prison sentence faced a second trial under the s c he had where they were found to be eligible for civil commitment under section fifty yes and civilly committed because they supposedly suffer from th is my clients then filed a medical malpractise complaint under common law against the defendants based on the negligent post trial diagnoses invalidations of the so called sword the judgment a different cause of action under a different burden of proof against different parties and seeking a different remedy and we all know what the standard of collateral estoppel requires because the only supreme court said it's these underlying trial verdicts for at least two compelling reasons that are really undisputed in this case number one the complaint from which the negligence that we asked that gave rise  negligence about which we complain had not yet occurred at the time of the trials that are supposedly the basis of your style for this case that means the negligence at issue in the complaint could not have been litigated in those trials because it had not yet occurred at the time of those trials to the self evident fact the plaintiffs even added in undisputed affidavits of each of their formal trial counsel swearing that they did not live in the medical malpractise issue that i stake in this litigation during their client's then civil commitment trials but they they did litigated at least in leave for me whether this was a sufficient diagnosis what a litigat case which is the only case of the three that we know of for this where something like this will litigated was whether or not he met the criteria for the disorder itself and that is always in dispute among psychologists but once the established the question is does this person meet these criteria that's a totally different question from this case which says that criteria themselves don't exist because this disorder doesn't exist it has no criteria didn't justice mcbride determine find this specific issue was she did not find that it was a legitimate diagnosis what the court found was that mr lieberman was found to meet the criteria for the disorder assuming that those criteria are legitimate and that the shorter really exists that was what was you know there was never any medical malpractise by the way you may characterize it is that we don't care what you call it or what label it's underlying issue that's really important because you could label i what proceeding you're talking about i thought you were talking about the appeal from the underlying civil commitment trial it sounds like just the focus are about the probable cause appeal i'm talking about the appeal from this really rich probable cause finding which happened after the trial a strictly from its case the hazard to that is also no and the reason is this first of all that probable cause finding was not a medical malpractise trial or hearing that was not the question before the court that probable cause finding arises under section sixty and sixty five of the act which allowed mr lieberman and others who were simply committed to petition for conditional release or discharge if they have reason to believe that over time there the sword is removed it's a point where was no medical malpractise issue before him on the professional propriety of that diagnosis all the found was there is a jump ball between the experts on whether that this order exists or not and therefore he said there is no probable cause in light of that to find the mr lieberman is no longer eligible for commitment that ruling incidentally was just sent back on appeal to the yoke to the illinois supreme court to the first district for reconsideration but not yet on about the issue of the standard for a couple as well because you you could argue that it's relevant here because i could see if somebody said that as your honor suggesting inherent in that willing somehow is a verdict and whether th disorder exists or not in and perhaps you could argue church porter found that there isn't even enough evidence to say that the sort of doesn't exist therefore there is no probable cause i submit that that's not exactly what you will but in case there was an inclination to read that decision that is a recognised disorder we'll be stuffed probable cause to trial on that issue now again that trial is and that is not addressing the question of whether the people who made the diagnosis committed professional malpractise your claim of professional malpracti based on your argument that this is a non existant diagnosis right judgment right justice mcbride seven her opinion that the trial court found that the diagnosis of  claim is not the same technical claim that was litigated but the underlying evidence and issues is the same why i don't understand why you don't see that i do see it i see how you could construe it that way but as i tried to just explain a minute ago i think there's a critical difference there between what was found by judge porter and affirmed by the first district and now sent back down by the illinois supreme court and that's a critical fact even if you accept the argument that i think your honor is trying to make here that i'm not making any argument i'm trying to end yours i apologize your honor i don't mean to put words in your mouth but even if i'm understanding what your  will under you and your question this disorder it really exists and therefore mr lieberman really suffers from a they should be civilly committed in march and at that subsequent trial there may be other evidence presented that would run more along the result and that goes to the defendant's argument on the parallel proceedings point that they made which i guess we've now addressed i would just add to that these proceedings are still ongoing course and collateral estoppel only applies to pursu this case and you have to davids that had to be accepted as true but of course we're not errantly with the facts race series of arguments that i would suggest that this court or concerning because they threaten the constitutionality of the act and are in direct conflict with the actual language of the statute which is meant to embody the very principles that make us few people committed it's constitutional to begin with consider for example the defense argument that trial and post trial find these are interconnected with one another the trial findings are derived from and authorized by that i'm sorry the post trial findings are derived from an authorized by the initial trial verdict this argument is made to somehow skirt universally understood in