Zdeb v. Baxter International, Inc.

SIXTH DIVISION
June 26, 1998


No. 1-97-1039

BRIAN ZDEB and ) Appeal from the
PRIME MEDICAL PRODUCTS, INC., ) Circuit Court of
) Cook County
Plaintiffs-Appellees and )
Cross-Appellants, )
)
v. )
)
BAXTER INTERNATIONAL, INC., and )
BAXTER HEALTHCARE CORPORATION, )
) Honorable
Defendants-Appellants and ) Willard J. Lassers,
Cross-Appellees. ) Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:
In a cause of action for tortious interference with a
prospective economic advantage, a jury entered a verdict against
defendants Baxter International, Inc., and Baxter Healthcare
Corporation (collectively referred to as Baxter) and awarded
approximately $8 million in damages to plaintiffs Brian Zdeb
(Zdeb) and Prime Medical Products, Inc. (Prime) (collectively
referred to as plaintiffs). We affirm.
On appeal, Baxter asserts that the trial court erred (1) in
denying Baxter's motion for judgment non obstante veredicto; (2)
in ruling that absolute privilege did not apply to a letter
written by Baxter's in-house counsel that denied Zdeb a release
to market a device he had developed (hereinafter referred to as
the January 1991 letter); and (3) in failing to rule that a
qualified privilege applied to the January 1991 letter. In
addition, Baxter challenges certain evidentiary rulings, jury
instructions, and the damage award.
On cross-appeal, plaintiffs request this court to consider
several issues if we were to remand the matter for a new trial.
Since we affirm the judgment, we do not address the issues raised
on cross-appeal.
The product at issue in the present case is an infuser
designed by Zdeb. An infuser is a medical device used to infuse
drugs into a patient on a constant flow basis. Infusers used for
this purpose are worn by the patient so that the patient can be
ambulatory and receive drug treatment outside the hospital.
Infusers are disposable and portable so that a patient can wear
an infuser in a pant or coat pocket and it injects drugs into the
patient without altering the patient's routine. It basically is
a syringe, prefilled with medicine, that regulates a constant
flow of the medicine into an administration tubing that then
infuses the drug into the patient. Infusion therapy is used to
inject chemotherapy for cancer patients and antibiotics for
serious infections.
Baxter is a health care company that develops, manufactures,
and markets a wide variety of health care products and services,
including intravenous drug delivery systems known as infusers.
Baxter launched the first disposable elastomeric or balloon-type
infuser and marketed them during the 1980s. In 1990, Block
Medical, a competitor of Baxter, launched another elastomeric
infuser called the Homepump. In 1992, McGaw, a third competitor,
distributed another elastomeric infuser called Readymed. The
marketplace for disposable infusers is well established and
profitable. During the 1980s and currently, Baxter's I.V.
Systems Division, located in Round Lake, Illinois, was and is
responsible for developing and improving infuser products.
During the 1980s Baxter employees developed improvements to
the existing infuser technology. In 1984, Steve Pearson, a
Baxter engineer, devised a model for a disposable vacuum-powered
infuser. In 1984, Derek Walsh, a Baxter technician, created an
improved infuser model that included a connector which is
referred to by his name, the Walsh connector. In March 1988,
Richard Mitchell, another Baxter employee, invented "preload" to
be used in vacuum infusion devices to produce a constant rate of
flow of the drug throughout the entire infusion, which had
previously been problematic. To prevent the preloaded vacuum
from dissipating during storage, preload in Mitchell's device
also called for the chamber holding the drugs to be disconnected
from the vacuum chamber. Baxter's position was, and is, that
Zdeb had been exposed to Baxter technology during his tenure as a
Baxter employee and that three parts of the infuser created by
Zdeb, after leaving its employment, incorporated Baxter
technology: (1) preload; (2) the Walsh connector; and (3)
storage.
From January 14, 1980, through December 6, 1988, Zdeb worked
as an engineer at Baxter in Round Lake. When hired, Zdeb signed
an employment agreement that required him to protect the
confidentiality of Baxter's trade secrets and other confidential
information. The agreement further provided that Baxter would
own any inventions that related to its business which Zdeb
conceived or reduced to practice during his tenure at Baxter or
during a period of 90 days after his termination. When his
position with Baxter was eliminated in December 1988, Zdeb
entered into a severance agreement that amended his employment
contract and provided in relevant part that "[a]ll inventions or
trade secrets developed by Brian Zdeb shall be the property of
Brian Zdeb after 3/6/89 *** and shall not be treated as
confidential information to Baxter." Zdeb received compensation
from Baxter until March 6, 1989, his effective date of
termination.
