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                                 Appellate Court                         Date: 2017.07.12
                                                                         13:03:36 -05'00'




                      Phifer v. Gingher, 2017 IL App (3d) 160170



Appellate Court       VANETTA L. PHIFER, Plaintiff, v. PHYLLIS M. GINGHER,
Caption               Defendant-Appellee (Matthew D. Ports, Contemnor-Appellant).



District & No.        Third District
                      Docket No. 3-16-0170


Rule 23 order filed   January 18, 2017
Motion to publish
allowed               March 30, 2017
Opinion filed         March 30, 2017



Decision Under        Appeal from the Circuit Court of Peoria County, No. 13-L-242; the
Review                Hon. Katherine Gorman, Judge, presiding.



Judgment              Affirmed and remanded.


Counsel on            Matthew D. Ports, of Pfaff, Gill & Ports, Ltd., of Chicago, for
Appeal                appellants.

                      Adam P. Chaddock, of Quinn Johnston Henderson Pretorius &
                      Cerulo, of Peoria, for appellee.



Panel                 JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                      Presiding Justice Holdridge and Justice O’Brien concurred in the
                      judgment and opinion.
                                              OPINION

¶1        Plaintiff filed a complaint against defendant seeking damages for “great pain and anguish
     both in mind and body” resulting from an automobile collision in 2012. During the production
     of pretrial discovery, defendant filed multiple motions to compel plaintiff to produce plaintiff’s
     mental health records. Plaintiff resisted the discovery requests by asserting the records were
     privileged under the Mental Health and Developmental Disabilities Confidentiality Act. 740
     ILCS 110/1 et seq. (West 2012).
¶2        Following an in camera review of plaintiff’s mental health records, the court ordered
     plaintiff to produce the records for defendant’s review on January 4, 2016. Plaintiff’s counsel
     (contemnor) refused to produce his client’s mental health records and requested to be held in
     indirect civil contempt to facilitate appellate review of the trial court’s pretrial discovery
     ruling. Therefore, the trial court found contemnor in civil contempt. Contemnor appeals the
     trial court’s contempt finding.

¶3                                              FACTS
¶4       On August 21, 2012, a vehicle operated by Phyllis M. Gingher (defendant) struck the back
     of Vanetta L. Phifer’s (plaintiff) vehicle on Knoxville Avenue in Peoria, Illinois. On
     September 4, 2013, plaintiff filed a complaint alleging defendant negligently operated her
     vehicle and caused plaintiff to sustain “serious and permanent injuries.” Plaintiff’s complaint
     alleged that due to defendant’s negligence plaintiff “suffered great pain and anguish both in
     mind and body and will in the future continue to suffer.” On November 20, 2013, defendant
     answered plaintiff’s complaint by denying she drove negligently on the date in question.
¶5       On November 19, 2013, defendant issued interrogatories that are relevant to this appeal.
     Defendant’s interrogatory No. 10 requested plaintiff to “State the name and address of any
     physician or other health care professional who examined and / or treated you within the last 10
     years and the reason for such examination and / or treatment.” Plaintiff answered: “Unknown.”
¶6       Defendant’s interrogatory No. 11 asked if plaintiff was claiming “any psychiatric,
     psychological and / or emotional injuries as a result of this occurrence?” If so, in subparagraph
     (a) of defendant’s interrogatory No. 11 defendant requested plaintiff to disclose the name of
     any health care professional rendering treatment for plaintiff’s injuries. Plaintiff affirmatively
     responded to defendant’s interrogatory No. 11 by listing Dr. Lisa Watt and Lisa Bresnahan.
     Subparagraph (b) of Defendant’s interrogatory No. 11 asked whether plaintiff “suffered any
     psychiatric, psychological and/or emotional injury prior to the date of the occurrence” in 2012.
     (Emphasis added.)
¶7       Plaintiff’s deposition took place on March 28, 2014. During this deposition, plaintiff
     disclosed that she sustained a closed head injury as a result of the August 21, 2012, collision.
     Plaintiff claimed that as a result of the head injury she sustained in the collision, she had
     current difficulties with memory and multitasking, headaches, crying spells, and fears
     associated with traveling in a vehicle and residing in the area near where the collision occurred.
     In addition, following the collision plaintiff suffered from lower professional confidence,
     slower thinking, lower energy levels, inability to focus, and recently suffered panic attacks.




