2018 IL App (1st) 171068
Ill. App. Ct.2020Background
- Decedent David Sorin died after a fall in 2008; his wife’s parents (John and Bette Sorin) sued his wife Dava Grundhoefer in a 2010 wrongful-death action alleging she negligently prescribed Ambien. The Sorins voluntarily dismissed that suit in October 2010 and did not refile.
- Grundhoefer alleges she learned of the suit through the press, reports were made to her malpractice carrier and licensing board, and she suffered reputational and career harm.
- Grundhoefer sued the Sorins (and their lawyers) for malicious prosecution and defamation. The trial court dismissed certain counts; on appeal the malicious-prosecution dismissal was reversed and the case remanded.
- After discovery, the Sorins moved for summary judgment arguing Grundhoefer lacked evidence on essential elements (probable cause, malice, damages). The trial court granted summary judgment for the Sorins.
- On appeal from that grant, Grundhoefer argued the trial court should have followed the prior appellate decision (law of the case) and that disputed facts (probable cause and damages) should go to a jury. The appellate court affirmed, concluding Grundhoefer failed to produce admissible evidence of damages and that section 2-109 does not create a presumption of damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of law-of-the-case | Prior appellate ruling controls and prevents relitigation of damages/probable-cause issues | Prior ruling resolved a §2-615 pleading issue, not the summary-judgment factual inquiries | Doctrine inapplicable: prior appeal addressed pleading sufficiency, not summary-judgment evidence/questions of fact |
| Probable cause (element of malicious prosecution) | Credibility disputes (who prescribed Ambien) create factual issue for jury | Plaintiff produced no evidence to defeat summary judgment; alleged facts do not create genuine issue | Court did not need to resolve probable cause because case disposed on damages; credibility disputes alone insufficient without damages evidence |
| Effect of 735 ILCS 5/2-109 (malpractice suits) | §2-109 eliminates need to plead/prove special injury and should be read to presume damages for malicious prosecution arising from medical-malpractice suits | §2-109 removes special-injury requirement only; it does not eliminate the damages element or create a presumption of damages | §2-109 does not presume damages; plaintiff still must present evidence of damages at summary judgment stage |
| Sufficiency of damages evidence | Alleged loss of professional reputation, lost patients/opportunities, and expert opinion about hiring bias suffice to show damages | Allegations are speculative; no reports, no discipline, no increased premiums, no legal fees from the wrongful-death suit; dismissal before service undermines asserted harms | Damages evidence was speculative/conjectural and insufficient to create a genuine issue of material fact; summary judgment affirmed |
Key Cases Cited
- Miller v. Rosenberg, 196 Ill. 2d 50 (2001) (discusses malicious-prosecution elements and §2-109’s effect in medical-malpractice context)
- Swick v. Liautaud, 169 Ill. 2d 504 (1996) (sets forth five-element malicious-prosecution framework)
- Robidoux v. Oliphant, 201 Ill. 2d 324 (2002) (summary-judgment standards and nonmoving party obligations)
- Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307 (2004) (appellate de novo review of summary judgment)
- Drinane v. State Farm Mut. Auto. Ins. Co., 222 Ill. App. 3d 805 (1991) (pleading sufficiency does not equal surviving summary judgment)
- Stopka v. Lesser, 82 Ill. App. 3d 323 (1980) (common-law special-injury requirement in civil malicious-prosecution actions)