Our reports on the oral arguments of the Illinois Supreme Court’s September term continue with Cooney v. Rossiter, a case about the breadth of immunity for court-appointed psychologists in child custody cases. Based on the questions at argument, the Court appeared to be searching for alternatives short of limiting the scope of such experts’ immunity.

The facts and lower court ruling in Cooney are described in detail in our argument preview. In 2001, plaintiff’s ex-husband filed for a change of custody. The psychological evaluator appointed to opine on the best interests of the children concluded that plaintiff ex-wife and her parents (the co-plaintiffs) suffered from Munchausen’s by Proxy Syndrome, and concluded that their treatment of one child amounted to child abuse. After custody was granted to plaintiff’s ex-husband, plaintiffs filed a federal class action against the defendant. The action was dismissed and the dismissal affirmed, so the plaintiffs sued in state court.  The state court dismissed based on absolute immunity and res judicata, and the Appellate Court affirmed.

Counsel for the plaintiffs argued that in order to deter deliberate misconduct by psychological evaluators, the proper rule was qualified immunity for investigation and out-of-court evaluation, and absolute immunity for in-court testimony. Justice Karmeier asked whether it was possible to raise issues such as the evaluator’s unfairness and bias prior to his or her appointment. Counsel responded that his client did not know the facts until it was too late. Justice Thomas asked whether plaintiffs’ charges were the subject of cross-examination at trial, and counsel responded that the trial judge relied solely on defendant’s report. Justice Thomas pressed his question, asking whether requiring parties to address issues of bias and misconduct in the custody litigation would make it possible to preserve absolute immunity. Counsel answered again that defendant had not been present on the day of the hearing, and the plaintiff had received his report only that day.

Counsel argued that court-appointed evaluators would still have adequate protection if qualified immunity was instituted — a plaintiff would still be required to plead intentional misconduct or fraud, and the trial judge would act as the gatekeeper, screening out frivolous complaints. Justice Burke asked whether plaintiff had her own expert, pointing out that there must have been adequate time between defendant’s appointment and his report; counsel responded that there was no reason to anticipate anything negative in defendant’s report.

During appellee’s argument, Justice Karmeier asked whether it would make any difference to the Court’s analysis that defendant’s opinion came in via a written report rather than live testimony and cross examination. Counsel answered no; cross examination can be requested, and a party may insist on his or her objection if it is denied. Justice Freeman pointed out that none of that helps if the judge denies cross-examination, but counsel responded that this could be the subject of further litigation, post-trial motions, or an appeal. After Justice Burke noted that the trial judge – like the plaintiff — had only seen the defendant’s report the morning of the hearing, Justice Freeman continued to press, asking counsel whether the trial judge’s refusal to allow live testimony in the custody action could rise to the level of an abuse of discretion. Justice Thomas asked counsel to address the plaintiffs’ argument that qualified immunity was sufficient protection; counsel responded by pointing out that qualified immunity doesn’t bar suits at the outset as absolute immunity does, and may not even prevent a jury trial.

The Court’s search for alternative resolutions continued in plaintiffs’ rebuttal argument. Justice Karmeier asked whether plaintiffs’ concern about bad faith evaluators couldn’t be addressed by discouraging trial judges from admitting written reports in preference to live testimony.  Justice Thomas speculated that a professional licensure action might be an available remedy against a bad-faith evaluation.

Join us back here later today for our report on the argument in Carr v. Koch.