                                   2019 IL App (1st) 180872

                                                                          FIRST DIVISION
                                                                          May 13, 2019

                                         No. 1-18-0872


                                         IN THE
                               APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT


 RYAN GARTON,                                               )
                                                            )          Appeal from the
        Plaintiff-Appellant,                                )          Circuit Court of
                                                            )          Cook County
 v.                                                         )
                                                            )
 JEREMY PFEIFER; LINDA GARTON; and                          )          No. 16 L 1291
 NORTHSHORE UNIVERSITY HEALTHSYSTEM, an                     )
 Illinois Not-for-Profit Corporation, d/b/a NorthShore      )          The Honorable
 University HealthSystem Evanston Hospital,                 )          John H. Ehrlich,
                                                            )          Judge Presiding.
        Defendants-Appellees.                               )


       JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Griffin and Walker concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff Ryan Garton filed claims against defendants Jeremy Pfeifer, Linda Garton, and

NorthShore University HealthSystem d/b/a NorthShore University HealthSystem Evanston

Hospital (NorthShore) for alleged violations of the Mental Health and Developmental

Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2014)). The circuit court

entered summary judgment in favor of all defendants and denied Ryan’s cross-motion for partial

summary judgment. For the reasons that follow, the judgment of the circuit court is affirmed in

part and reversed in part, we enter partial summary judgment in favor of Ryan on counts I and III
No. 1-18-0872


of his amended complaint on the issue of liability, and we remand for trial on the issues of

proximate cause and damages.

¶2                                       I. BACKGROUND

¶3     This matter involves subpoenas that were issued by Linda’s attorney Pfeifer, and

complied with by NorthShore, during postdissolution of marriage proceedings. Ryan filed a

petition for indirect criminal contempt against Linda, asserting that she was violating various

orders regarding their minor children (contempt proceedings). The circuit court appointed

attorney Sabra Ebersole as a special prosecutor to prosecute Ryan’s petition. 1 On July 23, 2015,

without filing a motion or notice of motion, or obtaining a court order, Pfeifer issued a subpoena

to NorthShore seeking Ryan’s mental health records (initial subpoena). NorthShore responded to

the subpoena on July 29, 2015, by delivering the requested records to Judge Joseph D. Panarese,

who was the judge presiding over the contempt proceedings. The contempt proceedings were

subsequently reassigned to Judge Raul Vega.

¶4     Pfeifer requested that the circuit court disclose Ryan’s mental health records. Ebersole, as

special prosecutor, filed a written objection to the disclosure of Ryan’s records, asserting that

Pfeifer had not sought or obtained leave of court prior to issuing the subpoena, in violation of

section 10(d) of the Act (740 ILCS 110/10(d) (West 2014)). Ryan’s counsel did not assert any

written or oral objections to the disclosure request. On November 3, 2015, Judge Vega ordered

that the copies of Ryan’s mental health records that had been produced to the circuit court be

sealed. Pfeifer stated on the record that he had not seen or reviewed the mental health records in

any way. The circuit court ordered Pfeifer to reissue a subpoena to NorthShore with notice to




       1
        The circuit court initially appointed attorney John DeLeon as the special prosecutor, but DeLeon
was permitted to withdraw before the events relevant to this appeal.


                                                   2
No. 1-18-0872


Ryan and afforded Ryan and NorthShore an opportunity to file written objections to an

in camera inspection of Ryan’s records.

¶5     On November 4, 2015, Pfeifer faxed a copy of the initial subpoena to NorthShore, along

with a copy of the circuit court’s November 3, 2015, order (reissued subpoena). On November

11, 2015, NorthShore responded to the reissued subpoena by sending Ryan’s mental health

records to Pfeifer’s law office, even though the subpoena directed that the records be delivered to

the circuit court. On December 3, 2015, during a hearing on whether to release Ryan’s mental

health records, the report of proceedings reflects that Pfeifer handed Judge Vega an opened

envelope containing Ryan’s mental health records. Pfeifer explained that his law partner had

opened the envelope, saw that the contents related to Ryan, and did not look any further. Pfeifer

stated, “I want the [c]ourt to understand that I did not look at them.” The circuit court then heard

argument on whether the records might contain relevant information, whether any privileges

against disclosure applied, and whether the records should be released for an in camera

inspection. The circuit court took the matter under advisement. On January 20, 2016, Judge Vega

denied Linda’s request to release Ryan’s mental health records, denied Linda’s request that the

circuit court conduct an in camera inspection of the records, and ordered the records sealed.

¶6     Subsequently, Ryan initiated this freestanding action by filing a three-count amended

complaint, asserting identical violations of the Act by each defendant. 2 Ryan alleged that Linda

and Pfeifer had “devised a scheme to publicly disclose [Ryan’s] health records,” and that Linda

“authorized” Pfeifer to issue the initial subpoena. Ryan asserted that the initial subpoena was

“fraudulently issued” by Linda and Pfeifer, did not contain language required by the Act, and

was served without proper notice and without leave of court. He further alleged that NorthShore


       2
         Count I of the amended complaint was directed at Pfeifer, count II was directed at Linda, and
count III was directed at NorthShore.