the scientific community and that principles been embodied in the law that people's mental condition changes over time and civil commitment therefore cannot be a life long sentence because it would run afoul of double jeopardy c has to be the individual has to be reevaluated periodical on a regular basis usually annually some states require it every two years and that's been sustained as well as appropriate to see if they still have this mental disorder that would support civil commitment we see this requirement and body not just them holding in hendricks but in the act itself sections fifty five requires annual valuations section sixty and sixty five as we've discussed already require a permit be responded sixty and sixty five of the act would sensually be meaningless there would be no up no reason to have revaluations and to establish a new as one court put it that it was fun it's mental condition still supports a commitment that argument cannot be sustained because that is the constitutional linchpin of the s p p act it is not a life sentence it's only a temporary commitment and has to be reconfirmed periodic with new evaluations now always said that the only case we found in illinois the consequence for this was the illinois concourse decision in learning which sent that successive commitment hearing to because of these constitutional requirements must be viewed as the noble proceedings in that case and help the rest to the current therefore does not apply as you know many of the defendants in this case are represented by the attorney general's office and that raises a series of interesting problems but we won't get into those given the fact that the evaluators are supposed to be independent and not working for the state but be that as it may in and not simultaneous actions but i wish to stress beyond these immediate problems with that argument again that mr lieberman mr law is conditional release and discharge proceedings differ from the present matter because they seek probable cause for release under those respective sixty and sixty five sections this action concerns different party defendants arises under common law not the act is governed by a different burden of proof word about this the defendants asked this court and literally sue quote unquote just the law as it is and i doubt the federal act now any court should be leery of such a request given the fact that it is not this bad news job to adjust the law as it presently exists that's done down the street in the illinois legislature that said though it is clear that heck does not apply in this case from the get go because it only prohibits federal never has it been applied as between state civil worries and neither party has been able to find we haven't none of the cases that the fans have cited show a state civil verdict applying the heck doctrine the other findings and all the other proceedings that are ongoing i'd submit to avoid this kind of chaos or confusion it makes a lot more sense to have the tort law say you can bring this type of claim but you can't bring this claim until you've already shown your your innocence or the fact that you're no longer a sexually violent person in the appropriate form you know on the criminal side of things you know that's what the that's what the post conviction act apply things to me like those that heard that i mean that was my concern if you accept the position that he's taken in his brief about this being a different proceeding a different judgment a different window of time i'd be concerned that you could bring exactly the same suit every two elements of the claim can't possibly exist here possibly be proven in a trial in this case in light of the underlying judgements that exist in it's other cases for example they can't possibly show they can't possibly  show causation in this case given the fact that the cause of the focus of their continued commitment is these ongoing judgments that they have an other as i don't mind the same thing with damages if you look at the complaint the only damages in the complaint stemmed from their continued commitment there's no independent injury that they've asserted that come from simply receiving a diagnosis it all stems from their continued commitment as you see you know the continued commitment results from the awful judgment if you look at the if you look at the heck decision which obviously is not binding on this court but is persuasive authority heck in essence says continue confinement does not count as an injury for purposes of section eighty three which is a federal civil rights tort statute so i think you can adopt that same kind of reasoning in this case for the stop of finding you can't claim damages from a lawful judgement that you haven't otherwise undermined in here it's clear from the face of the complaint the only damages that the plaintiffs have allegedly suffered are stem from lawful and fine so i think that that is introduction about the possibility for conflict or chaos if you force them to bring these cases then simply it was straights that you know the federal and state courts have already developed a solution for this that is the football in this case i'd also like to address simply that if you accept the theory that they've presented in this malpractise case they're saying that only should they not continue to be committed but they should have never been committed in the first instance so there's an inherent in connectivity between what they're saying now and what it would mean for their initial commitment proceedings because they're not saying that something has happened in the past five years that isn't that that they were once sexually violent but they're no longer sexually violent  they're saying that this mental disorder never existed in essence it was a bogus or fake mental disorder and there's nobody above the station between what they're saying now and what they would have said at their initial commitment proceedings were they  argument so in that sense these two these judgments are all interconnected because the underlying theory of this not practice action strikes at the heart of the commitment judgments there are cases in which someone more will concede i once was sexually violent but now i've undergone i've undergone the training the treatment programs available to me at the facility or you know my actuarial scores have gone down such that i'm no longer likely to commit a future act of sexual violence but that's not really the case here if if they were to prevail on these are if they were to raise these