Kimberly Ross represented a lawyer and his law firm, who were sued by an orthopedic surgeon for defamation. The defendants represented a petitioner in a workers compensation case. A vocational rehabilitation consultant, working for the respondent-employer, arranged for the petitioner to be evaluated by the orthopedic surgeon. That doctor opined that the petitioner was able to return to work in her prior occupation (contrary to the opinion of her own treating physician). Based on that opinion, the vocational rehabilitation firm recommended to the employer (and the employer agreed) that workers compensation benefits should be cut off. The defendant attorney then wrote a letter to the vocational rehabilitation counselor, strongly disagreeing with his conclusion. In that letter, the attorney made a statement that the plaintiff doctor alleged was defamatory, allegedly insinuating that the doctor's opinions could be "purchased." The attorney also stated in the letter that he could not wait to cross examine (at the workers compensation trial) the vocational rehabilitation consultant regarding his and the doctor's opinions.

The defendants filed a motion for summary judgment, arguing that under Section 586 of the Restatement (Second) of Torts, they were absolutely privileged to have made the statement about the doctor, as the statement was made in the context of the workers compensation litigation. Specifically, the Restatement provides that an attorney is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. The defendants argued that the purpose of the statement about the doctor was to try and convince the vocational rehabilitation counselor not to rely on the doctor's opinions when determining that the petitioner's benefits should be cut off, and that as a result, the statement had a direct relationship to the pending litigation. They also argued that since the letter, in part, referred to the litigation (i.e. cross examination at trial), the letter fell within the privilege. The plaintiff argued that because the statement was made to a third person (not a party or attorney), the absolute privilege should not apply. Because there was no Illinois case law directly on point, the defendants cited cases from numerous other states that follow the Restatement, which involved defamatory statements made by attorneys to non-parties, including potential witnesses, in which those courts held that the privilege would still apply. The defendants responded that because the vocational counselor was a potential witness in the litigation (which the plaintiff admitted), this was enough to bring the statement within the privilege. A Cook County judge granted the motion for summary judgment on August 26, 2010.