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02/25/94 JEAN CUKIER v. AMERICAN MEDICAL

February 25, 1994

JEAN CUKIER, M.D., PETITIONER-APPELLEE,
v.
THE AMERICAN MEDICAL ASSOCIATION, THE JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION, AND CHARLES B. CLAYMAN, M.D., RESPONDENTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH N. CASCIATO, JUDGE PRESIDING.

Released for Publication April 19, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Murray, Gordon, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Pursuant to Supreme Court Rule 224, the petitioner, Jean Cukier, M.D. (Cukier), filed a petition for discovery before suit (see 134 Ill. 2d R. 224), seeking to identify those persons or entities who were responsible for alleged defamatory statements made to the respondents claiming that petitioner had a financial interest in the publication of an article he submitted to the Journal of the American Medical Association (JAMA). *fn1

The relevant facts are as follows. Cukier and his co-authors submitted a proposed scientific journal manuscript to JAMA in February 1991 for possible publication. Simultaneously, Cukier submitted a statement that he had no financial interest in the publication of the manuscript.

In September 1991 Cukier received a letter from Charles B. Clayman (Clayman), contributing editor of the JAMA, indicating that it had come to their attention that Cukier might have "if not a direct, at least an indirect financial interest in the publication of [the] paper." The letter further stated that JAMA would require a statement of full disclosure of any and all financial interests relating to the publication. Claymen also sent to David A. Trentham, M.D., one of Cukier's co-authors, a letter indicating that allegations had been made concerning possible financial interests in the publication of the paper by Dr. Cukier.

In October 1991 petitioner again advised respondents that he had no financial interest in the publication of the submitted paper. In November 1991 petitioner was notified by JAMA that the submitted paper was declined for publication.

On September 29, 1992, Cukier filed his petition for pre-suit discovery in an attempt to ascertain what person, persons or entity made statements which called into question his professional honesty and integrity by alleging that he had a financial interest in the paper. Cukier named as respondents the American Medical Association (AMA), its publication, JAMA; and one of JAMA's contributing editors, Charles Clayman, M.D. *fn2

On November 5, 1992, respondents filed a memorandum in opposition to the petition for discovery before suit, claiming: (1) the information sought was privileged under the Illinois Reporter's Privilege Act (735 ILCS 5/8--901 et seq. (West 1992)); (2) the petition violated the free press guarantees of the Illinois Constitution and the First Amendment to the United States Constitution; and (3) the information sought was privileged under the Medical Studies Act. 735 ILCS 5/8--2101 et seq. (West 1992).

On November 12, 1992, petitioner filed his response stating that the privileges which the respondents were claiming did not apply in this case. On November 25, 1992, respondents filed a supplement to their memorandum, wherein respondents argued that petitioner's arguments were without merit.

On February 11, 1993, a hearing was held upon respondents' objection to the discovery. In ruling in favor of the respondents, the trial court applied section 8-907(2) of the Reporter's Privilege Act and found that the specified test had not been satisfied. The trial court stated that in order for petitioner to prevail, he would need to show that no other source for the information existed. In addition, the trial court found a public interest clearly existed in protecting the respondents' confidentiality. The court indicated that it would not rule on the applicability of the Medical Studies Act, noting that the court did not have guidance, but that "the reasons of the Medical Studies Act could sure show and lend credence to the public interest * * * involved here." The order of the court denied petitioner's request for pre-suit discovery, but also granted petitioner 28 days to file a petition to divest the respondents of its reporter privilege. See 735 ILCS 5/8--901 et seq. (West 1992).

On March 5, 1993, Cukier filed a motion seeking a ruling on the respondents' claimed privilege pursuant to the Medical Studies Act and for an order making the February 11th order final and appealable.

On March 31, 1993, the trial court entered an order denying Cukier's request for a ruling relative to the applicability of the Medical Studies Act, but granting petitioner's request to make the order of February 11th final and appealable pursuant to Supreme Court Rule 304(a). ...


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