arguments that they're raising this is not a fact this case at their mid and initial commitment hearing you know it and they were correct it would mean that they were never committed in the first place so there's there's an inherent relationship between the proceedings now and the proceedings then because of the specific claims that they're raising its tracks you can't say well i could have been committed back then but it shouldn't be continually committed because it's the same argument they're saying the mental disorder never existed i don't like to touch on the points about judicial stuff well does not apply in addition you know because of the kind of studio requirement that the illinois attorney general service of the officer for the state it's simply not possible to apply the traditional rules of conflict or ethics to the attorney general's office so for example oftentimes different attorneys in my office will be representing different sides of the same suit you know for example two agencies have a conflict between each other you know that's in the represents different sides of the same kind of like i certainly have never represented you know i'm not representing the people of state of illinois and so that ballot issues of judicial stuff are the same finally as opposed to judicial stoppel the point that i made about in our kind of heavy it's the same here we're not saying that once an s v p always an s u v we're saying that because of the arguments that they're making in this specific case that they're interconnected so that's not even the same issue that was argued or raised in the voucher case i was like to speak a little has to our alternative as as common law you know there is cause for concern for courts to be you know continually changing the law but this is a relatively now full lawsuit as i'm aware i haven't seen any published opinion dealing with this type of malpractise lawsuit and so when the court is confronted with relatively now full circumstances you know it it may be forced to adapt the existing law to deal with these these changing circumstances it is true that no state court has adopted a hack and said and also has said that there will of fact proceedings you know the ninth circuit case of time i was the most instructive and there's more importantly there is absolutely no reason the underlying reasons for the act were in the underlying reasons for the rule of reference  on this case you have the possibility of substantially conflicting judgments on one side you'd have a tort judgment you know that that forces private parties to pay ongoing damages to people that are committed and then you have a valid commitment judgments on that are forced by the state on the other side so kind of the first underlying purpose for these rules is is in effect whether the judgments are criminal or civil and the second  existence of the statutory scheme for securing release and that's an equal force here as well in the federal context you have the federal hevia statute and the concern that motivated that will affect the humphrey was that if you allow people to bring tort suits instead of using the hevia suit statute you're in essence undermining all of the specialized procedures and requirements of the statute the same thing applies in the state context as to malpractise suits against criminal defendants you already have the post conviction act we don't want to undermine all of the requirements in the procedures of the post conviction act by allowing people to raise the same types of claims in towards us and finally you know achieve an end run around the procedures for these that are already in fact the the final thing i'd like to say is that it is true that the ongoing proceedings do not technically a stop this action but i do think that they weigh quite heavily on the balance of equities as we know but oh stop was an equitable doctrine and the fact that the same exact issues are being litigated in peril parallel proceedings is a strong  counter to the claims that they raised in their original brief about malpractise plaintiffs in particular being afforded every opportunity to pursue their claim and the general argument that they raised that it you anything to say allow magine the what i consider to be the unimaginable let's say this case returns to trial the jury finds in favor of the plaintiffs a word stands of thousands of dollars and yet they are they remain detain d when they come up for their annual review do you think that the that this case will be raised as an issue you think someone might mention the fact that another court has adjudicate point the point is is that both the civil commitment and the medical malpractise case have one single issue that lives very quarter of both cases whether or not these pla commitment it cannot reverse the civil commitment findings of the various trial courts that made them it will not change the fact that the place will continue to sit at rushville illinois until eight different perce pointed out correctly perhaps a section sixty sixty five proceeding perhaps in hades corpus petition is file based in part and perhaps exclusively on the evidence that the underlying verdict was not proper in light of a fictitious notices but that is not this litigation this litigation will not result in that ultimate possibility that a section sixty or sixty five or areas claim or real mental disorder and continue their commitment on that basis let us imagine that it doesn't seem that difficult when you say it out loud but that is the way it should be should it not be the issue of equity it was raised in our close on this point this is an equitable decision that the court must make today but look at the present state of things we have illinois citizens regardless of what they may have done in their past and we all know the political animosit my experts position well i would point the court to the recent decision in the brown case by the seventh circuit which is the first decision anywhere in the country that acknowledged that pair feel and consent in fact does not practice then to make that diagnosis and can we continue to take people on that basis we can skirt that issue under the rug as as troubling as it may be and as appealing as it is to keep these individuals in there without asking questions this is the pi class are those who say that they derive this disorder only from the d s m based only on the plaintiff's past crimes by themselves if their defense out there who got this disorder from some other books some other source that's not what this