungal materials that contaminated not only his hands, but also areas of his body that his hands touched. Doe believed Albert's explanation. As Doe and Albert became closer, she decided to pursue her relationship with him with the intention of marrying him and having his child. With this in mind, the couple had unprotected sexual intercourse in late August 1996.

In September 1996, Doe became ill with flu-like symptoms, a very high fever, and a rash. Because the symptoms quickly resolved, Doe believed it was simply the flu. She therefore did not seek medical treatment and made no connection between these symptoms and her unprotected sexual intercourse with Albert. Doe stated that around this same time, Albert complained about having difficulty walking straight. Albert experienced dizziness and was unstable and not sure-footed.

In the fall of 1996, Albert traveled to Wyoming to purchase a bar/restaurant. Doe and Albert became engaged around the end of 1996, and Doe visited him in Wyoming in early 1997. At that time Doe found Albert looking "a little tired and worn out, thin." She asked him about his appearance and believed whatever he told her. Doe acknowledged that during this visit with Albert, she observed that he had "very dry skin, which was almost ashen looking."

During Doe's stay in Wyoming, Albert invited her to accompany him to Reno, Nevada, where he had an appointment to consult with a doctor about his health condition of heavy-metal poisoning. Doe did not visit the doctor's office with Albert, but Albert gave her a printout of lab test results from a hair analysis that had been previously performed on him, showing that he "had heavy-metals in his system."

In May 1997, Doe met Albert's parents, Kirk and Betty, for the first time, when the Dillings returned to the Chicago area from their winter residence. Kirk and Betty invited Doe and Albert to join them for dinner at their home. According to Doe, the topic of Albert's health came up during this visit. Betty told Doe that Albert had heavy-metal poisoning but that he would get well and that it was Albert's only health problem. Betty also told Doe that she and Kirk were "in charge of [Albert's] medical care," and that Kirk, by virtue of his long career as an attorney handling food and drug cases, "was a medical expert in these matters." In addition, Betty told Doe that she and Kirk were "very concerned about their son's health; that he would be just fine; that everything would be just fine."⁷ Doe believed that the Dillings were concerned about the couple's happiness together.

The subject of Albert's health was "a constant topic of conversation" between Doe and the Dillings throughout 1997 and 1998, both during discussions over the phone and in person. The Dillings repeatedly told Doe that heavy-metal poisoning was Albert's only health ailment, that he was receiving care from the right doctors and that eventually he would get well.

Approximately a week after Doe met the Dillings, Albert had to be taken to the emergency room because he suffered adverse reactions after he had injected himself with ozone.⁸ Doe believed Albert had experienced a stroke. On October 27, 1998, Albert was again taken to the emergency room, this time by ambulance. As with his earlier visit to the emergency room, he had again suffered an adverse reaction from an ozone injection. Doe again believed that Albert had suffered a stroke because he was temporarily unable to speak.

At the end of December 1998, Doe and Albert traveled to her mother's home in Michigan. During this visit Albert suffered abdominal distress that was so severe "he was screaming in pain." Doe and her mother took Albert to the local emergency room. Although Albert was treated and released, he was in such severe pain that he was unable to complete the trip home to Chicago in one day, and the couple was forced to stop overnight on the way back.

After Doe and Albert returned to Chicago from Michigan, Doe told Betty about what had happened on the trip, including the fact that Albert had showed Doe a toilet bowl full of blood. At that time Doe was "getting more and more concerned" about Albert's health, and she asked Betty about the heavy-metal poisoning and why Albert was not improving. Betty then asked Doe what Albert had eaten during the Michigan trip, and Doe responded that she had purchased some fresh cheese. Betty thought the cheese might have been spoiled, and Doe agreed that "maybe it was, and that it could be food poisoning."

Doe, however, further confided in Betty that she was anxious about the deteriorating state of Albert's health. Doe told Betty that "Albert could be more seriously ill than what you think he has with this heavy-metal poisoning. He appears to be ... if I didn't know better, I would say he almost looked like a man who has AIDS. Could he have AIDS? Is there some ... Could he be really sick? Is there something more wrong with him?" Betty answered Doe in the negative. Doe stated that this conversation occurred within the earshot of Kirk, who participated in it. Doe believed the Dillings' statements.

During 1999 Doe and Betty spoke on the phone at least every other day, and Betty continued to tell Doe that Albert was suffering from heavy-metal poisoning. During these conversations, Kirk would also often be on the speakerphone. Doe believed everything the Dillings told her. Doe cared for the Dillings and felt like she was part of the family. Doe believed that the Dillings also cared for her like a daughter-in-law, even though she and Albert were not yet married.

After Doe and Albert returned from their Michigan trip, and also around Father's Day 1999, Doe suggested to the Dillings that Albert should be evaluated by other physicians. Doe was "getting very discouraged that [Albert] wasn't getting any better" and was "frantic" about his condition. Doe specifically suggested to the Dillings that...