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Norskog v. Pfiel

June 30, 2000

MARSHA NORSKOG, INDIV. AND AS ADM'R OF THE ESTATE OF HILLARY NORSKOG, PLAINTIFF-APPELLANT,
v.
ROGER PFIEL, GAYLE PFIEL AND STEVEN PFIEL,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 95 L 10905 Honorable Julia Nowicki, Judge Presiding.

The opinion of the court was delivered by: Justice Hall

Defendants Roger and Gayle Pfiel appeal from the April 30, 1999, order holding them in civil contempt for refusing to comply with prior orders of the court directing them to identify any mental health providers seen by their son Steven Pfiel and the dates on which each provider saw him, and to appear and testify at their depositions as to certain aspects of their communications with any such providers. Defendant Steven Pfiel appeals from the April 30, 1999, order holding him in civil contempt for refusing to comply with a prior order of the court directing him to identify any mental health providers who provided treatment to him prior to July 14, 1993, and the dates on which each provider saw him. Defendants filed a timely notice of appeal on May 14, 1999. For the following reasons we reverse.

This case arises out of a wrongful death and survival action brought by plaintiff, Marsha Norskog, against defendants Steven Pfiel and Roger and Gayle Pfiel, his parents. The complaint alleged that on July 14, 1993, then 17- year-old Steven stabbed and killed plaintiff's 13-year-old daughter, Hillary, using a 5 1/4-inch hunting knife, while they were parked at a forest preserve in an automobile owned by Steven's parents. The complaint stated claims for assault and battery against Steven and for negligent entrustment and negligent supervision against Roger and Gayle. Plaintiff also alleged a cause of action against Steven for reckless infliction of emotional distress relating to events that occurred in March 1995 when Steven murdered his brother and sexually assaulted his sister while out on bond for the murder of Hillary. *fn1

Roger and Gayle's motion to dismiss the counts filed against them was granted with leave to replead. On June 26, 1996, plaintiff filed a 12 count amended complaint, including claims of assault and battery and reckless infliction of emotional distress against Steven, and negligent entrustment and negligent supervision against Roger and Gayle. Specifically, plaintiff alleged that Roger and Gayle negligently gave Steven the hunting knife used in the murder and negligently allowed Steven to use their vehicle when they knew or should have known of Steven's violent propensities and mental condition.

Plaintiff alleged that Roger and Gayle knew that Steven engaged in violent and antisocial behavior from an early age including, but not limited to, threatening and assaulting other children on several occasions; dropping bricks from an overpass onto passing traffic; consuming large quantities of drugs and alcohol both inside and outside the Pfiel home; vandalizing the motor home of a classmate; using Gayle's car to intentionally hit and kill animals; engaging in behavior resulting in at least eight incidents involving the police; brandishing the hunting knife in public; and engaging in behavior that caused him to be suspended from school at least seven times during his last year there. Plaintiff also alleged that, a few months before the murder, Roger told an officer at the Palos Park police department that Steven was becoming increasingly disruptive at home, was doing increasingly poorly at school, and had joined a group of skinheads. Plaintiff further alleged that on July 3, 1993, Steven was arrested for possession of drugs and alcohol while in a vehicle owned by Roger and Gayle.

Roger and Gayle have denied knowledge of virtually all of these factual allegations and have contended that Steven was a normal teenager.

During discovery in this matter, plaintiff sought to obtain the records of Dr. Markos, the court-appointed psychiatrist who examined Steven for fitness to stand trial in the criminal case for Hillary's murder. Plaintiff argued that the records were relevant to the issue of what Roger and Gayle knew about Steven's mental condition and violent propensities prior to the murder. Steven filed a motion to quash, arguing that the requested information was privileged under the Mental Health and Developmental Disabilities Confidentiality Act (the Act)(740 ILCS 110/1 et seq. (West 1996)). Plaintiff responded that the requested information was not privileged but that, even if it was, Steven had waived any applicable privilege by raising insanity as a defense in the criminal case for Hillary's murder *fn2 ; by volunteering information relating to his prior mental health treatment to Dr. Markos after receiving Dr. Markos' admonitions regarding the non-confidential nature of the fitness examination; and by volunteering the same information to other third parties. *fn3 Relying on the supreme court's decision in D.C. v. S.A., 178 Ill. 2d 551, 687 N.E.2d 1032 (1997), plaintiff also argued that even if there was no waiver, fundamental fairness required the disclosure of the extent of Roger and Gayle's knowledge of Steven's mental health condition.

On March 18, 1997, the circuit court entered an order granting Steven's motion to quash without prejudice. In order to explore whether Steven waived his privilege under the Act, plaintiff was given leave to take the limited deposition of Dr. Markos on the issue of what admonitions were given to Steven at the time he submitted to the examination by Dr. Markos. Dr. Markos testified that he told Steven that any information supplied during his fitness examination would not be confidential in the sense that the information would be sent to the judge. Based on this testimony, plaintiff sought reconsideration of the March 18, 1997, order denying access to Dr. Markos' records.

On March 16, 1999, the circuit court entered an order stating:

"Steven Pfiel's motion to quash the subpoena for deposition of Dr. Markos is granted. For the reasons stated in open court, including findings that Pfiel has not waived his privilege under the Mental Health and Development Disabilities Confidentiality Act and that admonitions given to him by Dr. Markos were insufficient to constitute waiver of confidentiality or privilege, the plaintiff may not depose Dr. Markos or obtain his records pertaining to Pfiel's fitness- for-trial examinations."

In the same order, the circuit court sua sponte ruled on the discoverability of any mental health treatment received by Steven prior to the murder of Hillary. The March 16, 1999, order provided:

" [t]his court finds per D.C. v. S.A., 178 Ill. 2d 551 (1997), Roger Pfiel and Gayle Pfiel should produce the identities of any mental health provider seen by Steven Pfiel and the dates on which each provider saw him. Plaintiff may depose Roger Pfiel and Gayle Pfiel as to any communications made to them by a mental health provider but such questions shall be limited to Steven's diagnosis and any recommendation or admonition given to them by a mental health provider as to what they should or should not do concerning Steven's mental health. Plaintiff may depose any mental health provider limited to the above areas. Pursuant to 740 ILCS 110/10, this court shall conduct an in camera inspection of testimony or other evidence concerning the discovery information permitted above to determine that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible."

On March 17, 1999, the circuit court ordered Roger and Gayle to provide the names of Steven's mental health providers in compliance with the March 16, 1999, order. The circuit court also ordered Steven to identify any mental health providers he treated with before July 14, 1993, including the dates of treatment. Rather than comply with the discovery orders, the three defendants requested that the circuit court hold them in civil contempt.

On April 30, 1999, the circuit court held all three defendants in civil contempt for refusing to comply with the discovery orders regarding disclosure of mental health information. The circuit court found that the Pfiels' refusal to comply with the prior orders of the court was in good faith for the purpose of seeking appellate review of a disputed legal issue i.e., whether the ordered disclosure of mental health information was in violation of the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 1996)). The ...


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