Transcript A LONG HOT SUMMER: RECENT DEVELOPMENTS IN ILLINOIS …

A LONG HOT SUMMER:
RECENT DEVELOPMENTS IN ILLINOIS PRODUCT
LIABILITY LAW
DONALD PATRICK ECKLER
PRETZEL & STOUFFER, CHARTERED
CBA YLS TORT LITIGATION COMMITTEE
NOVEMBER 18, 2011
THREE CASES THAT MOVE ILLINOIS PRODUCT
LIABILITY FORWARD
• Jablonski v. Ford Motor Company decided by the
Illinois Supreme Court continued to limit the
application of the consumer expectation test, the
voluntary undertaking doctrine, and the Restatement
(Third) of Torts: Products Liability as to the postsale
duty to warn.
THREE CASES THAT MOVE ILLINOIS PRODUCT
LIABILITY FORWARD
• Mitsias v. I-Flow Corporation decided by the
Appellate Court of Illinois, First District addressed a
matter of first impression and held that where the
causal relationship between the allegedly defective
product and the claimed injury is unknown to
science, the statute of limitations does not run until
such time as that causal relationship could have been
known because to hold otherwise would defeat the
purpose of the discovery rule.
THREE CASES THAT MOVE ILLINOIS PRODUCT
LIABILITY FORWARD
• DiCosolo v. Janssen Pharmaceuticals decided by the
Appellate Court of Illinois, First District, applying the
Tweedy doctrine held that under Illinois law that the
allegedly defective product is not needed to provide
a defect.
Jablonski v. Ford Motor Company:
Procedural and Factual History
• Plaintiffs’ claims in Jablonski resulted from a high
speed rear-end collision that caused a pipe
wrench in the trunk of plaintiffs’ automobile to
pierce the trunk and rupture the automobile’s
fuel tank.
• The accident and subsequent fuel tank rupture
caused a fire, death of the driver, and permanent
disfigurement to the passenger of the
automobile.
Jablonski v. Ford Motor Company:
Procedural and Factual History
• The vehicle at issue, a Lincoln Town Car, was
manufactured both for the general public as well
as law enforcement. The design of the gas tank
on law enforcement vehicles was identical to that
of civilian vehicles.
• Prior to the filing of Jablonski case, there were
multiple injuries and deaths to law enforcement
officers caused by items in their trunks that
punctured the fuel tank and caused explosions of
the same kind experienced by the plaintiffs.
Jablonski v. Ford Motor Company:
Procedural and Factual History
• In order to remedy this problem for law
enforcement, Ford conducted a program to
warn law enforcement agencies of the risks. It
also created a “trunk pack” to protect the gas
tank from puncture by items in the trunk in
the event of a rear end collision. No such
steps, to warn or to remedy the risk, were
taken for the civilian users of these vehicles.
Jablonski v. Ford Motor Company:
Procedural and Factual History
• The jury, sitting in Madison County, returned a
verdict against Ford Motor Company of $28
million in compensatory damages and $15 million
in punitive damages. The plaintiffs’ verdict rested
on three negligent-product-design theories and a
postsale duty to warn theory.
• The Appellate Court affirmed the trial court’s
verdict and further found that Ford could
alternatively be liable on a voluntary undertaking
theory.
Jablonski v. Ford Motor Company:
Procedural and Factual History
• The Supreme Court reversed on all counts,
declined to remand the case for a new trial
and thus entered judgment for Ford, negating
the $43 million dollar verdict.
Implications of Jablonski on methods of
proof in Illinois product liability cases
• The Court held that in a negligent-product-design case,
the proper analysis in determining a manufacturer’s
duty “encompasses a risk-utility balancing test, and
compliance with industry standards is a relevant factor
in the analysis but is not dispositive.”
• Ford had argued on appeal that as a matter of law,
compliance with industry standards should entitle the
company to judgment against the plaintiff and cited
Blue v. Environmental Engineering, Inc., 215 Ill.2d 78,
100 (2005), in support of its position.
Implications of Jablonski on methods of
proof in Illinois product liability cases
• Applying the risk-utility test, the Court rejected
Ford’s argument that compliance with industry
standards alone entitled Ford to judgment.
