No.  3--01--0814

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

CHRISTINE McNALL,			)  Appeal from the Circuit Court

						)  of the 14th Judicial Circuit,

	Plaintiff-Appellant,	)  Rock Island County, Illinois,

						)

	v.					)  No. 01--L--78

						)

BERNADINE FRUS,			)  Honorable

						)  Mark A. Vandeweile,

	Defendant-Appellee.		)  Judge, Presiding.

_________________________________________________________________

	JUSTICE SLATER delivered the opinion of the court:

_________________________________________________________________

	This appeal arises from a claim of negligence by plaintiff

Christine McNall against defendant Bernadine Frus.  Defendant, a

licensed social worker, testified in the child custody proceeding

between plaintiff and her former spouse.  Plaintiff alleged that defendant, without interviewing plaintiff or her children,

testified in that proceeding that plaintiff suffered from

alcoholism and was a neglectful parent.  Plaintiff lost custody

of her children.  In this action she seeks damages for injuries

allegedly caused by defendant's negligent testimony.   

	Defendant moved to dismiss plaintiff's claim with prejudice

pursuant to 735 ILCS 5/2-619(a)(9).  The circuit court of Rock

Island County dismissed plaintiff's claim with prejudice.  

	It is well-established that witnesses enjoy absolute

privilege from civil suit for statements made during judicial proceedings.  Jurgensen v. Haslinger, 295 Ill. App. 3d 139, 692 N.E.2d 347 (1998); Renzi v. Morrison, 249 Ill. App. 3d 5, 618 N.E.2d 794 (1993); Libco Corp. v. Adams, 100 Ill. App. 3d 314, 426 N.E.2d 1130 (1981).  The doctrine of absolute privilege rests

upon the idea that conduct which otherwise would be actionable is

permitted to escape liability because the defendant is acting in

furtherance of some interest of social importance, which is

entitled to protection even at the expense of uncompensated harm

to an injured party.  Thomas v. Petrulis, 125 Ill. App. 3d 415, 418, 465 N.E.2d 1059, 1061 (1984), citing W. Prosser, Torts §

114, at 776 (4th ed. 1971).  In the absence of such a privilege,

a witness might be reluctant to come forward to testify, or, once

on the stand, the witness's testimony might be distorted by fear

of subsequent liability.  Briscoe v. LaHue, 460 U.S. 325, 333, 75 L. Ed. 2d 96, 106, 103 S. Ct. 1108, 1114 (1983).

	Nonetheless, plaintiff contends that an exception to

absolute privilege should be made for expert witnesses testifying

pursuant to Supreme Court Rule 213(g) (134 Ill. 2d R. 213(g)). 

She admits that no Illinois court has ever allowed this exception

or allowed any negligence claim based on witness testimony.  She

argues, however, that we should follow what she claims is the

modern trend which allows negligence claims against experts

retained to testify in court.  We disagree.

	An examination of the cases relied upon by plaintiff reveals

that they differ markedly from the case at bar.  In Politi v. Tyler, 170 Vt. 428, 751 A.2d 788 (2000), the Supreme Court of Vermont allowed a plaintiff to make a malpractice claim against a

psychologist contracted by the plaintiff and her ex-husband to

testify in a custody dispute.  The court found that the

malpractice claim was not predicated on the defendant's testimony

but rather it was based on nontestimonial acts which were

performed outside the judicial proceeding and that the defendant

was obligated to perform under the contract.  In Murphy v. A.A. Matthews, a Division of CRS Group Engineers, Inc., 841 S.W.2d 671 (Mo. 1992), the Supreme Court of Missouri allowed a party to

bring a claim against its own expert witness who had been

retained to perform litigation-related services.  The court found

the claim was not premised on the substance of the expert's

testimony.  The case did not involve a party seeking to hold its

adversary's expert witness liable.  Murphy, 841 S.W.2d at 677.  These cases, and all others relied upon by plaintiff, do not

stand for the proposition that expert witnesses are denied the

absolute privilege afforded every other participant in a judicial

proceeding.  Rather, they allow an expert to be held liable for a

breach of duty owed to the party who contracted with the expert

as long as the claim is not premised on testimony in a judicial

proceeding.

	In this case, defendant was hired by the party adverse to

plaintiff.  The only relationship between the parties is that

defendant testified as an opinion witness on behalf of

plaintiff's former husband.  Plaintiff's argument that defendant owed plaintiff a duty of care is unfounded.  This case does not fall under the limited scope of Politi and Murphy.

	Illinois courts have liberally protected the principles of

absolute privilege of witnesses.  For example, in Parillo, Weiss & Moss v. Cashion, 181 Ill. App. 3d 920, 537 N.E.2d 851 (1989), a defendant was afforded absolute privilege for statements made in

an unsolicited letter requesting an investigation of an insurance

company's practices prior to initiation of judicial proceedings. 

In Adco Services, Inc. v. Bullard, 256 Ill. App. 3d 655, 628 N.E.2d 772 (1993), the absolute privilege was extended to letters

sent to a quasi-judicial agency where the letters were of direct

and immediate concern to the agency.  As these cases illustrate,

even non-testimonial acts performed outside the courtroom have

been protected in Illinois.  

	For plaintiff to succeed here, this court would need to

break with Illinois precedent and create a heretofore

unrecognized exception to absolute privilege but also go beyond

the most far-reaching precedents in any jurisdiction.  Plaintiff

has not offered sufficient persuasive argument as to why we

should do so.  

	The essence of plaintiff's complaint seems to be that she

was damaged because a factfinder in another case believed the

defendant and rendered a finding detrimental to plaintiff's

interest.  We are reminded of the Supreme Court's admonishments

in Butz v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 919, 98 S. Ct. 2894, 2913 (1978):

		"[C]ontroversies sufficiently intense to erupt in

litigation are not easily capped by a judicial decree. 

The loser in one forum will frequently seek another

***. [Citation.]  Absolute immunity is thus necessary

to assure that judges, advocates, and witnesses can

perform their respective functions without harassment

or intimidation."

We decline plaintiff's invitation to carve an expert witness

exception into the well-established doctrine of absolute

privilege for testimony given in a judicial proceeding.

	Plaintiff also argues that the circuit court erred in

denying her motion to amend her complaint.  We disagree.  The

decision of whether to grant leave to amend a pleading rests

within the discretion of the circuit court.  Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors,

Inc., 275 Ill. App. 3d 452, 460, 654 N.E.2d 1109, 1116 (1995).  Plaintiff's proposed amendment here would not cure the defect in

the pleading because it simply restated the allegations in the

original complaint.

	The decision of the circuit court of Rock Island County is

affirmed.

	Affirmed.

 	HOMER and McDADE, J.J., concur.