Talarico v. Dunlap
Annotate this Case
Talarico v. Dunlap, No. 81459
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 81459--Agenda 17--March 1997.
ERNIE TALARICO, JR., Appellee, v. FRANK E. DUNLAP, M.D., et al.,
Appellants.
Opinion filed September 11, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
The issue presented in this appeal is whether defensive collateral
estoppel may be utilized by the defendant in this civil case to bar
litigation of an issue which was decided adversely to the plaintiff in the
plaintiff's prior criminal proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
In 1986 Ernie Talarico was a second-year medical student at the Chicago
College of Osteopathic Medicine. Talarico suffered from severe acne for many
years. As a result of his acne, Talarico avoided social situations, became
depressed, and was embarrassed and extremely uncomfortable in clinical work
situations where he and his fellow students had to "work on each other." In
June of 1986, Talarico sought medical treatment for his acne condition from
Dr. Frank Dunlap at Dixie-Ashland Dermatology Associates, Ltd. Dunlap
prescribed Accutane, which had some side effects, for the condition. Talarico
used the Accutane from June 6, 1986, until September 1986.
On August 21, 1986, Talarico visited a forest preserve, grabbed a 15-
year-old male, pushed him to the ground, and shocked him with a stun gun.
Later, on August 27, 1986, Talarico again visited a forest preserve where he
stunned a 25-year-old man with a stun gun. Talarico and the man fell to the
ground; Talarico grabbed the man's genitals and kissed him several times on
the face. Up until these occurrences, Talarico had no involvement with the
criminal justice system.
Subsequent to these occurrences, Talarico was arrested and charged with
aggravated battery, aggravated unlawful restraint, armed violence and
aggravated criminal sexual abuse. At the criminal proceeding, Talarico
entered into a plea agreement whereby he pleaded guilty to two counts of
misdemeanor battery. Talarico stipulated to the facts concerning his crimes.
Further, he admitted to having committed the crimes "intentionally and
knowingly, without legal justification."
After proper admonishment pursuant to Supreme Court Rule 402 (134 Ill.
2d R. 402), the court accepted defendant's plea. In exchange for his plea,
Talarico was sentenced to one-year misdemeanor probation, ordered to undergo
psychiatric counseling and assessed fees.
Some time following the completion of the criminal proceedings, Talarico
received a pardon from the Governor. The pardon provided that Talarico was
"acquitted and discharged of and from all further imprisonment and restored
to all the rights of citizenship which might have been forfeited by the
conviction."
Talarico subsequently filed a four-count, first-amended civil complaint
in the circuit court of Cook County. The first three counts of the complaint
were lodged against Roche Laboratories, the manufacturer of Accutane, and the
remaining one count was lodged against Dr. Dunlap, the prescribing physician,
and Dixie-Ashland Dermatology Associates, Ltd. Roche Laboratories entered
into a settlement agreement with Talarico. As a result of the settlement, the
first three counts of the complaint were dismissed with prejudice.
The remaining one count against Dr. Dunlap and Dixie-Ashland
(collectively, Dunlap) alleged that Dr. Dunlap prescribed medication with
known side effects and subjected Talarico to unnecessary risk. Further, the
complaint alleged that Dr. Dunlap failed to properly monitor Talarico's
condition. The complaint alleged that, as a result of these failings,
Talarico was injured and "[t]hat in part those injuries included alleged
criminal activity for which [Talarico] was charged."
The complaint additionally alleged that the aforementioned injuries
caused Talarico to "incur legal obligations for medical and related services,
has caused him to lose profits and earnings which he otherwise would have
made and acquired; has caused him to lose educational advantage which he
would otherwise have acquired; has caused him to suffer pain and disability;
all of which injuries and conditions are permanent."
In answer to Talarico's complaint, Dunlap moved the court for summary
judgment (735 ILCS 5/2--1005 (West 1994)) on the basis that Talarico's guilty
plea in the criminal proceeding collaterally estopped him from claiming that
Accutane proximately caused his criminal behavior. The court granted summary
judgment in Dunlap's favor. Talarico stipulated that the court's ruling
disposed of the entire case.
The appellate court reversed the order of summary judgment (281 Ill.
App. 3d 662), and we granted Dunlap's petition for leave to appeal (155 Ill.
2d R. 315(a)). The Illinois Trial Lawyers Association was granted leave to
file an amicus curiae brief in support of Talarico. 155 Ill. 2d R. 345. For
the reasons which follow, we now affirm the judgment of the appellate court.
DISCUSSION
This case comes to us on the appeal from a ruling on Dunlap's motion for
summary judgment. Our review is, therefore, de novo. See Delaney v.
McDonald's Corp., 158 Ill. 2d 465, 467 (1994), citing Outboard Marine Corp.
v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
Pardon
The parties concede that the Governor's pardon of defendant has no
effect on the legal question presented in this appeal. They have advanced no
argument on the issue. Further, the appellate court expressly noted that its
decision was without regard to the pardon's effect. See 281 Ill. App. 3d at
668. As part of our review, nevertheless, we have briefly considered the
pardon's nature and effect.
In that regard, we note the following. Some courts have held that a
pardon not only relieves the punishment for the offense but blots out the
existence of the guilt of the offender. 67A C.J.S. Pardon and Parole 18
(1978). This court, however, has held that a pardon merely releases an inmate
from custody and supervision. People ex rel. Abner v. Kinney, 30 Ill. 2d 201,
205 (1964). Since the very essence of a pardon is forgiveness or remission of
penalty, assessed on the basis of the conviction of the offender, a pardon
implies guilt; it does not obliterate the fact of the commission of the crime
and the conviction thereof. 67A C.J.S. Pardon and Parole 18 (1978). In other
words, a pardon "involves forgiveness but not forgetfulness." 29 Ill. L. &
Prac. Pardons 1, at 109 (1957); see also People v. Chiappa, 53 Ill. App. 3d
639, 640 (1977). The law in Illinois, though slight, supports a conclusion
that Talarico's pardon did not negate the fact of his criminal conviction for
purposes of collateral estoppel.
Collateral Estoppel
Dunlap argues that Talarico should be collaterally estopped from
"relitigating" in this civil suit the issue of the cause of his criminal
conduct, which was decided in the prior criminal proceeding.
Collateral estoppel is an equitable doctrine. Application of the
doctrine precludes a party from relitigating an issue decided in a prior
proceeding. Herzog v. Lexington Township, 167 Ill. 2d 288 (1995). Offensive
use of collateral estoppel occurs when a plaintiff seeks to foreclose a
defendant from litigating an issue the defendant has previously litigated
unsuccessfully in another action. Defensive use of the doctrine occurs when,
as in this case, a defendant seeks to prevent a plaintiff from asserting a
claim the plaintiff has previously litigated and lost. In re Owens, 125 Ill. 2d 390, 397 (1988).
The minimum threshold requirements for the application of collateral
estoppel, as set forth in Illinois State Chamber of Commerce v. Pollution
Control Board, 78 Ill. 2d 1, 7 (1979), are: (1) the issued decided in the
prior adjudication is identical with the one presented in the suit in
question, (2) there was a final judgment on the merits in the prior
adjudication, and (3) the party against whom estoppel is asserted was a party
or in privity with a party to the prior adjudication. A previous requirement
of "identical-parties-mutuality" has been eliminated. See Illinois State
Chamber of Commerce, 78 Ill. 2d at 7.
For collateral estoppel to apply, a decision on the issue must have been
necessary for the judgment in the first litigation, and the person to be
bound must have actually litigated the issue in the first suit. A. Vestal,
Issue Preclusion and Criminal Prosecutions, 65 Iowa L. Rev. 281, 288-89
(1980). Even where the threshold elements of the doctrine are satisfied and
an identical common issue is found to exist between a former and current
lawsuit, collateral estoppel must not be applied to preclude parties from
presenting their claims or defenses unless it is clear that no unfairness
results to the party being estopped. Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 467-68 (1996); see also Van Milligan v. Board of Fire & Police
Commissioners, 158 Ill. 2d 85, 96 (1994).
