Phifer v. Gingher
2017 IL App (3d) 160170
| Ill. App. Ct. | 2017Background
- On Aug. 21, 2012, Gingher rear-ended Phifer; Phifer sued for negligence alleging physical and mental injuries including "great pain and anguish both in mind and body."
- Interrogatories and depositions revealed Phifer claimed psychiatric/psychological injuries (interrogatory answer listed therapists) and described anxiety, panic attacks, memory and cognitive problems after the collision.
- Defendant sought prior mental-health treatment records (pre-2012); trial court ordered in-camera review of produced out-of-state mental-health records after motions to compel.
- After in-camera review, the court ordered production of the majority of those records to defendant; plaintiff’s counsel refused and asked to be held in "friendly" contempt to preserve appellate review.
- Trial court held plaintiff’s counsel in civil contempt and fined him $100; counsel appealed the contempt finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Phifer waived mental-health privilege by placing mental condition at issue | Phifer (through counsel) argued privilege under the Mental Health and Developmental Disabilities Confidentiality Act should protect records | Gingher argued Phifer’s interrogatory answers, depositions, and expert disclosures affirmatively put mental condition at issue, waiving the privilege | Waiver: Court held Phifer placed her mental health at issue; privilege waived for relevant records after in-camera review |
| Whether records met statutory standard for disclosure under 740 ILCS 110/10(a)(1) | Phifer argued records remained privileged and disclosure not permitted | Gingher argued records were relevant, probative, not unduly prejudicial, and necessary for justice | Disclosure: Court’s in-camera review found records relevant, probative, and not unduly prejudicial; disclosure ordered |
| Whether counsel could avoid contempt by asserting client withdrew mental-health claims | Contemnor argued Phifer had stepped back from mental-health damages to avoid disclosure | Defendant argued there was no clear, on-record withdrawal or amendment of interrogatory responses or disclosures | Withdrawal: Court found no formal amendment or stipulation; ambiguous statements insufficient to avoid disclosure or contempt |
| Whether contempt finding was improper and should be reversed | Contemnor sought reversal relying on Reda and asserted privilege retained | Gingher supported contempt affirmance based on waiver and court orders | Contempt: Appellate court affirmed contempt finding and fine; distinguished Reda on facts |
Key Cases Cited
- Reda v. Advocate Health Care, 199 Ill. 2d 47 (2002) (party waives statutory therapist–recipient privilege only when mental condition is affirmatively placed at issue; neurological injury alone may not suffice)
- D.C. v. S.A., 178 Ill. 2d 551 (1997) (de novo review applies to legal questions about privilege scope)