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¶8          According to her deposition testimony, plaintiff went to see Lisa Bresnahan for
       psychological issues after the 2012 collision. Plaintiff also stated Dr. Lisa Watt conducted
       cognitive testing on plaintiff as part of Watt’s evaluation after the August 21, 2012, collision.
¶9          On September 25, 2014, the parties conducted the discovery deposition of Lisa Bresnahan,
       a licensed clinical social worker and counselor employed by the Saint Francis Medical Center
       in Peoria, Illinois. Bresnahan explained that she provided professional services to plaintiff for
       several months after the 2012 collision. According to Bresnahan, following the accident,
       plaintiff sought treatment for ongoing difficulties with multitasking and remembering details.
       Bresnahan stated plaintiff suffered from headaches, anxiety, and showed signs of depression.
¶ 10        The deposition of Dr. Lisa Watt, a neuropsychologist, also took place on September 25,
       2014. Watt explained that after the 2012 accident, she gave plaintiff a multitude of tests to
       measure and gauge plaintiff’s cognitive abilities. In terms of a diagnosis, Watt explained that
       plaintiff had many indicators supporting the conclusion that she suffered from a traumatic head
       injury. These indicators included headaches and cognitive inefficiency that caused difficulty
       with learning, recall, and a reduced attention span.
¶ 11        On November 5, 2014, defendant issued supplemental interrogatories. Defendant’s
       supplemental interrogatory No. 1, requested plaintiff “State the names and addresses of all
       physicians, surgeons, or other healers of every description who have either examined or treated
       the Plaintiff at any time for mental health reasons, including, but not limited to anxiety and
       depression. Give the dates of all such examinations and periods of treatment in each case.” In
       response, plaintiff indicated that she would obtain these past medical records to determine
       whether or not to produce them or file a privilege log.
¶ 12        Defendant’s supplemental interrogatory No. 2 requested plaintiff to “State the names and
       addresses of all physicians, surgeons, or other healers of every description who have either
       examined or treated the Plaintiff in the 20 years prior to the occurrence for any physical
       ailment. Give the dates of all such examinations, the reasons for treatment, and periods of
       treatment in each case.” Plaintiff objected to defendant’s supplemental interrogatory No. 2 on
       grounds that the interrogatory was, inter alia, overbroad and irrelevant.
¶ 13        On February 17, 2015, defendant filed a motion to compel plaintiff to produce the names of
       both medical and mental health personnel that treated plaintiff prior to the collision in 2012.
       On March 12, 2015, the trial court granted defendant’s motion to compel. Following this
       ruling, plaintiff disclosed the names and addresses of the following medical and mental health
       care providers: Dr. Edward Morris, Vivian Short, Moses Cone, Theresa Williams, Sara Rose,
       Dr. Leon Chandler, Carey Davies, Dr. Susan Ladd, Dr. Joseph Narins, Dr. Haywood, Dr.
       Stringer, and Dr. Veita Bland.
¶ 14        On July 22, 2015, defendant filed a second motion to compel seeking signed authorizations
       from plaintiff to facilitate the release of plaintiff’s prior out-of-state mental health records.
       Subsequently, plaintiff filed her Illinois Supreme Court Rule 213(f)(1) and (2) disclosures on
       September 14, 2015. Ill. S. Ct. R. 213(f)(1), (2) (eff. Jan. 1, 2007). Plaintiff’s Rule 213(f)(2)
       independent expert witness disclosure indicated Dr. Lisa Watt and Lisa Bresnahan would
       testify about “their personal knowledge of the facts at issue in this case, including their care
       and treatment of the Plaintiff, their prognoses, the damages incurred as a result of the incident,
       including past and future medical expenses, past and future pain and suffering, past and future
       disability and disfigurement, and other subjects discussed (or to be discussed) in their
       depositions and/or contained in their medical records.”