In April 1989, after leaving Baxter, Zdeb designed a device,
referred to as the Zdeb infuser. Zdeb conceived the idea of an
infuser that used a vacuum to drive the infusion. On October 31,
1989, Zdeb applied for a patent on his infuser and ultimately
obtained the patent in August 1992. In July 1989, Zdeb entered
into a business relationship with Charles Manker, another former
Baxter employee, and formed Prime for the purpose of marketing
Zdeb's infuser. Zdeb and Manker first pitched the Zdeb infuser
to Baxter.
During December 1989 and January 1990, Zdeb and Manker met
with Baxter personnel three or four times to present the Zdeb
infuser to Baxter. During the meetings with Baxter personnel,
Zdeb and Manker presented various models, diagrams, and
engineering drawings of the Zdeb infuser.
After the multiple meetings, Baxter executives informed
Manker that Zdeb had incorporated Baxter technology into the Zdeb
infuser. Manker responded that he was "totally shocked and taken
aback." Manker offered to assign the patents to Baxter if Baxter
could show that Zdeb had taken ideas from Baxter to develop his
infuser. In subsequent conversations about the Zdeb infuser,
Manker conveyed this offer to other Baxter personnel, including
James Carne, Baxter's vice president of business development for
the pharmacy group. By March 1990, Manker and Zdeb ended their
business relationship because of their unsuccessful efforts to
market the Zdeb infuser to Baxter.
In March 1990, Zdeb contacted Carne to present again his
infuser to Baxter. At Carne's suggestion, Zdeb met with and
demonstrated his infuser to Steve Hessel, the person in charge of
product development for Baxter's infusion systems group. At this
meeting, Hessel asked Zdeb if his device had a preload space in
it and Zdeb responded "no." Zdeb acknowledged that there was a
gap in his infuser but stated that the gap was filled with
silicone oil and was not a vacuum preload.
Prior to March 1990, Zdeb had one or two meetings with Smith
and Nephew Solopak (Solopak) about the Zdeb infuser. Smith and
Nephew was a multinational health care company headquartered in
London, England, had 10 subsidiaries and operated in about 35
different countries. Solopak was the United States subsidiary of
Smith and Nephew, and had a significant presence in the infusion
therapy market by 1990. If Solopak obtained the Zdeb infuser,
Solopak would have been Baxter's competitor in both the domestic
and European markets.
Between April and December 1990, Zdeb and Solopak engaged in
negotiations, discussing licensing fees, royalties, incentive
payments and consulting services. Zdeb and Solopak reached
agreement which was set forth in an unexecuted draft dated
December 20, 1990.
During these negotiations, various attempts were made by
Solopak personnel and Zdeb to confirm with Baxter that Zdeb owned
this infuser technology. C. Richard Piazza, president of Solopak
in Chicago, was involved in the negotiations with Zdeb. Upon
reviewing Zdeb's employment agreement and the addendum to the
employment agreement executed at Zdeb's leaving Baxter, Piazza
understood that Zdeb "was free to pursue this product," i.e., the
Zdeb infuser. In January 1991, Piazza, frustrated by the lack of
response from Baxter, talked to Terry Furness, a group president
at Solopak. Furness said that he had worked for 10 years at
Baxter and he called James Tobin, the second-ranking executive at
Baxter. Furness told Tobin that Solopak was about to conclude a
deal with Zdeb and they needed a response from Baxter about
Zdeb's right to the technology. Tobin said that he would look
into the matter.
Zdeb also made efforts to get a response from Baxter in
order to conclude his deal with SoloPak. Zdeb contacted Mark
McGarvie, a Baxter attorney, and Paul Schaafsma, another Baxter
attorney.
Eventually, Baxter's attorney Schaafsma sent a letter dated
January 31, 1991, to Zdeb and copied to several Solopak
personnel. The January 31 Baxter letter stated in relevant part:
"With regard to the vacuum infuser described in
your January submission, it is Baxter's position that
this infuser was not solely developed by you while you
were employed at Baxter. It is based on a Baxter
developed vacuum infuser prototype to which you were
exposed while employed at Baxter.