                                                  3
No. 1-18-0872


complied with the initial subpoena despite its facial deficiencies, and sent one copy of his records

to Judge Panarese and a second copy of his records to Pfeifer. Ryan alleged “on information and

belief” that Pfeifer gave a copy of the records to Linda and that Linda read the records. Ryan

alleged that he “has been compelled and will be compelled to spend large sums of money,

including legal fees and and [sic] costs to resist disclosure of the records ***, has suffered and

will continue to suffer extreme mental and emotional distress, and has suffered other and related

personal and pecuniary losses.” Ryan’s complaint only identifies the initial subpoena issued on

July 23, 2015, and neither mentions nor alleges any injury arising out of the reissued subpoena.

¶7     Defendants filed separate answers to the amended complaint and the parties engaged in

discovery. Pfeifer moved for summary judgment on count I of the amended complaint, arguing

that Ryan would not be able to prove that he was “aggrieved” under section 15 of the Act (740

ILCS 110/15 (West 2014)). Pfeifer argued that (1) a technical violation of the Act alone did not

constitute being “aggrieved;” (2) there was no evidence that anyone saw the records that the

circuit court sealed and refused to review; (3) the records had no impact on the contempt

judgment finding Linda not guilty; and (4) there was no evidence that Ryan suffered any

damages as a result of the issuance of the subpoena. NorthShore’s motion for summary judgment

on count III raised substantially similar arguments. Linda’s motion for summary judgment on

count II asserted that she could not be held liable in connection with the subpoena because

Pfeifer stated in his discovery deposition that he alone investigated whether any mental health

records existed, and further stated that Linda did not tell him about the existence of any mental

health records. Linda further argued that there were no facts to establish that she had anything to

do with the issuance of the initial subpoena and that she never saw any of Ryan’s mental health

records.




                                                 4
No. 1-18-0872


¶8     Ryan filed a cross-motion for summary judgment on counts I and III against Pfeifer and

NorthShore, respectively, and essentially argued that a violation of the Act was sufficient to

establish liability. All of the motions for summary judgment were briefed. In his response to

Pfeifer’s and NorthShore’s motions for summary judgment, Ryan asserted that he had “suffered

emotional and psychological injuries[.]” He supported this assertion with a footnote that stated,

in relevant part, that “he also testified in his deposition *** about the physical and psychological

effect of [defendants’] violations [of the Act], including anxiety, being violently ill, throwing up,

overwhelmed [sic] with cold sweats, headaches, feeling violated and afraid[.]” He provided

citations to the pages and lines of the transcript of his own discovery deposition, which was

attached as an exhibit to NorthShore’s motion for summary judgment.

¶9     The circuit court granted defendants’ motions for summary judgment and denied Ryan’s

cross-motion for partial summary judgment. The circuit court stated its reasoning on the record

and incorporated those findings into a written order. First, the circuit court observed that there

were no facts to support Ryan’s allegations that (1) Linda and Pfeifer devised a scheme to issue

the subpoenas, (2) Linda authorized Pfeifer to issue the subpoenas, or (3) Linda had any

knowledge that Pfeifer issued the subpoenas. Furthermore, the circuit court observed that there

were no facts tending to show that Linda ever saw Ryan’s mental health records. The circuit

court found that there was no genuine issue of material fact as to whether Linda’s conduct caused

any of the damages Ryan allegedly suffered. The circuit court therefore granted summary

judgment in favor of Linda on count II of the amended complaint.

¶ 10   Next, with respect to Pfeifer’s and NorthShore’s motions for summary judgment, the

circuit court observed that the initial subpoena was improperly issued, but that the reissued

subpoena “cured” any notice defects, since Ryan’s attorney was present when Judge Vega




                                                 5
No. 1-18-0872


ordered the subpoena to be reissued. It was undisputed that NorthShore responded to the reissued

subpoena by sending the records to Pfeifer’s office rather than to the circuit court. But according

to the transcript of the December 3, 2015, hearing before Judge Vega, Ryan did not raise any

objection when Pfeifer handed the judge an opened envelope containing Ryan’s mental health

records. The circuit court reasoned, therefore, that Ryan forfeited his claims because neither

                “[Ryan] nor his attorney felt at the time that there was any problem with an open

                envelope being handed to Judge Vega. He has no basis for claiming that he was

                injured as a result because that argument should have been raised to the [c]ourt so

                the judge could have considered it. But it wasn’t. There was simply nothing done

                at the time.”

¶ 11   The circuit court further observed that Ryan failed to produce any medical records

reflecting any physical or mental injuries that he allegedly suffered as a result of the subpoenas.

