1. 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

2. 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.

3. 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.

4. 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.

5. 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 automobiles 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.

6. 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.

7. 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.

8. 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 courts verdict and further found that Ford could alternatively be liable on a voluntary undertaking theory.

9. 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.

10. 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 manufacturers 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.

11. Implications of Jablonski on methods of proof in Illinois product liability cases Applying the risk-utility test, the Court rejected Fords 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 non- exhaustive list, including (1) the availability and feasibility of alternate designs,

12. 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 manufacturers 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.

13. Implications of Jablonski on methods of proof in Illinois product liability cases Lurking beneath the surface of the Courts 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 products nature and function.

14. 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.

15. 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.

16. 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 defendants conduct is reasonable in a negligent-design case.

17. 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 negligent- product-design case, it is notable that the court completely omitted any discussion of the consumer expectations test.

18. 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.

19. 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.

20. The Court continues to resist adopting the Restatement Third of Products Liability The Courts 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 Courts 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.

21. 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.

22. 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 Restatements risk-utility test instructive. Similarly, in Jablonski, the Court stated that the plaintiffs proposed postsale duty to warn jury instruction was virtually verbatim to the Restatement Thirds provision which has not been previously adopted in Illinois.

23. 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.

24. 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.

25. 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 plaintiffs 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.

26. Mitsias v. I-Flow Corporation: Procedural and Factual History After the plaintiff filed, the case proceeded through discovery and the plaintiffs experts deposition was taken in two sessions, one in August 2006 and one in October 2007. During the first deposition, the plaintiffs expert testified that there were three possibilities for the cause of the plaintiffs injury including:

27. 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 Im not aware of whether that was done or not, has been shown over the last year-and- a-half to two years to be highly associated with a condition where articular cartilage is aggressively lost in the shoulder after arthroscopic stabilization.

28. Mitsias v. I-Flow Corporation: Procedural and Factual History At that same session of the deposition, the plaintiffs expert testified that in the last year and a half theres 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 plaintiffs 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.

29. 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.

30. 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.

31. 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.

32. 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 5/2- 213(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.

33. 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.

34. 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.

35. 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 plaintiffs 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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 plaintiffs 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:

42. 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 courts concern that plaintiffs conduct diligent inquiry into potential causes of action without slumbering on their rights. (citations omitted).

43. Clarification of the Experts Statement at Deposition The Court next turned to the plaintiffs experts testimony in 2006 that suggested that the pain pump may have been a cause of the plaintiffs 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 plaintiffs injury and that he was aware of such a cause as early as of that date.

44. Clarification of the Experts 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 plaintiffs expert testified at his first deposition. The issue is important because if the plaintiffs 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 experts affidavit, then the 2009 complaint filed against the product manufacturers would not have been timely and the plaintiffs complaint would have likely been properly dismissed.

45. 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.

46. 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 plaintiffs 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.

47. 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 deceaseds 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.

48. 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.

49. 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.

50. 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.

51. 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 manufacturers 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.

52. 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.

53. Thank You! Donald Patrick Eckler Pretzel & Stouffer, Chartered One S. Wacker Drive Suite 2500 Chicago, Illinois 60606 312-346-1973