While the infuser in your January submission
includes superficial design modifications which are
different than Baxter's prototype, your infuser uses
the same approach as Baxter's prototype to overcome the
significant technological hurdles of end of infusion
pressure drop, storage of the device without
compromising the vacuum, and connection of the
administration tubing to the pressurized fluid source.
Therefore, Baxter does not grant your request for a
'release' on the infuser."
After receipt of this Baxter letter, Solopak terminated all
relationship with Zdeb.
Plaintiffs filed a two-count complaint against Baxter
alleging tortious interference with prospective economic
advantage (count I) and libel per se (count II). Baxter filed
counterclaims, alleging that Zdeb breached his employment
agreement with Baxter, misappropriated Baxter's trade secrets and
confidential information. In the pleadings that followed, Baxter
filed the affirmative defense of justification. Thereafter the
trial court dismissed plaintiffs' libel per se count and allowed
the tortious interference count to proceed to trial.
On September 30, 1996, trial commenced and continued for
more than three weeks. The jury returned a verdict in favor of
plaintiffs on both the claim for tortious interference and on
Baxter's counterclaims. The jury awarded Zdeb $156,000, and
Prime $7.9 million. Thereafter, the trial court denied Baxter's
posttrial motion.
The critical issues for our consideration are whether the
contents of the January 1991 letter are protected by an absolute
privilege because the letter was executed by a lawyer or whether
the contents are, at least, protected by a qualified privilege
occasioned by a corporate officer and employees to protect the
property rights of the corporation.
Second, Baxter asserts that the absolute privilege provided
in section 586 of the Restatement (Second) of Torts applies to
the January 1991 letter as an attorney's communication relating
to a seriously contemplated lawsuit and, therefore, Baxter is
entitled to judgment n.o.v. Baxter argues that: (1) the
protection afforded Baxter's attorney extends to Baxter as the
attorney's employer under master/servant and principal/agent
rules; (2) absolute privilege is recognized in causes of action
other than defamation; and (3) absolute privilege applies to
attorney communications made in contemplation of litigation. We
disagree.
Whether a statement is protected by absolute privilege is a
question of law. Bushell v. Caterpillar, Inc., 291 Ill. App. 3d
559, 561 (1997); Barakat v. Matz, 271 Ill. App. 3d 662, 667
(1995).
Section 586 of the Restatement (Second) of Torts, which is
included in the chapter entitled "DEFENSES TO ACTIONS FOR
DEFAMATION," provides:
"An attorney at law is absolutely privileged to publish
defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a
judicial proceeding in which he participates as counsel, if
it has some relation to the proceeding." Restatement
(Second) of Torts 586 (1977).
The purpose of absolute privilege is stated, in relevant
part, in Comment a of section 586:
"a. The privilege stated in this Section is based upon
a public policy of securing to attorneys as officers of the
court the utmost freedom in their efforts to secure justice
for their clients. Therefore the privilege is absolute. It
protects the attorney from liability in an action for
defamation irrespective of his purpose in publishing the
defamatory matter, his belief in its truth, or even his
knowledge of its falsity." Restatement (Second) of Torts
586, Comment a, at 247 (1977).
The scope of absolute privilege is addressed in Comment e of
section 586:
"e. As to communications preliminary to a proposed
judicial proceeding the rule stated in this Section applies
only when the communication has some relation to a
proceeding that is contemplated in good faith and under
serious consideration. The bare possibility that the
proceeding might be instituted is not to be used as cloak to
provide immunity for defamation when the possibility is not
seriously considered." Restatement (Second) of Torts 586,
Comment e, at 248 (1977).
In its memorandum and order denying Baxter summary judgment
on plaintiffs' interference count, the trial court addressed
Baxter's section 586 absolute privilege argument as follows:
"The short answer to this assertion is that 586 by its
terms protects counsel; it does not protect the client.
Here, plaintiff is suing Baxter, he is not suing Baxter's
counsel. A holding that 586 provides a shield to both
counsel and the client would eviscerate the tort of
intentional interference. One intending to commit the tort
could obtain an absolute shield by conveying information to
the third party through an attorney."