The circuit court stated,

                “So basically what it comes down to is no harm, no foul; that there certainly is

                a—there was a violation of the [Act]. And even if I assume that [Ryan] is

                aggrieved, which I think is questionable, what there is no question about is he

                doesn’t have any damages because he didn’t do anything about it the time he

                knew that he had been injured and made no objection to the documents being

                provided to Judge Vega.”

¶ 12   The circuit court therefore entered summary judgment in favor of Pfeifer and NorthShore

on counts I and III, respectively, and denied Ryan’s cross-motion for summary judgment on

those counts. Ryan filed a timely notice of appeal.




                                                 6
No. 1-18-0872


¶ 13                                       II. ANALYSIS

¶ 14   On appeal, Ryan argues that the circuit court erred as a matter law by concluding that he

was not entitled to recover for defendants’ clear violations of the Act. He argues that he did not

waive any of his rights under the Act by failing to raise an objection in the contempt

proceedings, and asserts that he did object to the disclosure of his mental health records and to

any in camera inspection of those records. He argues that there are material issues of fact as to

whether he suffered damages because he supported the allegations in his complaint that he was

injured as a result of defendants’ violations of the Act with “uncontroverted evidence of his

damages” in response to the motions for summary judgment in the form of his own deposition

testimony.

¶ 15   At the outset, we remind NorthShore and Pfeifer that our supreme court’s rules preclude

parties from citing to or relying on unpublished, nonprecedential orders from this court entered

under Illinois Supreme Court Rule 23. Ill. S. Ct. R. 23(e)(1) (eff. Apr. 1, 2018) (“An order

entered under subpart (b) or (c) of this rule is not precedential and may not be cited by any party

except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the

case.”). Both NorthShore’s and Pfeifer’s appellate briefs contain citations to orders entered

pursuant to Rule 23. Those citations do not qualify for any of the exceptions identified in the

rule, and those citations are therefore stricken.

¶ 16   Summary judgment is appropriate if the pleadings, depositions, affidavits, and other

admissions on file establish that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Cohen v.

Chicago Park District, 2017 IL 121800, ¶ 17. At the summary judgment stage, the circuit court

must not make credibility determinations or weigh the evidence. Gulino v. Economy Fire &




                                                    7
No. 1-18-0872


Casualty Co., 2012 IL App (1st) 102429, ¶ 25. The purpose of summary judgment is not to try a

question of fact, but rather to determine whether one exists. Robidoux v. Oliphant, 201 Ill. 2d

324, 335 (2002). “In determining whether a genuine issue of material fact exists, the court must

construe the pleadings, depositions, admissions, and affidavits strictly against the movant and

liberally in favor of the nonmovant.” West Bend Mutual Insurance Co. v. DJW-Ridgeway

Building Consultants, Inc., 2015 IL App (2d) 140441, ¶ 20. A party moving for summary

judgment bears the initial burden of production and may satisfy it by either showing that some

element of the case must be resolved in its favor or that there is an absence of evidence to

support the nonmoving party’s case. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). Once

the moving party satisfies that initial burden, the burden shifts to the nonmoving party to come

forward with some factual basis that would entitle it to a favorable judgment. Id. We review a

circuit court’s ruling on summary judgment de novo (Standard Mutual Insurance Co. v. Lay,

2013 IL 114617, ¶ 15), and we review the circuit court’s judgment, not its reasoning (Leonardi v.

Loyola University of Chicago, 168 Ill. 2d 83, 97 (1995)).

¶ 17   The Act imposes stringent protections on the disclosure of mental health records for

litigation purposes, identifies who may request the records and for what purposes, and regulates

how the request for disclosure should be made and handled. Section 10(a) of the Act provides a

recipient of mental health services a privilege against disclosure of mental health records in

various proceedings. 740 ILCS 110/10(a) (West 2014). Section 10(a) identifies 12 situations in

which mental health records may be disclosed and specifies the procedure for disclosure. The

only situation that is potentially relevant—but ultimately is not—is section 10(a)(1), which

provides that, under certain circumstances, “[r]ecords and communications may be disclosed in a

civil, criminal or administrative proceeding in which the recipient introduces his mental




                                                8
No. 1-18-0872


condition or any aspect of his services received for such condition as an element of his claim or

defense[.]” Id. § 10(a)(1).

¶ 18   Section 10(d) of the Act provides that no party or his or her attorney shall serve a

subpoena for mental health records unless the subpoena is accompanied by a written court order

or the written consent of the person whose records are being sought. Id. § 10(d). “No such

written order shall be issued without written notice of the motion to the recipient [of the mental

health treatment] and the treatment provider.” Id. The circuit court must provide the parties and

others entitled to notice an opportunity to be heard prior to issuing an order allowing the

subpoena. Id. If the circuit court permits the subpoena to issue, a copy of the circuit court’s

written order must accompany the subpoena; compliance with the subpoena is prohibited if it is

not accompanied by the circuit court’s written order. Id. Finally, the subpoena

                “shall include the following language: ‘No person shall comply with a subpoena

                for mental health records or communications pursuant to Section 10 of the Mental

                Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10,

                unless the subpoena is accompanied by a written order that authorizes the

                issuance of the subpoena and the disclosure of records or communications or by

                the written consent under Section 5 of that Act of the person whose records are

                being sought.’ ” Id.

