NO. 4-10-0404 Opinion Filed 4/11/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
BRAD LIEBERMAN, JOHN LOY, and HAROLD ) Appeal from PENTER, Individually and on Behalf of ) Circuit Court of Others Similarly Situated, ) Schuyler County Plaintiffs-Appellants, ) No. 09MR10 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 ) Honorable Does 1 Through 20 Inclusive, ) Scott J. Butler, Defendants-Appellees. ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Appleton concurred in the judgment and opinion.
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 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
- 2 - 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, 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, 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, 884 N.E.2d at 164. At hearing, a doctor testified
diagnosing defendant with paraphilia NOS, nonconsent. Lieberman,
379 Ill. App. 3d at 588, 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, 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, 897 N.E.2d 252 (2008); Lieberman v. Illinois, ___
U.S. ___, 129 S. Ct. 2050 (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, 929 N.E.2d
- 3 - 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, 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, 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, 932
N.E.2d 1016 (2010) (clarifying the evidentiary standard for
probable cause). See In re Detention of Lieberman, 237 Ill. 2d
557 (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
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
- 4 - 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
- 5 - 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
- 6 - "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 evaluated, diagnosed, or
treated, (3) their negligence could not be the proximate cause of
plaintiffs’ injury because of the valid judgment of commitment,
and (4) the complaint did not comply with the section 2-622(a)
affidavit and report requirements. Defendants also argued (1)
they were immune from suit under statutory and common law and
sovereign immunity and (2) the "Heck rule" supported their
collateral-estoppel argument and should be adopted as Illinois
law. See Heck v. Humphrey, 512 U.S. 477 (1994) (finding 42
U.S.C. §1983 plaintiffs may not recover damages for unlawful
detention prior to a favorable termination of the judgment
authorizing the detention).
D. Plaintiffs’ Response to Defendant’s Motion To Dismiss
Plaintiffs argued collateral estoppel did not apply to
this case because (1) the issue of whether any physician involved
with the plaintiffs’ civil commitment negligently committed
professional malpractice was neither litigated nor decided at the
- 7 - plaintiffs’ commitment trials, and (2) the issue of whether the
DSM ever recognized paraphilia NOS, nonconsent, as a legitimate
diagnosis was neither litigated nor decided during their
commitments trials. Plaintiffs conceded all three plaintiffs
assumed during their commitment trials the disorder existed in
the DSM, as the State evaluators said it did. Plaintiffs argued
that while they have litigated in fact whether the disorder
satisfied the diagnostic criteria of the DSM, the question of its
existence in the DSM is different.
E. Trial Court’s Ruling
Following an April 30, 2010, hearing, the trial court
granted defendants’ motions to dismiss plaintiffs’ complaint with
prejudice. The court found the issue of whether plaintiffs have
a mental disorder and are substantially probable to engage in
acts of sexual violence was already litigated in each plaintiff’s
commitment trial. Specifically, the trial court found the
following:
"Plaintiffs are seeking damages solely
due to their detention for lost income and
other earnings, loss of consortium, loss of
society, and pain and suffering.
Under Section 2-619 of the [Civil Code,]
the defendants are seeking dismissal with
prejudice of the complaint based on the
doctrine of collateral estoppel. The
Illinois Supreme Court recently explained
- 8 - collateral estoppel in People v. Hopkins,
[235 Ill. 2d 453, 922 N.E.2d 1042 (2009),] as
a doctrine that’s applicable when a party
participates in two different consecutive
causes of action and some controlling
question has been adjudicated against that
party by a court of competent jurisdiction.
The Court finds that the plaintiffs have
participated in a prior case which arises on
a different cause of action, and in that I’m
referring to, specifically, to the SVP case.
And the Court finds that there is a
controlling question material to the outcome
of that prior case that has already been
adjudicated against the plaintiffs. And I’m
referring to the question of whether or not
the plaintiffs have been properly diagnosed
as suffering from a mental disorder that
makes it substantially probable that the
plaintiffs will engage in acts of sexual
violence.
The fact that certain evidence or
certain arguments, even though important
evidence or important arguments, could have
been made during the SVP case does not affect
the collateral estoppel analysis that the
- 9 - Court’s going through in this proceeding.