• Rather, the Court noted, industry standards are
but one factor in the broader risk-utility analysis
previously adopted as Illinois law.
• The Court then reiterated other factors in a nonexhaustive list, including (1) the availability and
feasibility of alternate designs,
Implications of Jablonski on methods of
proof in Illinois product liability cases
• (2) the utility of the product to the user and to
the public as a whole, (3) the safety aspects of
the product, (4) and the manufacturer’s ability to
eliminate the unsafe character of the product
without impairing its usefulness or making it too
expensive to maintain its utility.
• The risk-utility balancing test, the Court stated,
must be initially conducted by the court to
determine if a case is proper to submit to the
jury.
Implications of Jablonski on methods of
proof in Illinois product liability cases
• Lurking beneath the surface of the Court’s analysis of
the risk-utility test in Jablonski is a foreshadowing of
the end to the consumer expectation test in Illinois
product liability cases as a distinct method of proof.
• The consumer expectation test under Illinois law is but
a single factor test, and therefore narrow in scope. The
jury is only asked to determine whether a product was
unsafe when put to use that is reasonably foreseeable
considering the product’s nature and function.
Implications of Jablonski on methods of
proof in Illinois product liability cases
• Only three years ago, in Mikolajczyk v. Ford Motor
Company, 231 Ill.2d 516, 524-56 (2008), the
Supreme Court engaged in an exhaustive analysis
as to whether the proper methods of proof in
Illinois product liability cases included both the
risk-utility test and the consumer-expectation
test.
• Mikolajczyk, like Jablonski, was a design defect
case filed by the plaintiff after the death of the
driver in an automobile collision.
Implications of Jablonski on methods of
proof in Illinois product liability case
• After a lengthy survey of significant products liability
cases decided by the Illinois Supreme Court, the
Mikolajczyk opinion held that:
“[B]oth the consumer-expectation test and the risk-utility test
continue to have their place in our law of strict product
liability based on design defect. Each party is entitled to
choose its own method of proof, to present relevant
evidence, and to request a corresponding jury instruction. If
the evidence is sufficient to implicate the risk-utility test, the
broader test, which incorporates the factor of consumer
expectations, is to be applied by the finder of fact.” Id. at 556.
Implications of Jablonski on methods of
proof in Illinois product liability cases
• While the Mikolajczyk Court held that both the consumer
expectation test and the risk-utility test remained operative
under Illinois law, the language of the Supreme Court
seemed to put the writing on the wall for the consumer
expectation test.
• In Jablonski, the Court failed to even mention the consumer
expectation test. Rather, the Court stated that “[i]n Calles
[v. Scripto-Tokai Corp., 224 Ill.2d247, 269 (2007)], we
concluded that risk-utility balancing remains operative in
determining whether a defendant’s conduct is reasonable
in a negligent-design case.”
Implications of Jablonski on methods of
proof in Illinois product liability cases
• Admittedly, based on the evidence submitted by
the parties at the Jablonski trial, it is clear that
the risk-utility test was operative. The plaintiffs
presented a broad array of evidence in
attempting to prove their claim of a defective
design. However, in an opinion where the
analysis begins with the Court stating it “must
first clarify the duty analysis in a negligentproduct-design case,” it is notable that the court
completely omitted any discussion of the
consumer expectations test.
The Court continues to resist adopting the
Restatement Third of Products Liability
• After its analysis of the risk-utility test, the
Court then addressed plaintiffs’ postsale duty
to warn arguments.
• In reversing the Appellate court and entering
judgment for Ford, the Court stated that in
Illinois a manufacturer is under no duty to
issue postsale warnings to remedy defects
discovered after a product has left its control.
The Court continues to resist adopting the
Restatement Third of Products Liability
• In contrast, a continuing duty may be imposed
if the manufacturer knew or should have
known of the defect at the time of
manufacture, however, plaintiffs raised no
allegations to that effect in this case.
• Notably, the possibility exists that Illinois could
adopt such a duty in a subsequent case.
The Court continues to resist adopting the
Restatement Third of Products Liability
• The Court’s refusal to adopt the Restatement
Third of Products Liability as to a postsale duty to
warn is a second instance where the opinion in
Jablonski invokes comparisons to the Court’s
earlier decision in Mikolajczyk.