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¶ 15       The trial court held a hearing on November 17, 2015, on defendant’s second motion to
       compel filed on July 22, 2015. During this hearing, plaintiff argued the medical and mental
       health records at issue in the second motion to compel were privileged records pursuant to the
       provisions of the Mental Health and Developmental Disabilities Confidentiality Act (Act). 740
       ILCS 110/1 et seq. (West 2012). On this basis, plaintiff opposed the entry of an order
       compelling plaintiff to produce these mental health records pertaining to mental health
       treatment she received before the collision in 2012.
¶ 16       At the conclusion of the hearing, the trial judge granted defendant’s second motion to
       compel dated July 22, 2015, and ordered production of plaintiff’s mental health records related
       to treatment received prior to 2012. The court ordered production solely for the purpose of
       allowing an in camera review by the court. The court’s written order dated November 17,
       2015, instructed plaintiff to “sign authorizations for or otherwise produce to the Court for in
       camera review the medical and/or mental health records from the providers sought by
       Defendant; the Court to contact counsel following in camera review for determination of
       which documents, if any are discarded.”
¶ 17       As ordered, plaintiff produced the out-of-state medical and/or mental health records for the
       purpose of an in camera review by the court. On December 16, 2015, the trial court conducted
       a telephonic hearing with the parties and reported the results and ruling of the court following
       the in camera inspection. The court’s ruling is embodied in an order entered by the court on
       January 4, 2016. The order issued on January 4, 2016, required plaintiff “to produce to the
       Defendant within 28 days all of the records produced by Plaintiff to the Court for in-camera
       review and evaluation except for the first page of Exhibit 44A, being page 10 of 188.”
¶ 18       Plaintiff’s counsel refused to produce the records as ordered by the court on January 4,
       2016. On February 3, 2016, defendant filed a third motion to compel, which included a request
       for sanctions for non-production by plaintiff. In response, plaintiff’s counsel admitted the
       records were not timely produced and asked to be held in friendly contempt of the court for the
       purpose of seeking appellate review.
¶ 19       Consequently, on March 3, 2016, the trial court found plaintiff’s counsel in “friendly”1
       contempt of court. The court assessed plaintiff’s counsel (contemnor) a $100 fine in a good
       faith attempt to allow for appellate court review. On March 31, 2016, contemnor filed a timely
       notice of appeal of the trial court’s contempt finding.

¶ 20                                          ANALYSIS
¶ 21       On appeal, contemnor challenges the trial court’s March 3, 2016, order finding him in
       contempt of court. Before reaching the merits of the contempt order, we first resolve two
       procedural matters.
¶ 22       Contrary to contemnor’s jurisdictional statement, defendant correctly points out that our
       jurisdiction in this appeal arises from Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8,
       2016). Clearly, Illinois Supreme Court Rule 304(b)(5) allows this court to consider an appeal
       from an “order finding a person or entity in contempt of court which imposes a monetary or
       other penalty.” Id.


          The trial court’s order fails to indicate which form of contempt contemnor has been held under.
           1

       However, based on the facts of this case, we believe the court found contemnor in friendly contempt.

