## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption D E B O R A H A

. O R L A N D O C O O N E Y
, R A Y M O N D L

. W IE T R Z Y K O W S K I
, R O S E M

. W IE T R Z Y K O W S K I, A N D CH RI STOPHER ORL ANDO, Plaintiffs-Appellants, v. L YL E H. ROSS I TER, J R., Defe ndant-Appe llee.

District & N o. First District, F ifth Division Docke t No. 1-10-2129

Filed August 10, 2012

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The psy chiatrist appo i n ted to serve as a psy cholog ical evaluator in one plaintiffs’ divorce and cu s t ody proce eding s was entitled to absolute immunit y from plaintiffs’ action for i n t enti onal infliction of emotional distress.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-L -6089; the Hon. J eff rey L awr ence , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. Z immerman, J r., and Adam M. Tambure lli, both of Z immerman L aw Of

fice s, P.C., of Chi cag o, for a ppellants.

Br ian T. Henr

y , D. Scott Rendleman, and Scott L . Howie, a ll of Pretzel & Stouffe r, Chtrd., of Chicag o, for a ppellee.

Panel J USTI CE HOWSE delivered the judg ment of the c ourt, with opinion. Presiding J ustice Epstein and J ustice McB ride concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiffs Debor ah Orlando Co o n e y , Ra y mo n d Wietrz y

kowski, Rose Wietrz y

kowski and Christopher Orlando appea l f rom a judgme nt granting defe ndant Lyle Rossit er’ s motion to dismiss based on a finding of absolute immunit y and resjudicata enter ed by the circ uit court of Cook County

. On appea l the plaintiffs argue the trial court err ed beca use: (1) their claim is not barr ed by res judicata
, and (2) court-ap p o i n t ed psy cholog ical evaluators are not immune from lawsuits in I llinois

. ¶ 2 For

the re asons set for

th below, we a ffirm. 1

¶ 3 BA CKGROUND ¶ 4 P l ai n t i ff

s De b o ra h A. Orlando Cooney
, Ray mond L

. Wietrz y

kowski and R o s e M

. Wietrz y kowski filed their first amende d com p laint on November 20, 2008, alleg ing intentional infliction of emotional distress by defe ndant L yle H. Rossit er. The plaintiffs’ alleg ations stem from Debor ah’s 1998 divorce and subsequent custody proce eding involving her two children, Christopher and J onathan, born during her marria g e to ex-husband L orenzo Orlando. Rossit er was the court-a ppointed psy cholog ical evaluator in the parties’ custody
proce eding

. ¶ 5 Debor ah was g rante d custody of her two children i n t h e j udg ment for dissoluti on of marria g e. In 2001, L orenzo filed a petition for a chang e of custody

. Debor ah filed a motion for the appointment of a psy cholog ical evaluator, in 2004, for the purpose of formulating written rec ommendations conce rning the custodial arr ang ements for her children. The trial
court appointed Rossit er, a g ener al and fore nsic psy chiatrist, as the evaluato r, p ursuant to section 605 of the I llinois Marr iag e and Dissolution of Marr iag e Act (Ac t) (750 I L CS 5/605 (West 2002)).

J ust ic e J ose ph Gord on p a r t ic ipa te d in thi s cas e. Fol lowi ng his demise, Pre si din g J ust ic e 1 Epst ei n ha s r epl ace d hi m on t he p ane l a nd h as re viewed the br ie fs

.

-2-¶ 6 In formulating his evaluation, Ros s i t er i n terview ed Debor ah, Debor ah’s mother Rose,

Debor ah’s fathe r Ray

mond, and the children. In his evalua ti o n , Ro s s it e r opined that Debor ah, Rose and Ray

mond suffer

from the delusional disorder Munchausen’ s by proxy sy ndrome

an d that Christopher suffe red signific ant mental injury as a result. Rossit er op i n ed t h at Christopher’s mental and emotional injuries constituted child abuse by Debor ah and her
pare nts. Rossit er opined that Christopher and J onathan should be remove d from Debor ah’s custody and that she a

nd her pa rents under g o psy chiatric trea tment. ¶ 7 The plaintiffs alleg e that Rossit er rende red err oneous and fra udulent conclusions in his evaluation and failed to perf orm psy cholog ical testing. The plaintiffs alleg e that Rossit er intended for the conclusions in his evaluation to injure the plaintiffs. The plaintiffs alleg e the trial court g rante d L orenzo’s petition for chang e in custody based solely on Rossit er’ s written evaluation. The plaintiffs alleg e Rossit er intentionally and delib e r a te ly ma d e f

alse statements to an I llinois Depa

rtment of Children and Fa mily Service s (DCFS) investigator resulting in a DCFS finding indicatingDebor ah for child abuse. An administrative l aw judge affir med the DCFS indicate d findingof 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-a ction civil rig hts lawsuit in federa l co u rt on May 16, 2007. The fede ral district cour

t dismi ssed the lawsuit, findingthe def endants immune, stating : “[I ]t is well-e stablished that court-a ppointed psy cholog ical evaluators are ‘protec ted by the same immunit y extended to judge s and other judicial office rs.’ ” Cooney v. Rossiter
, No. 07 C 2747, slip op. at 7 (N.D. I ll. Aug

