                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Cooney v. Rossiter, 2012 IL App (1st) 102129




Appellate Court             DEBORAH A. ORLANDO COONEY, RAYMOND L.
Caption                     WIETRZYKOWSKI, ROSE M. WIETRZYKOWSKI, AND
                            CHRISTOPHER ORLANDO, Plaintiffs-Appellants, v. LYLE H.
                            ROSSITER, JR., Defendant-Appellee.



District & No.              First District, Fifth Division
                            Docket No. 1-10-2129


Filed                       August 10, 2012


Held                        The psychiatrist appointed to serve as a psychological evaluator in one
(Note: This syllabus        plaintiffs’ divorce and custody proceedings was entitled to absolute
constitutes no part of      immunity from plaintiffs’ action for intentional infliction of emotional
the opinion of the court    distress.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 07-L-6089; the Hon.
Review                      Jeffrey Lawrence, Judge, presiding.



Judgment                    Affirmed.
Counsel on                  Thomas A. Zimmerman, Jr., and Adam M. Tamburelli, both of
Appeal                      Zimmerman Law Offices, P.C., of Chicago, for appellants.

                            Brian T. Henry, D. Scott Rendleman, and Scott L. Howie, all of Pretzel
                            & Stouffer, Chtrd., of Chicago, for appellee.


Panel                       JUSTICE HOWSE delivered the judgment of the court, with opinion.
                            Presiding Justice Epstein and Justice McBride concurred in the judgment
                            and opinion.



                                              OPINION

¶1          Plaintiffs Deborah Orlando Cooney, Raymond Wietrzykowski, Rose Wietrzykowski and
        Christopher Orlando appeal from a judgment granting defendant Lyle Rossiter’s motion to
        dismiss based on a finding of absolute immunity and res judicata entered by the circuit court
        of Cook County. On appeal the plaintiffs argue the trial court erred because: (1) their claim
        is not barred by res judicata, and (2) court-appointed psychological evaluators are not
        immune from lawsuits in Illinois.
¶2          For the reasons set forth below, we affirm.1

¶3                                        BACKGROUND
¶4          Plaintiffs Deborah A. Orlando Cooney, Raymond L. Wietrzykowski and Rose M.
        Wietrzykowski filed their first amended complaint on November 20, 2008, alleging
        intentional infliction of emotional distress by defendant Lyle H. Rossiter. The plaintiffs’
        allegations stem from Deborah’s 1998 divorce and subsequent custody proceeding involving
        her two children, Christopher and Jonathan, born during her marriage to ex-husband Lorenzo
        Orlando. Rossiter was the court-appointed psychological evaluator in the parties’ custody
        proceeding.
¶5          Deborah was granted custody of her two children in the judgment for dissolution of
        marriage. In 2001, Lorenzo filed a petition for a change of custody. Deborah filed a motion
        for the appointment of a psychological evaluator, in 2004, for the purpose of formulating
        written recommendations concerning the custodial arrangements for her children. The trial
        court appointed Rossiter, a general and forensic psychiatrist, as the evaluator, pursuant to
        section 605 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/605
        (West 2002)).


                1
                 Justice Joseph Gordon participated in this case. Following his demise, Presiding Justice
        Epstein has replaced him on the panel and has reviewed the briefs.