We agree with the trial court for several reasons. First,
the language of section 586 speaks directly and solely to
attorneys, i.e., absolute privilege "protects the attorney from
liability." Restatement (Second) of Torts 586, Comment a, at
247 (1977). Second, the impenetrable shield of absolute
privilege should not be extended or available for the possible
widespread abuse recognized by the trial court, i.e., a party
simply could convey information through an attorney and escape
any liability by crying privilege. The privilege's alleged
limitation to communications relating to seriously contemplated
litigation is not a safeguard feature as advanced by Baxter but,
rather, a vast, limitless loophole into which all attorney
communication could escape.
In addition, Illinois courts have not extended the section
586 privilege to claims for intentional interference with
prospective economic advantage, which was the only claim
presented to the jury. Plaintiffs correctly observe that section
586: (a) falls within the Restatement sections entitled
"DEFAMATION: DEFENSES"; (b) expressly states that an attorney is
privileged to "publish defamatory matter"; and (c) provides, in
comment e that the privilege "protects the attorney from
liability in an action for defamation." (Emphasis added.)
Restatement (Second) of Torts 586, Comment e (1977).
Notwithstanding these facts, Baxter maintains that the
absolute privilege allowed in defamation actions under section
586 has been extended by Illinois courts to causes of actions
other than defamation, relying on McGrew v. Heinold Commodities,
Inc., 147 Ill. App. 3d 104, 115 (1986). Baxter's argument is
misleading.
The McGrew case concerned a false light claim, which is
recognized in section 652A of the Restatement (Second) of Torts
as an invasion of privacy cause of action. Restatement (Second)
of Torts 652A (1977). This court in McGrew applied the
Restatement's absolute privilege to the false light claim, noting
that section 652F expressly provides that the rules on absolute
privileges as stated in the defamation section apply to invasion
of privacy suits. McGrew, 147 Ill. App. 3d at 114; Restatement
(Second) of Torts 652F (1977). Accordingly, as the Restatement
afforded absolute privilege for defamation actions under section
586, the Restatement expressly afforded the privilege under
section 652F to false light claims.
For all of the above-stated reasons, we find that absolute
privilege under section 586 does not apply to the January 1991
letter. In light of this holding, we also reject Baxter's
alternative assertion that the trial court erred in refusing to
give a jury instruction on section 586 absolute privilege.
Baxter asserts that absolute privilege should apply based on
section 587 of the Restatement (Second) of Torts, which is
directed to parties, not attorneys, in judicial proceedings
(Restatement (Second) of Torts 587 (1977)). We find that Baxter
waived this theory because Baxter first raised section 587 in its
posttrial brief.
"[I]ssues raised for the first time in a post-trial motion
will not be considered." Antol v. Chavez-Pereda, 284 Ill. App.
3d 561, 566 (1996) (the issue of duty, even though such an issue
is a question of law, was waived on appeal in a negligence
action). The rules are well settled:
"The theory upon which a case is tried cannot be
changed upon review. *** It is also a rule that a
party will not be permitted to argue on appeal a
defense not interposed by his answer. [Citations.]
The fact that certain evidence lends support to the
defense does not mitigate the force of this rule
[citation] and asserting a new defense in final
argument does not do so. *** The issues are
determined from the pleadings and the evidence. To
have evidence without pleading an issue is just as
fatal as pleading an issue and not supporting it with
evidence. Both are essential and each must conform to
the other." Consoer, Townsend & Associates v. Addis,
37 Ill. App. 2d 105, 109-10 (1962).
Applying these rules, this court in Addis restricted its opinion
"to the one defense raised in the answer and to the one theory
upon which the case was tried." Addis, 37 Ill. App. 2d at 110;
see also, e.g., Ellerby v. Spiezer, 138 Ill. App. 3d 77, 80
(1985) (a party's failure to plead a claim in his answer waived
that claim on review); Kaufman & Broad Homes, Inc. v. Allied
Homes, Inc., 86 Ill. App. 3d 498, 502 (1980) (waiver applied
where the defense was not set forth in the pleadings and the new
defense was asserted for the first time in final argument).
In the present case, the record reveals that in its motion
for summary judgment, Baxter posited that absolute privilege
under section 586, not section 587, applied to the January 1991
letter. In their memorandum in opposition to Baxter's motion for
summary judgment, plaintiffs specifically opposed Baxter's
section 586 theory. In its memorandum and order, the trial court
expressly considered and rejected Baxter's absolute privilege
theory premised on section 586. In addition, in its proposed
jury instruction on absolute privilege, Baxter specifically
relied on section 586. Baxter first mentioned section 587 in its
posttrial motion. Section 587, which applies to parties in a
judicial proceeding, clearly raises an entirely different theory
than section 586, which applies to attorneys. Thus, we find that
Baxter waived the issue of absolute privilege under section 587.
