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Deborah A. Orlando Cooney, Raymond L. Wietrzykowski, Rose M. Wietrzykowski, and Christopher Orlando v. Lyle H. Rossiter

August 10, 2012

DEBORAH A. ORLANDO COONEY, RAYMOND L. WIETRZYKOWSKI, ROSE M. WIETRZYKOWSKI, AND CHRISTOPHER ORLANDO, PLAINTIFFS-APPELLANTS,
v.
LYLE H. ROSSITER, JR.,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 07 L 6089 Honorable Jeffrey Lawrence, Judge Presiding.

The opinion of the court was delivered by: Justice Howse

JUSTICE HOWSE delivered the judgment of the court, with opinion.

Presiding Justice Epstein and Justice McBride concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs Deborah Orlando Cooney, Raymond Wietrzykowski, Rose Wietrzykowski and Christopher Orlando appeal from a judgment granting defendant Lyle Rossiter's motion to dismiss based on a finding of absolute immunity and res judicata entered by the circuit court of Cook County. On appeal the plaintiffs argue the trial court erred because: (1) their claim is not barred by res judicata, and (2) court-appointed psychological evaluators are not immune from lawsuits in Illinois.

¶ 2 For the reasons set forth below, we affirm.*fn1

¶ 3 BACKGROUND

¶ 4 Plaintiffs Deborah A. Orlando Cooney, Raymond L. Wietrzykowski and Rose M. Wietrzykowski filed their first amended complaint on November 20, 2008, alleging intentional infliction of emotion distress by defendant Lyle H. Rossiter. The plaintiffs' allegations stem from Deborah's 1998 divorce and subsequent custody proceeding involving her two children, Christopher and Jonathan, born during her marriage to ex-husband Lorenzo Orlando. Rossiter was the court-appointed psychological evaluator in the parties' custody proceeding.

¶ 5 Deborah was granted custody of her two children in the judgment for dissolution of marriage. In 2001, Lorenzo filed a petition for a change of custody. Deborah filed a motion for the appointment of a psychological evaluator, in 2004, for the purpose of formulating written recommendations concerning the custodial arrangements for her children. The trial court appointed Rossiter, a general and forensic psychiatrist, as the evaluator, pursuant to section 605 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/605 (West 2002)).

¶ 6 In formulating his evaluation, Rossiter interviewed

Deborah, Deborah's mother Rose, Deborah's father Raymond, and the children. In his evaluation, Rossiter opined that Deborah, Rose and Raymond suffer from the delusional disorder Munchausen's by proxy syndrome and that Christopher suffered significant mental injury as a result. Rossiter opined that Christopher's mental and emotional injuries constituted child abuse by Deborah and her parents. Rossiter opined that Christopher and Jonathan should be removed from Deborah's custody and that she and her parents undergo psychiatric treatment.

¶ 7 The plaintiffs allege that Rossiter rendered erroneous and fraudulent conclusions in his evaluation and failed to perform psychological testing. The plaintiffs allege that Rossiter intended for the conclusions in his evaluation to injure the plaintiffs. The plaintiffs allege the trial court granted Lorenzo's petition for change in custody based solely on Rossiter's written evaluation. The plaintiffs allege Rossiter intentionally and deliberately made false statements to an Illinois Department of Children and Family Services (DCFS) investigator resulting in a DCFS finding indicating Deborah for child abuse. An administrative law judge affirmed the DCFS indicated finding of child abuse.

¶ 8 The plaintiffs then filed, under section 1983 of the Civil Rights Act of 1991 (42 U.S.C. § 1983 (2006)), a class-action

1-10-2129 section 1983 civil rights lawsuit in federal court on May 16, 2007. The federal district court dismissed the lawsuit, finding the defendants immune, stating:

"[I]t is well-established that court-appointed psychological evaluators are 'protected by the same immunity extended to judges and other judicial officers.' " Cooney v. Rossiter, No. 07-C2747, slip op. at 7 (N.D. Ill. Aug. 20, 2008) (quoting Bartlett v. Weimer, 268 F.2d 860, 862 (7th Cir. 1959)).

¶ 9 The plaintiffs allege that they are not delusional and do not suffer from Munchausen's by proxy syndrome and have not committed child abuse. The plaintiffs allege Rossiter's conduct was extreme, and outrageous and caused Deborah, Rose and Raymond to lose any contact and visitation with the children. The plaintiffs allege Rossiter's conduct caused Deborah to lose her job as a nurse and caused all the plaintiffs to suffer severe and extreme mental and emotional distress.

ΒΆ 10 On May 4, 2009, Rossiter filed a motion under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) to dismiss plaintiffs' first amended complaint, claiming he is immune from ...


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