ILLINOIS OFFICIAL REPORTS

Appellate Court

Cooney v. Rossiter, 2012 IL App (1st) 102129

Appellate Court

Caption

DEBORAH A. ORLANDO COONEY, RAYMOND L.

WIETRZYKOWSKI, ROSE M. WIETRZYKOWSKI, AND

CHRISTOPHER ORLANDO, Plaintiffs-Appellants, v. LYLE H.

ROSSITER, JR., Defendant-Appellee.

 District & No. First District, Fifth Division

Docket No. 1-10-2129

Filed August 10, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The psychiatrist appointed to serve as a psychological evaluator in one

plaintiffs’ divorce and custody proceedings was entitled to absolute

immunity from plaintiffs’ action for intentional infliction of emotional

distress.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 07-L-6089; the Hon.

Jeffrey Lawrence, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Thomas A. Zimmerman, Jr., and Adam M. Tamburelli, both of

Zimmerman Law Offices, P.C., of Chicago, for appellants.

Brian T. Henry, D. Scott Rendleman, and Scott L. Howie, all of Pretzel

& Stouffer, Chtrd., of Chicago, for appellee.

Panel JUSTICE HOWSE delivered the judgment of the court, with opinion.

Presiding Justice Epstein and Justice McBride concurred in the judgment

and opinion.

OPINION

¶ 1 Plaintiffs Deborah Orlando Cooney,Raymond Wietrzykowski, Rose Wietrzykowski and

Christopher Orlando appeal from a judgment granting defendant Lyle Rossiter’s motion to

dismiss based on a finding of absolute immunity and res judicata entered by the circuit court

of Cook County. On appeal the plaintiffs argue the trial court erred because: (1) their claim

is not barred by res judicata, and (2) court-appointed psychological evaluators are not

immune from lawsuits in Illinois.

¶ 2 For the reasons set forth below, we affirm.1

¶ 3 BACKGROUND

¶ 4 Plaintiffs Deborah A. Orlando Cooney, Raymond L. Wietrzykowski and Rose M.

Wietrzykowski filed their first amended complaint on November 20, 2008, alleging

intentional infliction of emotional distress by defendant Lyle H. Rossiter. The plaintiffs’

allegations stem from Deborah’s 1998 divorce and subsequent custodyproceeding involving

her two children, Christopher and Jonathan, born during her marriage to ex-husband Lorenzo

Orlando. Rossiter was the court-appointed psychological evaluator in the parties’ custody

proceeding.

¶ 5 Deborah was granted custody of her two children in the judgment for dissolution of

marriage. In 2001, Lorenzo filed a petition for a change of custody. Deborah filed a motion

for the appointment of a psychological evaluator, in 2004, for the purpose of formulating

written recommendations concerning the custodial arrangements for her children. The trial

court appointed Rossiter, a general and forensic psychiatrist, as the evaluator, pursuant to

section 605 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/605

(West 2002)).

Justice Joseph Gordon participated in this case. Following his demise, Presiding Justice

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Epstein has replaced him on the panel and has reviewed the briefs.

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¶ 6 In formulating his evaluation, Rossiter interviewed Deborah, Deborah’s mother Rose,

Deborah’s father Raymond, and the children. In his evaluation,Rossiter opined that Deborah,

Rose and Raymond suffer from the delusional disorder Munchausen’s by proxy syndrome

and that Christopher suffered significant mental injury as a result. Rossiter opined that

Christopher’s mental and emotional injuries constituted child abuse by Deborah and her

parents. Rossiter opined that Christopher and Jonathan should be removed from Deborah’s

custody and that she and her parents undergo psychiatric treatment.

¶ 7 The plaintiffs allege that Rossiter rendered erroneous and fraudulent conclusions in his

evaluation and failed to perform psychological testing. The plaintiffs allege that Rossiter

intended for the conclusions in his evaluation to injure the plaintiffs. The plaintiffs allege the

trial court granted Lorenzo’s petition for change in custodybased solelyon Rossiter’s written

evaluation. The plaintiffs allege Rossiter intentionallyand deliberatelymade false statements

to an Illinois Department of Children and Family Services (DCFS) investigator resulting in

a DCFS finding indicating Deborah for child abuse. An administrative law judge affirmed

the DCFS indicated finding of child abuse.