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¶ 23       Next, both sides agree the records at issue qualify as mental health records that are
       normally privileged under the Act. However, the parties disagree about whether plaintiff
       waived her therapist/recipient privilege under the Act by placing her mental health at issue in
       this case. Therefore, we are called upon to determine whether, as a matter of law, the mental
       health records in this case fell within an exception to the protective privilege provided by the
       Act. Since we will be considering an issue of law, de novo review applies. D.C. v. S.A., 178 Ill.
       2d 551, 559-61 (1997).
¶ 24       We begin by considering the relevant portions of the Act itself as set forth below:
                   “(a) Except as provided herein, in any civil, criminal, administrative, or legislative
               proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on
               behalf and in the interest of a recipient, has the privilege to refuse to disclose and to
               prevent the disclosure of the recipient’s record or communications.
                       (1) Records and communications may be disclosed in a civil, criminal or
                   administrative proceeding in which the recipient introduces his mental condition
                   or any aspect of his services received for such condition as an element of his claim
                   or defense, if and only to the extent the court in which the proceedings have been
                   brought, or, in the case of an administrative proceeding, the court to which an
                   appeal or other action for review of an administrative determination may be taken,
                   finds, after in camera examination of testimony or other evidence, that it is relevant,
                   probative, not unduly prejudicial or inflammatory, and otherwise clearly
                   admissible; that other satisfactory evidence is demonstrably unsatisfactory as
                   evidence of the facts sought to be established by such evidence; and that disclosure
                   is more important to the interests of substantial justice than protection from injury
                   to the therapist-recipient relationship or to the recipient or other whom disclosure is
                   likely to harm. *** [N]o record or communication between a therapist and a
                   recipient shall be deemed relevant for purposes of this subsection, except the fact of
                   treatment, the cost of services and the ultimate diagnosis unless the party seeking
                   disclosure of the communication clearly establishes in the trial court a compelling
                   need for its production.” (Emphasis added.) 740 ILCS 110/10(a)(1) (West 2012).
       The case law provides that party may waive his or her statutory privilege by introducing his or
       her mental health condition through “pleadings, answers to written discovery, a deposition, in
       briefs or motions, in argument before the court, or by stipulation.” Reda v. Advocate Health
       Care, 199 Ill. 2d 47, 61 (2002).
¶ 25       Contemnor urges this court to determine that our supreme court’s decision in Reda controls
       the outcome of this appeal and requires this court to set aside the finding of contempt. In Reda,
       the plaintiff brought a medical malpractice action against the hospital and doctors following
       the development of an acute thrombosis and an apparent stroke. Id. at 50-51. During discovery
       in Reda, plaintiff’s counsel refused to comply with the trial court’s pretrial discovery order
       requiring plaintiff to produce his psychiatric records citing privilege under the Act. Id. at
       49-50. As in the case at bar, in Reda, the trial court held plaintiff’s counsel in friendly civil
       contempt and plaintiff challenged this finding of contempt. Id. at 50.
¶ 26       Our supreme court was called upon to determine whether the plaintiff in Reda, placed
       plaintiff’s mental health at issue. See generally Reda, 199 Ill. 2d 47. In Reda, the complaint
       alleged the plaintiff “ ‘sustained injuries of a personal and pecuniary nature’ ” attributable to
       defendant’s negligence and caused damages including, but not limited to, loss of society,

