Doe v. Weinzweig

28 N.E.3d 895

Jane DOE, Plaintiff–Appellee

v.Norman WEINZWEIG, Defendant–Appellant (IJL Will Do, LLC, d/b/a It's Just Lunch, Defendant.)

Nos. 1–13–3424

1–13–3637.

Appellate Court of Illinois, First District, Second Division.

Feb. 24, 2015.

Miller, Canfield, Paddock & Stone, P.L.C., of Chicago (Dean A. Dickie, Kathleen E. Koppenhoefer, and Katelyn T. Quimby, of counsel), for appellant.

Miroballi, Durkin & Rudin, LLP (Albert E. Durkin, Lauren A. Levin, and Jessica R. Durkin, of counsel), and Leslie J. Rosen, of Leslie J. Rosen Attorney at Law PC, both of Chicago, for appellee.

OPINION

Justice LIU delivered the judgment of the court, with opinion.

¶ 1 Defendant, Norman Weinzweig, appeals two contempt orders entered by the circuit court. In the first order, the court held defendant in indirect civil contempt for failing to comply with a Rule 215 (Ill. S.Ct. R. 215 (eff. Mar. 28, 2011)) order that required him to undergo a physical examination and blood test. After defendant filed a notice of appeal from the contempt order, the court entered a second order for indirect civil contempt and a judgment of default against him. On appeal, defendant seeks to vacate both contempt orders and the underlying Rule 215 order. He contends that the court abused its discretion when it entered the Rule 215 order and that the order violated his patient-physician privilege and his constitutional right to privacy. He further contends that he had a good-faith basis for refusing to comply with the Rule 215 order and that the court lacked jurisdiction to enter the second contempt order. We affirm in part and vacate in part.

¶ 2 BACKGROUND

¶ 3 On June 27, 2012, plaintiff filed suit against defendant, Weinzweig, and IJL Will Do, LLC, d/b/a It's Just Lunch (IJL), a matchmaking service.¹ In her complaint, plaintiff alleged that she met defendant during a dinner date arranged by IJL. The parties went on another date on or about July 3, 2011. Plaintiff alleged that at one point during the evening, she and defendant both “affirmed that neither had any sexually transmitted diseases.” In reliance on defendant's representation that he was “disease free,” she agreed to have sexual relations with him. Shortly afterward, she began experiencing symptoms of the Herpes II virus (Herpes II). Plaintiff claimed that prior to her encounter with defendant, she had never been diagnosed with Herpes II nor had she experienced any symptoms of the disease. Had defendant informed her that he had Herpes II, plaintiff alleged, she would never have engaged in sexual relations with him. Plaintiff seeks recovery against defendant for battery, intentional infliction of emotional distress, negligence, fraud/concealment, and intentional misrepresentation.

¶ 4 Defendant moved to dismiss the complaint pursuant to section 2–619 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619 (West 2012) ). Defendant attached a copy of certain medical records containing a lab report and a signed declaration to his motion. The medical report that defendant presented with his motion contained the lab test results for several sexually transmitted diseases, one of which was Herpes II. In his declaration, defendant attested that in October 2010, he had undergone “a battery of tests including testing for the Herpes II virus” and that he “received a negative test result for Herpes II.” He stated that he “was not experiencing any signs or symptoms” of Herpes II when he was tested. Defendant explained that the lab report result for Herpes II indicated “Low: < 80 index,” which meant that he tested negative for the virus. Defendant stated that based on the negative test result, the absence of any signs or symptoms of Herpes II, and his medical knowledge and training as a board-certified physician, he believed that he “was not infected with the Herpes II virus” on or about July 3, 2011.

¶ 5 Plaintiff subsequently filed an amended complaint. The court entered and continued defendant's motion to dismiss so as to allow discovery, and defendant answered the amended complaint. He asserted no counterclaims or affirmative defenses. He denied that he had exposed plaintiff to Herpes II and denied telling her that he was free of disease during their encounter.

¶ 6 During discovery, plaintiff sought information about defendant's medical condition. She propounded interrogatories and a request to admit regarding any Herpes II testing that defendant had undergone subsequent to July 3, 2011. She also requested production of medical records concerning any sexually transmitted diseases that he had from 2007 to the present. Defendant objected to the discovery requests on the basis of relevance and physician-patient privilege.