¶ 19   Section 15 of the Act provides, “Any person aggrieved by a violation of this Act may sue

for damages, an injunction, or other appropriate relief. Reasonable attorney’s fees and costs may

be awarded to the successful plaintiff in any action under this Act.” 3 Id. § 15. The Act does not

define the term “aggrieved,” and we therefore assume that the legislature intended it to have its


       3
         The circuit court barred Ryan from recovering attorney fees in this action as a sanction for
violating a discovery order. No issue is raised on appeal with respect to that order.


                                                 9
No. 1-18-0872


popularly understood meaning. Aggrieved is defined as “suffering from an infringement or

denial of legal rights.” Merriam-Webster’s Collegiate Dictionary 25 (11th ed. 2006).

¶ 20   In Sassali v. Rockford Memorial Hospital, we held that the Act is “carefully drawn to

maintain the confidentiality of mental health records except in the specific circumstances

specifically enumerated.” 296 Ill. App. 3d 80, 84-85 (1998). “The General Assembly has made a

strong statement about the importance of keeping mental health records confidential.” Mandziara

v. Canulli, 299 Ill. App. 3d 593, 598 (1998).

¶ 21   It is clear from the record that neither Pfeifer nor NorthShore complied with the Act in

issuing or responding to the initial subpoena. Ryan never introduced “his mental condition or any

aspect of his services received for such condition as an element of his claim or defense” in the

contempt proceeding he initiated against his former wife. 740 ILCS 110/10(a) (West 2014).

Instead, Ryan was going to be a witness at the trial on the criminal contempt petition filed

against Linda that accused her of failing to comply with child custody orders entered in the

divorce proceedings. In explaining why he issued the initial subpoena, Pfeifer argued that he

sought Ryan’s mental health records because those records might contain relevant information

pertaining to Ryan’s credibility. Section 10(a) does not contemplate the disclosure of mental

health records for the purposes of attacking the credibility of a witness in a criminal contempt

trial, and Pfeifer advanced no statutory exemption to justify issuing the subpoena without

complying with the Act. Clearly and unquestionably, the initial subpoena sought records for

which no exception to the privilege against disclosure applied.

¶ 22   Furthermore, both Pfeifer’s issuance of the initial subpoena and NorthShore’s response

thereto were in direct violation of the Act. The issuance of the initial subpoena by Pfeifer’s and

NorthShore’s compliance with the subpoena ignored every applicable provision of section 10(d)




                                                10
No. 1-18-0872


of the Act: (1) the subpoena was issued without a written order of the circuit court; (2) because

no order was even sought, no notice of any motion seeking such an order was provided to either

Ryan or NorthShore; (3) because no motion had been filed, no hearing was held at which any

objections could be made by Ryan or the treatment provider prior to the issuance of the

subpoena; (4) NorthShore complied with the subpoena despite the requirement that the subpoena

be accompanied by a written court order authorizing the issuance of the subpoena; and (5) the

subpoena lacked the mandatory disclosure language required by the Act. It is clear that Pfeifer

and NorthShore violated the Act by serving and responding to the initial subpoena.

¶ 23   It is also clear that Pfeifer did not comply with the Act when he sent the reissued

subpoena to NorthShore, because the reissued subpoena once again did not contain the

mandatory disclosure language required by section 10(d) of the Act. NorthShore failed to

properly comply with the reissued subpoena when it delivered the subpoenaed records to

Pfeifer’s law office rather than to the circuit court, which completely undermines the entire

purpose of the Act. Here, the initial and reissued subpoenas clearly directed NorthShore to

deliver the subpoenaed records to the circuit court. It is clear that Pfeifer and NorthShore

violated the Act by serving and responding to the reissued subpoena.

¶ 24   We now turn to Ryan’s arguments that the circuit court erred in entering summary

judgment in favor of Linda. He argues that Linda should be held vicariously liable for Pfeifer’s

violations of the Act. In his appellate brief, Ryan asserts that

                “Pfeifer issued the improper subpoena at Linda’s behest and as her attorney.

                [Linda] knew about the violations of the Act by Pfeifer. [Linda] then threatened

                Ryan that she would capitalize on the disclosure of his mental health records to




                                                  11
No. 1-18-0872


                her advantage in the litigation between them. This represents Linda’s ratification

                of Pfeifer’s violation of the Act.”

¶ 25   Ryan, however, fails to provide any citations to the record to support these conclusions,

in violation of Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018) (providing that an

appellant’s brief shall contain “[a]rgument, which shall contain the contentions of the appellant

and the reasons therefor, with citation of the authorities and the pages of the record relied on.”).