Therefore, the Court’s going to grant
the defendant’s [sic] Motion to Dismiss with
prejudice on the basis of collateral
estoppel."
This appeal followed.
II. ANALYSIS
On appeal, plaintiffs argue the trial court erred in
ruling plaintiffs’ claim was collaterally estopped by plaintiffs’
prior civil commitment judgments. Specifically, plaintiffs
contend collateral estoppel is not proper because (1) the
malpractice alleged--i.e., the negligent diagnoses and/or
validation of paraphilia NOS, nonconsent--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 the plaintiffs with
that same disorder before their trials, and (3) those prior
trials did not litigate the propriety of diagnoses and
validations that had not yet occurred.
Defendants argue (1) the trial court properly applied
collateral estoppel to dismiss plaintiffs’ complaint, (2)
plaintiffs’ malpractice claim relitigates issues of law and fact
already decided in their respective SVP cases, (3) plaintiffs’
continued commitments are interconnected with the judgments
authorizing commitment, and (4) plaintiffs are litigating
identical issues in parallel proceedings.
- 10 - In the alterative, defendants request we adopt the rule
announced in Heck, 512 U.S. 486-87, and remand the case to the
trial court with directions to dismiss the complaint without
prejudice. Defendants maintain under the Heck rule, each
plaintiff's cause of action could move forward if his commitment
is invalidated.
A. Standard of Review
The standard of review of a section 2-615 or 2-619
dismissal order is de novo. Neppl v. Murphy, 316 Ill. App. 3d
581, 583-84, 736 N.E.2d 1174, 1178 (2000). The applicability of
the collateral-estoppel doctrine is a purely legal question,
which is also subject to de novo review. People v. Sutherland,
223 Ill. 2d 187, 197, 860 N.E.2d 178, 192 (2006).
B. Collateral Estoppel
Collateral estoppel, commonly known as issue
preclusion, precludes a party from relitigating an issue already
decided in a prior proceeding. Herzog v. Lexington Township, 167
Ill. 2d 288, 294, 657 N.E.2d 926, 929 (1995). The doctrine
applies where
"(1) the issue decided in the prior
adjudication is identical with the one
presented in the suit in question, (2) there
was a final judgment on the merits in the
prior adjudication, and (3) the party against
whom estoppel is asserted was a party *** to
the prior adjudication." Gumma v. White, 216
- 11 - Ill. 2d 23, 38, 833 N.E.2d 834, 843 (2005).
Here, the issue in the instant case, whether paraphilia
NOS, nonconsent, is a qualifying condition for commitment, was
also at issue in each commitment case. We are unpersuaded by
plaintiffs’ attempt to argue the issues in the trial court are
too attenuated to be precluded from consideration in the instant
case. Plaintiffs contend that while they have litigated whether
the disorder satisfied the diagnostic criteria of the DSM, the
question of its existence in the DSM is different. However,
plaintiffs could have, and likely should have, raised that
specific issue before the trial court. They did not. We note
plaintiffs are free to file a petition for discharge or a writ of
habeas corpus based on the argument they are being illegally held
on an invalid nonexistent diagnosis.
Further, plaintiffs are clearly the same parties as in
the prior commitment cases and the trial courts in each case made
a final judgment on the merits. For purposes of applying the
doctrine of collateral estoppel, however, a judgment is not final
until the potential for appellate review has been exhausted.
Hopkins, 235 Ill. 2d. at 469, 922 N.E.2d at 1050-51 (citing In re
A.W., 231 Ill. 2d 92, 100, 896 N.E.2d 316, 321 (2008)). The
trial court predicated its ruling on plaintiffs’ initial
commitment adjudications. As a result, a determination of
whether plaintiffs’ initial commitment rulings were appealed, and
if so, whether the appellate process has been exhausted, is
essential to the proper resolution of the collateral-estoppel
- 12 - issue.
