Yoon Kim v. Russell Hoseney
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6527360-1] [6527360] [13-1623]
Case: 13-1623 NONPRECEDENTIAL DISPOSITION
Document: 21
Filed: 10/30/2013
To be cited only in accordance with
Fed. R. App. P. 32.1
Pages: 3
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2013*
Decided October 30, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐1623
YOON J. KIM,
Plaintiff‐Appellee,
v.
RUSSELL C. HOSENEY
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 12 C 9108
Charles P. Kocoras,
Judge.
ORDER
Yoon J. Kim appeals from the dismissal of her lawsuit for failure to state a claim.
Kim holds two patents for compounds that aid bread‐making. After losing three patent‐
infringement suits, she sued Russell C. Hoseney, who testified in two of these suits that her
patents were invalid. Kim’s complaint—removed from state to federal court on the basis
of diversity jurisdiction—alleges that Hoseney committed fraud and perjury when
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2)(C).
Case: 13-1623
No. 13‐1623
Document: 21
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testifying in those cases. Kim also complains that attorneys who represented the plaintiffs
in those two suits breached their professional ethics. Because Hoseney enjoys witness
immunity and Kim did not name or seek leave to identify any attorneys who could be
sued, we affirm the district court’s judgment.
Kim alleges that Hoseney committed scientific fraud when he conducted baking
tests and then improperly relied on them to testify about which oxidizing compounds
could be used in bread making. She further alleges that Hoseney perjured himself when
he contradicted his own sworn statements about the molecular compounds that strengthen
bread dough. She concludes that as a result of his testimony, she lost her two patent‐
infringement lawsuits. In moving to dismiss under Federal Rule of Civil Procedure
12(b)(6), Hoseney argued that his expert testimony was absolutely privileged under Illinois
law. He also argued that the district court should dismiss Kim’s claims against the
plaintiffs’ attorneys because Kim did not name them—Kim named only Hoseney in her
complaint. See FED. R. CIV. P. 10(a). The district court agreed with Hoseney and dismissed
the suit.
On appeal, Kim first reiterates that Hoseney should be liable for his allegedly
unprofessional and perjurious statements. She also argues that he be sanctioned under the
“American Association of University Professors’ Statement on Professional Ethics.” But
Illinois does not impose tort liability for harmful court testimony. Illinois recognizes an
absolute privilege for statements, no matter how reckless or dishonest, made by expert or
lay witnesses in testimony or pleadings in judicial proceedings, so long as the statements
are relevant to the litigation. See MacGregor v. Rutberg, 478 F.3d 790, 791–92 (7th Cir. 2007);
Scheib v. Grant, 22 F.3d 149, 156 (7th Cir. 1994); Ritchey v. Maksin, 376 N.E.2d 991, 993
(Ill. 1978). This rule is generally consistent with federal law on the point, see Briscoe v.
LaHue, 460 U.S. 325 (1983), so we need not worry about the supremacy clause and other
federalism issues posed by seeking relief under state law for a witness’s conduct in a
federal court.
Kim does not contest that Hoseney’s statements were relevant to the two suits—she
contests only their truth. Thus, these statements are privileged. Furthermore, to the extent
that Kim attempts to impose liability for Hoseney’s alleged violations of professional
conduct standards, Illinois provides no civil tort for that conduct. See Scheib, 22 F.3d at 156
(noting that Illinois has no “professional responsibility tort”); Nagy v. Beckley, 578 N.E.2d
1134, 1138 (Ill. App. Ct. 1991) (observing that Illinois provides no independent tort for legal
ethics violations).
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Kim next maintains that opposing counsel in her patent‐infringement suits violated
Illinois Rules of Professional Conduct by knowingly falsifying Hoseney’s written
declarations. Kim does not address the district court’s ruling that she failed to identify the
attorneys she wished to sue. Because Kim failed to identify the attorneys and never sought
leave to amend to include their names, the district court properly dismissed her case.
See FED. R. CIV. P. 10(a); Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005). In any case,
as we have already observed, any alleged breach of professional ethics is not itself a basis
for civil tort remedy. E.g., Schieb, 22 F.3d at 156. Because an amendment therefore would
have been futile, dismissal was proper.
We have considered Kim’s remaining arguments, but none warrant further
discussion.
Accordingly, we AFFIRM the judgment of the district court.
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