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Doe v. The Board of Education of the City of Chicago

Court of Appeals of Illinois, First District

February 10, 2017

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,
v.
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.

         Appeal 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

          OPINION

          HALL JUSTICE

         ¶ 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.

         ¶ 2 BACKGROUND

         ¶ 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; ...


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