• In both cases, the Court refused invitations from
counsel (defendants in Mikolajczyk and plaintiffs
in Jablonski) to adopt sections of the Restatement
Third of Products Liability as controlling law in
Illinois.
The Court continues to resist adopting the
Restatement Third of Products Liability
• Although the Court rejected the Restatement
provisions in both cases, it hedged, if ever
slightly, in doing so.
The Court continues to resist adopting the
Restatement Third of Products Liability
• The Mikolajczyk Court rejected the argument that the
Restatement Third should govern as to the proof structure
in product liability cases because it would alter the
“unreasonably dangerous” element of the product liability
proof structure. However, the Court stated that it found
the factors listed under the Restatement’s risk-utility test
“instructive.”
• Similarly, in Jablonski, the Court stated that the plaintiff’s
proposed postsale duty to warn jury instruction was
“virtually verbatim” to the Restatement Third’s provision
which “ has not been previously adopted in Illinois.”
Further Limitations on the Voluntary
Undertaking Doctrine
• Lastly, the Court, as in Bell v. Hutsell, 2011 Ill.
Lexis 777, *22-23 (2011), limited the voluntary
undertaking doctrine to the exact duty
undertaken by the defendant. In Bell, the
Court held that the voluntary undertaking
doctrine only extends to what the defendant
undertook to do.
Further Limitations on the Voluntary
Undertaking Doctrine
• Applying the same principle to the instant case,
the Court held that Ford only undertook to warn
and make repair to vehicles driven by law
enforcement, not the civilian population. This is
in spite of the fact that the design was essentially
the same between the vehicles driven by law
enforcement and those driven by the civilian
population. The holding in this regard further
confirms that the voluntary undertaking doctrine
in Illinois is strictly limited to actions actually
undertaken and for whose benefit they were
undertaken.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• The plaintiff had left shoulder surgery in October 2001. As
part of the surgery, the surgeon installed a pain pump that
delivered the local anesthetic, Marcaine, to assist in
controlling the plaintiff’s pain after the surgery.
• After the surgery, the plaintiff experienced glenohumeral
chrondrolysis as a result of cartilage necrosis in her
shoulder.
• As a result of this injury, in October 2003 the plaintiff filed a
medical malpractice action against her treating orthopedic
surgeon alleging that his errors had caused her injury.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• After the plaintiff filed, the case proceeded
through discovery and the plaintiff’s expert’s
deposition was taken in two sessions, one in
August 2006 and one in October 2007.
• During the first deposition, the plaintiff’s expert
testified that there were three possibilities for the
cause of the plaintiff’s injury including:
Mitsias v. I-Flow Corporation:
Procedural and Factual History
A third possibility which has become more apparent
recently is the use of an interarticular anesthetic
agent, particularly a medicine called Marcaine, and
so the use of a postoperative interarticular pain
pump, which I’m not aware of whether that was
done or not, has been shown over the last year-anda-half to two years to be highly associated with a
condition where articular cartilage is aggressively
lost in the shoulder after arthroscopic stabilization.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• At that same session of the deposition, the plaintiff’s
expert testified that “in the last year and a half there’s
been a growing body of evidence that this can cause
cartilage death or necrosis and lead to the loss of
cartilage in a shoulder.”
• At the second session of the deposition of plaintiff’s
expert in October 2007, the expert testified that as of
that date it was recognized in the medical literature
that Marcaine pain pumps “can be a cause for loss or
destruction of articular cartilage at the glenohumeral
joint space.”
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• He further testified that this information was
not known at the time that the orthopedic
surgeon installed the pump and was not
known until a “few years later.”
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• Based on this information, the plaintiff voluntarily
dismissed the action against the surgeon in
November 2008.
• However, in February 2009 the plaintiff refiled
her action, and in addition to reasserting her
claims against the defendant doctor, she included
product liability claims against the manufacturer
of the pain pump on theories of both negligence
and strict liability.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• The product manufacturer successfully moved
for dismissal arguing that the statute of
limitations had expired against it the time of
the filing of the complaint and the trial court
granted Supreme Court Rule 304(a)
certification allowing immediate appeal.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• The product manufacturer moved to dismiss
the refiled complaint based on the two year
statute of limitations found in 735 ILCS 5/2213(d).