In deciding whether the doctrine of collateral estoppel is applicable in
a particular situation, a court must balance the need to limit litigation
against the right of a fair adversary proceeding in which a party may fully
present his case. 50 C.J.S. Judgments 779 (1997). In determining whether a
party has had a full and fair opportunity to litigate an issue in a prior
action, those elements which comprise the " `practical realities of
litigation' " must be examined. 47 Am. Jur. 2d Judgments 651 (1995). In some
circumstances the absence of an incentive to vigorously litigate in the
former proceeding is relevant in the application of collateral estoppel. See
Housing Authority for La Salle County v. Young Men's Christian Ass'n, 101 Ill. 2d 246, 255 (1984); Restatement (Second) of Judgments 28(5)(c) (1982);
see also 47 Am. Jur. 2d Judgments 651 (1995). There must have been the
incentive and opportunity to litigate, so that a failure to litigate the
issue is in fact a concession on that issue. A. Vestal, Issue Preclusion and
Criminal Prosecutions, 65 Iowa L. Rev. 281, 288-89 (1980).
Incentive to litigate might be absent, for instance, where the amount at
stake in the first litigation was insignificant, or if the future litigation
was not foreseeable. 47 Am. Jur. 2d Judgments 651 (1995). In the context of
prior criminal proceedings, the seriousness of the allegations or the
criminal charge at the prior hearing is a factor to be considered. If the
offense charged is of a minor or trivial nature, defendant might not be
sufficiently motivated to challenge the allegations made at trial and, in
such a case, it might be unfair to allow collateral estoppel to be asserted
later. However, even summary offenses, when they provide sufficient incentive
and opportunity for a defense, may be the basis of collateral estoppel in a
subsequent civil proceeding as, for instance, when they are part of another
important charge. 50 C.J.S. Judgments 922 (1997).
The parties here do not question the propriety of applying collateral
estoppel to bar relitigation in a civil case of an issue previously decided
in a criminal proceeding. It is generally accepted that a criminal conviction
collaterally estops a defendant from contesting in a subsequent civil
proceeding the facts established and the issues decided in the criminal
proceeding. See 50 C.J.S. Judgments 922 (1997).
Further, the parties concede that the elements for collateral estoppel
to apply have been satisfied. Concerning the identity-of-issues element of
collateral estoppel specifically, Talarico admitted in the criminal
proceeding that his criminal conduct was both knowing and intentional. The
issue to be decided in the civil case is whether Accutane, instead,
contributed to cause Talarico's criminal conduct. We agree that the mens rea
element supporting Talarico's battery conviction and the proximate cause
element in the malpractice suit are the same issue. Cf. Thurmond v. Monroe,
159 Ill. 2d 240 (1994) (collateral estoppel not applied where prior traffic
court proceeding determined only whether plaintiff violated a traffic statute
and later civil proceeding determined who caused the resulting collision).
Where the parties differ is in their interpretation of the "incentive to
litigate" exception to the collateral estoppel doctrine. Both parties rely on
Bulfin v. Eli Lilly & Co., 244 Ill. App. 3d 785 (1993), as supportive of
their respective positions.
The facts in Bulfin are somewhat similar to the facts in the case at
bar. There, Bulfin was charged with one count of murder in the second degree
and two counts of attempted murder. Bulfin entered an "Alford plea," whereby
he consented to the entry of judgment without trial, declined to provide the
trial court with any factual basis for the guilty plea, but maintained his
innocence. Bulfin, 244 Ill. App. 3d at 786-87. See North Carolina v. Alford,
400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Pursuant to a plea
negotiation, Bulfin's charges were reduced and he was given a sentence
reflective of the reduction.
Subsequent to his criminal conviction, Bulfin filed a civil complaint
against two drug manufacturers, a physician and a health maintenance
organization. In his complaint, Bulfin charged that drugs marketed and
prescribed to him by the named defendants induced his criminal conduct.
The civil complaint was dismissed based on the doctrine of collateral
estoppel. On appeal, our appellate court first noted that in Arizona, where
the criminal offenses occurred, a criminal defendant is statutorily precluded
from subsequently denying in a civil proceeding the essential allegations of
the criminal offense upon which he was previously adjudged guilty. Further,
the court noted the "incentive to litigate" exception to collateral estoppel
was not applicable. In so finding, the court reasoned that Bulfin's
acceptance of the plea was not out of a lack of motivation to litigate: drug-
induced conduct would have been a defense to the offenses charged. Rather,
Bulfin had accepted the plea to substantially reduce his potential prison
term.
Talarico asserts that given the terms of the plea agreement offered him,
which substantially reduced the charged offenses to a misdemeanor and carried
only a sentence of probation, medical treatment and payment of fees, he had
no incentive to litigate. Therefore, consistent with Bulfin, the exception
should apply to defeat application of collateral estoppel.
Dunlap contends that Talarico misperceives Bulfin. Dunlap asserts that
the proper focus in the incentive-to-litigate inquiry is on the crimes with
which the criminal defendant is originally charged and not the charges which
result from plea negotiations. Therefore, when a individual is charged with
a crime for which he may be sentenced to a substantial term in prison,
incentive to litigate is necessarily established by the need to defend
against the charge. Citing Bulfin, Dunlap argues that "[i]t would be an
anomaly to suggest that, when plaintiff abandoned his defense, he did so out
of a lack of incentive as opposed to a desire to substantially reduce his
potential prison term." Bulfin, 244 Ill. App. 3d at 791.
We reject the reasoning in Bulfin as it relates to negotiated guilty
pleas and the incentive to litigate. Collateral estoppel is a flexible
doctrine which defies rigid or mechanical application. The question of
whether a party has had a full and fair opportunity to contest a prior
determination cannot be reduced to a simple formula. Warren v. McCall, 709 F.2d 1183, 1186 n.7 (7th Cir. 1983).
Ordinarily, when a fact has been admitted by a litigant, it is
reasonable to presume that the fact is established and that the fact should
not be subject to relitigation. We do not believe, however, that the same may
be said in every case of a negotiated guilty plea.
Negotiated pleas serve an important administrative function in our
criminal justice system. Such pleas, by design, dissuade litigation. A
decision to accept a plea is often the result of weighing a myriad of
factors, the reduction of the charge and resulting sentence being a
significant but only one of those factors. Because in the case of negotiated
pleas it does not necessarily follow that the failure to deny reflects only
a defendant's desire to receive a reduced sentence, for collateral estoppel
purposes consideration of more than the fact of the "admission" is required.
See also 2 R. LaFave, Criminal Procedure 20.1, at 559-60 (1984).
"The `incentive to litigate' formula, as used in most of the cases and
in the Restatement Second, allows a party who did litigate an issue to
relitigate if the party can show that the original litigation was a side show
rather than a struggle to the finish." (Emphasis in original.) G. Hazard,
Revisiting the Second Restatement of Judgments: Issue Preclusion and Related
Problems, 66 Cornell L. Rev. 564, 584 (1981). Under that approach, the party
may rebut the inference naturally drawn from the fact that the issue was
actually litigated, that is to say, the inference that the party had treated
the issue with entire seriousness in the first litigation. See 66 Cornell L.
Rev. at 584; see also Restatement (Second) of Judgments 28 (1982).
We believe that the Restatement offers the proper focus for the
incentive-to-litigate inquiry. We therefore consider whether the inference
which flows from Talarico's admission that his conduct was intentional and
knowing was "treated with entire seriousness" or may now be rebutted. In so
doing, we are mindful that the refusal to give Talarico's criminal judgment
preclusive effect should not occur without a compelling showing of
unfairness, nor should it be based on a conclusion that the criminal judgment
was erroneous. Restatement (Second) of Judgments 28, Comment j (1982).
We have been provided with and have reviewed the record of proceedings
in Talarico's criminal case. As a result of that review, we conclude that
only in the most technical sense was Talarico's guilty plea an admission that
his criminal conduct was knowing and intentional. The record makes apparent
that the plea was a compromise: never is it conceded that Accutane was not
the contributing factor to Talarico's criminal conduct. In fact, it appears
that both the trial court and the State's Attorney were made aware of the use
of the Accutane and Talarico's theory concerning its effects.
