JOHN DOE 1, a Minor, by His Mother and Next Friend, Jane Doe; JANE DOE, Individually; JOHN DOE 2, a Minor, by His Father and Next Friend, John Doe 3; and JOHN DOE 3, Individually, Plaintiffs-Appellants,
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, a Body Politic and Corporate; EDISON PARK ELEMENTARY SCHOOL, a Chicago Public School; ARLENE UCHIZONO, as Agent of the Board of Education of the City of Chicago and Edison Park Elementary School; and V. Z., a Minor, By and Through His Father, John Doe 4, Defendants-Appellees.
from the Circuit Court of Cook County. No. 12 L 3953
Honorable William Gomolinski, Judge Presiding.
JUSTICE HALL delivered the judgment of the court with
opinion. Presiding Justice Gordon and Justice Reyes concurred
in the judgment and opinion
1 This is an interlocutory appeal brought pursuant to
Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010)
seeking review of a contempt order and the discovery order
denying plaintiffs' motion for a protective order.
3 Plaintiffs, John Doe 1 and 2, filed their initial complaint
against the Board of Education of the City of Chicago (Board)
and Edison Park Elementary School (School) on April 13, 2012.
In it, they alleged that, between April 2011 and February
2012, the School employees failed to properly supervise the
students during recess, and that, as a result, the minor
plaintiffs, John Doe 1 and 2, and minor defendant, V.Z.,
engaged in sexual contact among themselves in the school
bathroom. Plaintiffs later amended their complaint on June 4,
2012, to add Arlene Uchizono, a kindergarten teacher, as a
defendant and again on March 21, 2013, adding claims of
battery against V.Z. and his father, John Doe 4.
4 During discovery, plaintiffs Jane Doe and John Doe 3 sat
for depositions in which they stated that their knowledge of
the alleged incidents was limited to the information they
received from their children and that they had no personal
knowledge of the incidents. They testified that they were
told that the incidents occurred during the period from
kindergarten to first grade. Neither parent could provide
specific dates of when the alleged incidents occurred nor
could they testify to the specific number of times the
alleged sexual contact occurred. Jane Doe testified that she
was told that the incidents occurred more than ten times
whereas John Doe 3 testified that there were multiple
incidents. Further, Jane Doe testified that she did not know
whether her son suffered from any physical injuries resulting
from the alleged incidents. John Doe 3 also stated that he
never observed any signs of physical injury to his son and
denied having any knowledge of some of the specific sexual
acts alleged in the plaintiffs' complaint.
5 John Doe 2's mother, K.L., was also deposed, and she
testified that she had no personal knowledge of the
incidents. She stated that John Doe 2 never told her exactly
what occurred in the bathroom. She also stated that the
alleged incidents only occurred in kindergarten and not in
the first grade.
6 Following the depositions of the plaintiffs' parents,
defendants sought to depose John Doe 1 and 2. In response,
plaintiffs filed a motion for a protective order which
requested that the court require the use of forensic
interviews in lieu of attorney conducted depositions.
Plaintiffs argued that a conventional deposition could
"reinvest the trauma and cause reinjury to all the
children." In support of their argument, plaintiffs
attached a letter from John Doe 1's mental health
physician, Dr. Tamara Garrity, which recommended that John
Doe 1 not be deposed. At the time of the protective
order's filing, John Doe 2 was no longer seeing a
therapist and had not done so for at least a year and a half.
7 The defendants objected to plaintiffs' motion for a
protective order, and the parties appeared before Judge
Gomolinski to argue the merits of granting or denying the
order. After hearing the parties' arguments, the court
declined to enter the protective order requiring the use of
forensic interviews and instead concluded that the minor
plaintiffs would undergo an independent medical examination
(IME) to determine whether the minor plaintiffs were capable
of sitting for deposition. The parties agreed that the minor
plaintiffs would be evaluated by child psychiatrists, and the
court stated the parties were to select and agree on the
doctors provided by the court.
8 The parties selected Dr. Thomas Owley and Dr. Rachel Loftin
to serve as independent medical examiners. On October 16,
2014, the parties received the IME reports on the minor
plaintiffs. John Doe 1 declined to participate in the
interview on two separate occasions. The doctors noted that
John Doe 1 was anxious and that retelling the experiences at
school would create undue stress on him and would exacerbate
his symptoms of anxiety. The doctors also stated that it was
highly unlikely that John Doe 1 would provide adequate
answers to questions because of his anxiety and tendency to
shut down when distressed.
9 In regard to John Doe 2, the doctors noted that he
displayed some symptoms of anxiety but not to the extent that
it significantly impacted his functioning. They stated he was
pleasant and interactive throughout the interview. The
doctors also found that his skill in telling a narrative was
below average, and they opined that his deficits in providing
a narrative would make it difficult to answer questions in a
fashion that would aid in the proceedings.
10 Ultimately, the doctors recommended that the children not
be exposed to a conventional deposition due to the likelihood
of causing them stress. They proposed three different
alternatives and provided several considerations for the
court that could aid the children during their depositions.
11 On October 30, 2014, the court ruled that the minor
plaintiffs would sit for attorney conducted depositions, but
the depositions were to be conducted consistent with the
doctors' considerations. Plaintiffs filed a motion to
reconsider, which was denied. The court entered a protective
order adopting the defendants' protocol which included
the following terms: (1) the depositions were to take place
at the doctor's office or another agreed location; (2)
the witness, two relatives, one treating physician, a court
reporter, and one attorney for each party would be allowed in
the deposition room; (3) the treating physician could only
advise the witness's counsel and had no authority to
object or suspend the deposition; (4) other parties,
attorneys, and consultants/experts would view the deposition
in a nearby room with a live feed with the parties splitting
the cost of technology; (5) all participants were required to
wear informal clothes as recommended by Dr. Owley; (6)
furniture in the deposition room would be child-sized as
recommended by Dr. Owley; ...