• The product manufacturer argued that the
plaintiff was on notice that her injury was
wrongfully caused as of the time she filed her
complaint in 2003.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• In opposition, the plaintiff argued that she
was not on notice until her expert testified at
his deposition in 2007 that the pain pump
may have caused the injury.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• In addition, the plaintiff offered the affidavit
of her expert, which, in relevant part, stated:
It is my understanding, and opinion to a reasonable
degree of medical certainty, that any information
concerning potential chrondrolysis caused by the
wrongful use of pain pumps did not occur by publication
for which a patient or other lay person might realize that
chrondrolysis might be wrongfully caused by pain pumps
or their design or lack of warnings or instructions until the
summer of 2007.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• The expert also explained his testimony in his
first deposition where he expressed the
opinion that the pain pump could have played
a role in causing the plaintiff’s injury, that he
was only speaking to the length of time that
that anesthetic had been delivered and that
he had no information that the pain pump
was a defective product until the summer of
2007.
Mitsias v. I-Flow Corporation:
Procedural and Factual History
• Considering the arguments on the motion to
dismiss, the trial court held that the statute of
limitations began at the same time for both
the medical malpractice and product liability
claims and that because the claims against the
product manufacturer were not filed until
over 8 years after the surgery, the claims
against the product manufacturer were
barred.
The Discovery Rule in a Unique
Context
• In reversing the judgment of the trial court,
the Appellate Court held that the central
question was “how the discovery rule is
applied when a plaintiff is aware that her
injury might have been wrongfully caused by
one source but is unaware that her injury
might have been caused by another source
and, in fact, could not be aware of that
source because the causal link was as yet
unknown to science.”
The Discovery Rule in a Unique
Context
• The Court answered the question in favor of
the plaintiff and held that allowing the statute
of limitations to begin to run when the
plaintiff is aware of one source of injury, in
this case the alleged negligence of the treating
physician, but unaware of another, in the case
of the allegedly defective product, would
defeat the policy and purpose of the discovery
rule.
The Discovery Rule in a Unique
Context
• The Court first addressed when the plaintiff is deemed
to have knowledge that the injury suffered was
wrongfully caused.
• Initially, the Court rejected the argument of the
defendant that knowledge of any cause is notice of all
causes and in doing so looked to the analysis under
Nolan v. Johns Mansville Asbestos, 85 Ill.2d 161 (1981),
Knox College v. Celotex Corporation, 88 Ill.2d 407
(1982), and their progeny of what it means for the
plaintiff to have knowledge that an injury is wrongfully
caused.
The Discovery Rule in a Unique
Context
• Recognizing that the Illinois Supreme Court
has not addressed this specific question, the
Court sought guidance from the United States
Supreme Court opinion of United States v.
Kubrick, 444 U.S. 111 (1979) which had been
relied upon by the Nolan and Knox Courts.
The Discovery Rule in a Unique
Context
• The Kubrick Court held that a plaintiff had a
duty to inquire of individuals in order to
ascertain if his injury had been wrongfully
caused and that because he did not do that,
the plaintiff’s complaint was properly
dismissed because it was possible for the
plaintiff to determine that his injury had been
wrongfully caused. Applying these principles
to the instant case, the Court stated:
The Discovery Rule in a Unique
Context
Permitting knowledge of the one to trigger the discovery rule
as to the other would seem to defeat the policy and purpose
behind the discovery rule, which is to accommodate the
need of the victim, upon reasonable injury, to discover her
cause of action against a defendant who has wronged her.
Therefore, where plaintiff has discovered on cause of her
injury, but has not and, in fact, could not have discovered a
second cause, tolling the statute of limitations with regard to
that second claim until such time as “[t]here are others who
can tell him if he has been wronged, and he need only ask”
would seem to be a logical extension of the Kubrick decision,
as well as one that flows from our supreme court’s concern
that plaintiffs conduct diligent inquiry into potential causes
of action without slumbering on their rights. (citations
omitted).
Clarification of the Expert’s Statement
at Deposition
• The Court next turned to the plaintiff’s expert’s
testimony in 2006 that suggested that the pain pump
may have been a cause of the plaintiff’s injury and the
attempt, so far successful, to clarify that statement.
