Duke v. Buck

• Decision Date: 17 December 2013
• Docket Number: No. 1–12–1722.,1–12–1722.
• Citation: 377 Ill.Dec. 916,2 N.E.3d 1197,2013 IL App (1st) 121722
• Parties: In re DETENTION OF Terry DUKE (Terry Duke, Plaintiff–Appellant, v. Jacqueline Buck, Ph.D., and Kimberly Weitl, Psy.D., Defendants–Appellees (Erin Busse, M.A., L.P. C. and Liberty Healthcare Corporation, Defendants)).
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 121722

2 N.E.3d 1197

377 Ill.Dec. 916

In re DETENTION OF Terry DUKE (Terry Duke, Plaintiff–Appellant, v. Jacqueline Buck, Ph.D., and Kimberly Weitl, Psy.D., Defendants–Appellees (Erin Busse, M.A., L.P. C. and Liberty Healthcare Corporation, Defendants)).

No. 1–12–1722.

Appellate Court of Illinois,

First District, Second Division.

Dec. 17, 2013.

J. Nicolas Albukerk, Albukerk & Associates, Chicago, for appellant.

John A. Ousk, Julie A. Murphy, Patton & Ryan, LLC, Chicago, for appellees.

OPINION

Justice SIMON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Terry Duke appeals from the dismissal of two counterclaim/cross-claims (counterclaims) he filed as part of proceedings relating to the Illinois Attorney General's petition to involuntarily commit plaintiff as a sexually violent person pursuant to the Sexually Violent Persons Commitment Act. 725 ILCS 207/1 et seq. (West 2002) (Act). Plaintiff alleged that defendants Dr. Jacqueline Buck, Dr. Kimberly Weitl, licensed therapist Erin Busse, and Liberty Healthcare Corporation committed medical and professional malpractice by improperly diagnosing and treating plaintiff as a sexual sadist. Plaintiff sought damages for deprivation of comfort, companionship and affection, as well as lost gains and earnings resulting from his involuntary and unjust detainment due to the misdiagnosed and/or improperly validated disorders.

¶ 2 Dr. Weitl was not served with process and did not appear. The remaining defendants moved to dismiss the counterclaims on various grounds pursuant to section 2–619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2–619 (West 2012). The circuit court granted the motions to dismiss, without prejudice. The court followed the rule announced in Lieberman v. Liberty Healthcare Corp., 408 Ill.App.3d 1102, 350 Ill.Dec. 593, 948 N.E.2d 1100 (2011), that the filing of such a claim in a commitment proceeding is precluded until a favorable termination in the underlying proceedings is reached. Plaintiff only appeals the dismissal of his counterclaims against Drs. Buck and Weitl, arguing that the circuit court improperly interpreted Lieberman in dismissing his malpractice claims and that Lieberman actually supports his right to bring malpractice claims in the underlying case. Plaintiff also argues that the circuit court erred in dismissing the counterclaim against Dr. Weitl because the court lacked jurisdiction. Dr. Buck filed an appearance with this court, filed an appellate brief, and presented oral argument. Dr. Weitl did not file an appearance or take any part in the proceedings before this court. For the following reasons, we affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 Following numerous convictions for sexual offenses and a declaration that he was a habitual sex offender, plaintiff was imprisoned at the Dixon Correctional Center in July 1984 and was scheduled to be paroled on July 5, 2002. However, pursuant to section 10 of the Act, the Illinois Department of Corrections engaged Anthony T. Schaab, Ph.D., on April 11, 2002, to conduct a clinical evaluation of plaintiff to determine if plaintiff was a sexually violent person subject to commitment. Based upon the results of the evaluation, the Attorney General filed a petition to commit plaintiff as a sexually violent person on June 26, 2002.

¶ 5 Plaintiff was transferred to the Illinois Department of Human Services Sexually Violent Persons Treatment and Detention Center in Rushville, Illinois. On December 16, 2002, the circuit court found probable cause for plaintiff's detention pending a final adjudication of the petition for commitment. Plaintiff has filed several continuances and a trial has yet to be held on the Attorney General's petition. Plaintiff remains detained under the 2002 court order.

¶ 6 On February 9, 2009, the circuit court granted the Attorney General's request to appoint Dr. Buck to conduct an updated evaluation of plaintiff because of the delays in the proceedings and Dr. Schaab's retirement. Dr. Buck submitted a report in August 2009, the Attorney General was granted leave to amend her petition, and an amended petition was filed on October 27, 2010. The amended petition incorporated the evaluation by Dr. Buck and asserted that plaintiff suffered from three mental disorders that predispose him to engage in acts of sexual violence thereby requiring his confinement.