. 20, 2008) (quoting Bartlett v. W eimer , 268 F.2d 860, 862 ( 7th Cir. 1959)). ¶ 9 The plainti ffs alleg e that they are not delusional and do not suffe r from Muncha usen’s by proxy sy

ndrome an d have not committed child abuse. The plaintiffs alleg e Rossit er’ s conduct was extreme and outrag eous and c aused D ebora h, Rose and R ay

mond to lose any contac t and v i s i t ation with the children. The plaintiffs alleg e Rossit er’ s conduct cause d Debor ah to lose her job as a nurse and cause d all the plaintiffs to suffe r sever e and extreme mental and e motional dist ress. ¶ 10 On May 4, 2009, R o s s i t er fi l ed a m o t i o n under section 2-619 of the Code of Civil Procedur e (735 I L CS 5/2-619 (West 2008) ) to dismi ss pla intiffs’ first amende d complaint, claiming he is immune from suit in this matter and that the lawsuit is barr ed by res judicata

. ¶ 11 Plaintiffs filed a second amende d complaint on September 21, 2009, addingChristopher, Debor ah’s son, as a plaintiff. Rossit er filed a section 2-619 motion to dismiss (735 I L CS 5/2- 619 (West 2008)) plaintiffs’ second amende d complaint on October 2, 2009, setting forth the

same c laims as in his earlier motion to di smiss. ¶ 12 The trial court g rante d defe ndant’s motion to dismiss
, finding the lawsuit barr ed by res judicata and absolute immunit y for Rossit er. In reg ard to immunit y , the trial court relied on the dec ision by

the fe dera l district court, stating: “The rationale for immunit y under these circ umstances is that office rs of the court oug ht
to be able to testify as to their honest opinions without fea r of retribution, and this lawsuit is retribution big time.” ¶ 13 The plaintiffs’ motion to rec onsider was denied and they appea l t h e t ri al court order

-3-g rantingdefe ndant’s motion to dism iss.

¶ 14 ANALYSI S ¶ 15 A section 2-619 motion to dismiss admi t s t h e l ega l s u ff i cienc y of the complaint and raises defe cts, defe nses, or other aff irmative matters appea

ring on the fac e of the complaint

or established by external submissi ons that act to defeat t h e cl ai m. Krili ch v. American National Bank & Trust Co

. o f C h icago
, 334 I ll. App. 3d 563, 569-70 (2002). The court construes the pleading s and supportingdocuments in the light most favora ble to plaintiffs. Czarobski v. Lata
, 227 I ll. 2d 364, 369 (2008). The issue o n ap p ea l i s “ ‘whe ther the exis tence of a g enuine issue of materia l fac t should have prec luded the dismiss al or, absent such an issue of

fac t, whether dismiss al is pr oper as a matter of law.’ ” Id. (quoting Kedzie & 103rd Currency Exchange

, Inc. v. Hodge
, 1 5 6 I l l

. 2 d 112, 116-17 (1993)). R eview of a section 2-619 motion to dismi ss is de novo

. Czarobski , 227 I ll. 2d at 369. ¶ 16 Under the doctrine of res judicata
, a final judgme nt on the merits rende red by a court of competent jurisdiction bars any subsequent actions betwee n the same parties or their privies

on the same cause of action. Rein v. David A. Noyes & Co.
, 172 I ll. 2d 325, 334 (1996). Res judicata applies to bar issues that wer e actua lly decide d in the first action, as well as matters that could have been decide d. La Salle National Bank v. County Board of School Trustees
, 61 I ll. 2d 524, 529 (1975). ¶ 17 Three require ments must be satisfied for the doctrine of res judicata to apply : (1) a fina l judgme nt on the merits re ndere d by a court of competent jurisdiction; (2) an identity of

cause s of action; and (3) an identity of the parties or their privies. Hudson v. City of Chicago
, 228 I ll. 2d 462, 467 (2008). ¶ 18 The first element of res judicata was met when the district court issued a final judgme nt

on the merits in the plaintiffs’ section 1983 lawsuit in g ranting Rossit er’ s motions to dismiss under Fede ral Rul e of Civil Procedur e 12(b )( 6 ). The judgment was subsequently aff irmed by the Seventh Circuit. Cooney v . Rossiter , 583 F.3d 967, 972 ( 7th Cir. 2009). ¶ 19 In respe ct to the sec ond element of res judicata , there is an identity of ca uses of a ction beca use the section 1983 lawsuit and the intentional infliction of emotional distress lawsuit both arose f

rom the same se t of operative fac ts. Rein , 172 I ll. 2d at 339. ¶ 20 Finally
, there is an identity of parties beca use Debor ah and Rossit er are the same parties in both lawsuits and Debor ah’s pare nts and son are her privies. Privity exis ts betwee n parties who adequa

tely repr esent the same leg al interests. People ex rel. Burris v. Progressive Land Dev elopers, Inc