Ryan does not direct our attention to any evidence in the record tending to show that Linda

authorized Pfeifer to subpoena Ryan’s mental health records, that she had any knowledge that

Pfeifer did so, and points to no evidence that refutes Linda’s evidence denying any knowledge or

involvement in the issuance of the subpoena. Simply put, Ryan has failed to demonstrate that the

record reflects any genuine issue of material fact as to whether Linda could be held vicariously

liable for any violation of the Act. We therefore have no basis from which we might conclude

that any genuine issue of material fact exists as to whether Linda violated the Act, and therefore

affirm the circuit court’s order granting summary judgment in favor of Linda on count II of

Ryan’s amended complaint.

¶ 26   Next, Ryan argues that he did not waive or forfeit any of Pfeifer’s and NorthShore’s

violations of the Act by failing to raise an objection to the issuance of the reissued subpoena, or

by failing to object when his mental health records were handed to Judge Vega in open court at

the criminal contempt hearing. He contends that “the Act expressly prohibits intentional waiver

of its provisions.” In support, he cites section 14 of the Act, which provides, “[a]ny agreement

purporting to waive any of the provisions of this Act is void.” 740 ILCS 110/14 (West 2014). He

further relies on Reda v. Advocate Health Care, 199 Ill. 2d 47, 59 (2002), for the proposition that




                                                  12
No. 1-18-0872


he could only waive his statutory privilege if he introduced his mental health condition into the

contempt proceeding.

¶ 27   We agree with Ryan’s conclusion that he neither waived nor forfeited his statutory

privilege, but not with his reasoning. Ryan’s reliance on section 14 of the Act conflates

contractual waiver, in which a party purports to knowingly waive a privilege under the Act, with

the concept of forfeiture, which results from the failure to assert a privilege under the Act. Ryan

does not identify any agreement in which he purported to waive his privileges under the Act.

Therefore, section 14 of the Act is plainly inapplicable. Ryan’s reliance on Reda is also

misplaced. Here, the circuit court did not conclude that Ryan waived any privileges against the

disclosure of his mental health records, but instead found that his failure to object to the reissued

subpoena resulted in forfeiture of his damages claim. When conducting de novo review,

however, we review the circuit court’s judgment, not its reasoning. Leonardi, 168 Ill. 2d at 97.

¶ 28   We do not understand the circuit court’s explanation as to how Ryan forfeited his right to

pursue a damages claim under the Act. The circuit court’s explanation for its judgment was

premised on the facts that (1) the circuit court allowed Pfeifer to reissue the subpoena, thereby

“curing” the complete lack of a motion and notice of the initial subpoena, and (2) Ryan

effectively forfeited his claims as an aggrieved person under section 15 of the Act by failing to

object in the contempt proceedings when Pfeifer handed Judge Vega an open envelope

containing Ryan’s mental health records. But regardless of whether the order allowing the

reissued subpoena “cured” any absence of a motion and lack of notice defects in the initial

subpoena, Ryan’s complaint asserted that he was injured as a result of Pfeifer’s issuance of the

initial subpoena, which was served without a court order, prior notice, or the mandatory

disclaimer language of the Act, and NorthShore’s compliance with a facially noncompliant




                                                 13
No. 1-18-0872


subpoena. To the extent that the circuit court reasoned that the reissued subpoena cured any

injury resulting from the initial subpoena, that reasoning is flawed.

¶ 29   We have previously found that “[n]othing in section 10(d) excuses a court order when the

records are first examined by the trial judge. [The defendant’s] subpoena violated the specific

terms of section 10(d) because he served it without first obtaining a court order.” Mandziara, 299

Ill. App. 3d at 599. Ryan was aggrieved by Pfeifer’s and NorthShore’s noncompliance with the

Act and he allegedly suffered damages; he did not become “unaggrieved” when the circuit court

ordered the reissuance of the subpoena. And even if the reissued subpoena “cured” the defects in

the initial subpoena—i.e., the failure to file a motion, lack of notice, and the absence of a written

court order—the reissued subpoena could not plausibly “cure” any injuries that Ryan suffered as

a result of the initial subpoena; the reissued subpoena could not retroactively restore Ryan’s

statutory privilege. In other words, the bell had been rung.

¶ 30   Furthermore, the circuit court did not cite any authority to support its explanation that

Ryan forfeited his claims under the Act by failing to raise an objection in the contempt

proceedings when Pfeifer handed Judge Vega the opened envelope containing Ryan’s mental

health records, which NorthShore sent directly to Pfeifer. Nor do Pfeifer’s and NorthShore’s

appellate briefs identify any such authority. Having examined the Act, we find no support for the

proposition that a person claiming to be aggrieved under the Act as a result of conduct that took

place in a separate judicial proceeding must object or assert their claims in that proceeding, or

that a failure to object to the noncompliance with the Act in the earlier proceeding precludes a

separate action seeking redress for a violation of the Act.