¶ 8 The plaintiffs then filed, under section 1983 of the Civil Rights Act of 1991 (42 U.S.C.

§ 1983 (2006)), a class-action civil rights lawsuit in federal court on May 16, 2007. The

federal district court dismissed the lawsuit, finding the defendants immune, stating:

“[I]t is well-established that court-appointed psychological evaluators are ‘protected by

the same immunity extended to judges and other judicial officers.’ ” Cooney v. Rossiter,

No. 07 C 2747, slip op. at 7 (N.D. Ill. Aug. 20, 2008) (quoting Bartlett v. Weimer, 268

F.2d 860, 862 (7th Cir. 1959)).

¶ 9 The plaintiffs allege that they are not delusional and do not suffer from Munchausen’s

by proxy syndrome and have not committed child abuse. The plaintiffs allege Rossiter’s

conduct was extreme and outrageous and caused Deborah, Rose and Raymond to lose any

contact and visitation with the children. The plaintiffs allege Rossiter’s conduct caused

Deborah to lose her job as a nurse and caused all the plaintiffs to suffer severe and extreme

mental and emotional distress.

¶ 10 On May 4, 2009, Rossiter filed a motion under section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West 2008)) to dismiss plaintiffs’ first amended complaint,

claiming he is immune from suit in this matter and that the lawsuit is barred by res judicata.

¶ 11 Plaintiffs filed a second amended complaint on September 21, 2009, adding Christopher,

Deborah’s son, as a plaintiff. Rossiter filed a section 2-619 motion to dismiss(735 ILCS 5/2-

619 (West 2008)) plaintiffs’ second amended complaint on October 2, 2009, setting forth the

same claims as in his earlier motion to dismiss.

¶ 12 The trial court granted defendant’s motion to dismiss, finding the lawsuit barred by res

judicata and absolute immunity for Rossiter. In regard to immunity, the trial court relied on

the decision by the federal district court, stating:

“The rationale for immunity under these circumstances is that officers of the court ought

to be able to testify as to their honest opinions without fear of retribution, and this lawsuit

is retribution big time.”

¶ 13 The plaintiffs’ motion to reconsider was denied and they appeal the trial court order

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granting defendant’s motion to dismiss.

¶ 14 ANALYSIS

¶ 15 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and

raises defects, defenses, or other affirmative matters appearing on the face of the complaint

or established by external submissions that act to defeat the claim. Krilich v. American

National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70 (2002). The court

construes the pleadings and supporting documents in the light most favorable to plaintiffs.

Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). The issue on appeal is “ ‘whether the

existence of a genuine issue of material fact should have precluded the dismissal or, absent

such an issue of fact, whether dismissal is proper as a matter of law.’ ” Id. (quoting Kedzie

& 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). Review of a

section 2-619 motion to dismiss is de novo. Czarobski, 227 Ill. 2d at 369.

¶ 16 Under the doctrine of res judicata, a final judgment on the merits rendered by a court of

competent jurisdiction bars any subsequent actions between the same parties or their privies

on the same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). Res

judicata applies to bar issues that were actually decided in the first action, as well as matters

that could have been decided. La Salle National Bank v. County Board of School Trustees,

61 Ill. 2d 524, 529 (1975).

¶ 17 Three requirements must be satisfied for the doctrine of res judicata to apply: (1) a final

judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of

causes of action; and (3) an identity of the parties or their privies. Hudson v. City of Chicago,

228 Ill. 2d 462, 467 (2008).

¶ 18 The first element of res judicata was met when the district court issued a final judgment

on the merits in the plaintiffs’ section 1983 lawsuit in granting Rossiter’s motions to dismiss

under Federal Rule of Civil Procedure 12(b)(6). The judgment was subsequently affirmed

by the Seventh Circuit. Cooney v. Rossiter, 583 F.3d 967, 972 (7th Cir. 2009).

