Lieberman v. Liberty Healthcare Corp.., 4–10–0404.

• Decision Date: 11 April 2011
• Docket Number: No. 4–10–0404.,4–10–0404.
• Citation: 350 Ill.Dec. 593,948 N.E.2d 1100,408 Ill.App.3d 1102
• Parties: Brad LIEBERMAN, John Loy, and Harold Penter, Individually and on Behalf of Others Similarly Situated, Plaintiffs–Appellants,v.LIBERTY HEALTHCARE CORPORATION, a Pennsylvania Corporation; Mark Babula, Psy.D.; David Brillhart, Ph.D; Paula Lodge, Ph.D.; Chad Oberhausen, Psy.D.; Abdi Tinwalla, M.D.; Shan Jumper, Ph.D.; Michael P. Bednarz, M.D.; David Suire, Psy.D.; Robert Brucker, Jr., Psy.D.; Jacqueline Buck, Ph.D.; and Does 1 Through 20 Inclusive, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

408 Ill.App.3d 1102

948 N.E.2d 1100

350 Ill.Dec. 593

Brad LIEBERMAN, John Loy, and Harold Penter, Individually and on Behalf of Others Similarly Situated, Plaintiffs–Appellants,

v.LIBERTY HEALTHCARE CORPORATION, a Pennsylvania Corporation; Mark Babula, Psy.D.; David Brillhart, Ph.D; Paula Lodge, Ph.D.; Chad Oberhausen, Psy.D.; Abdi Tinwalla, M.D.; Shan Jumper, Ph.D.; Michael P. Bednarz, M.D.; David Suire, Psy.D.; Robert Brucker, Jr., Psy.D.; Jacqueline Buck, Ph.D.; and Does 1 Through 20 Inclusive, Defendants–Appellees.

No. 4–10–0404.

Appellate Court of Illinois, Fourth District.

April 11, 2011.

Giel Stein (argued), Stein Law Group LLC, J. Nicholas Albukerk, Albukerk & Associates, Chicago, for Brad Lieberman.Karen L. Kendall, Craig L. Unrath (argued), Theresa M. Powell, David M. Walter, Heyl, Royster, Voelker & Allen, Peoria, for Liberty Healthcare Corporation.Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Eric Truett, Assistant Attorney General (argued), for Michael P. Bednarz, M.D.

[350 Ill.Dec. 594 , 408 Ill.App.3d 1103] OPINION

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

In July 2009, plaintiffs, Brad Lieberman, John Loy, and Harold Penter filed a class-action complaint against defendants, Liberty Healthcare Corporation, Mark Babula, David Brillhart, Paula Lodge, Chad Oberhausen, Abdi Tinwalla, Shan Jumper (Liberty defendants), Michael P. Bednarz, M.D., David Suire, Robert Brucker, Jr., Jacqueline Buck, and Does 1 through 20 (State defendants), requesting monetary damages. Plaintiffs had previously been adjudicated sexually violent persons (SVP) pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2008)) and committed to the Department of Human Services (DHS). Plaintiffs' complaint alleged defendants committed professional malpractice by diagnosing plaintiffs with paraphilia not otherwise specified, sexually attracted to nonconsenting persons (paraphilia NOS, nonconsent).

In April 2010, the trial court dismissed plaintiffs' complaint with prejudice under section 2–619(a)(4) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2–619(a)(4) (West 2008)) on the ground it was collaterally estopped by each of their prior civil-commitment trial findings.

Plaintiffs appeal, arguing the trial court erred in dismissing their complaint on the basis of collateral estoppel where (1) the alleged malpractice did not occur until after plaintiffs' initial commitment trials ended, (2) the posttrial diagnoses and validations are separate and distinct conduct from the acts of those who diagnosed plaintiffs with the same disorder before their trials, and (3) those prior trials did

[350 Ill.Dec. 595 , 948 N.E.2d 1102]

not litigate the propriety of diagnoses and validations that had not yet occurred. We affirm as modified and remand with directions.

I. BACKGROUND

A. The Plaintiffs

An examination of the histories of each plaintiffs' individual case is helpful in examining the ultimate issue in plaintiffs' instant appeal.

1. Brad Lieberman

In 1980, a jury found Brad Lieberman guilty of six counts of rape. Later that year, Lieberman was found guilty of rape and attempted rape. The trial court sentenced Lieberman to a number of concurrent prison terms, the longest of which required him to serve 40 years' imprisonment. See In re Detention of Lieberman, 379 Ill.App.3d 585, 586, 318 Ill.Dec. 605, 884 N.E.2d 160, 164 (2007).

In February 2006, Lieberman was adjudicated a sexually violent person and committed to the Illinois Department of Human Services (DHS). Lieberman, 379 Ill.App.3d at 586, 318 Ill.Dec. 605, 884 N.E.2d at 164. The commitment petition alleged Lieberman suffered from mental disorders, which made it probable that he would commit future acts of sexual violence. Lieberman, 379 Ill.App.3d at 586, 318 Ill.Dec. 605, 884 N.E.2d at 164. At hearing, a doctor testified diagnosing defendant with paraphilia NOS, nonconsent. Lieberman, 379 Ill.App.3d at 588, 318 Ill.Dec. 605, 884 N.E.2d at 166. Lieberman appealed, arguing, inter alia, the State's experts' opinions and diagnoses did not meet the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM) and they relied solely on his past crimes to diagnose him. Lieberman, 379 Ill.App.3d at 602, 318 Ill.Dec. 605, 884 N.E.2d at 177. The appellate court affirmed. Both the Illinois and United States Supreme Courts denied his petition for leave to appeal. In re Detention of Lieberman, 229 Ill.2d 623, 325 Ill.Dec. 4, 897 N.E.2d 252 (2008); Lieberman v. Illinois, ––– U.S. ––––, 129 S.Ct. 2050, 173 L.Ed.2d 1132 (2009).