• The Court held that the 2006 deposition testimony was
ambiguous, or at least insufficiently clear and
unequivocal, to bar the expert from clarifying his
statement that the pain pump could have caused the
plaintiff’s injury and that he was aware of such a cause
as early as of that date.
Clarification of the Expert’s Statement
at Deposition
• In refusing to resolve the ambiguity, the Court seemed to
allow the issue to be raised by the defense at trial as to
when and whether the plaintiff was aware of a wrongfully
caused injury by the pain pump as early as 2006 when the
plaintiff’s expert testified at his first deposition.
• The issue is important because if the plaintiff’s expert was
aware as early as 2006 that the injury could have been
caused by the pain pump, and not as of 2007 as claimed in
the expert’s affidavit, then the 2009 complaint filed against
the product manufacturers would not have been timely and
the plaintiff’s complaint would have likely been properly
dismissed.
The Future of the Discovery Rule after
Mitsias
• The Mitsias opinion lays the groundwork for an
expansion of the time frame within which claims can
be brought against defendants when a new cause of
the injury is discovered long after the injury itself is
discovered.
• A potential extension of this opinion is that the claim
first could have been brought in 2009 against the
product manufacturer even if the complaint was not
filed against the defendant doctor in 2003, thus
portending that the discovery rule exception could
swallow the statute of limitations.
DiCosolo v. Janssen Pharmaceuticals:
Procedural and Factual History
• The plaintiff was the special representative of the
estate of his deceased wife who had died as a
result of a pain patch that delivered an incorrect
dose of a narcotic pain killer, fentanyl.
• The day after the plaintiff’s death the
manufacturer of the product issued a recall for
the lot which contained the patch that the
plaintiff was using at the time of her death.
DiCosolo v. Janssen Pharmaceuticals:
Procedural and Factual History
• The medical examiner originally ruled that the
cause of death was suicide because of other
drugs found in the deceased’s system, which
included a significantly elevated level of
fentanyl. However, upon being provided with
the recall letter he changed his opinion of the
cause of death to accident.
DiCosolo v. Janssen Pharmaceuticals:
Procedural and Factual History
• The plaintiff filed a complaint against the
manufacturer of the patch alleging that the patch
that the plaintiff was wearing at the time of her
death was the cause of her death.
• The defendant determined that the patch that
the plaintiff was wearing at the time of her death
was not defective and the plaintiff amended his
complaint alleging that the patch that the
deceased was wearing the day before her death
was defective.
DiCosolo v. Janssen Pharmaceuticals:
Procedural and Factual History
• The penultimate patch was not available for
inspection as it had been discarded before her
death. However, the plaintiff submitted an
affidavit that when he changed the
penultimate pain patch he noticed that it had
fallen apart.
DiCosolo v. Janssen Pharmaceuticals:
Procedural and Factual History
• The jury returned a verdict in favor of the
plaintiff and against the defendant in the
amount of $18 million.
• The defendant appealed claiming, inter alia,
that there was insufficient evidence that the
product at issue had malfunctioned.
Method of Proof in a Product Liability
Case: The Tweedy Way
• The Illinois Supreme Court in Tweedy v. Wright Ford Sales,
64 Ill.2d 570 (1976), held that a plaintiff may prove a
products liability case by “a prima facie case that a product
was defective and that the defect existed when it left the
manufacturer’s control is made by proof that in the
absence of abnormal use or reasonable secondary causes
the product failed ‘to perform in the manner reasonably to
be expected in light of [its] nature and intended function.’”
• This is essentially a res ipsa theory, which applies in the
negligence context, in the context of strict product liability.
Method of Proof in a Product Liability
Case: The Tweedy Way
• In this case the Court held that the fact that the
allegedly defective product does not have to
possess the product in order to prove that a
product was defective, because circumstantial
evidence is sufficient.
• In this case, the Court held the fact that the
plaintiff had an increased level of fentanyl in her
system was sufficient circumstantial evidence to
support judgment in favor of the plaintiff.
Thank You!
Donald Patrick Eckler
Pretzel & Stouffer, Chartered
One S. Wacker Drive
Suite 2500
Chicago, Illinois 60606
312-346-1973