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06/12/96 ERNIE TALARICO v. FRANK E. DUNLAP

June 12, 1996

ERNIE TALARICO, JR., PLAINTIFF-APPELLANT,
v.
FRANK E. DUNLAP, M.D., AND DIXIE ASHLAND DERMATOLOGY, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Robert V. Boharic, Judge Presiding.

Presiding Justice Tully delivered the opinion of the court: Greiman and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiff, Ernie Talarico, brought this action in the circuit court of Cook County against defendants, Dr. Frank Dunlap and Dixie Ashland Dermatology Associates, Ltd., seeking to recover damages he allegedly sustained from Accutane, a drug prescribed by Dr. Dunlap for plaintiff's acne. Defendants moved for summary judgment on the grounds of collateral estoppel. The trial court granted defendant's motion. It is from this order that plaintiff now appeals pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we reverse and remand.

FACTUAL BACKGROUND

The relevant and unique facts are as follows. Talarico was a second-year medical student at the Chicago College of Osteopathic Medicine. Starting in January of 1986, Talarico took part in a medical research project concerning potential adverse effects associated with the use of Accutane. Later that year, he went to see Dr. Dunlap at Dixie-Ashland Dermatology Associates, Ltd. to obtain treatment for his acne condition. Dr. Dunlap prescribed Accutane for the acne condition, which had some side effects. Talarico first used Accutane on June 6, 1986 and continued using it until September 1986.

Under the medication, Talarico engaged in some bizarre criminal conduct. On August 21, 1986, Talarico went to a forest preserve, grabbed a 15-year-old boy and pushed him to the ground, and shocked him with a stun gun. On August 27, 1986, Talarico stunned a 25-year-old man with a stun gun in the forest preserve. He then grabbed the man's genitals and kissed him several times on the face. Subsequently, Talarico was arrested and charged with aggravated battery, aggravated unlawful restraint, armed violence and aggravated criminal sexual abuse. Talarico considered a defense to the charges based upon the purported intoxicating effects of Accutane, but in the end chose not to assert any such defense. At the criminal hearing, Talarico entered into a plea agreement where he plead guilty to two counts of misdemeanor battery. In return, he was sentenced to one-year misdemeanor probation and underwent psychiatric counseling. The trial court noted that Talarico had no prior criminal background. Also at the hearing, Talarico stipulated to the facts concerning his crimes. He further admitted to having committed the crimes "intentionally and knowingly, without legal justification" and voluntarily entered a guilty plea.

Subsequently, Talarico brought this suit, alleging that Dr. Dunlap should not have prescribed Accutane, and failed to properly monitor Talarico's condition. Talarico further claims that Dr. Dunlap's acts and omissions were the proximate cause of his injuries, which included the criminal charges. Defendants moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1996)), which the trial court granted, on the basis that his guilty plea in the criminal case collaterally estopped him from now claiming that Accutane caused his criminal behavior. Prior to this action being brought, the governor of the state of Illinois pardoned Talarico. The governor pronounced:

"Ernie Talarico, Jr., is hereby acquitted and discharged of and from all further imprisonment and restored to all the rights of citizenship which may have been forfeited by the conviction."

Talarico now appeals the trial court's granting of defendant's summary judgment motion.

ISSUE PRESENTED FOR REVIEW

On appeal, plaintiff argues that he is not collaterally estopped by virtue of his guilty plea from claiming that Accutane contributed to cause the criminal conduct.

We begin our analysis by reviewing whether summary judgment was properly granted to defendant. Initially, we note that as the relevant facts are undisputed, the issue of whether plaintiff is collaterally estopped from bringing a subsequent civil action if equitable issues are present is purely a question of law and, thus, subject to de novo review by this court. City Suburban ...


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