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04/18/94 ERIKA MAY v. CENTRAL ILLINOIS PUBLIC

April 18, 1994

ERIKA MAY, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, BRENDA MAY; BRENDA MAY, INDIVIDUALLY; CHAD HRYHORYSAK, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, PAM HRYHORYSAK; AND PAM HRYHORYSAK, INDIVIDUALLY, PLAINTIFFS-APPELLEES,
v.
CENTRAL ILLINOIS PUBLIC SERVICE CO., AN ILLINOIS CORPORATION; AND HANSON ENGINEERS, INC., A DELAWARE CORPORATION, QUALIFIED TO DO BUSINESS IN ILLINOIS, DEFENDANTS; (JOHN R. LUMPKIN, M.D., DIRECTOR OF PUBLIC HEALTH, CONTEMNOR-APPELLANT).



Appeal from the Circuit Court of Christian County. No. 91-L-56. Honorable Joseph L. Fribley, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Goldenhersh, Chapman, Maag

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

This is an appeal by contemnor, Dr. John R. Lumpkin, Director of Public Health, from an order of the circuit court of Christian County requiring the Department of Public Health (Department) to release certain documents to plaintiffs in a personal injury action. Contemnor also appeals the trial court's order finding him in contempt for failing to produce those same documents. We affirm.

I

In the underlying action, plaintiffs, Erika May, a minor by and through her mother and next friend, Brenda May, and Brenda May, individually, and Chad Hryhorysak, a minor, by and through his mother and next friend, Pam Hryhorysak, and Pam Hryhorysak, individually, filed a complaint against Central Illinois Public Service Company (CIPS) and Hanson Engineers, Inc., for damages allegedly caused by coal tar left in partially destroyed underground storage tanks at a coal gasification plant in Taylorville. CIPS demolished the plant before 1940, but the coal tar remained in the underground tanks until the 1980's. Coal tar is a known human carcinogen.

In January 1987, CIPS commenced a removal action mandated by the Illinois Environmental Protection Agency, whereby CIPS removed 9,000 cubic yards of contaminated soil and several of the storage tanks. Plaintiffs allege that during the removal action and until April 1989, levels of contaminants which exceeded minimum guidelines for human safety were released into the air.

In 1990, three children from Taylorville were diagnosed with neuroblastoma, a rare childhood cancer which occurs at a frequency of approximately nine cases per 1,000,000 live births. In 1988, Christian County, where Taylorville is located, had 520 live births. Plaintiffs allege that the statistical excess of neuroblastoma in Taylorville was caused by contaminants released at the CIPS coal gasification site.

At the request of the families of children diagnosed with neuroblastoma, the Department investigated the incidence of the disease in two specific zip codes, 62568 and 62540, which are assigned to Taylorville and Kincaid. On June 25, 1992, plaintiffs served a subpoena duces tecum upon the Department, commanding it to produce any and all documents pertaining to the Department's investigation of the Taylorville CIPS site and the outbreak of neuroblastoma, including the files of the Division of Epidemiology and the Division of Environmental Health. On January 21, 1993, plaintiffs served Dr. Lumpkin with a subpoena demanding production of the same documents the Department was supposed to produce.

On February 2, 1993, contemnor filed for a protective order, asserting that certain documents plaintiffs requested were privileged under the Illinois Health and Hazardous Substances Registry Act (the Registry Act) (410 ILCS 525/1 et seq. (West 1992)) and the Medical Studies Act (the Studies Act) (735 ILCS 5/8-2101 (West 1992)). Specifically, contemnor asserted a privilege as to the following documents which the Department did not produce: case histories, incident report forms, pathology reports, patient summaries of nonplaintiff neuroblastoma patients, consent forms, medical records and data of persons not parties to this action, and questionnaires completed pursuant to information provided by plaintiffs and their families.

On February 8, 1993, the trial court held that the Department would be required to produce the Illinois Cancer Registry by listing the type of cancer, the date of diagnosis, and the zip code of each cancer patient. The trial court also ordered the Department to produce the questionnaires administered to plaintiffs and their families. The trial court restricted all counsel from identifying or attempting to identify or contact cancer patients from information produced pursuant to the subpoena.

The Department moved for reconsideration and offered to produce the registry listing by type of cancer and date of diagnosis but include the county of patient residence rather than the patient's zip code. The trial court denied the Department's motion and rejected its claim of privilege under the Studies Act with regard to the questionnaires.

On March 22, 1993, the Department informed plaintiffs' counsel by letter that it "respectfully declined to comply" with the court's order regarding the production of the cancer registry by type of cancer, date of diagnosis, and zip code and regarding the production of the questionnaires. In response to this letter, plaintiffs filed a petition for rule to show cause. At the hearing on plaintiffs' petition, the Department requested 14 additional days to file an affidavit by its epidemiologist, Dr. Holly Howe, to make a record for the appeal. The trial court questioned the Department's motives and asked if the request was "a further dilatory action" or "a stalling tactic." The trial court also questioned why the Department was trying to build a record for appeal based on ...


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