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Phifer v. Gingher

Court of Appeals of Illinois, Third District

March 30, 2017

PHYLLIS M. GINGHER, Defendant-Appellee Matthew D. Ports, Contemnor-Appellant.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3-16-0170 Circuit No. 13-L-242 Honorable Katherine Gorman, Judge, Presiding.

          JUSTICE WRIGHT delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice O'Brien concurred in the judgment and opinion.



         ¶ 1 Plaintiff filed a complaint against defendant seeking damages for "great pain and anguish both in mind and body" resulting from an automobile collision in 2012. During the production of pretrial discovery, defendant filed multiple motions to compel plaintiff to produce plaintiffs mental health records. Plaintiff resisted the discovery requests by asserting the records were privileged under the Mental Health and Developmental Disabilities Confidentiality Act. 740 ILCS 110/1 et seq. (West 2012).

         ¶ 2 Following an in camera review of plaintiff's mental health records, the court ordered plaintiff to produce the records for defendant's review on January 4, 2016. Plaintiff's counsel (contemnor) refused to produce his client's mental health records and requested to be held in indirect civil contempt to facilitate appellate review of the trial court's pretrial discovery ruling. Therefore, the trial court found contemnor in civil contempt. Contemnor appeals the trial court's contempt finding.

         ¶ 3 FACTS

         ¶ 4 On August 21, 2012, a vehicle operated by Phyllis M. Gingher (defendant) struck the back of Vanetta L. Phifer's (plaintiff) vehicle on Knoxville Avenue in Peoria, Illinois. On September 4, 2013, plaintiff filed a complaint alleging defendant negligently operated her vehicle and caused plaintiff to sustain "serious and permanent injuries." Plaintiff's complaint alleged that due to defendant's negligence plaintiff "suffered great pain and anguish both in mind and body and will in the future continue to suffer." On November 20, 2013, defendant answered plaintiff's complaint by denying she drove negligently on the date in question.

         ¶ 5 On November 19, 2013, defendant issued interrogatories that are relevant to this appeal. Defendant's interrogatory No. 10 requested plaintiff to "State the name and address of any physician or other health care professional who examined and / or treated you within the last 10 years and the reason for such examination and / or treatment." Plaintiff answered: "Unknown."

         ¶ 6 Defendant's interrogatory No. 11 asked if plaintiff was claiming "any psychiatric, psychological and / or emotional injuries as a result of this occurrence?" If so, in subparagraph (a) of defendant's interrogatory No. 11 defendant requested plaintiff to disclose the name of any health care professional rendering treatment for plaintiff's injuries. Plaintiff affirmatively responded to defendant's interrogatory No. 11 by listing Dr. Lisa Watt and Lisa Bresnahan. Subparagraph (b) of Defendant's interrogatory No. 11 asked whether plaintiff "suffered any psychiatric, psychological and / or emotional injury prior to the date of the occurrence" in 2012. (Emphasis added.)

         ¶ 7 Plaintiff's deposition took place on March 28, 2014. During this deposition, plaintiff disclosed that she sustained a closed head injury as a result of the August 21, 2012, collision. Plaintiff claimed that as a result of the head injury she sustained in the collision, she had current difficulties with memory and multitasking, headaches, crying spells, and fears associated with traveling in a vehicle and residing in the area near where the collision occurred. In addition, following the collision plaintiff suffered from lower professional confidence, slower thinking, lower energy levels, inability to focus, and recently suffered panic attacks.

         ¶ 8 According to her deposition testimony, plaintiff went to see Lisa Bresnahan for psychological issues after the 2012 collision. Plaintiff also stated Lisa Watt conducted cognitive testing on plaintiff as part of Watt's evaluation after the August 21, 2012, collision.

         ¶ 9 On September 25, 2014, the parties conducted the discovery deposition of Lisa Bresnahan, a licensed clinical social worker and counselor employed by the Saint Francis Medical Center in Peoria, Illinois. Bresnahan explained that she provided professional services to plaintiff for several months after the 2012 collision. According to Bresnahan, following the accident, plaintiff sought treatment for ongoing difficulties with multitasking and remembering details. Bresnahan stated plaintiff suffered from headaches, anxiety, and showed signs of depression.

         ¶ 10 The deposition of Dr. Lisa Watt, a neuropsychologist, also took place on September 25, 2014. Watt explained that after the 2012 accident, she gave plaintiff a multitude of tests to measure and gauge plaintiff's cognitive abilities. In terms of a diagnosis, Watt explained that plaintiff had many indicators supporting the conclusion that she suffered from a traumatic head injury. These indicators included headaches and cognitive inefficiency that caused difficulty with learning, recall, and a reduced attention span.

         ¶ 11 On November 5, 2014, defendant issued supplemental interrogatories. Defendant's supplemental interrogatory No. 1, requested plaintiff "State the names and addresses of all physicians, surgeons, or other healers of every description who have either examined or treated the Plaintiff at any time for mental health reasons, including, but not limited to anxiety and depression. Give the dates of all such examinations and periods of treatment in each case." In response, Plaintiff ...

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