Specifically, in mitigation, defense counsel offered that prior to
Talarico's taking Accutane, he had had no problems and no criminal
background. He further commented that Accutane had been found to cause
aggressive behavior. In response to the court's query as to whether the
medication had been taken off of the market, defense counsel responded in the
affirmative. In pronouncing sentence, the trial court commented that
misdemeanor probation was an appropriate disposition in light of the "very
strange circumstances involved" in the case. The court further noted that
those circumstances had been "documented *** to the State's Attorney office."
Incidentally, Dunlap refuted the statement made at the criminal proceeding
concerning Accutane having been taken off of the market.
Also telling on the incentive-to-litigate issue is the generousness of
the plea offer. Talarico was originally charged with aggravated battery,
aggravated unlawful restraint, armed violence, and aggravated criminal sexual
abuse. A conviction for these offenses carried a substantial sentence.
Apparently pursuant to the plea agreement, the two counts of aggravated
battery were amended to charge only two counts of "simple battery," and the
remainder of the charged offenses were nol-prossed. The trial court,
accepting the agreement, imposed a sentence of one-year misdemeanor
probation, psychiatric counseling and fees. Significantly, at the time of the
criminal proceedings, defense counsel offered that Talarico was a second-year
medical student. Any term of imprisonment would have delayed his studies.
We note further that prior to the criminal proceedings, Dunlap wrote to
the State's Attorney on behalf of Talarico. In that letter, Dunlap requested
leniency for Talarico, whom he characterized as "intelligent, rational and of
a very mild demeanor." Dunlap stated with certainty that there were
extenuating circumstances pertaining to the charges against Talarico; Dunlap
stated that he would never characterize Talarico as either aggressive or
dangerous.
Further, it appears that a subsequent civil suit against Dunlap was not,
at the time of the criminal proceedings, foreseeable. In an affidavit filed
by Talarico's criminal trial attorney, counsel averred that at the time he
advised Talarico concerning the plea, counsel believed that Roche was the
only party potentially liable for Talarico's violent behavior. Counsel stated
that he had neither an indication nor a suspicion of any malpractice on the
part of Dunlap.
Finally, although we have concluded that the pardon does not negate the
finding of Talarico's guilt, it nonetheless merits favorable consideration as
it relates to the inference to be drawn from his admission of guilt.
The above facts, i.e., the significant reduction in the charges and
sentence, Talarico's status as a student, the unforseeability of future civil
liability, consideration given by the trial court of the mitigation evidence,
including the use of Accutane, as well as Dunlap's own statement to the
State's Attorney regarding Talarico's demeanor, combine to rebut the
inference that Talarico's admission on the issues of intent and knowledge was
treated by him with entire seriousness. We believe that the incentive to
litigate the criminal offense was not fully present here. Therefore,
collateral estoppel should not apply.
Had the issue concerning Accutane and its side effects not been an issue
in the criminal proceeding, it would perhaps merit less consideration here.
However, the issue having been first raised in the criminal proceeding, it
would be patently unfair to now disregard it as a factor having contributed
to the circumstances and particulars of the plea offer and acceptance.
Incidentally, while in Bulfin criminal trial counsel averred that he and
Bulfin had reason to believe that Bulfin's criminal conduct had been drug
induced, we do not notice in Bulfin any indication that the issue of drug-
induced conduct was a part of the plea negotiations or made known to the
trial court.
As a final note on the incentive-to-litigate inquiry generally, we
believe it would be unfair to create a situation in which a criminal
defendant who, after balancing the costs and risks of trial, chooses to
accept a plea negotiation is said to automatically forfeit his right to a
civil trial. A refusal to look behind the curtain of the negotiated guilty
plea is to require every criminal defendant with a potential civil suit to
proceed with criminal trial, regardless of the risks. Moreover, to rigidly
permit application of the collateral estoppel doctrine in cases involving
negotiated pleas will have a chilling effect on the acceptance of such pleas.
To do equity requires simply that every available fact surrounding a
negotiated guilty plea be examined prior to permitting the preclusive effect
of the doctrine to apply.
Dunlap further argues that it would be unfair to permit Talarico to reap
the benefits which flowed from his negotiated guilty plea and to then be
permitted to deny the validity of that plea. If in fact it is conclusively
determined that the Accutane was the cause of Talarico's criminal conduct,
and we make no determination in that regard, we do not perceive that Talarico
has benefitted. Not to be forgotten are the facts that Talarico, although
pardoned, suffers the burdens attendant to having a criminal record and has
had to endure the costs, both financial and emotional, of defending against
criminal charges.
Finally, Dunlap argues that to deny preclusive effect in this case would
set bad public policy in Illinois. On the contrary, we believe that the
doctrine of collateral estoppel remains intact and, as it should be, is used
sparingly, on a case-by-case basis, and only when equity requires. 47 Am.
Jur. 2d Judgments 651 (1995). Moreover, we notice no unfairness to Dunlap,
who, heretofore, has not been subject to litigation involving the issue of
the effect of Accutane on Talarico. On the contrary, if in fact Accutane
caused Talarico's criminal conduct, any unfairness in precluding relitigation
would have been borne solely by Talarico.
CONCLUSION
By our holding we do not establish a bright line rule with respect to
plea negotiations in the context of collateral estoppel. Application of the
doctrine must be determined on a case-by-case basis, after consideration of
all of the available factors. We simply hold that, on the particular facts of
this case, Talarico had no incentive to litigate the criminal charges against
him. That being the case, to bar Talarico's civil suit against Dunlap would
deprive Talarico of his day in court and unfairly advantage Dunlap.
Therefore, for all of the foregoing reasons, we affirm the judgment of the
appellate court.
Appellate court judgment affirmed.
JUSTICE McMORROW, dissenting:
In his guilty plea, Talarico unconditionally conceded that he had the
requisite mens rea to commit the violent offenses charged. In essence, when
he pled guilty to the reduced criminal charges, Talarico admitted that he
intentionally and knowingly, without legal justification, pushed a 15-year-
old boy to the ground and shocked him with a stun gun, and a week later,
again without legal justification, shocked a 25-year-old man with a stun gun,
grabbed his genitals, and kissed him several times on the face. When he pled
guilty to the reduced charges, he deliberately and knowingly forfeited the
opportunity to assert that his violent conduct was actually caused by a third
party's negligence in prescribing an acne medication. In the instant medical
malpractice action, however, Talarico repudiates his admission of criminal
intent and seeks compensatory damages arising out of his own criminal
conduct. Talarico should not be allowed to use the judicial system to have it
both ways.
In my opinion, the decision of the majority invites the rancor of the
community toward the legal profession and justice system. I believe that
under the facts of this case, there is no legal justification for subjecting
Dr. Dunlap and Dixie-Ashland to the expense and stress of trial, nor is there
any justification for subjecting the taxpayers to the expense incurred by the
use of the courts and resources of the state to litigate an issue which had
previously been litigated. In my view, today's majority opinion sets an
unfortunate precedent that is contrary to sound public policy, legal
principles, and fairness. Through a flawed application of the doctrine of
collateral estoppel, the majority permits Talarico to maintain contrary legal
positions in two different lawsuits, thereby compromising the finality of the
judgment, the integrity of the guilty plea, judicial economy, and fairness to
the defendants in this case. Accordingly, I dissent.
As the parties concede, the majority acknowledges, and as the circuit
court and appellate panel held, the elements of collateral estoppel are
present in this case. The majority opinion expressly acknowledges that the
"mens rea element supporting Talarico's battery conviction and the proximate
cause element in the malpractice suit are the same issue." Why, then, should
Talarico be allowed to proceed with his claim that the proximate cause of his
violent attack on the victims was Dr. Dunlap's negligent prescription and
monitoring of Accutane?