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¶6          In formulating his evaluation, Rossiter interviewed Deborah, Deborah’s mother Rose,
       Deborah’s father Raymond, and the children. In his evaluation, Rossiter opined that Deborah,
       Rose and Raymond suffer from the delusional disorder Munchausen’s by proxy syndrome
       and that Christopher suffered significant mental injury as a result. Rossiter opined that
       Christopher’s mental and emotional injuries constituted child abuse by Deborah and her
       parents. Rossiter opined that Christopher and Jonathan should be removed from Deborah’s
       custody and that she and her parents undergo psychiatric treatment.
¶7          The plaintiffs allege that Rossiter rendered erroneous and fraudulent conclusions in his
       evaluation and failed to perform psychological testing. The plaintiffs allege that Rossiter
       intended for the conclusions in his evaluation to injure the plaintiffs. The plaintiffs allege the
       trial court granted Lorenzo’s petition for change in custody based solely on Rossiter’s written
       evaluation. The plaintiffs allege Rossiter intentionally and deliberately made false statements
       to an Illinois Department of Children and Family Services (DCFS) investigator resulting in
       a DCFS finding indicating Deborah for child abuse. An administrative law judge affirmed
       the DCFS indicated finding of child abuse.
¶8          The plaintiffs then filed, under section 1983 of the Civil Rights Act of 1991 (42 U.S.C.
       § 1983 (2006)), a class-action civil rights lawsuit in federal court on May 16, 2007. The
       federal district court dismissed the lawsuit, finding the defendants immune, stating:
            “[I]t is well-established that court-appointed psychological evaluators are ‘protected by
            the same immunity extended to judges and other judicial officers.’ ” Cooney v. Rossiter,
            No. 07 C 2747, slip op. at 7 (N.D. Ill. Aug. 20, 2008) (quoting Bartlett v. Weimer, 268
            F.2d 860, 862 (7th Cir. 1959)).
¶9          The plaintiffs allege that they are not delusional and do not suffer from Munchausen’s
       by proxy syndrome and have not committed child abuse. The plaintiffs allege Rossiter’s
       conduct was extreme and outrageous and caused Deborah, Rose and Raymond to lose any
       contact and visitation with the children. The plaintiffs allege Rossiter’s conduct caused
       Deborah to lose her job as a nurse and caused all the plaintiffs to suffer severe and extreme
       mental and emotional distress.
¶ 10        On May 4, 2009, Rossiter filed a motion under section 2-619 of the Code of Civil
       Procedure (735 ILCS 5/2-619 (West 2008)) to dismiss plaintiffs’ first amended complaint,
       claiming he is immune from suit in this matter and that the lawsuit is barred by res judicata.
¶ 11        Plaintiffs filed a second amended complaint on September 21, 2009, adding Christopher,
       Deborah’s son, as a plaintiff. Rossiter filed a section 2-619 motion to dismiss (735 ILCS 5/2-
       619 (West 2008)) plaintiffs’ second amended complaint on October 2, 2009, setting forth the
       same claims as in his earlier motion to dismiss.
¶ 12        The trial court granted defendant’s motion to dismiss, finding the lawsuit barred by res
       judicata and absolute immunity for Rossiter. In regard to immunity, the trial court relied on
       the decision by the federal district court, stating:
            “The rationale for immunity under these circumstances is that officers of the court ought
            to be able to testify as to their honest opinions without fear of retribution, and this lawsuit
            is retribution big time.”
¶ 13        The plaintiffs’ motion to reconsider was denied and they appeal the trial court order

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       granting defendant’s motion to dismiss.

¶ 14                                          ANALYSIS
¶ 15       A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and
       raises defects, defenses, or other affirmative matters appearing on the face of the complaint
       or established by external submissions that act to defeat the claim. Krilich v. American
       National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70 (2002). The court
       construes the pleadings and supporting documents in the light most favorable to plaintiffs.
       Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). The issue on appeal is “ ‘whether the
       existence of a genuine issue of material fact should have precluded the dismissal or, absent
       such an issue of fact, whether dismissal is proper as a matter of law.’ ” Id. (quoting Kedzie
       & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). Review of a
       section 2-619 motion to dismiss is de novo. Czarobski, 227 Ill. 2d at 369.
¶ 16       Under the doctrine of res judicata, a final judgment on the merits rendered by a court of
       competent jurisdiction bars any subsequent actions between the same parties or their privies
       on the same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). Res
       judicata applies to bar issues that were actually decided in the first action, as well as matters
       that could have been decided. La Salle National Bank v. County Board of School Trustees,
       61 Ill. 2d 524, 529 (1975).
¶ 17       Three requirements must be satisfied for the doctrine of res judicata to apply: (1) a final
       judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of
       causes of action; and (3) an identity of the parties or their privies. Hudson v. City of Chicago,
       228 Ill. 2d 462, 467 (2008).
¶ 18       The first element of res judicata was met when the district court issued a final judgment
       on the merits in the plaintiffs’ section 1983 lawsuit in granting Rossiter’s motions to dismiss
       under Federal Rule of Civil Procedure 12(b)(6). The judgment was subsequently affirmed
       by the Seventh Circuit. Cooney v. Rossiter, 583 F.3d 967, 972 (7th Cir. 2009).
¶ 19       In respect to the second element of res judicata, there is an identity of causes of action
       because the section 1983 lawsuit and the intentional infliction of emotional distress lawsuit
       both arose from the same set of operative facts. Rein, 172 Ill. 2d at 339.
¶ 20       Finally, there is an identity of parties because Deborah and Rossiter are the same parties
       in both lawsuits and Deborah’s parents and son are her privies. Privity exists between parties
       who adequately represent the same legal interests. People ex rel. Burris v. Progressive Land
       Developers, Inc., 151 Ill. 2d 285, 296 (1992).
¶ 21       In plaintiffs’ reply brief, they cite Benton v. Smith, 157 Ill. App. 3d 847 (1987), for the
       proposition that under Illinois law, “if the earlier case on which an assertion of res judicata
       is based is a class action, res judicata will not bar individual claims in a subsequent case.”
¶ 22       However, a review of Benton reveals that in that case we found that an earlier class action
       lawsuit, of which the plaintiff was a member, was not res judicata to plaintiff’s subsequent
       lawsuit based on the differing facts of the two lawsuits, not merely because the earlier lawsuit
       was a class action, as the plaintiffs claim here. Benton, 157 Ill. App. 3d at 853.