¶ 31   Pfeifer relies on Mandziara to argue that, in the context of a child custody dispute, to be

“aggrieved” under the Act, Ryan needed to show “that there was a disclosure of the records at




                                                 14
No. 1-18-0872


issue and/or that the violation of the Act adversely impacted the custody award.” Pfeifer argues

that he never inspected the records and the trial court refused to conduct an in camera review of

the records. Pfeifer’s argument is inconsistent with the Act. Nothing in the Act imposes any

limits on its application to child custody cases or establishes a requirement that noncompliance

with the Act must result in a ruling adverse to the person whose mental health records were

improperly subpoenaed. As we recited above, section 15 of the Act provides, “Any person

aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate

relief. Reasonable attorney’s fees and costs may be awarded to the successful plaintiff in any

action under this Act.” 740 ILCS 110/15 (West 2014). The plain language of the Act does not

limit “aggrieved” to only those whose mental health records have been disclosed; the plain

language of the Act is broad enough to include any injury that is directly traceable to “a violation

of [the] Act.”

¶ 32   Pfeifer’s argument is also inconsistent with Mandziara. There, the defendant—an

attorney—subpoenaed the plaintiff’s mental health records without first obtaining a court order.

Mandziara, 299 Ill. App. 3d at 595. The hospital produced the records and delivered the records

to the circuit court judge in open court. Id. The judge reviewed the records in open court and then

questioned the plaintiff—who was not represented by counsel—about the contents of the

records. Id. After the hearing, the circuit court awarded the plaintiff’s ex-husband sole custody of

the plaintiff’s children. Id. The plaintiff filed an amended complaint, asserting that the defendant

attorney violated the Act by failing to obtain a court order before issuing the subpoena. Id. at

595-96. We reversed the circuit court’s entry of summary judgment in the defendant’s favor,

finding in part that the defendant violated section 10(d) of the Act by issuing the subpoena

without first obtaining a court order. Id. at 599. We found that




                                                15
No. 1-18-0872


                “Section 15 of the Act provides for a damages claim by a person aggrieved by a

                violation of the Act. We have said: ‘The statute clearly indicates the legislature

                intended to modify absolute common law witness immunity in order to provide a

                remedy of damages against persons who violate the act.’ [Citation]. We believe

                the same legislative intent applies to those who are aggrieved by any violation of

                section 10(a)(1) or section 10(d). The nature and extent of those damages are

                matters to be determined on another day. [Citation].” Id. at 601.

¶ 33   Mandziara squarely supports Ryan’s argument that those who are aggrieved by any

violation of section 10(d) may pursue damages under section 15 of the Act. See id. We therefore

reject Pfeifer’s argument that Ryan could not, as a matter of law, be “aggrieved” by the issuance

of the initial subpoena simply because the records were not publicly disclosed or that he did not

suffer an adverse ruling as a result of an improper subpoena.

¶ 34   For its part, NorthShore relies on Mandziara to support its argument that it cannot be

liable for responding to the initial subpoena because, like the hospital in Mandziara, it provided

the subpoenaed records directly to the circuit court. We disagree. In Mandziara, we made it clear

that

                “Mandziara’s appeal in this case concerns only section 10(d) of the Act. We need

                not revisit our summary order in [Mandziara v. Northwest Community Hospital,

                No. 1-94-4045 (1996) (unpublished under Supreme Court Rule 23) (Northwest

                Community Hospital),] Mandziara’s earlier appeal of her unsuccessful claim

                against the Hospital. The order did not refer to section 10(d). Nothing we say here

                should be taken as a statement regarding the correctness of our earlier order.” Id.

                at 601.




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No. 1-18-0872


¶ 35   Mandziara does not support NorthShore’s argument, and instead works against

NorthShore. First, any discussion in Mandziara about our unpublished order in the separate

appeal relating to the mental health provider that delivered the records directly to the circuit

court has no precedential effect and cannot be cited or relied on by NorthShore to support its

argument. Ill. S. Ct. R. 23(e)(1). Furthermore, in Mandziara, we did not adopt or endorse the

earlier decision in Northwest Community Hospital, and we were in no position—either

jurisdictionally or prudentially—to revisit that order. And as stated in Mandziara, our

unpublished order in Northwest Community Hospital did not even address section 10(d), which

clearly prohibits a hospital from responding to a subpoena that is not accompanied by a court

order or the patient’s written consent. For all of these reasons, we reject NorthShore’s argument

that Mandziara controls whether NorthShore’s may be held liable for improperly responding to a

subpoena that did not comply with plain language of the Act, even though NorthShore, in

compliance with the first subpoena, sent the subpoenaed records to the circuit court. A plain

reading of the Act and our opinion in Mandziara leads us to find that a person aggrieved by the

disclosure of mental health records in violation of the Act—whether it be a person, hospital, or

any other entity—may seek relief pursuant to section 15 of the Act. There is no exception for a

health care provider that provides the subpoenaed records directly to the circuit court where the

Act is not strictly complied with.