The majority's answer to this question relies entirely upon a strained
application of the principle that collateral estoppel does not preclude
relitigation of an issue if the party against whom the doctrine is asserted
lacked sufficient incentive to litigate the particular issue in the first
lawsuit. According to the majority, the incentive to litigate concept, as
interpreted in the Restatement (Second) of Judgments 28 (1982), permits
relitigation of an issue " `if the party can show that the original
litigation was a side show rather than a struggle to the finish.' " Slip op.
at 8, quoting G. Hazard, Revisiting the Second Restatement of Judgments:
Issue Preclusion and Related Problems, 66 Cornell L. Rev. 564, 584 (1981). I
do not believe that the admissions defendant made while represented by his
attorneys in his negotiated plea should be viewed as a "side show"; the
stakes for the people of this state, as well as the defendant, are too high
in a criminal prosecution to assume that plea negotiations are anything less
than a "struggle to the finish." Rather, such negotiations are a joint effort
by the court, the prosecutor, and defense attorney to thoughtfully and
knowingly resolve complex guilt and sentence issues fairly. Since Talarico
cannot show that the original criminal litigation was a side show, his
current attempt to relitigate the issue of his criminal intent falls outside
the scope of the incentive to litigate exception to collateral estoppel.
According to the majority, however, Talarico may proceed with his claim
against Dr. Dunlap because "only in the most technical sense was Talarico's
guilty plea an admission that his criminal conduct was knowing and
intentional." Slip op. at 9. The majority reasons that the negotiated plea
was a compromise in which Talarico never conceded that Accutane was not the
contributing cause of his criminal conduct.
I question the precise sense in which Talarico's unequivocal admission
of his engagement in intentional and knowing criminal conduct can be deemed
a mere technicality. On the contrary, such an admission goes to the heart of
the issue of Talarico's criminal responsibility. With respect to the
majority's characterization of Talarico's guilty plea as a "compromise," such
observation is singularly unhelpful because in this context compromise is an
essential component of negotiations. That Talarico made a calculated
assessment of the risks of asserting the Accutane defense does not mean he
lacked incentive to litigate the issue. Significantly, the fact that Talarico
did not expressly concede in his guilty plea that Accutane did not cause his
violent behavior is legally irrelevant because such a concession is implicit
in his admission of intentional criminal conduct.
Although there may be instances in which a person's guilty plea in a
criminal matter does not preclude that party from pursuing a civil claim
which partly depends on facts admitted in the guilty plea, this is not such
a case. At the time of his negotiated guilty plea, Talarico and his criminal
defense attorneys were well aware that he had been under treatment with
Accutane. Indeed, the record reveals that months before Talarico began his
own treatment with Accutane, he had spent 100 to 200 hours researching the
effects of Accutane while participating in a research project on that topic
at his medical school. Accordingly, at the time of his guilty plea, Talarico
possessed significant information from which to evaluate the merits of an
Accutane-impairment defense. If Talarico proved his theory that negligently
prescribed Accutane caused his criminal acts, thereby negating his criminal
intent, he would have been entitled to outright acquittal. However, Talarico
instead chose to plead guilty to reduced charges, and benefit from a sentence
that included psychiatric treatment and probation. Having made that decision,
Talarico should not now be permitted to pursue a lawsuit that places the
blame on others and thereby repudiate his admittedly intentional criminal
acts.
The instant case is virtually indistinguishable from Bulfin v. Eli Lilly
& Co., 244 Ill. App. 3d 785 (1993), where the appellate court rejected a
similar attempt by a plaintiff who, after pleading guilty to criminal
charges, subsequently sought damages in a civil lawsuit based on the
allegation that certain medications manufactured by defendant had induced an
intoxicated state that caused him to commit criminal acts, through no fault
of his own. The plaintiff in the civil suit in Bulfin, like plaintiff in the
case at bar, knew at the time of his criminal proceedings that he might have
a complete defense and be acquitted based on the use of the medications. In
light of an offered plea negotiation, however, he forfeited the drug-induced
impairment issue, and pleaded guilty to manslaughter and aggravated assault.
After reviewing the elements of collateral estoppel and the incentive to
litigate exception, the appellate court in Bulfin held that the plaintiff had
been afforded a full and fair opportunity in the criminal case to litigate
the issue of whether his actions resulted from an involuntarily induced state
of intoxication. Accordingly, the appellate court held that the civil suit
was properly dismissed on the basis of collateral estoppel. The Bulfin court
observed that the incentive to litigate a complete defense to criminal
charges is present in every case in which a person potentially faces a prison
term for such charges and that "[i]t would be an anomaly to suggest that,
when plaintiff abandoned his defense, he did so out of a lack of incentive as
opposed to a desire to substantially reduce his potential prison term."
Bulfin, 244 Ill. App. 3d at 791.
Without distinguishing the facts in Bulfin or explaining where the
appellate court's analysis was flawed, the majority in the instant case
expressly rejects the reasoning in Bulfin "as it relates to negotiated guilty
pleas and the incentive to litigate." Slip op. at 7. In so doing, the
majority overlooks the strong policy concerns which arise when a criminal
defendant is allowed to plead guilty to intentional or knowing crimes, and
then subsequently to deny his criminal guilt for purposes of pursuing, in
civil litigation, financial compensation for the consequences of his own
criminal conduct. Justice and equity cry out for the application of
collateral estoppel to the facts of this case.
Some of those concerns have been recognized by other jurisdictions. For
example, in Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981), the Iowa court
rejected on public policy grounds a convicted defendant's subsequent claim in
a civil suit that her psychiatrist's negligent treatment caused her to commit
the crime. In a similar vein, a New York court cautioned that courts should
not be expected to look behind knowing and voluntary pleas of guilt to
relieve defendants from adverse civil consequences that may follow from the
defendants' admissions of guilt to serious criminal charges. Merchants Mutual
Insurance Co. v. Arzillo, 98 A.D.2d 495, 472 N.Y.S.2d 97 (1984). The court
held, "As long as the guilty plea stands, the defendant is guilty and cannot
be heard to say otherwise." Merchants Mutual Insurance, 98 A.D.2d at 506, 472 N.Y.S.2d at 105. In Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1239-40
(Alaska 1983), a defendant who had been convicted of manslaughter was then
sued by the victim's family for wrongful death. As a defense to the civil
suit, he sought to implead the gun manufacturer on the ground that the gun
was defective and had killed the victim when it discharged accidentally. The
Alaska Supreme Court, in rejecting the defendant's attempt to implead the gun
manufacturer, observed, "[A]llowing a criminal defendant who has been
convicted of an intentional killing, to impose liability on others for the
consequences of his own anti-social conduct runs counter to basic values
underlying our criminal justice system." Adkinson, 659 P.2d at 1240.
The same public policy concerns enunciated in the above cases are
present in the case at bar. Allowing Talarico to pursue the Accutane issue in
his medical malpractice action in the case at bar creates an unwise precedent
to impose on the courts of this state. Talarico waived the Accutane defense
by his plea of guilt to intentional criminal conduct, and he should be bound
by such admission as a matter of good law and sound policy.
By declining to impose collateral estoppel under the circumstances of
this case, the majority allows a defendant to circumvent the finality of his
guilty plea and to seek financial gain from third parties for his own
criminal acts. Finality of judgments in negotiated plea criminal cases serves
an important purpose in our criminal justice system. Once an accused who is
represented by counsel decides to plead guilty to criminal charges and accept
the consequences of his own conduct, he should not be able to use the civil
court system to make a mockery out of the criminal proceedings by repudiating
his guilty plea for pecuniary gain. The compensation that Talarico seeks in
his civil suit is not limited to medical expenses or physical suffering from
the side effects of Accutane. He seeks to be compensated for lost income and
profit and lost educational advantage, presumably arising from Talarico's
criminal conviction and the resulting impact it may have placed on his
medical career. For these reasons, I find no principled basis on which to
apply an exception to collateral estoppel in this case.
The appellate court in Bulfin cited with approval the following:
"The clearest case for such an estoppel is where a defendant pleads
guilty to a substantial criminal charge and then seeks in civil
litigation concerning the same transaction to assert that he did
not commit the criminal act. Particularly galling is the situation
where a criminal convicted on his own guilty plea seeks as
plaintiff in a subsequent civil action to claim redress based on a
repudiation of the confession. The effrontery or, as some might say
it, chutzpah, is too much to take. There certainly should be an
estoppel in such a case." G. Hazard, Revisiting the Second
Restatement of Judgements: Issue Preclusion and Related Problems,
66 Cornell L. Rev. 564, 578 (1981).
I agree with the foregoing and adhere to the basic values underlying our
criminal justice system articulated in the Adkinson case. I would hold
Talarico to his admissions based on collateral estoppel, and affirm the trial
court's grant of summary judgment to the defendants. Accordingly, I dissent.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 81459--Agenda 17--March 1997.