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¶ 23       In Benton, the plaintiff’s personal property was damaged when frozen water pipes in her
       apartment burst after the heat stopped working. Id. at 850. The plaintiff submitted a property
       damage form to the defendant Chicago Housing Authority (CHA) and waited for a response.
       Meanwhile, a group of CHA tenants filed a class action lawsuit against the CHA claiming
       they had been denied rent abatements as required by their lease. Id. The plaintiff in Benton
       joined the class action lawsuit. As a result of a settlement of the class action, the plaintiff
       received a 45-day rent credit. Shortly before receiving the rent credit from the class action
       settlement, a CHA attorney wrote the plaintiff a letter stating that her claim for property
       damages was denied and he advised her to seek legal action through the courts. Id. at 851.
¶ 24       We found that the class action lawsuit did not bar the plaintiff’s lawsuit for property
       damage under res judicata because the rent abatement issue was not related to the property
       damage lawsuit and the property claim could not have been litigated in the rent-abatement
       class action lawsuit. Id. at 853.
¶ 25       Here, unlike Benton, the section 1983 claim and the claim for intentional infliction of
       emotional distress arise out of the same set of operative facts. In the federal lawsuit, Deborah
       claimed the defendants, including Rossiter, violated her rights under the United States
       Constitution by engaging in misconduct during the custody proceedings. In her state lawsuit,
       Deborah claims Rossiter intentionally caused her emotional distress by engaging in
       misconduct during the custody proceedings. The evidence required to prove each case is
       essentially the same, unlike Benton, where “[t]here is a wide gap between the evidence
       needed to establish the two actions.” Id. at 855.
¶ 26       Both claims could have been brought as part of the federal action because Deborah’s
       coplaintiffs in the class action also claimed extreme and intentional misconduct during
       custody proceedings and could have feasibly pleaded intentional infliction of emotional
       distress.
¶ 27       Under these circumstances, we find res judicata bars the plaintiffs’ claim for intentional
       infliction of emotional distress.
¶ 28       Assuming, arguendo, that the federal suit is not res judicata, we find that the plaintiffs’
       claim fails because Rossiter is absolutely immune from lawsuit regarding his duties as a
       court-appointed psychological evaluator in the custody proceeding.
¶ 29       The plaintiffs claim that Illinois law does not provide immunity for court-appointed
       psychological evaluators in custody proceedings and that the federal court’s decision to grant
       Rossiter immunity in the section 1983 suit is not applicable here.
¶ 30       While we recognize that the federal district court and subsequent Seventh Circuit rulings
       are not binding on us, the decisions of the lower federal courts are persuasive authority.
       People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001). We find the
       Seventh Circuit’s affirmation of the district court holding persuasive. See Cooney, 583 F.3d
       967.
¶ 31       The Seventh Circuit found that Rossiter is entitled to absolute immunity because:
           “[C]ourt appointed experts, including psychiatrists, are absolutely immune from liability
           for damages when they act at the court’s direction.” Id. at 970.