We note that while the trial court found collateral
estoppel applied, it did so based upon the arguments and
information presented to it. However, the record does not show
plaintiffs raised the issue of the nonfinality of their judgments
in the trial court to argue against collateral estoppel. With
the exception of Lieberman, whose appellate review of the initial
commitment case has been exhausted by virtue of the supreme
court’s denial of his petition for leave to appeal, the record is
unclear as to the other two plaintiffs.
For example, while it appears Loy filed a 2009 motion
for a new trial, it is unclear whether he took a timely direct
appeal from the 2005 ruling. Further, in July 2009, Penter was
adjudicated an SVP and committed to DHS. In May 2010, the trial
court denied his motion for a new trial. While both parties
state an appeal involving Penter is currently pending in the
Fifth District Appellate Court, the record is inadequate to make
this determination. The faxed copy of Penter’s docket sheet
contained in the record is incomplete, and the missing page
contained in the State’s supplemental appendix is illegible.
This lack of clarity regarding the finality of
plaintiffs’ judgments notwithstanding, a trial court’s order
dismissing a case may be affirmed on any reason in the record,
regardless of whether the court relied upon such ground. See
Wright v. City of Danville, 174 Ill. 2d 391, 399, 675 N.E.2d 110,
115 (1996).
- 13 - C. The Heck Rule
In their motion to dismiss below, and again before this
court in response to plaintiffs’ arguments on appeal, defendants
request we adopt the Heck rule and remand the case to the trial
court with directions to dismiss the complaint without prejudice.
Defendants maintain under the Heck rule, plaintiffs’ cause of
action could move forward once they were no longer committed.
In Heck, the United States Supreme Court established
that a section 1983 (42 U.S.C. §1983 (1994)) claim calling into
question the lawfulness of a plaintiff’s conviction or
confinement is not cognizable until the conviction or confinement
has been invalidated. Heck, 512 U.S. at 483. In Heck, the
plaintiff was convicted in state court of voluntary manslaughter,
which he appealed. Heck, 512 U.S. at 478-79. Thereafter, the
plaintiff filed a pro se section 1983 claim in United States
District Court against the prosecutors and a police investigator
alleging an unlawful investigation led to his arrest and the
defendants knowingly destroyed exculpatory evidence. Heck, 512
U.S. at 479. The plaintiff sought, inter alia, compensatory and
punitive damages but did not seek injunctive relief or release
from custody. Heck, 519 U.S. at 479. The district court
dismissed the complaint with prejudice because it raised issues
directly implicating the legality of the plaintiff’s confinement.
Heck, 512 U.S. at 479. The plaintiff appealed. While his appeal
was pending, the state supreme court affirmed his conviction and
- 14 - sentence on direct appeal. Heck, 519 U.S. at 479. The Seventh
Circuit affirmed the district court’s dismissal of the
plaintiff’s 1983 claim, finding the action challenged the
legality of his conviction. Heck, 519 U.S. at 479-80. The
United States Supreme Court affirmed and held the following:
"[I]n order to recover damages for *** harm
caused by actions whose unlawfulness would
render a conviction or sentence invalid, a
§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
authorized to make such determination, or
called into question by a federal court's
issuance of a writ of habeas corpus,
[citation]." Heck, 512 U.S. at 486-87.
A section 1983 "claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable." (Emphasis omitted.) Heck, 512
U.S. at 487. A court must dismiss a section 1983 claim if a
judgment in the plaintiff's favor "would necessarily imply the
invalidity of his conviction or sentence." Heck, 512 U.S. at
487. The Heck rule avoids parallel litigation--specifically, a
collateral attack on an otherwise unchallenged judgment--and
precludes the possibility of a successful tort action that would
contravene strong judicial policy against the creation of two
- 15 - conflicting resolutions. Heck, 512 U.S. at 487. Plaintiffs
argue Heck does not apply to suits brought by civil detainees.
We disagree. "Heck applies to SVPA detainees with access to
habeas relief." Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140
(9th Cir. 2005); see also Hubbs v. Alamao, 360 F. Supp. 2d 1073,
1080 (C.D. Cal. 2005) (finding Heck barred the plaintiff’s claim
the evaluating psychologist committed medical malpractice when
she relied on false information to recommend SVP commitment where
the allegations implied the invalidity of his lawful commitment).