ERNIE TALARICO, JR., Appellee, v. FRANK E. DUNLAP, M.D., et al.,
Appellants.
Opinion filed September 11, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
The issue presented in this appeal is whether defensive collateral
estoppel may be utilized by the defendant in this civil case to bar
litigation of an issue which was decided adversely to the plaintiff in the
plaintiff's prior criminal proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
In 1986 Ernie Talarico was a second-year medical student at the Chicago
College of Osteopathic Medicine. Talarico suffered from severe acne for many
years. As a result of his acne, Talarico avoided social situations, became
depressed, and was embarrassed and extremely uncomfortable in clinical work
situations where he and his fellow students had to "work on each other." In
June of 1986, Talarico sought medical treatment for his acne condition from
Dr. Frank Dunlap at Dixie-Ashland Dermatology Associates, Ltd. Dunlap
prescribed Accutane, which had some side effects, for the condition. Talarico
used the Accutane from June 6, 1986, until September 1986.
On August 21, 1986, Talarico visited a forest preserve, grabbed a 15-
year-old male, pushed him to the ground, and shocked him with a stun gun.
Later, on August 27, 1986, Talarico again visited a forest preserve where he
stunned a 25-year-old man with a stun gun. Talarico and the man fell to the
ground; Talarico grabbed the man's genitals and kissed him several times on
the face. Up until these occurrences, Talarico had no involvement with the
criminal justice system.
Subsequent to these occurrences, Talarico was arrested and charged with
aggravated battery, aggravated unlawful restraint, armed violence and
aggravated criminal sexual abuse. At the criminal proceeding, Talarico
entered into a plea agreement whereby he pleaded guilty to two counts of
misdemeanor battery. Talarico stipulated to the facts concerning his crimes.
Further, he admitted to having committed the crimes "intentionally and
knowingly, without legal justification."
After proper admonishment pursuant to Supreme Court Rule 402 (134 Ill.
2d R. 402), the court accepted defendant's plea. In exchange for his plea,
Talarico was sentenced to one-year misdemeanor probation, ordered to undergo
psychiatric counseling and assessed fees.
Some time following the completion of the criminal proceedings, Talarico
received a pardon from the Governor. The pardon provided that Talarico was
"acquitted and discharged of and from all further imprisonment and restored
to all the rights of citizenship which might have been forfeited by the
conviction."
Talarico subsequently filed a four-count, first-amended civil complaint
in the circuit court of Cook County. The first three counts of the complaint
were lodged against Roche Laboratories, the manufacturer of Accutane, and the
remaining one count was lodged against Dr. Dunlap, the prescribing physician,
and Dixie-Ashland Dermatology Associates, Ltd. Roche Laboratories entered
into a settlement agreement with Talarico. As a result of the settlement, the
first three counts of the complaint were dismissed with prejudice.
The remaining one count against Dr. Dunlap and Dixie-Ashland
(collectively, Dunlap) alleged that Dr. Dunlap prescribed medication with
known side effects and subjected Talarico to unnecessary risk. Further, the
complaint alleged that Dr. Dunlap failed to properly monitor Talarico's
condition. The complaint alleged that, as a result of these failings,
Talarico was injured and "[t]hat in part those injuries included alleged
criminal activity for which [Talarico] was charged."
The complaint additionally alleged that the aforementioned injuries
caused Talarico to "incur legal obligations for medical and related services,
has caused him to lose profits and earnings which he otherwise would have
made and acquired; has caused him to lose educational advantage which he
would otherwise have acquired; has caused him to suffer pain and disability;
all of which injuries and conditions are permanent."
In answer to Talarico's complaint, Dunlap moved the court for summary
judgment (735 ILCS 5/2--1005 (West 1994)) on the basis that Talarico's guilty
plea in the criminal proceeding collaterally estopped him from claiming that
Accutane proximately caused his criminal behavior. The court granted summary
judgment in Dunlap's favor. Talarico stipulated that the court's ruling
disposed of the entire case.
The appellate court reversed the order of summary judgment (281 Ill.
App. 3d 662), and we granted Dunlap's petition for leave to appeal (155 Ill.
2d R. 315(a)). The Illinois Trial Lawyers Association was granted leave to
file an amicus curiae brief in support of Talarico. 155 Ill. 2d R. 345. For
the reasons which follow, we now affirm the judgment of the appellate court.
DISCUSSION
This case comes to us on the appeal from a ruling on Dunlap's motion for
summary judgment. Our review is, therefore, de novo. See Delaney v.
McDonald's Corp., 158 Ill. 2d 465, 467 (1994), citing Outboard Marine Corp.
v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
Pardon
The parties concede that the Governor's pardon of defendant has no
effect on the legal question presented in this appeal. They have advanced no
argument on the issue. Further, the appellate court expressly noted that its
decision was without regard to the pardon's effect. See 281 Ill. App. 3d at
668. As part of our review, nevertheless, we have briefly considered the
pardon's nature and effect.
In that regard, we note the following. Some courts have held that a
pardon not only relieves the punishment for the offense but blots out the
existence of the guilt of the offender. 67A C.J.S. Pardon and Parole 18
(1978). This court, however, has held that a pardon merely releases an inmate
from custody and supervision. People ex rel. Abner v. Kinney, 30 Ill. 2d 201,
205 (1964). Since the very essence of a pardon is forgiveness or remission of
penalty, assessed on the basis of the conviction of the offender, a pardon
implies guilt; it does not obliterate the fact of the commission of the crime
and the conviction thereof. 67A C.J.S. Pardon and Parole 18 (1978). In other
words, a pardon "involves forgiveness but not forgetfulness." 29 Ill. L. &
Prac. Pardons 1, at 109 (1957); see also People v. Chiappa, 53 Ill. App. 3d
639, 640 (1977). The law in Illinois, though slight, supports a conclusion
that Talarico's pardon did not negate the fact of his criminal conviction for
purposes of collateral estoppel.
Collateral Estoppel
Dunlap argues that Talarico should be collaterally estopped from
"relitigating" in this civil suit the issue of the cause of his criminal
conduct, which was decided in the prior criminal proceeding.
Collateral estoppel is an equitable doctrine. Application of the
doctrine precludes a party from relitigating an issue decided in a prior
proceeding. Herzog v. Lexington Township, 167 Ill. 2d 288 (1995). Offensive
use of collateral estoppel occurs when a plaintiff seeks to foreclose a
defendant from litigating an issue the defendant has previously litigated
unsuccessfully in another action. Defensive use of the doctrine occurs when,
as in this case, a defendant seeks to prevent a plaintiff from asserting a
claim the plaintiff has previously litigated and lost. In re Owens, 125 Ill. 2d 390, 397 (1988).
The minimum threshold requirements for the application of collateral
estoppel, as set forth in Illinois State Chamber of Commerce v. Pollution
Control Board, 78 Ill. 2d 1, 7 (1979), are: (1) the issued decided in the
prior adjudication is identical with the one presented in the suit in
question, (2) there was a final judgment on the merits in the prior
adjudication, and (3) the party against whom estoppel is asserted was a party
or in privity with a party to the prior adjudication. A previous requirement
of "identical-parties-mutuality" has been eliminated. See Illinois State
Chamber of Commerce, 78 Ill. 2d at 7.
For collateral estoppel to apply, a decision on the issue must have been
necessary for the judgment in the first litigation, and the person to be
bound must have actually litigated the issue in the first suit. A. Vestal,
Issue Preclusion and Criminal Prosecutions, 65 Iowa L. Rev. 281, 288-89
(1980). Even where the threshold elements of the doctrine are satisfied and
an identical common issue is found to exist between a former and current
lawsuit, collateral estoppel must not be applied to preclude parties from
presenting their claims or defenses unless it is clear that no unfairness
results to the party being estopped. Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 467-68 (1996); see also Van Milligan v. Board of Fire & Police
Commissioners, 158 Ill. 2d 85, 96 (1994).