¶ 36   Both Pfeifer and NorthShore emphasized at oral argument that Ryan cannot establish that

any violation of the Act proximately caused him any injury. Neither Pfeifer’s nor NorthShore’s

appellate briefs, however, advance any meaningful argument that Ryan failed to allege or present

sufficient facts to demonstrate proximate cause. Regardless, our supreme court has explained that

the issue of proximate cause is ordinarily a question of fact to be decided by the trier of fact




                                               17
No. 1-18-0872


(Thompson v. Gordon, 241 Ill. 2d 428, 438-49 (2011); Heastie v. Roberts, 226 Ill. 2d 515, 545

(2007)), but may be decided as a matter of law “where the facts alleged do not sufficiently

demonstrate both cause in fact and legal cause [citations]” (Young v. Bryco Arms, 213 Ill. 2d 433,

447 (2004)). Ryan’s amended complaint alleged that he suffered injuries as a result of learning

that Pfeifer had subpoenaed Ryan’s mental health records and that NorthShore had complied

with the subpoena, and—as we discuss below—he testified at his deposition that he experienced

emotional distress as a result of learning that his mental health records might be exposed. We

find that Ryan has, at a minimum, established a question of fact as to whether Pfeifer’s and

NorthShore’s violations of the Act were a proximate cause of his injuries.

¶ 37   Having determined that Ryan sufficiently alleged that he was aggrieved under the Act

and that he did not forfeit his damages claim by failing to object in the contempt proceedings, we

turn to Ryan’s argument that there were genuine issues of material fact with respect to damages.

He argues that he provided “uncontroverted testimony of the physical and emotional harm he

suffered as a direct consequence of [d]efendants’ violation of the Act.” He asserts that he

testified that he began experiencing anxiety “the first day I became aware that my medical

records had been exposed; and on that day I vividly remember being violently ill, throwing up,

[and] overwhelmed with cold sweat.” He testified that his anxiety lasted “[a] long time.” He had

not sought any “professional help,” but his “anxiety, fear, stress, upset stomach, headaches, lack

of sleep, [and] sadness” only “marginally” dissipated after Judge Vega ultimately denied

Pfeifer’s request for an in camera inspection of the records. Ryan testified that his work was

“interrupted” by his anxiety, which he explained meant that “sometimes it was hard to even stay

focused on a meeting.”




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No. 1-18-0872


¶ 38   We must admonish Ryan again, however, that his appellate brief repeatedly asserts facts

that are not supported by citations to the record and amount to little more than conjecture. His

argument that between July 29, 2015, and November 3, 2015, his mental health records “were

disclosed and accessible in the courthouse where the custody of his children could be decided”

contains no citation to the record, and he cites to no facts in the record as to how the records

were “accessible.” Instead, the record reflects only that NorthShore delivered the records to

Judge Panarese in response to the initial subpoena. Ryan also asserts that his records “could have

been seen by anyone” and that “records could not be unseen.” But nothing in the record

affirmatively establishes where the records were other than in the possession of Judge Panarese,

or that anyone ever looked at the records. Ryan also asserts in his appellate brief that an “element

of [his] damages” is “his fear of seeking treatment lest his mental health records will be disclosed

again amid the vitriol of his post decree relationship with Linda.” Once again, there is no citation

to the record reflecting that Ryan ever made this assertion at any time prior to his appellate brief.

Ryan’s unsupported assertions violate Rule 341(h)(7), and do nothing to advance his appellate

arguments. We therefore strike any statements of alleged fact in Ryan’s appellate brief that are

not supported by proper citations to the record on appeal.

¶ 39   Pfeifer and NorthShore first argue that there is no evidence that Ryan’s mental health

records were seen by anyone, and therefore he could not have been “adversely affected” by the

subpoena. As we discussed above, this argument lacks merit. Supra ¶¶ 29-33. Section 15 of the

Act provides a remedy to a person aggrieved by a violation of the Act and is not limited to

injuries arising from the disclosure of the mental health records. See Mandziara, 299 Ill. App. 3d

at 601 (suggesting that “the nature and extent” of any damages arising from violations of section

10(d) of the Act should be determined by a trier of fact).




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¶ 40    Pfeifer and NorthShore further argue that Ryan failed to present competent evidence of

his emotional distress in response to defendants’ motions for summary judgment. Pfeifer and

NorthShore contend that Ryan cannot simply rely on the allegations in his complaint that he

suffered emotional distress, and that his “self-serving” deposition testimony was insufficient to

create a genuine issue of material fact. Pfeifer and NorthShore rely on Robbins v. Kass, 163 Ill.

App. 3d 927 (1987) to argue that Ryan’s alleged “crying, sleeplessness, increased migraine

headaches and upset feelings” are not severe enough to satisfy “the physical illness or injury

requirement of an emotional distress claim.” NorthShore additionally relies on Schweihs v.

Chase Home Finance, LLC, 2016 IL 120041 to argue that Ryan was required to allege a

contemporaneous physical injury or impact in order to recover damages for emotional distress.

¶ 41    We find that Ryan’s deposition testimony was not so self-serving that it would be

inadmissible at trial.