Here, each plaintiff is confined by virtue of his SVP
adjudication. In addition, each has the ability to file a writ
of habeas corpus.
Further, an action under section 1983 is similar to the
common-law tort of malicious prosecution, which requires the
plaintiff to prove the "termination of the prior criminal
proceeding in favor of the accused." Heck, 512 U.S. at 484.
While not yet formally adopted in Illinois to apply to civil
cases, Heck is not incompatible with such application. For
example, the Indiana Court of Appeals, applying Heck, found a
defendant was not entitled to damages for false imprisonment
where his conviction had not been overturned. See Scruggs v.
Allen County/City of Fort Wayne, 829 N.E.2d 1049, 1051 (Ind. Ct.
App. 2005). Further, in Yount v. Sacramento, 183 P.3d 471 (Cal.
2008), the California Supreme Court stated, although Heck is a
rule of federal law applying to federal causes of actions
challenging the validity of state convictions, it could not think
- 16 - of a reason to distinguish between a section 1983 and a tort
claim. Yount, 183 P.3d at 484 (pointing out the similarities
between a section 1983 claim and a tort action). We find nothing
preventing the application of the Heck rule to the facts of this
case.
While this appears to be a case of first impression in
Illinois, we find additional guidance from the treatment of
legal-malpractice cases within the state. In Illinois, legal-
malpractice claims are already treated in a manner consistent
with Heck. See Paulsen v. Cochran, 356 Ill. App. 3d 354, 358-59,
826 N.E.2d 526, 530 (2005) (First District finding a defendant
must show his conviction had been favorably terminated before he
can maintain a malpractice claim against his former attorney);
see also Kramer v. Dirksen, 296 Ill. App. 3d 819, 821, 695 N.E.2d
1288, 1290 (1998) (First District finding a plaintiff must prove
his innocence before he may recover for his criminal defense
attorney’s malpractice (citing Levine v. Kling, 123 F.3d 580, 582
(7th Cir. 1997))). Similarly, the Fifth District Appellate
Court, comprised of panel members from this court, has previously
held a legal-malpractice cause of action does not accrue until
the plaintiff’s conviction is overturned. See Griffin v.
Goldenhersh, 323 Ill. App. 3d 398, 406, 752 N.E.2d 1232, 1240
(2001) (and the cases cited therein).
In this case, plaintiffs are attempting to collaterally
attack their lawful confinement by alleging medical malpractice
in their SVP diagnoses without challenging their underlying
- 17 - confinement. Clearly, a successful claim would be inconsistent
with their lawful commitments. The adoption of the Heck scheme
here avoids the inconsistent effect of awarding money damages for
unlawful detention to lawfully confined plaintiffs. Such a
result is also consistent with a long-standing judicial policy of
avoiding conflicting judgments. While plaintiffs maintain any
award would not necessarily imply the invalidity of their
continued confinement, "[i]t is irrelevant that [the plaintiff]
disclaims any intention of challenging his conviction; if he
makes allegations that are inconsistent with the convictions
having been valid, Heck kicks in and bars his civil suit." Okoro
v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003).
Here, no matter how you color it, plaintiffs appear to
be asking for a declaration that their commitments were wrongly
decided. Plaintiffs’ success in this action would implicitly
question the validity of their commitment proceedings. Moreover,
we can reasonably foresee a scenario not long down the road
wherein any monetary award would in turn be used by plaintiffs to
buttress a claim they were wrongfully committed in the first
place. However, plaintiffs cannot use their malpractice
complaint as a vehicle for mounting a collateral, or indirect,
attack on commitment determinations that have not been reversed.
See Heck, 512 U.S. at 486. Instead, the better way to proceed is
to directly appeal from the denial of a petition for discharge or
to file a writ of habeas corpus. Only after the favorable
termination of plaintiffs’ confinements may they pursue their
- 18 - claim for money damages. Accordingly, while we affirm the
judgment of the trial court, the dismissal should be without
prejudice.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment as modified and remand with directions to enter a
dismissal without prejudice.
Affirmed as modified; cause remanded with directions.
- 19 -