In deciding whether the doctrine of collateral estoppel is applicable in
a particular situation, a court must balance the need to limit litigation
against the right of a fair adversary proceeding in which a party may fully
present his case. 50 C.J.S. Judgments 779 (1997). In determining whether a
party has had a full and fair opportunity to litigate an issue in a prior
action, those elements which comprise the " `practical realities of
litigation' " must be examined. 47 Am. Jur. 2d Judgments 651 (1995). In some
circumstances the absence of an incentive to vigorously litigate in the
former proceeding is relevant in the application of collateral estoppel. See
Housing Authority for La Salle County v. Young Men's Christian Ass'n, 101 Ill. 2d 246, 255 (1984); Restatement (Second) of Judgments 28(5)(c) (1982);
see also 47 Am. Jur. 2d Judgments 651 (1995). There must have been the
incentive and opportunity to litigate, so that a failure to litigate the
issue is in fact a concession on that issue. A. Vestal, Issue Preclusion and
Criminal Prosecutions, 65 Iowa L. Rev. 281, 288-89 (1980).
Incentive to litigate might be absent, for instance, where the amount at
stake in the first litigation was insignificant, or if the future litigation
was not foreseeable. 47 Am. Jur. 2d Judgments 651 (1995). In the context of
prior criminal proceedings, the seriousness of the allegations or the
criminal charge at the prior hearing is a factor to be considered. If the
offense charged is of a minor or trivial nature, defendant might not be
sufficiently motivated to challenge the allegations made at trial and, in
such a case, it might be unfair to allow collateral estoppel to be asserted
later. However, even summary offenses, when they provide sufficient incentive
and opportunity for a defense, may be the basis of collateral estoppel in a
subsequent civil proceeding as, for instance, when they are part of another
important charge. 50 C.J.S. Judgments 922 (1997).
The parties here do not question the propriety of applying collateral
estoppel to bar relitigation in a civil case of an issue previously decided
in a criminal proceeding. It is generally accepted that a criminal conviction
collaterally estops a defendant from contesting in a subsequent civil
proceeding the facts established and the issues decided in the criminal
proceeding. See 50 C.J.S. Judgments 922 (1997).
Further, the parties concede that the elements for collateral estoppel
to apply have been satisfied. Concerning the identity-of-issues element of
collateral estoppel specifically, Talarico admitted in the criminal
proceeding that his criminal conduct was both knowing and intentional. The
issue to be decided in the civil case is whether Accutane, instead,
contributed to cause Talarico's criminal conduct. We agree that the mens rea
element supporting Talarico's battery conviction and the proximate cause
element in the malpractice suit are the same issue. Cf. Thurmond v. Monroe,
159 Ill. 2d 240 (1994) (collateral estoppel not applied where prior traffic
court proceeding determined only whether plaintiff violated a traffic statute
and later civil proceeding determined who caused the resulting collision).
Where the parties differ is in their interpretation of the "incentive to
litigate" exception to the collateral estoppel doctrine. Both parties rely on
Bulfin v. Eli Lilly & Co., 244 Ill. App. 3d 785 (1993), as supportive of
their respective positions.
The facts in Bulfin are somewhat similar to the facts in the case at
bar. There, Bulfin was charged with one count of murder in the second degree
and two counts of attempted murder. Bulfin entered an "Alford plea," whereby
he consented to the entry of judgment without trial, declined to provide the
trial court with any factual basis for the guilty plea, but maintained his
innocence. Bulfin, 244 Ill. App. 3d at 786-87. See North Carolina v. Alford,
400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Pursuant to a plea
negotiation, Bulfin's charges were reduced and he was given a sentence
reflective of the reduction.
Subsequent to his criminal conviction, Bulfin filed a civil complaint
against two drug manufacturers, a physician and a health maintenance
organization. In his complaint, Bulfin charged that drugs marketed and
prescribed to him by the named defendants induced his criminal conduct.
The civil complaint was dismissed based on the doctrine of collateral
estoppel. On appeal, our appellate court first noted that in Arizona, where
the criminal offenses occurred, a criminal defendant is statutorily precluded
from subsequently denying in a civil proceeding the essential allegations of
the criminal offense upon which he was previously adjudged guilty. Further,
the court noted the "incentive to litigate" exception to collateral estoppel
was not applicable. In so finding, the court reasoned that Bulfin's
acceptance of the plea was not out of a lack of motivation to litigate: drug-
induced conduct would have been a defense to the offenses charged. Rather,
Bulfin had accepted the plea to substantially reduce his potential prison
term.
Talarico asserts that given the terms of the plea agreement offered him,
which substantially reduced the charged offenses to a misdemeanor and carried
only a sentence of probation, medical treatment and payment of fees, he had
no incentive to litigate. Therefore, consistent with Bulfin, the exception
should apply to defeat application of collateral estoppel.
Dunlap contends that Talarico misperceives Bulfin. Dunlap asserts that
the proper focus in the incentive-to-litigate inquiry is on the crimes with
which the criminal defendant is originally charged and not the charges which
result from plea negotiations. Therefore, when a individual is charged with
a crime for which he may be sentenced to a substantial term in prison,
incentive to litigate is necessarily established by the need to defend
against the charge. Citing Bulfin, Dunlap argues that "[i]t would be an
anomaly to suggest that, when plaintiff abandoned his defense, he did so out
of a lack of incentive as opposed to a desire to substantially reduce his
potential prison term." Bulfin, 244 Ill. App. 3d at 791.
We reject the reasoning in Bulfin as it relates to negotiated guilty
pleas and the incentive to litigate. Collateral estoppel is a flexible
doctrine which defies rigid or mechanical application. The question of
whether a party has had a full and fair opportunity to contest a prior
determination cannot be reduced to a simple formula. Warren v. McCall, 709 F.2d 1183, 1186 n.7 (7th Cir. 1983).
Ordinarily, when a fact has been admitted by a litigant, it is
reasonable to presume that the fact is established and that the fact should
not be subject to relitigation. We do not believe, however, that the same may
be said in every case of a negotiated guilty plea.
Negotiated pleas serve an important administrative function in our
criminal justice system. Such pleas, by design, dissuade litigation. A
decision to accept a plea is often the result of weighing a myriad of
factors, the reduction of the charge and resulting sentence being a
significant but only one of those factors. Because in the case of negotiated
pleas it does not necessarily follow that the failure to deny reflects only
a defendant's desire to receive a reduced sentence, for collateral estoppel
purposes consideration of more than the fact of the "admission" is required.
See also 2 R. LaFave, Criminal Procedure 20.1, at 559-60 (1984).
"The `incentive to litigate' formula, as used in most of the cases and
in the Restatement Second, allows a party who did litigate an issue to
relitigate if the party can show that the original litigation was a side show
rather than a struggle to the finish." (Emphasis in original.) G. Hazard,
Revisiting the Second Restatement of Judgments: Issue Preclusion and Related
Problems, 66 Cornell L. Rev. 564, 584 (1981). Under that approach, the party
may rebut the inference naturally drawn from the fact that the issue was
actually litigated, that is to say, the inference that the party had treated
the issue with entire seriousness in the first litigation. See 66 Cornell L.
Rev. at 584; see also Restatement (Second) of Judgments 28 (1982).
We believe that the Restatement offers the proper focus for the
incentive-to-litigate inquiry. We therefore consider whether the inference
which flows from Talarico's admission that his conduct was intentional and
knowing was "treated with entire seriousness" or may now be rebutted. In so
doing, we are mindful that the refusal to give Talarico's criminal judgment
preclusive effect should not occur without a compelling showing of
unfairness, nor should it be based on a conclusion that the criminal judgment
was erroneous. Restatement (Second) of Judgments 28, Comment j (1982).
We have been provided with and have reviewed the record of proceedings
in Talarico's criminal case. As a result of that review, we conclude that
only in the most technical sense was Talarico's guilty plea an admission that
his criminal conduct was knowing and intentional. The record makes apparent
that the plea was a compromise: never is it conceded that Accutane was not
the contributing factor to Talarico's criminal conduct. In fact, it appears
that both the trial court and the State's Attorney were made aware of the use
of the Accutane and Talarico's theory concerning its effects.
