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09/11/97 ERNIE TALARICO v. FRANK E. DUNLAP

September 11, 1997

ERNIE TALARICO, JR., APPELLEE,
v.
FRANK E. DUNLAP, M.D., ET AL., APPELLANTS.



Chief Justice Freeman delivered the opinion of the court. Justice McMORROW, dissenting.

The opinion of the court was delivered by: Freeman

CHIEF JUSTICE FREEMAN delivered the opinion of the court:

The issue presented in this appeal is whether defensive collateral estoppel may be utilized by the defendant in this civil case to bar litigation of an issue which was decided adversely to the plaintiff in the plaintiff's prior criminal proceeding.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986 Ernie Talarico was a second-year medical student at the Chicago College of Osteopathic Medicine. Talarico suffered from severe acne for many years. As a result of his acne, Talarico avoided social situations, became depressed, and was embarrassed and extremely uncomfortable in clinical work situations where he and his fellow students had to "work on each other." In June of 1986, Talarico sought medical treatment for his acne condition from Dr. Frank Dunlap at Dixie-Ashland Dermatology Associates, Ltd. Dunlap prescribed Accutane, which had some side effects, for the condition. Talarico used the Accutane from June 6, 1986, until September 1986.

On August 21, 1986, Talarico visited a forest preserve, grabbed a 15-year-old male, pushed him to the ground, and shocked him with a stun gun. Later, on August 27, 1986, Talarico again visited a forest preserve where he stunned a 25-year-old man with a stun gun. Talarico and the man fell to the ground; Talarico grabbed the man's genitals and kissed him several times on the face. Up until these occurrences, Talarico had no involvement with the criminal justice system.

Subsequent to these occurrences, Talarico was arrested and charged with aggravated battery, aggravated unlawful restraint, armed violence and aggravated criminal sexual abuse. At the criminal proceeding, Talarico entered into a plea agreement whereby he pleaded guilty to two counts of misdemeanor battery. Talarico stipulated to the facts concerning his crimes. Further, he admitted to having committed the crimes "intentionally and knowingly, without legal justification."

After proper admonishment pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), the court accepted defendant's plea. In exchange for his plea, Talarico was sentenced to one-year misdemeanor probation, ordered to undergo psychiatric counseling and assessed fees.

Some time following the completion of the criminal proceedings, Talarico received a pardon from the Governor. The pardon provided that Talarico was "acquitted and discharged of and from all further imprisonment and restored to all the rights of citizenship which might have been forfeited by the conviction."

Talarico subsequently filed a four-count, first-amended civil complaint in the circuit court of Cook County. The first three counts of the complaint were lodged against Roche Laboratories, the manufacturer of Accutane, and the remaining one count was lodged against Dr. Dunlap, the prescribing physician, and Dixie-Ashland Dermatology Associates, Ltd. Roche Laboratoriesentered into a settlement agreement with Talarico. As a result of the settlement, the first three counts of the complaint were dismissed with prejudice.

The remaining one count against Dr. Dunlap and Dixie-Ashland (collectively, Dunlap) alleged that Dr. Dunlap prescribed medication with known side effects and subjected Talarico to unnecessary risk. Further, the complaint alleged that Dr. Dunlap failed to properly monitor Talarico's condition. The complaint alleged that, as a result of these failings, Talarico was injured and "that in part those injuries included alleged criminal activity for which [Talarico] was charged."

The complaint additionally alleged that the aforementioned injuries caused Talarico to "incur legal obligations for medical and related services, has caused him to lose profits and earnings which he otherwise would have made and acquired; has caused him to lose educational advantage which he would otherwise have acquired; has caused him to suffer pain and disability; all of which injuries and conditions are permanent."

In answer to Talarico's complaint, Dunlap moved the court for summary judgment (735 ILCS 5/2-1005 (West 1994)) on the basis that Talarico's guilty plea in the criminal proceeding collaterally estopped him from claiming that Accutane proximately caused his criminal behavior. The court granted summary judgment in Dunlap's favor. Talarico stipulated that the court's ruling disposed of the entire case.

The appellate court reversed the order of summary judgment (281 Ill. App. 3d 662, 667 N.E.2d 570, 217 Ill. Dec. 481), and we granted Dunlap's petition for leave to appeal (155 Ill. 2d R. 315(a)). The Illinois Trial Lawyers Association was granted leave to file an amicus curiae brief in support of Talarico. 155 Ill. 2d R. 345. For the reasons which follow, we now affirm the judgment of the appellate court.

ARGUMENT(S)

This case comes to us on the appeal from a ruling onDunlap's motion for summary judgment. Our review is, therefore, de novo. See Delaney v. McDonald's Corp., 158 Ill. 2d 465, 467, 199 Ill. Dec. 696, 634 N.E.2d 749 (1994), citing Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992).

Pardon

The parties concede that the Governor's pardon of defendant has no effect on the legal question presented in this appeal. They have advanced no argument on the issue. Further, the appellate court expressly noted that its decision was without regard to the pardon's effect. See 281 Ill. App. 3d at 668. As part of our review, nevertheless, we have briefly considered the pardon's nature and effect.

In that regard, we note the following. Some courts have held that a pardon not only relieves the punishment for the offense but blots out the existence of the guilt of the offender. 67A C.J.S. Pardon and Parole § 18 (1978). This court, however, has held that a pardon merely releases an inmate from custody and supervision. People ex rel. Abner v. Kinney, 30 Ill. 2d 201, 205, 195 N.E.2d 651 (1964). Since the very essence of a pardon is forgiveness or remission of penalty, assessed on the basis of the conviction of the offender, a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction thereof. 67A C.J.S. Pardon and Parole § 18 (1978). In other words, a pardon "involves forgiveness but not forgetfulness." 29 Ill. L. & Prac. Pardons § 1, at 109 (1957); see also People v. Chiappa, 53 Ill. App. 3d 639, 640, 11 Ill. Dec. 317, 368 N.E.2d 925 (1977). The law in Illinois, though slight, supports a conclusion that Talarico's pardon did not negate the fact of his criminal conviction for purposes of collateral estoppel.

Collateral Estoppel

Dunlap argues that Talarico should be collaterally estopped from "relitigating" in this civil suit the issueof the cause of his criminal conduct, which was ...


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