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¶ 32       The Seventh Circuit found that court-appointed psychological evaluators like Rossiter
       are arms of the court and “deserve protection from harassment by disappointed litigants, just
       as judges do. Experts asked by the court to advise on what disposition will serve the best
       interests of a child in a custody proceeding need absolute immunity in order to be able to
       fulfill their obligations ‘without the worry of intimidation and harassment from dissatisfied
       parents.’ ” Id. (quoting Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984)).
¶ 33       We agree with the Seventh Circuit’s assessment that all of the alleged misconduct from
       plaintiffs’ complaint occurred within the course of Rossiter’s court-appointed duties and,
       thus, he is immune because he was acting at the court’s direction. Cooney, 583 F.3d at 970.
¶ 34       We also cannot say that a finding of absolute immunity for a court-appointed
       psychological evaluator is contrary to Illinois law, as the plaintiffs suggest. Courts in Illinois
       have long held that anything said or written in a legal proceeding is protected by an absolute
       privilege. Defend v. Lascelles, 149 Ill. App. 3d 630, 633 (1986) (pleadings protected by
       absolute privilege against defamation actions).
¶ 35       A reasonable extension of the holding in Defend is to provide absolute immunity to
       court-appointed psychological evaluators. In Defend, the appellate court stated:
                “The privilege itself is steeped in public policy: it is uniformly recognized that the
           judicial system would best be served if persons with knowledge of relevant facts could
           report those facts to the court without fear of civil liability.” Id. at 634.
¶ 36       We cannot say that a court-appointed psychological evaluator can perform his job
       effectively when there exists a fear of civil liability. As the court stated in Defend:
                “The law thus clearly allows for an absolute privilege where there exists a significant
           interest in protecting the type of speech involved.” Id. at 635.
¶ 37       Just as courts in Illinois have long held that libelous material contained in a pleading is
       absolutely privileged, we find that material contained in a report provided by a court-
       appointed psychological evaluator is also absolutely privileged because there is a public
       interest in protecting these reports in a custody action. Id. at 636. As the Seventh Circuit
       stated in Cooney, the psychological evaluator is serving the best interests of the child and it
       is paramount that such service is performed without the threat of civil liability. Cooney, 583
       F.3d at 970.
¶ 38       Furthermore, we recently recognized Cooney in Vlastelica v. Brend, 2011 IL App (1st)
       102587, finding that a court-appointed child representative is absolutely immune from suit
       related to his court-appointed duties. In that case, the trial court appointed a child
       representative to represent the parties’ child in a custody proceeding. After the custody
       proceeding and dissolution of marriage action was adjudicated, the child’s mother filed a
       multicount complaint against the child representative and another defendant. The counts
       relating to the child representative include legal malpractice and intentional interference with
       custody rights. Brend, 2011 IL App (1st) 102587, ¶ 6. The plaintiff alleged that the child
       representative engaged in fraudulent conduct during the custody proceeding. The trial court
       granted the defendants’ section 2-619 motion to dismiss finding absolute immunity for work
       performed as a child representative. Id. ¶ 16.
¶ 39       In affirming the ruling of the trial court in Brend, we found Cooney persuasive authority,

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       stating:
           “We also agree with Cooney’s holding that to best aid the court in its determination of
           the child’s best interests, the child representative must be accorded absolute immunity
           so as to allow him to fulfill his obligations without worry of harassment and intimidation
           from dissatisfied parents.” Id. ¶ 23 (citing Cooney, 583 F.3d at 970).
¶ 40       While Brend recognized Cooney for its finding that child representatives are absolutely
       immune from lawsuit, so do we recognize Cooney for its companion finding that court-
       appointed evaluators must be accorded absolute immunity so as to allow them to fulfill their
       obligations without worry of harassment and intimidation from dissatisfied parents. Id.

¶ 41                                   CONCLUSION
¶ 42      For the foregoing reasons, we affirm the judgment of the trial court.

¶ 43      Affirmed.




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