. , 151 I ll. 2d 285, 296 (1992). ¶ 21 In plaintiffs’ re ply brief, the y

cite Benton v. Sm ith , 157 I ll. App. 3d 847 (1987), for t he proposition that under I llinois law, “if the ear lier case on which an asser tion of res judicata is based is a c lass action, res judicata will not bar individual cla ims in a subsequent ca se.” ¶ 22 Howeve r, a revie w of Benton reve als that in that case we found that an ear lier class action lawsuit, of which the plaintiff was a member, was not res judicata to plaintiff’s subsequent lawsuit based on the differing fac ts of the two lawsuits, not mere ly beca use the ear lier lawsuit

was a class ac tion, as the plaintiffs claim her e. Benton , 157 I ll. App. 3d at 853.

-4-¶ 23 In Benton
, the plaintiff’s persona l proper ty was damag ed when frozen water pipes in he r apar tment burst afte r the heat stopped working

. Id. at 850. The plaintiff submitt ed a proper ty damag e form to the defe ndant Chicag o Housing Authority (CHA) and waited for a response

. Meanwhile, a g roup of CHA tenants filed a cla ss action lawsuit ag ainst the CHA claiming they had been denied rent abate ments as require d by their lea se. Id. The plaintiff in Benton joined the class action lawsuit. As a result of a settlement of the class action, the plaintiff

rec eived a 45-day rent credit. S hortly befor e rece iving the rent credit from the class action settlement, a CHA attorney wrote the plaintiff a letter stating that her claim for proper ty damag es wa s denied a

nd he advise d her to see k leg al ac tion through the courts. Id . at 851. ¶ 24 We fo u n d t h at the class action lawsuit did not bar the plaintiff’s lawsuit for pr operty damag e under res judicata beca use the rent abate ment issue was not r elated to the proper ty damag e lawsuit and the proper ty claim could not have been litig ated in the r ent-a batement class ac tion lawsuit. Id. at 853. ¶ 25 Her e, unlike Benton
, the section 1983 claim and the claim fo r intentional infliction of emotional distress arise out of the same set of opera tive fac ts. In the fede ral lawsuit, Debor ah claimed the defe ndan t s , i n cl uding Rossit er, violated her rig hts under the United States Constit ution by eng ag ing in misconduct during the custody proce eding s. In her state lawsuit, Debor ah claims Rossit er intentionally cau s ed h er emotional distress by eng ag ing in misconduct during the custody proce eding s. The evidenc e require d to p ro v e eac h case is essentially th e s am e, unlike Benton
, wher e “[t] here is a wide g ap betwee n the evidenc e neede d to establish the two actions.” Id. at 855. ¶ 26 Both claims could have been broug ht as part of the fede ral acti o n b ec ause Debora h’s

co p l ai ntiffs in the class action also claimed extreme and intentional misconduct duri n g custody proce eding s and could h av e fea sibly pleade d intentional infliction of emotional distress. ¶ 27 Under these circ umstances, we find res judicata bars the plaintiffs’ claim for intentional infliction of emotional distress. ¶ 28 Assuming, arguendo
, that the fede ral suit is not res judicata
, we find that the plaintiffs’ cl ai m fa i l s beca

use Rossit er is absolutely immune from lawsuit reg arding his duties as a court-a ppointed psy cholog ical eva luator in the custody proce eding

. ¶ 29 The plaintiffs claim that I llinois law does n o t p ro v i d e immunit y for c ourt-appointed
psy cholog ical evaluators in custody proce eding s and that the fede ral court’s decision to g rant Rossit er immunity

in the section 1983 suit is not applicable her e. ¶ 30 Whil e we rec og nize that the fede ral district court and subsequent Seventh Circuit rulings

are not bin d i n g o n u s , the decisions of the lower fede ral courts are persua sive authority

. People ex rel. Ryan v. W

orld Church of the Creator
, 198 I ll. 2d 115, 127 (2001). We find the Seventh Circuit’s aff

irmation of the district court holding persua sive. See Cooney
, 583 F.3d 967. ¶ 31 The Seve nth Circuit found that Rossit er is entitled to absolute immunity beca use: “[C] ourt appointed experts, including psy chiatrists, are absolutely immune from liability for da mag es whe n they

act at the court’s dire ction.” Id. at 970.