Specifically, in mitigation, defense counsel offered that prior to
Talarico's taking Accutane, he had had no problems and no criminal
background. He further commented that Accutane had been found to cause
aggressive behavior. In response to the court's query as to whether the
medication had been taken off of the market, defense counsel responded in the
affirmative. In pronouncing sentence, the trial court commented that
misdemeanor probation was an appropriate disposition in light of the "very
strange circumstances involved" in the case. The court further noted that
those circumstances had been "documented *** to the State's Attorney office."
Incidentally, Dunlap refuted the statement made at the criminal proceeding
concerning Accutane having been taken off of the market.
Also telling on the incentive-to-litigate issue is the generousness of
the plea offer. Talarico was originally charged with aggravated battery,
aggravated unlawful restraint, armed violence, and aggravated criminal sexual
abuse. A conviction for these offenses carried a substantial sentence.
Apparently pursuant to the plea agreement, the two counts of aggravated
battery were amended to charge only two counts of "simple battery," and the
remainder of the charged offenses were nol-prossed. The trial court,
accepting the agreement, imposed a sentence of one-year misdemeanor
probation, psychiatric counseling and fees. Significantly, at the time of the
criminal proceedings, defense counsel offered that Talarico was a second-year
medical student. Any term of imprisonment would have delayed his studies.
We note further that prior to the criminal proceedings, Dunlap wrote to
the State's Attorney on behalf of Talarico. In that letter, Dunlap requested
leniency for Talarico, whom he characterized as "intelligent, rational and of
a very mild demeanor." Dunlap stated with certainty that there were
extenuating circumstances pertaining to the charges against Talarico; Dunlap
stated that he would never characterize Talarico as either aggressive or
dangerous.
Further, it appears that a subsequent civil suit against Dunlap was not,
at the time of the criminal proceedings, foreseeable. In an affidavit filed
by Talarico's criminal trial attorney, counsel averred that at the time he
advised Talarico concerning the plea, counsel believed that Roche was the
only party potentially liable for Talarico's violent behavior. Counsel stated
that he had neither an indication nor a suspicion of any malpractice on the
part of Dunlap.
Finally, although we have concluded that the pardon does not negate the
finding of Talarico's guilt, it nonetheless merits favorable consideration as
it relates to the inference to be drawn from his admission of guilt.
The above facts, i.e., the significant reduction in the charges and
sentence, Talarico's status as a student, the unforseeability of future civil
liability, consideration given by the trial court of the mitigation evidence,
including the use of Accutane, as well as Dunlap's own statement to the
State's Attorney regarding Talarico's demeanor, combine to rebut the
inference that Talarico's admission on the issues of intent and knowledge was
treated by him with entire seriousness. We believe that the incentive to
litigate the criminal offense was not fully present here. Therefore,
collateral estoppel should not apply.
Had the issue concerning Accutane and its side effects not been an issue
in the criminal proceeding, it would perhaps merit less consideration here.
However, the issue having been first raised in the criminal proceeding, it
would be patently unfair to now disregard it as a factor having contributed
to the circumstances and particulars of the plea offer and acceptance.
Incidentally, while in Bulfin criminal trial counsel averred that he and
Bulfin had reason to believe that Bulfin's criminal conduct had been drug
induced, we do not notice in Bulfin any indication that the issue of drug-
induced conduct was a part of the plea negotiations or made known to the
trial court.
As a final note on the incentive-to-litigate inquiry generally, we
believe it would be unfair to create a situation in which a criminal
defendant who, after balancing the costs and risks of trial, chooses to
accept a plea negotiation is said to automatically forfeit his right to a
civil trial. A refusal to look behind the curtain of the negotiated guilty
plea is to require every criminal defendant with a potential civil suit to
proceed with criminal trial, regardless of the risks. Moreover, to rigidly
permit application of the collateral estoppel doctrine in cases involving
negotiated pleas will have a chilling effect on the acceptance of such pleas.
To do equity requires simply that every available fact surrounding a
negotiated guilty plea be examined prior to permitting the preclusive effect
of the doctrine to apply.
Dunlap further argues that it would be unfair to permit Talarico to reap
the benefits which flowed from his negotiated guilty plea and to then be
permitted to deny the validity of that plea. If in fact it is conclusively
determined that the Accutane was the cause of Talarico's criminal conduct,
and we make no determination in that regard, we do not perceive that Talarico
has benefitted. Not to be forgotten are the facts that Talarico, although
pardoned, suffers the burdens attendant to having a criminal record and has
had to endure the costs, both financial and emotional, of defending against
criminal charges.
Finally, Dunlap argues that to deny preclusive effect in this case would
set bad public policy in Illinois. On the contrary, we believe that the
doctrine of collateral estoppel remains intact and, as it should be, is used
sparingly, on a case-by-case basis, and only when equity requires. 47 Am.
Jur. 2d Judgments 651 (1995). Moreover, we notice no unfairness to Dunlap,
who, heretofore, has not been subject to litigation involving the issue of
the effect of Accutane on Talarico. On the contrary, if in fact Accutane
caused Talarico's criminal conduct, any unfairness in precluding relitigation
would have been borne solely by Talarico.
CONCLUSION
By our holding we do not establish a bright line rule with respect to
plea negotiations in the context of collateral estoppel. Application of the
doctrine must be determined on a case-by-case basis, after consideration of
all of the available factors. We simply hold that, on the particular facts of
this case, Talarico had no incentive to litigate the criminal charges against
him. That being the case, to bar Talarico's civil suit against Dunlap would
deprive Talarico of his day in court and unfairly advantage Dunlap.
Therefore, for all of the foregoing reasons, we affirm the judgment of the
appellate court.
Appellate court judgment affirmed.
JUSTICE McMORROW, dissenting:
In his guilty plea, Talarico unconditionally conceded that he had the
requisite mens rea to commit the violent offenses charged. In essence, when
he pled guilty to the reduced criminal charges, Talarico admitted that he
intentionally and knowingly, without legal justification, pushed a 15-year-
old boy to the ground and shocked him with a stun gun, and a week later,
again without legal justification, shocked a 25-year-old man with a stun gun,
grabbed his genitals, and kissed him several times on the face. When he pled
guilty to the reduced charges, he deliberately and knowingly forfeited the
opportunity to assert that his violent conduct was actually caused by a third
party's negligence in prescribing an acne medication. In the instant medical
malpractice action, however, Talarico repudiates his admission of criminal
intent and seeks compensatory damages arising out of his own criminal
conduct. Talarico should not be allowed to use the judicial system to have it
both ways.
In my opinion, the decision of the majority invites the rancor of the
community toward the legal profession and justice system. I believe that
under the facts of this case, there is no legal justification for subjecting
Dr. Dunlap and Dixie-Ashland to the expense and stress of trial, nor is there
any justification for subjecting the taxpayers to the expense incurred by the
use of the courts and resources of the state to litigate an issue which had
previously been litigated. In my view, today's majority opinion sets an
unfortunate precedent that is contrary to sound public policy, legal
principles, and fairness. Through a flawed application of the doctrine of
collateral estoppel, the majority permits Talarico to maintain contrary legal
positions in two different lawsuits, thereby compromising the finality of the
judgment, the integrity of the guilty plea, judicial economy, and fairness to
the defendants in this case. Accordingly, I dissent.
As the parties concede, the majority acknowledges, and as the circuit
court and appellate panel held, the elements of collateral estoppel are
present in this case. The majority opinion expressly acknowledges that the
"mens rea element supporting Talarico's battery conviction and the proximate
cause element in the malpractice suit are the same issue." Why, then, should
Talarico be allowed to proceed with his claim that the proximate cause of his
violent attack on the victims was Dr. Dunlap's negligent prescription and
monitoring of Accutane?
The majority's answer to this question relies entirely upon a strained
application of the principle that collateral estoppel does not preclude
relitigation of an issue if the party against whom the doctrine is asserted
lacked sufficient incentive to litigate the particular issue in the first
lawsuit. According to the majority, the incentive to litigate concept, as
interpreted in the Restatement (Second) of Judgments 28 (1982), permits
relitigation of an issue " `if the party can show that the original
litigation was a side show rather than a struggle to the finish.' " Slip op.
at 8, quoting G. Hazard, Revisiting the Second Restatement of Judgments:
Issue Preclusion and Related Problems, 66 Cornell L. Rev. 564, 584 (1981). I
do not believe that the admissions defendant made while represented by his
attorneys in his negotiated plea should be viewed as a "side show"; the
stakes for the people of this state, as well as the defendant, are too high
in a criminal prosecution to assume that plea negotiations are anything less
than a "struggle to the finish." Rather, such negotiations are a joint effort
by the court, the prosecutor, and defense attorney to thoughtfully and
knowingly resolve complex guilt and sentence issues fairly. Since Talarico
cannot show that the original criminal litigation was a side show, his
current attempt to relitigate the issue of his criminal intent falls outside
the scope of the incentive to litigate exception to collateral estoppel.