In July 2008, Lieberman filed a petition for discharge in conjunction with his annual disposition hearing. See In re Detention of Lieberman, 401 Ill.App.3d 903, 905, 340 Ill.Dec. 965, 929 N.E.2d 616, 618 (2010). The trial court dismissed the petition, finding no probable cause existed to show Lieberman was no longer a sexually violent person. Lieberman, 401 Ill.App.3d at 920, 340 Ill.Dec. 965, 929 N.E.2d at 629. Lieberman appealed, arguing again that paraphilia NOS, nonconsent, is not a valid disorder because it is not found within the DSM. Lieberman, 401 Ill.App.3d at 922, 340 Ill.Dec. 965, 929 N.E.2d at 630–31. In May 2010, the appellate court affirmed the dismissal of the petition for discharge. In September 2010, the supreme court vacated the appellate court's judgment and remanded the case to the appellate court for reconsideration in light of its decision in In re Detention of Hardin, 238 Ill.2d 33, 342 Ill.Dec. 555, 932 N.E.2d 1016 (2010) (clarifying the evidentiary standard for probable cause). See In re Detention of Lieberman, 237 Ill.2d 557, 343 Ill.Dec. 507, 935 N.E.2d 515 (2010). It appears the cause is currently pending in the First District Appellate Court.

2. John Loy

In 1982, John Loy was convicted of rape and sentenced to 30 years' imprisonment. In August 2005, the Knox County circuit court adjudicated Loy a sexually violent person and committed him to DHS. In re Detention of Loy, No. 01–MR–03 (Cir. Ct. Knox Co.). The State's petition alleged Loy suffered from paraphilia NOS, nonconsent. The State's supplemental appendix

[350 Ill.Dec. 596 , 948 N.E.2d 1103]

shows that in February 2009, Loy filed a petition for discharge, arguing the nonexistence of paraphilia NOS, nonconsent, as a valid diagnosis. The trial court dismissed Loy's petition. From the information contained in the State's supplemental appendix it does not appear Loy has appealed the trial court's dismissal of his petition for discharge.

In December 2009, Loy filed a motion for a new trial, which the trial court denied in April 2010. In May 2010, Loy filed a notice of appeal from the trial court's April 30, 2010, denial of his motion for a new trial and the initial August 2005 SVP finding. It appears Loy's appeal from the court's denial of his motion for a new trial is currently pending in the Third District Appellate Court, No. 3–10–0366.

3. Harold Penter

In June 1999, Harold Penter pleaded guilty to aggravated criminal sexual abuse and the trial court sentenced him to 10 years' imprisonment. In April 2006, the State filed a petition to involuntarily commit Penter under the Act. In July 2009, Penter was adjudicated a sexually violent person and committed to DHS. Both parties state an appeal involving Penter is currently pending in the Fifth District Appellate Court, No. 5–10–0233. However, the faxed copy of the docket sheet contained in the record is incomplete as it appears to be missing a page. That missing page appears to be included in the State's supplemental appendix but is illegible.

B. Plaintiffs' Complaint

In July 2009, plaintiffs filed an eight-count complaint, alleging defendants committed medical malpractice by negligently diagnosing and/or validating a disorder (paraphilia NOS, nonconsent) that does not exist in the DSM and improperly based their diagnoses solely on past criminal behavior. Each count alleges the following with respect to proximate cause and damages:

“As a direct and proximate result of one or more of the foregoing careless and negligent acts or omissions of [defendants], Plaintiffs suffered severe and permanent damage in that they have been involuntarily and unjustly detained, sometimes for years, at the [detention facility]; deprived of the comforts, companionship, and affection attendant to living as free men with their families; and lost various gains and earnings they would otherwise have acquired but for their detention on the bases of a misdiagnosed and/or improperly validated paraphilia non-consent disorder.”

Plaintiffs have maintained the action does not challenge whether plaintiffs should be detained, nor does it seek their release from detention. Instead, they emphasize this is a civil action that seeks to financially compensate plaintiffs for harm caused them by the defendants' professional malpractice. If plaintiffs prevail, their sole relief would be the monetary value of the time they have spent, and may continue spending, in detention on the basis of an allegedly nonexistent and improperly diagnosed mental disorder. Plaintiffs' complaint also requested damages “including but not limited to lost income and other earnings, loss of consortium, loss of society, and pain and suffering.”

C. Defendants' Motion To Dismiss

In September and October 2009, the State and Liberty defendants moved to dismiss plaintiffs' complaint under sections 2–615 and 2–619 of the Civil Code. Defendants argued, inter alia, (1) collateral estoppel barred plaintiffs from relitigating whether they have been unjustly detained or suffered damages, (2) there was no physician-patient relationship with plaintiffs because they never consented to being

[350 Ill.Dec. 597 , 948 N.E.2d 1104]

evaluated, diagnosed, or treated, (3) their negligence could not be the proximate cause of plaintiffs' injury because of the valid judgment of commitment,...