                “Deposition testimony, affidavits, responses to interrogatories, and other written

                statements by their nature are self-serving. [Citation]. As we have repeatedly

                emphasized over the past decade, the term ‘self-serving’ must not be used to

                denigrate perfectly admissible evidence through which a party tries to present its

                side of the story at summary judgment. [Citations].” Hill v. Tangherlini, 724 F.3d

                965, 967 (7th Cir. 2013).

¶ 42    Here, Ryan testified at his deposition—the transcript of which was before the circuit

court at summary judgment—that his anxiety started “the first day [he] became aware that [his]

medical records had been exposed,” that he was vomiting, overwhelmed with cold sweat, and he

suffered the effects of an upset stomach, and that his anxiety lasted “a long time.” He also

testified that he experienced fear, an upset stomach, a lack of sleep, fear that he would not be




                                                20
No. 1-18-0872


able to see his children, and sadness, all of which “only marginally” dissipated after Judge Vega

denied Pfeifer’s request for an in camera inspection of the records. We fail to see how Ryan’s

testimony would be inadmissible at trial, since it was based on his own personal knowledge. See

Ill. R. Evid. 602 (eff. Jan. 1, 2011) (“A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the matter.

Evidence to prove personal knowledge may, but need not, consist of the witness’ own

testimony.”). The fact that Ryan did not seek medical treatment for his conditions or identify any

evidence to corroborate his testimony goes to the weight of his testimony and his credibility, but

does not affect the admissibility of his testimony. Such testimony is routinely considered by a

fact finder in the determination of liability and the assessment of damages.

¶ 43   Furthermore, our supreme court has recognized a distinction between freestanding claims

based on emotional distress, such as intentional or negligent infliction of emotional distress, and

“a claim of liability for negligence or other personal tort in which the act or omission of the

defendant caused emotional distress for which damages may be recovered.” Schweihs, 2016 IL

120041, ¶ 67 (Garmin, J., concurring) (discussing Clark v. Children’s Memorial Hospital, 2011

IL 108656); see also Cochran v. Securitas Security Services USA, Inc., 2017 IL 121200, ¶ 24

(distinguishing between freestanding infliction of emotional distress claims and the assertion of

emotional distress as an element of damages for a personal tort, such as tortious interference with

the right to possess a corpse). We therefore reject NorthShore’s argument that Ryan was required

to allege a contemporaneous physical injury or impact, as the physical impact rule applies to

freestanding claims of negligent infliction of emotional distress, but the physical impact rule

does not apply here where the plaintiff seeks damages for emotional distress that is “part and




                                                21
No. 1-18-0872


parcel of the damage that results from the wrong that was committed.” (Emphasis in original.)

Cochran, 2017 IL 121200, ¶ 24.

¶ 44   Finally, Pfeifer’s and NorthShore’s reliance on Robbins in support of the argument that

Ryan’s alleged injuries are not severe enough to satisfy “the physical illness or injury

requirement of an emotional distress claim” is inapposite, because Robbins involved a

freestanding negligent infliction of emotional distress claim rather than a claim seeking damages

for emotional distress. Furthermore, damages for emotional distress are available to prevailing

plaintiffs in cases involving personal torts, such as defamation, conversion, and misappropriation

of identity (Clark, 2011 IL 108656, ¶ 111), and medical negligence (Babikian v. Mruz, 2011 IL

(App) 1st 102579, ¶ 19). We see no principled basis for why a person aggrieved under the Act

should not be permitted to recover emotional distress damages arising out of violations of section

10(d) of the Act.

¶ 45   In sum, Ryan presented sufficient, competent evidence of damages in response to

Pfeifer’s and NorthShore’s motions for summary judgment from which reasonable minds could

reach different conclusions, thereby demonstrating the existence of a genuine issue of material

fact. Therefore, the circuit court’s entry of summary judgment in favor of Pfeifer and NorthShore

is reversed. We further find that the circuit court erred by denying Ryan’s cross-motion for

summary judgment on counts I and III of his amended complaint, as there is no genuine issue of

material fact as to whether Pfeifer and NorthShore violated section 10(d) of the Act by issuing

and complying with the initial subpoena. Ryan was therefore entitled to partial summary

judgment on the issue of liability for counts I and III of his amended complaint. Pursuant to

Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we enter partial summary judgment in

favor of Ryan and against Pfeifer and NorthShore on counts I and III of Ryan’s amended




                                               22
No. 1-18-0872


complaint on the issue of liability. We remand this matter for trial on the issues proximate cause

and damages.

¶ 46                                   III. CONCLUSION

¶ 47   For the foregoing reasons, we affirm the circuit court’s entry of summary judgment in

favor of Linda on count II of Ryan’s amended complaint. We reverse the circuit court’s entry of

summary judgment in favor of Pfeifer and NorthShore on counts I and III of the amended

complaint, enter partial summary judgment in favor Ryan on counts I and III of the amended

complaint on the issue of liability, and remand for further proceedings.

¶ 48   Affirmed in part and reversed in part; judgment modified.

¶ 49   Cause remanded.




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