-5-¶ 32 The S ev en t h Circuit found t hat court-appointed psy cholog ical evaluators li ke Rossiter

are arms of the court and “dese rve protec tion from hara ssment by disappointed litigants, just

as judge s do. Ex perts asked by t h e co u rt to advise on what dispositi on will serve the best interests of a child in a custody proce eding need absolute i m m u n i t y in order to be able to fulfill their obligations ‘without the worry of intimi dation and hara ssment from dissatisfied
pare nts.’ ” Id. (quoting Kurzawa v. Mueller , 732 F.2d 1456, 1458 ( 6th Cir. 1984)). ¶ 33 We ag ree with the Seventh Circuit’s assessment that all of the alleg ed misconduct from plaintiffs’ com p l ai n t occur red within the course of Rossit er’ s court-a ppointed duties and, thus, he is immune beca

use he was acting at the court’s direc tion. Cooney
, 583 F.3d at 970. ¶ 34 We also cannot s ay t h at a fi n d i n g o f ab s o l u t e i m m u n ity for a cour t-appointed
psy cholog ical evaluator is contra ry to I llinois law, as the plaintiffs sug g est. Courts in I llinois have long held that any

thing said or written in a leg al proce eding is protec ted by an absolute privileg e. Defend v. Lascelles
, 149 I ll. App. 3d 630, 633 (1986) (p l ea dings protec ted by absolute privileg e ag ainst defa mation actions). ¶ 35 A rea sonable extension of th e h o l d i n g in Defend is to provide absolute immunit y to court-a ppointed psy cholog ical eva luators. In Defend, the appe llate cour t stated: “The privileg e it self is steepe d in public policy : it is uniformly reco gn i z ed t h at t he judicial sy stem would best be serve d if persons with knowledg e of rele vant fac ts c ould
repor t those fac ts to the court without fea r of c ivil li ability .” Id. at 634. ¶ 36 We cannot s ay t h at a co u rt -appointed psy cholog ical evaluator can perf orm his job eff ectively when ther e exists a fear

of civil liability . As the cour t stated in Defend : “The law thus clea

rly allows for an absolute privileg e wher e there exis ts a signific ant interest in protec ting the ty pe of spe ech involved.” Id. at 635. ¶ 37 J ust a s courts in I llinois have long held that libelous material contained in a pleading is absolutely privileg ed, we find that materia l contained in a repor t p ro v i d ed by a courtappointed psycholog ical evaluator is also absolutely privileg ed beca use there is a p u b lic interest in protec ting these repor ts in a cu s t o dy action. Id. at 636. As the Seventh Circuit stated in Cooney
, the psy cholog ical evaluator is serving the best interests of the child and it is para mount that such service is perf ormed without the threat of civil liability

. Cooney
, 583 F.3d at 970. ¶ 38 Fur

thermore
, we rec ently rec og nized Cooneyin Vlastelica v. Brend
, 2011 I L App (1st) 102587, finding that a court-a ppointed child repr esentative is absolutely immune from suit related to his court-a

ppointed duties. In that case , th e t ri al court appointed a child
repr esentative to repr esent the parties’ child in a custody proce eding. Af t er the custody
proce eding and dissoluti on of marria g e action was adjudicate d, the child’s mother filed a

m u l ticount complaint ag ainst the child repr esentative and another defe ndant. The coun t s relating to the child repr esentative include leg al malprac tice and intentional in te r fer ence with custody rig hts. Brend
, 2011 I L Ap p (1 s t) 102587, ¶ 6. The plaintiff alleg ed that the child
repr esentative eng ag ed in fra udulent conduct during the custody proce eding

. The trial court g rante d the defe ndants’ section 2-619 motion to dismiss finding absolute immunit y for work perf ormed a s a child re prese ntative. Id. ¶ 16. ¶ 39 In aff

irming the ruling of the trial court in Brend
, we found Cooney persua sive authority
,

-6-stating: “We also ag ree with Cooney ’s holding that to best aid the court in its deter mination of the child’s best interests, t he child repr esenta tive must be accor ded absolute immunit y

so as to allow him to fulfill his obligations without worry of hara ssment and intimi dation from dissatisfied par ents.” Id. ¶ 23 (c iting Cooney , 583 F.3d at 970). ¶ 40 Whil e Brend rec og nized Cooney for its finding that child repr esenta tives are absolutely i m m u n e from lawsuit, so do we rec og nize Cooney for its companion finding that court

appointed evaluators must be acc orded absolute immunit y so as to allow them to fulfill their obligations withoutworry of har assment and intimidation from dissatisfied pare nts. Id.

¶ 41 CONCLUSI ON ¶ 42 For

the fore g oing r easons, we aff irm the judg ment of the trial c ourt.

¶ 43 Affir

med.

-7-