¶ 7 Plaintiff did not file an answer to the amended petition. Instead, on August 29, 2011, plaintiff filed his counterclaim against Dr. Buck sounding in medical malpractice. On October 5, 2011, plaintiff filed his second counterclaim, naming Dr. Weitl, Busse and Liberty Healthcare as defendants. Plaintiff claimed that Dr. Weitl committed professional malpractice in diagnosing and treating plaintiff for the disorder “Paraphilia Not Otherwise Specified Sexually Attracted to Non-consenting Women/Females (‘paraphilia non-consent’).” Plaintiff alleged that Dr. Weitl indicated this disorder is addressed in the Diagnostic and Statistical Manual of Mental Disorders IV TR (DSM), but the disorder does not exist in the DSM. This issue was not dealt with by the circuit court as Dr. Weitl was not served and did not file an appearance; however, the remaining parties were served, appeared, and filed motions to dismiss plaintiff's counterclaims.

¶ 8 In her motion to dismiss pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2012)), Dr. Buck argued that plaintiff did not file the counterclaims as part of his answer or with leave of the trial court as required by sections 2–608 and 2–609 of the Code of Civil Procedure. 735 ILCS 5/2–608, 2–609 (West 2012). Both motions to dismiss also included argument that under Lieberman, which applied the “Heck Rule” derived from the United States Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), dismissal was required. Defendants argued that the Heck Rule bars parallel litigation to avoid the possibility of a successful tort action that could imply the invalidity of a sentence or conviction, as in the resolution of a commitment petition.

¶ 9 The motions were fully briefed and the circuit court heard argument. The court concluded that the issue was not complex and Lieberman holds that a counterclaim in a commitment proceeding is precluded until there is a favorable termination of the proceedings. Therefore, the circuit court dismissed the counterclaims, without prejudice. This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 A motion to dismiss pursuant to section 2–619 admits the legal sufficiency of a pleading, but asserts an affirmative defense or other matter that avoids or defeats the claim. Barber v. American Airlines, Inc., 241 Ill.2d 450, 455, 350 Ill.Dec. 535, 948 N.E.2d 1042 (2011). A section 2–619 dismissal is reviewed de novo. Id. We may affirm the dismissal of a complaint on any ground that is apparent from the record. Sherman v. Township High School District 214, 404 Ill.App.3d 1101, 1107, 344 Ill.Dec. 580, 937 N.E.2d 286 (2010).

¶ 12 Plaintiff argues on appeal that the circuit court misinterpreted the holding in Lieberman. He asserts that Lieberman actually supports advancing a malpractice claim within proceedings under the Act. Therefore, he concludes that the circuit court erred and the dismissal of his counterclaims must be reversed so that they may be heard in conjunction with the trial on the commitment petition. Plaintiff also contends that the court lacked jurisdiction when it dismissed the action against Dr. Weitl.

¶ 13 Plaintiff asserts that the circuit court misinterpreted the Lieberman decision and erred in applying it to the instant case. In Lieberman, the class action plaintiffs were adjudicated sexually violent persons and committed pursuant to the Act based on a doctor's testimony that the plaintiffs were diagnosed with paraphilia nonconsent. Lieberman, 408 Ill.App.3d at 1104, 350 Ill.Dec. 593, 948 N.E.2d 1100. As in this case, the plaintiffs claimed that the defendants committed medical malpractice by negligently diagnosing a disorder that did not exist in the DSM. Id. at 1106, 350 Ill.Dec. 593, 948 N.E.2d 1100. The defendants' motion to dismiss the complaint was granted based on the doctrine of collateral estoppel. Id. at 1107–08, 350 Ill.Dec. 593, 948 N.E.2d 1100.

¶ 14 On appeal, the Lieberman court applied the holding in Heck that, in order to recover damages, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 U.S. at 486–87, 114 S.Ct. 2364. The Lieberman court found that the Heck Rule applied to the plaintiffs as they were confined by virtue of the adjudications under the Act and their malpractice actions challenged the diagnoses underlying their confinement. Lieberman, 408 Ill.App.3d at 1112, 350 Ill.Dec. 593, 948 N.E.2d 1100. Because the plaintiffs were collaterally attacking their confinement by alleging medical malpractice without challenging the confinement, “[o]nly after the favorable termination of plaintiffs' confinements may they pursue their claim for money damages.” Id. at 1112–13, 350 Ill.Dec. 593, 948 N.E.2d 1100.

¶ 15 Plaintiff argues that the application of Lieberman to his case would violate his due process rights because he would not be able to bring his medical malpractice claim until after the statute of limitations had run on his claim. Plaintiff quotes Lieberman for the proposition that he “could have, and likely should have, raised that [medical malpractice] issue before the trial court

” (emphasis in original). See id. at 1109, 350 Ill.Dec. 593, 948 N.E.2d 1100. Plaintiff claims that the Lieberman court recognized that the issues of confinement and malpractice should have been considered together so the...