The real heart of this case relates to the possible
existence of a qualified privilege and who must plead and prove
such a qualified privilege.
Baxter asserts that the January 1991 letter was qualifiedly
privileged, as a matter of law, because it was (1) an action to
protect its proprietary and commercial interests, and (2) a
response to an authorized inquiry. In its appellate brief,
Baxter argues that "[t]he trial court erroneously failed to make
an initial determination that Baxter had a qualified privilege
defense to plaintiffs' tortious interference claim."
Plaintiffs contend that Baxter waived this issue because it
filed an affirmative defense of justification. Plaintiffs
further argue that their complaint nowhere suggested that Baxter
acted pursuant to a recognized privilege and, in fact, expressly
alleged that Baxter's conduct was not privileged and Baxter's
statements were false.
In the present case, just prior to trial, Baxter filed a
motion in limine asserting that the trial court should determine
whether Baxter's actions were protected by qualified privilege.
The trial court denied this motion, stating that "the jury is
going to have to decide whether there *** is justification for
this by virtue of intellectual patent or whatever." By its
ruling, the trial court rejected the existence of qualified
privilege and ordered that the trial would proceed on Baxter's
written affirmative defense of justification.
"In Illinois, the issue of whether a qualified privilege
exists has been a question of law for the court, and the issue of
whether the privilege was abused has been a question of fact for
the jury." Kuwik v. Starmark Star Marketing & Administration,
Inc., 156 Ill. 2d 16, 25 (1993); Barakat, 271 Ill. App. 3d at 667
(whether a statement is protected by a qualified privilege is
question of law to be determined by the court). Qualified
privilege can apply in an action for interference with a
prospective economic advantage. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 512 (1991).
Whether or not a qualified privilege exists determines the
burden of proof upon the respective parties. Where the conduct
of the defendant is privileged, the plaintiff bears the burden to
plead and prove that the defendant's actions were unjustified or
malicious. Fellhauer, 142 Ill. 2d at 512-13. Where the conduct
of the defendant does not invoke a privilege, the defendant
shoulders the burden to plead and prove justification as an
affirmative defense. Roy v. Coyne, 259 Ill. App. 3d 269, 283-84
(1994).
Courts will recognize a privilege "where the defendant was
acting to protect an interest which the law deems to be of equal
or greater value than the plaintiff's contractual rights." HPI
Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 157 (1989).
In HPI Health Care, the supreme court found that the
defendants' actions were privileged and held that "the duty owed
by hospital management companies to their hospitals should take
precedence over their duty to the hospitals' contract creditors."
HPI Health Care, 131 Ill. 2d at 157-58. In its reasoning, the
supreme court analogized to three prior decisions in which it
"recognized a privilege for corporate officers and directors to
use their business judgment and discretion on behalf of their
corporations." HPI Health Care, 131 Ill. 2d at 157. "The
existence of the privilege was based upon this court's
recognition that the duty of corporate officers and directors to
their corporations' shareholders outweighs any duty they might
owe to the corporations' contract creditors." HPI Health Care,
131 Ill. 2d at 157. Courts have also held that an employer may
invoke conditional privilege to respond and disclose limited
information to prospective employers. Anderson v. Vanden Dorpel,
268 Ill. App. 3d 907, 917-18 (1995) (and cases cited therein),
rev'd on other grounds, 172 Ill. 2d 399 (1996).
To determine whether a privilege applies, the court looks to
the complaint. "[I]f the complaint may not fairly be said to
introduce the existence of a recognized statutory or common law
privilege, it is not the duty of the plaintiff to plead and prove
lack of justification, but it becomes the defendant's burden to
plead and prove the privilege as an affirmative matter, for there
may be no way for a plaintiff to know in advance whether the
defendant enjoys a privilege or, indeed, whether he will ever
claim that he does." Roy, 259 Ill. App. 3d at 283.
We first observe that the decisions in HPI Health Care and
Roy involved pleadings and motions under section 2-615 of the
Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), in
contrast to the instant appeal, which comes to us after a trial
lasting nearly four weeks, a jury verdict and a $7.9 million
judgment. Most notably, however, in the instant case, Baxter
filed an affirmative defense specifically in response to the Roy
decision.