                                                    -5-
       companionship, and affection. Id. at 50. When asked to describe his injuries for purposes of
       interrogatories, the plaintiff in Reda answered that he suffered severe injuries to his leg that
       resulted in disability, disfigurement, and pain and suffering. Id. at 51. The plaintiff also said he
       suffered a stroke, heart problems, and kidney problems. Id. Further, the depositions of the
       plaintiff and his wife in Reda disclosed “headaches, loss of memory, decline in
       comprehension, difficulties in performing daily activities, and changes in personality.” Id. at
       57.
¶ 27        Our supreme court reasoned a section 10(a)(1) exception to the Act “applies only when a
       party affirmatively places his or her own mental condition at issue.” Id. at 59. Our supreme
       court held that a neurological/physical injury such as a stroke and/or other brain damage does
       not necessarily create psychological damage or automatically place the plaintiff’s mental
       health at issue. Based on the allegations in the complaint in Reda, and the statements made
       during discovery, the court concluded the plaintiff did not actually place his mental condition
       at issue by making claims for damages due to a diminished physical capacity to perform daily
       activities, loss of society, companionship, and affection in his complaint or by discussing
       headaches, loss of memory, decline in comprehension, difficulties in performing daily
       activities, and changes in personality during depositions because such alleged injuries were
       physical/neurological in nature and could be separated from psychological damage. Id. at
       57-58.
¶ 28        The facts in Reda are distinguishable from the instant case. Here, plaintiff did not restrict
       her damage claims to physical/neurological injuries. Instead, plaintiff’s original complaint
       alleged that “she suffered great pain and anguish both in mind and body and will in the future
       continue to so suffer.” (Emphasis added.) Unlike the plaintiff in Reda, in response to
       interrogatories, specifically, interrogatory No. 11, plaintiff affirmatively stated she was
       claiming “psychiatric, psychological and/or emotional injuries” as a result of this occurrence.
       (Emphasis added.) Based on the unique record in this case, we conclude plaintiff affirmatively
       placed her own mental condition at issue.
¶ 29        We recognize plaintiff’s own deposition responses and her Rule 213(f)(2) disclosures
       place less emphasis on the damage to her mental health in comparison to the broader
       allegations of her complaint and her unambiguous affirmative answer to defendant’s
       interrogatory No. 11. However, during her discovery deposition, plaintiff described her
       injuries resulting from the August 21, 2012, occurrence to include anxiety in addition to
       memory loss, difficulty multitasking, headaches, frequent episodes of crying, and irrational
       fears interfering with her ability to drive or ride in a car and feel safe in the area where she
       lived.
¶ 30        Moreover, plaintiff’s Rule 213(f)(2) disclosure indicated that her two expert witnesses, Dr.
       Watt and Ms. Bresnahan, would offer testimony about “other subjects discussed (or to be
       discussed) in their depositions and/or contained in their medical records.” Our careful review
       of the depositions and medical records from these two experts document cognitive testing and
       treatment plaintiff received from these experts for anxiety, lowered professional confidence,
       panic attacks, and depression.
¶ 31        Thus, we conclude the case at hand is factually distinguishable from Reda. Therefore, the
       trial court correctly determined plaintiff placed her present and past mental health status at
       issue, thereby waiving her privilege under the Act. Without discussing the details revealed in
       plaintiff’s mental health records in this public forum, we further conclude, based on our careful

                                                    -6-
       review of the same records subject to an in camera review by the trial court, that the trial court
       correctly concluded the records at issue are relevant, probative, and not unduly prejudicial as
       required under the Act. 740 ILCS 110/10(a)(1) (West 2012).
¶ 32       Contemnor alternatively argues that even if this court agrees with the trial court’s finding
       that plaintiff initially placed her mental health at issue, plaintiff has now withdrawn her claims
       for damages solely attributable to the mental health injuries she sustained in 2012. Conversely,
       defendant asserts plaintiff’s verbal assurances regarding her intent to withdraw mental health
       claims before trial are both vague and insufficient.
¶ 33       During arguments in the trial court and before this court on appeal, contemnor consistently
       stated that plaintiff previously stepped back from all claims involving mental health damages
       beyond those physical damages allowed under the rationale of Reda. Yet, a lack of clarity still
       exists regarding whether plaintiff has made a definitive election to abandon all claims for
       mental health damages. For example, in this appeal, contemnor’s reply brief asserts “Plaintiff
       Has, and Continues to Have, the Right to Waive Claims for Mental Health Injuries to Avoid
       Disclosure of Her Prior Mental Health Care.” (Emphasis added.) This statement of the issue
       implies contemnor perceives that plaintiff retains an unexecuted future option to remove or
       waive the mental health damages that are currently on the table and at issue.
¶ 34       Moreover, contemnor has not directed this court to any agreed order, stipulation, or
       document of record confirming plaintiff’s decision to abandon damages based on the
       psychiatric, psychological, and/or emotional injuries addressed by defendant’s interrogatory
       No. 10. Nor has plaintiff amended her affirmative response to this interrogatory as required by
       Rule 213(i). Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007). Therefore, we reject the contemnor’s
       argument that his client clearly expressed a desire to forego her previous claims for mental
       health damages.
¶ 35       For the foregoing reasons, the trial court’s March 3, 2016, order finding contemnor in
       contempt of court is affirmed.

¶ 36                                       CONCLUSION
¶ 37      The judgment of the circuit court of Peoria County is affirmed.

¶ 38      Affirmed and remanded.




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