¶ 7 The circuit court sustained defendant's objections on the grounds of physician-patient privilege. Plaintiff then filed a Rule 215 motion, in which she asked the court to order a “visual and manual physical examination that involves a discussion of [defendant's] medical and sexual history” followed by a blood test for the virus. Plaintiff asserted that defendant had placed his physical condition in controversy by denying that he had exposed her to Herpes II. She argued that there was good cause for a Rule 215 examination because it was “the only avenue available for [her] to prove [defendant's] status as a carrier of herpes simplex virus–2.”

¶ 8 Defendant responded that he had not placed his physical condition in controversy merely by denying the allegations in the complaint. He contended that plaintiff failed to show good cause under Rule 215 to justify an order requiring him to undergo “invasive tests” and that plaintiff's motion was simply an attempt to circumvent the physician-patient privilege. He also argued that a compulsory examination under Rule 215 would violate his right to privacy under the Illinois Constitution.²

¶ 9 On September 27, 2013, the circuit court granted plaintiff's Rule 215 motion and ordered the parties to schedule the examination by October 11, 2013. The parties failed to schedule the examination by the deadline.

¶ 10 Subsequently, defendant filed a Rule 308 (Ill. S.Ct. R. 308 (eff. Feb. 26, 2010)) motion to certify questions on the Rule 215 order, and plaintiff filed a motion to compel defendant to submit to the examination. On October 29, 2013, the circuit court denied defendant's motion and granted plaintiff's motion. Defendant's counsel suggested a friendly contempt order so that defendant could seek immediate appeal of the Rule 215 order. The court found defendant in indirect civil contempt, imposed sanctions of $1,000, instanter, and ordered defendant to schedule the examination. Defendant filed a notice of appeal from this order on October 30, 2013.

¶ 11 Plaintiff subsequently filed a motion for sanctions pursuant to Rule 219(c) and requested that the court strike defendant's pleadings and enter a default judgment against him. Defendant responded that the court lacked jurisdiction to consider plaintiff's motion while the appeal of the first contempt order was pending. On November 14, 2013, the court entered an order finding defendant in indirect civil contempt and again imposed sanctions of $1,000. The court granted plaintiff's Rule 219 (Ill. S.Ct. R. 219 (eff. July 1, 2002)) motion and entered an order striking defendant's pleadings and awarding a default judgment. Defendant filed an appeal from this order that same day.

¶ 12 This court has consolidated both appeals. We have jurisdiction pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010).

¶ 13 ANALYSIS

¶ 14 Defendant argues that the court abused its discretion in finding him in indirect civil contempt on October 29, 2013 and November 14, 2013 because the underlying Rule 215 order was improper. A trial court's finding that a party has committed indirect civil contempt “will not be disturbed on appeal unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion.” (Internal quotation marks omitted.) Bank of America, N.A. v. Freed, 2012 IL App (1st) 113178, ¶ 20, 361 Ill.Dec. 565, 971 N.E.2d 1087. A discovery order is not a final order and is not ordinarily appealable. Norskog v. Pfiel, 197 Ill.2d 60, 69, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001). However, a party challenging a discovery order may test the propriety of the order through contempt proceedings. Id. (citing Eskandani v. Phillips, 61 Ill.2d 183, 194, 334 N.E.2d 146 (1975) ). “When an individual appeals contempt sanctions imposed for violating, or threatening to violate, a pretrial discovery order, the discovery order is subject to review.” Norskog, 197 Ill.2d at 69, 257 Ill.Dec. 899, 755 N.E.2d 1. Moreover, “It is the order of discovery, not merely the grounds upon which it was based, that is subject to review.” Id.

¶ 15 A. Rule 215 Order

¶ 16 1. Medical condition in controversy

¶ 17 Defendant argues that Rule 215 does not apply to him because he did not voluntarily place his medical condition in controversy. Specifically, he argues that “Rule 215 was designed to give circuit courts limited discretion in personal-injury cases ‘to order the plaintiff to submit to a physical examination.’ ” (Emphasis in original.) He further argues that the mere denial of allegations in the complaint is not enough to place his medical condition in controversy. Additionally, he argues that “Rule 215 does not sanction government-ordered physical examinations * * * where an anonymous plaintiff files suit.” (Emphasis in original.) Finally, he argues plaintiff cannot prove causation because a blood test cannot establish whether he was infected with Herpes II at the time of the July 2011 encounter.

¶ 18 Plaintiff responds that the court did not abuse its discretion in ordering the examination because Rule 215 is not limited to plaintiffs. She argues that the Rule 215 order is proper because defendant “placed his condition at issue by producing some medical records and presenting a Declaration * * * stating that he was not...