¶ 19 In respect to the second element of res judicata, there is an identity of causes of action

because the section 1983 lawsuit and the intentional infliction of emotional distress lawsuit

both arose from the same set of operative facts. Rein, 172 Ill. 2d at 339.

¶ 20 Finally, there is an identity of parties because Deborah and Rossiter are the same parties

in both lawsuits and Deborah’s parents and son are her privies. Privity exists between parties

who adequately represent the same legal interests. People ex rel. Burris v. Progressive Land

Developers, Inc., 151 Ill. 2d 285, 296 (1992).

¶ 21 In plaintiffs’ reply brief, they cite Benton v. Smith, 157 Ill. App. 3d 847 (1987), for the

proposition that under Illinois law, “if the earlier case on which an assertion of res judicata

is based is a class action, res judicata will not bar individual claims in a subsequent case.”

¶ 22 However, a review of Benton reveals that in that case we found that an earlier class action

lawsuit, of which the plaintiff was a member, was not res judicata to plaintiff’s subsequent

lawsuit based on the differing facts of the two lawsuits, not merelybecause the earlier lawsuit

was a class action, as the plaintiffs claim here. Benton, 157 Ill. App. 3d at 853.

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¶ 23 In Benton, the plaintiff’s personal property was damaged when frozen water pipes in her

apartment burst after the heat stopped working. Id. at 850. The plaintiff submitted a property

damage form to the defendant Chicago Housing Authority (CHA) and waited for a response.

Meanwhile, a group of CHA tenants filed a class action lawsuit against the CHA claiming

they had been denied rent abatements as required by their lease. Id. The plaintiff in Benton

joined the class action lawsuit. As a result of a settlement of the class action, the plaintiff

received a 45-day rent credit. Shortly before receiving the rent credit from the class action

settlement, a CHA attorney wrote the plaintiff a letter stating that her claim for property

damages was denied and he advised her to seek legal action through the courts. Id. at 851.

¶ 24 We found that the class action lawsuit did not bar the plaintiff’s lawsuit for property

damage under res judicata because the rent abatement issue was not related to the property

damage lawsuit and the property claim could not have been litigated in the rent-abatement

class action lawsuit. Id. at 853.

¶ 25 Here, unlike Benton, the section 1983 claim and the claim for intentional infliction of

emotional distress arise out of the same set of operative facts. In the federal lawsuit, Deborah

claimed the defendants, including Rossiter, violated her rights under the United States

Constitution by engaging in misconduct during the custody proceedings. In her state lawsuit,

Deborah claims Rossiter intentionally caused her emotional distress by engaging in

misconduct during the custody proceedings. The evidence required to prove each case is

essentially the same, unlike Benton, where “[t]here is a wide gap between the evidence

needed to establish the two actions.” Id. at 855.

¶ 26 Both claims could have been brought as part of the federal action because Deborah’s

coplaintiffs in the class action also claimed extreme and intentional misconduct during

custody proceedings and could have feasibly pleaded intentional infliction of emotional

distress.

¶ 27 Under these circumstances, we find res judicata bars the plaintiffs’ claim for intentional

infliction of emotional distress.

¶ 28 Assuming, arguendo, that the federal suit is not res judicata, we find that the plaintiffs’

claim fails because Rossiter is absolutely immune from lawsuit regarding his duties as a

court-appointed psychological evaluator in the custody proceeding.

¶ 29 The plaintiffs claim that Illinois law does not provide immunity for court-appointed

psychological evaluators in custody proceedings and that the federal court’s decision to grant

Rossiter immunity in the section 1983 suit is not applicable here.

¶ 30 While we recognize that the federal district court and subsequent Seventh Circuit rulings

are not binding on us, the decisions of the lower federal courts are persuasive authority.

People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001). We find the

Seventh Circuit’s affirmation of the district court holding persuasive. See Cooney, 583 F.3d

967.