In Roy, the court painfully concluded that HPI Health Care
had imposed upon the trial court the curious allocation formula
for the burden of proof, i.e., the plaintiff has the pleading and
proof burdens if a qualified privilege is apparent but the
defendant has such burdens by way of affirmative defense in the
absence of a qualified privilege being fairly disclosed by the
complaint. Were we writing with a clean slate, we would ignore
this subtle distinction and allow the issue of justification to
be raised by the defendant in the form of an affirmative defense.
However, we are an intermediate court of review and must follow
the dictates of our supreme court and give deference to precedent
in our own district.
In any event, the specific allegations of plaintiffs'
complaint are somewhat murky as to whether a conditional
privilege is fairly shown. Paragraph 34 of the complaint alleges
that during September and October of 1990, "Baxter was advised by
SoloPak of the negotiations with Zdeb about a license of the PCA
and the Zdeb Infuser." The complaint does not provide a context
for the manner in which Baxter was "advised" and only in the
January 1991 letter by Baxter attached to and incorporated into
the complaint do we find a reference to "your non-confidential
submission of January 17, 1991." The complaint is silent as to
any inquiry by Zdeb, the recipient of the letter, and states
conflicting dates of reference between the fall of 1990 and
January of 1991. In addition, paragraph 42 of the complaint
expressly states that Baxter's actions were "without
justification or a privilege" and further alleges malicious
intent on the part of Baxter.
After the entry of the Roy decision, Baxter filed a motion
for leave to amend its affirmative defenses. In its motion,
Baxter stated that the Roy "court held that, with certain limited
exceptions, defendants now bear the burden of pleading and
proving justification to interfere with a plaintiff's prospective
economic advantage; prior to the Roy decision, a defendant's lack
of justification was considered an element of the plaintiff's
prima facie case." By its filing of this affirmative defense
based on Roy, Baxter assumed the burden as stated therein.
Moreover, Baxter never asked for leave to withdraw this
affirmative defense.
We are faced with the difficulty imposed upon the parties by
HPI Health Care. As Roy indicates, a plaintiff is faced with a
dilemma as to whether his complaint introduces a privilege.
Perhaps, if the present plaintiffs had filed their complaint
after the Roy decision had been entered, they would have opted to
omit paragraph 42, which alleged that Baxter acted "without
justification or privilege to do so," because that allegation may
be deemed to have raised, rather than denied, a privilege.
In the case at bar, Baxter is faced with the other side of
that dilemma. If Baxter concludes that the complaint establishes
a qualified privilege, a denial of the allegation negating
justification is all that is required of it. If the existence of
the privilege is less clear, Baxter will be required to raise
justification by affirmative defense. Here, Baxter put its
dilemma to rest by filing its amended affirmative defenses based
on Roy. Important litigation should not turn upon such a Catch-
22! We believe that the circumstances of the instant case,
therefore, fall within an exception to HPI Healthcare.
Accordingly, the trial court conducted the trial and
instructed the jury on the basis of the filed affirmative
defense, which was never withdrawn. The issues of justification
and qualified privilege were appropriately and fairly considered
during this trial.
In conjunction with this finding, we also hold that the jury
instructions on this issue properly stated the law. The jury
instruction on justification as an affirmative defense, as
opposed to lack of justification as an element of the plaintiffs'
cause of action, was correct. As stated in the jury
instructions, defendants asserted the affirmative defense of
justification and had the burden of proving the affirmative
defense.
Next, Baxter asserts that the jury instructions included an
incorrect standard for justification. Baxter argues that a
"reckless disregard of the truth" standard should apply based on
Kuwik, 156 Ill. 2d 16. We reject Baxter's assertion because,
unlike the present case, a qualified privilege applied in the
Kuwik case. Kuwik, 156 Ill. 2d at 30 ("to prove an abuse of the
qualified privilege"). Under the circumstances of this case,
Baxter asserted justification as an affirmative defense. In
addition, the cause of action in Kuwik was for defamation and
there is no authority for the ruling to apply to a cause of
action for interference with a prospective economic advantage.
Nonpublishable material under Supreme Court Rule 23 omitted.
For all of the foregoing reasons, we affirm the judgment of
the trial court.
Affirmed.
ZWICK and QUINN, JJ., concur.