According to the majority, however, Talarico may proceed with his claim
against Dr. Dunlap because "only in the most technical sense was Talarico's
guilty plea an admission that his criminal conduct was knowing and
intentional." Slip op. at 9. The majority reasons that the negotiated plea
was a compromise in which Talarico never conceded that Accutane was not the
contributing cause of his criminal conduct.
I question the precise sense in which Talarico's unequivocal admission
of his engagement in intentional and knowing criminal conduct can be deemed
a mere technicality. On the contrary, such an admission goes to the heart of
the issue of Talarico's criminal responsibility. With respect to the
majority's characterization of Talarico's guilty plea as a "compromise," such
observation is singularly unhelpful because in this context compromise is an
essential component of negotiations. That Talarico made a calculated
assessment of the risks of asserting the Accutane defense does not mean he
lacked incentive to litigate the issue. Significantly, the fact that Talarico
did not expressly concede in his guilty plea that Accutane did not cause his
violent behavior is legally irrelevant because such a concession is implicit
in his admission of intentional criminal conduct.
Although there may be instances in which a person's guilty plea in a
criminal matter does not preclude that party from pursuing a civil claim
which partly depends on facts admitted in the guilty plea, this is not such
a case. At the time of his negotiated guilty plea, Talarico and his criminal
defense attorneys were well aware that he had been under treatment with
Accutane. Indeed, the record reveals that months before Talarico began his
own treatment with Accutane, he had spent 100 to 200 hours researching the
effects of Accutane while participating in a research project on that topic
at his medical school. Accordingly, at the time of his guilty plea, Talarico
possessed significant information from which to evaluate the merits of an
Accutane-impairment defense. If Talarico proved his theory that negligently
prescribed Accutane caused his criminal acts, thereby negating his criminal
intent, he would have been entitled to outright acquittal. However, Talarico
instead chose to plead guilty to reduced charges, and benefit from a sentence
that included psychiatric treatment and probation. Having made that decision,
Talarico should not now be permitted to pursue a lawsuit that places the
blame on others and thereby repudiate his admittedly intentional criminal
acts.
The instant case is virtually indistinguishable from Bulfin v. Eli Lilly
& Co., 244 Ill. App. 3d 785 (1993), where the appellate court rejected a
similar attempt by a plaintiff who, after pleading guilty to criminal
charges, subsequently sought damages in a civil lawsuit based on the
allegation that certain medications manufactured by defendant had induced an
intoxicated state that caused him to commit criminal acts, through no fault
of his own. The plaintiff in the civil suit in Bulfin, like plaintiff in the
case at bar, knew at the time of his criminal proceedings that he might have
a complete defense and be acquitted based on the use of the medications. In
light of an offered plea negotiation, however, he forfeited the drug-induced
impairment issue, and pleaded guilty to manslaughter and aggravated assault.
After reviewing the elements of collateral estoppel and the incentive to
litigate exception, the appellate court in Bulfin held that the plaintiff had
been afforded a full and fair opportunity in the criminal case to litigate
the issue of whether his actions resulted from an involuntarily induced state
of intoxication. Accordingly, the appellate court held that the civil suit
was properly dismissed on the basis of collateral estoppel. The Bulfin court
observed that the incentive to litigate a complete defense to criminal
charges is present in every case in which a person potentially faces a prison
term for such charges and that "[i]t would be an anomaly to suggest that,
when plaintiff abandoned his defense, he did so out of a lack of incentive as
opposed to a desire to substantially reduce his potential prison term."
Bulfin, 244 Ill. App. 3d at 791.
Without distinguishing the facts in Bulfin or explaining where the
appellate court's analysis was flawed, the majority in the instant case
expressly rejects the reasoning in Bulfin "as it relates to negotiated guilty
pleas and the incentive to litigate." Slip op. at 7. In so doing, the
majority overlooks the strong policy concerns which arise when a criminal
defendant is allowed to plead guilty to intentional or knowing crimes, and
then subsequently to deny his criminal guilt for purposes of pursuing, in
civil litigation, financial compensation for the consequences of his own
criminal conduct. Justice and equity cry out for the application of
collateral estoppel to the facts of this case.
Some of those concerns have been recognized by other jurisdictions. For
example, in Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981), the Iowa court
rejected on public policy grounds a convicted defendant's subsequent claim in
a civil suit that her psychiatrist's negligent treatment caused her to commit
the crime. In a similar vein, a New York court cautioned that courts should
not be expected to look behind knowing and voluntary pleas of guilt to
relieve defendants from adverse civil consequences that may follow from the
defendants' admissions of guilt to serious criminal charges. Merchants Mutual
Insurance Co. v. Arzillo, 98 A.D.2d 495, 472 N.Y.S.2d 97 (1984). The court
held, "As long as the guilty plea stands, the defendant is guilty and cannot
be heard to say otherwise." Merchants Mutual Insurance, 98 A.D.2d at 506, 472 N.Y.S.2d at 105. In Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1239-40
(Alaska 1983), a defendant who had been convicted of manslaughter was then
sued by the victim's family for wrongful death. As a defense to the civil
suit, he sought to implead the gun manufacturer on the ground that the gun
was defective and had killed the victim when it discharged accidentally. The
Alaska Supreme Court, in rejecting the defendant's attempt to implead the gun
manufacturer, observed, "[A]llowing a criminal defendant who has been
convicted of an intentional killing, to impose liability on others for the
consequences of his own anti-social conduct runs counter to basic values
underlying our criminal justice system." Adkinson, 659 P.2d at 1240.
The same public policy concerns enunciated in the above cases are
present in the case at bar. Allowing Talarico to pursue the Accutane issue in
his medical malpractice action in the case at bar creates an unwise precedent
to impose on the courts of this state. Talarico waived the Accutane defense
by his plea of guilt to intentional criminal conduct, and he should be bound
by such admission as a matter of good law and sound policy.
By declining to impose collateral estoppel under the circumstances of
this case, the majority allows a defendant to circumvent the finality of his
guilty plea and to seek financial gain from third parties for his own
criminal acts. Finality of judgments in negotiated plea criminal cases serves
an important purpose in our criminal justice system. Once an accused who is
represented by counsel decides to plead guilty to criminal charges and accept
the consequences of his own conduct, he should not be able to use the civil
court system to make a mockery out of the criminal proceedings by repudiating
his guilty plea for pecuniary gain. The compensation that Talarico seeks in
his civil suit is not limited to medical expenses or physical suffering from
the side effects of Accutane. He seeks to be compensated for lost income and
profit and lost educational advantage, presumably arising from Talarico's
criminal conviction and the resulting impact it may have placed on his
medical career. For these reasons, I find no principled basis on which to
apply an exception to collateral estoppel in this case.
The appellate court in Bulfin cited with approval the following:
"The clearest case for such an estoppel is where a defendant pleads
guilty to a substantial criminal charge and then seeks in civil
litigation concerning the same transaction to assert that he did
not commit the criminal act. Particularly galling is the situation
where a criminal convicted on his own guilty plea seeks as
plaintiff in a subsequent civil action to claim redress based on a
repudiation of the confession. The effrontery or, as some might say
it, chutzpah, is too much to take. There certainly should be an
estoppel in such a case." G. Hazard, Revisiting the Second
Restatement of Judgements: Issue Preclusion and Related Problems,
66 Cornell L. Rev. 564, 578 (1981).
I agree with the foregoing and adhere to the basic values underlying our
criminal justice system articulated in the Adkinson case. I would hold
Talarico to his admissions based on collateral estoppel, and affirm the trial
court's grant of summary judgment to the defendants. Accordingly, I dissent.
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