¶ 31 The Seventh Circuit found that Rossiter is entitled to absolute immunity because:

“[C]ourt appointed experts, including psychiatrists, are absolutelyimmune from liability

for damages when they act at the court’s direction.” Id. at 970.

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¶ 32 The Seventh Circuit found that court-appointed psychological evaluators like Rossiter

are arms of the court and “deserve protection from harassment by disappointed litigants, just

as judges do. Experts asked by the court to advise on what disposition will serve the best

interests of a child in a custody proceeding need absolute immunity in order to be able to

fulfill their obligations ‘without the worry of intimidation and harassment from dissatisfied

parents.’ ” Id. (quoting Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984)).

¶ 33 We agree with the Seventh Circuit’s assessment that all of the alleged misconduct from

plaintiffs’ complaint occurred within the course of Rossiter’s court-appointed duties and,

thus, he is immune because he was acting at the court’s direction. Cooney, 583 F.3d at 970.

¶ 34 We also cannot say that a finding of absolute immunity for a court-appointed

psychological evaluator is contrary to Illinoislaw, as the plaintiffs suggest. Courts in Illinois

have long held that anything said or written in a legal proceeding is protected by an absolute

privilege. Defend v. Lascelles, 149 Ill. App. 3d 630, 633 (1986) (pleadings protected by

absolute privilege against defamation actions).

¶ 35 A reasonable extension of the holding in Defend is to provide absolute immunity to

court-appointed psychological evaluators. In Defend, the appellate court stated:

“The privilege itself is steeped in public policy: it is uniformly recognized that the

judicial system would best be served if persons with knowledge of relevant facts could

report those facts to the court without fear of civil liability.” Id. at 634.

¶ 36 We cannot say that a court-appointed psychological evaluator can perform his job

effectively when there exists a fear of civil liability. As the court stated in Defend:

“The law thus clearly allows for an absolute privilege where there exists a significant

interest in protecting the type of speech involved.” Id. at 635.

¶ 37 Just as courts in Illinois have long held that libelous material contained in a pleading is

absolutely privileged, we find that material contained in a report provided by a courtappointed psychological evaluator is also absolutely privileged because there is a public

interest in protecting these reports in a custody action. Id. at 636. As the Seventh Circuit

stated in Cooney, the psychological evaluator is serving the best interests of the child and it

is paramount that such service is performed without the threat of civil liability. Cooney, 583

F.3d at 970.

¶ 38 Furthermore, we recently recognized Cooney in Vlastelica v. Brend, 2011 IL App (1st)

102587, finding that a court-appointed child representative is absolutely immune from suit

related to his court-appointed duties. In that case, the trial court appointed a child

representative to represent the parties’ child in a custody proceeding. After the custody

proceeding and dissolution of marriage action was adjudicated, the child’s mother filed a

multicount complaint against the child representative and another defendant. The counts

relating to the child representative include legal malpractice and intentional interferencewith

custody rights. Brend, 2011 IL App (1st) 102587, ¶ 6. The plaintiff alleged that the child

representative engaged in fraudulent conduct during the custody proceeding. The trial court

granted the defendants’ section 2-619 motion to dismissfinding absolute immunity for work

performed as a child representative. Id. ¶ 16.

¶ 39 In affirming the ruling of the trial court in Brend, we found Cooney persuasive authority,

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stating:

“We also agree with Cooney’s holding that to best aid the court in its determination of

the child’s best interests, the child representative must be accorded absolute immunity

so as to allow him to fulfill his obligations without worry of harassment and intimidation

from dissatisfied parents.” Id. ¶ 23 (citing Cooney, 583 F.3d at 970).

¶ 40 While Brend recognized Cooney for its finding that child representatives are absolutely

immune from lawsuit, so do we recognize Cooney for its companion finding that courtappointed evaluators must be accorded absolute immunity so as to allow them to fulfill their

obligations without worry of harassment and intimidation from dissatisfied parents. Id.

¶ 41 CONCLUSION

¶ 42 For the foregoing reasons, we affirm the judgment of the trial court.

¶ 43 Affirmed.

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