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Pietro v. Marriott Senior Living Services

May 13, 2004


Appeal from the Circuit Court of Cook County. No. 01 L 3838. Honorable Diane J. Larsen, Judge Presiding.

The opinion of the court was delivered by: Justice Theis


J. Scott Myers, attorney for defendants, Marriott Senior Living Services, Inc., d/b/a Marriott Brighton Gardens of Hoffman Estates (Marriott) and Odessa McArdle, appeals from an order of the circuit court which held him in contempt for refusing to produce certain documents demanded by plaintiff, Mary Pietro, during discovery. Defense counsel was assessed a $100 fine for his refusal to comply with the court's order. On appeal, counsel contends that the requested documents are protected under the Code of Civil Procedure (Medical Studies Act or the Act) (735 ILCS 5/8-2101 et seq. (West 2002)) and the attorney-client privilege (166 Ill. 2d R. 201). For the following reasons, we affirm the circuit court's ruling with respect to the documents and vacate the finding of contempt.


Plaintiff brought this action against defendants Marriott and McArdle to recover damages resulting from their alleged negligence in rendering care to plaintiff's father, Raymond Morman, while he was a resident at Marriott's assisted living facility. Plaintiff alleged that defendants failed to provide necessary emergency medical care, including cardiopulmonary resuscitation, and failed to call 911 for assistance. Sohail Agha, a resident assistant, and Laura Dudek-Konar, a nurse, were also named as respondents in discovery.*fn1 During the course of written discovery, plaintiff sought the production of various documents. Defendants objected, asserting that these documents were privileged under the attorney-client privilege and the Act (735 ILCS 5/8-2101 et seq. (West 2002)). The documents at issue on appeal include witness statements from McArdle, Dudek-Konar, and Agha, as well as three other documents referred to as documents 2, 14, and 137.

Defendants filed a privilege log which the court initially held to be insufficient. Subsequently, they were granted leave to file an amended log. According to the amended log, the documents are all contained in McArdle's personnel or confidential personnel file. Defendants asserted that the handwritten statements of McArdle and Agha were generated during the course of a peer review. No privilege was asserted with respect to any statement of Dudek-Konar. It was asserted that document 2 was an undated, handwritten note, authored in contemplation of litigation and protected by the attorney-client privilege. With respect to document 14, it was asserted that it was an unidentified handwritten note created on June 28, 2000, and protected by the attorney-client privilege. It was further stated that document 137 was preliminary research of events generated during the course of a peer review and in contemplation of litigation. No author or date was provided in the log for this document.

Defendants also supported their assertions of privilege with affidavits from the following individuals: Diana Barthel, the general manager and administrator of Marriott; Ruth Raine, a special service supervisor for Marriott's claim services department; and McArdle, Dudek-Konar, and Agha. According to Barthel's affidavit, she was responsible for investigating all incidents which occurred at the facility and reporting the results of said investigations to Marriott's risk management/in-house legal department with her analysis. She stated that in accordance with Marriott's risk management policy and as a member of its quality assurance committee, she requested that McArdle, Dudek-Konar, and Agha prepare written statements regarding their involvement in Mr. Morman's care on the date of the occurrence. The purpose for the written statement was "to protect the interests of Marriott and its employees should a lawsuit be filed," and for quality assurance purposes. Additionally, she stated that the statements were reviewed by other department heads at Marriott who are also members of its quality assurance committee. With respect to documents 2 and 14, she stated that they were prepared by Beth Hovius, Marriott's assisted living manager. These documents were included in McArdle's personnel file at Barthel's direction during the course of her investigation and in contemplation of litigation.

According to Raine's affidavit, it was the policy of Marriott's claim services department to defend and indemnify its employees against litigation arising out of the scope of their employment. She stated that the department relied upon the analysis and opinions of Barthel when formulating its position regarding this occurrence and the anticipated litigation. She further stated that Marriott selected a law firm to protect the interests of Marriott and its employees in accordance with its risk management policy.

McArdle, Dudek-Konar, and Agha filed identical affidavits. Therein, they stated that on May 30, 2000, the morning of the incident, Barthel asked them to prepare a written statement regarding their involvement in Mr. Morman's care on the date of the occurrence. They further stated that they "understood this request was made for quality assurance purposes and because Marriott anticipated litigation resulting from this incident." It was also their understanding that "Barthel would forward same to Marriott's Risk Management/In-House Legal Department for the protection of both Marriott and [their] interests in the event a lawsuit was filed."

The trial court was also supplied with the deposition testimony of Barthel and Raine. According to Barthel's deposition, members of the quality assurance committee, also known as the resident care committee, reviewed the statements together on the day of the incident. The statements were prepared prior to their meeting, and no formal committee ever met. Raine testified that Marriott had a self-insured retention under its liability policy in the amount of $100,000.

On November 19, 2002, after an in camera inspection, the trial court held a hearing on the disputed documents. The court held that defendants failed to establish a privilege under the Act as to the witness statements of McArdle, Dudek-Konar and Agha. The court found that the privilege log lacked elements necessary to assert such a privilege. Additionally, the court found that the statements at issue were generated prior to any quality assurance committee meeting and that there was no evidence of a request by the committee for the information. The court further found that McArdle, Dudek-Konar and Agha admitted knowledge that the statements they made would be shared with others for quality assurance purposes. The court held that such knowledge defeated the attorney-client privilege because the witnesses had no expectation of privacy.

With respect to documents 2 and 14, the trial court found that the attorney-client privilege was waived by Marriott's placement of these materials in McArdle's personnel file. With respect to document 137, the trial court found that the amended privilege log was inadequate and lacked the requisite information to sustain defendants' burden of proof. After the trial court ruled, defense counsel refused to produce the disputed documents and was held in contempt of court and fined $100. Defense counsel timely appealed.


Medical Studies Act ...

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