Benedict v. Abbott Labs., Inc.

• Decision Date: 13 September 2018
• Docket Number: No. 1-18-0377,1-18-0377
• Parties: Cody BENEDICT, BY AND THROUGH his Guardian and Conservator, Angela BENEDICT, and Addison Hand, a minor, By and Through her Parents Chad and Kimberly Hand, Plaintiffs-Appellees, v. ABBOTT LABORATORIES, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 180377

118 N.E.3d 518

427 Ill.Dec. 317

Cody BENEDICT, BY AND THROUGH his Guardian and Conservator, Angela BENEDICT, and Addison Hand, a minor, By and Through her Parents Chad and Kimberly Hand, Plaintiffs-Appellees,

v.ABBOTT LABORATORIES, INC., Defendant-Appellant.

No. 1-18-0377

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed September 13, 2018

Bryan Cave Leighton Paisner LLP, of Chicago (Jena Valdetero and Lauren J. Caisman, of counsel), and Bryan Cave Leighton Paisner LLP, of St. Louis, Missouri (Dan H. Ball and Stefan A. Mallen, of counsel), for appellant.

John J. Driscoll, of The Driscoll Firm, P.C., of Belleville, and William T. Dowd, of Dowd & Dowd, P.C., of St. Louis, Missouri, for appellees.

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Cory Benedict and Addison Hand, allege, by and through their parents, that they suffer from serious birth defects caused by their in utero exposure to Depakote, an antiepilectic drug manufactured, marketed, and sold by defendant, Abbott Laboratories, Inc., and ingested by plaintiffs' mothers during pregnancy.

¶ 2 In this interlocutory appeal, defendant, Abbott Laboratories, Inc., appeals the trial court's denial of its forum non conveniens motion. Defendant argues that the trial court abused its discretion by denying its motion (1) to dismiss the case in Illinois for refiling in plaintiffs' home states of Missouri and Colorado or (2), alternatively, to transfer the case from Cook County to adjacent Lake County, where defendant is headquartered. Although defendant's principal place of business is in Illinois, it argues that Illinois is inconvenient. For the following reasons, we cannot find that the trial court abused its discretion in denying defendant's motion, and thus, we must affirm.

¶ 3 BACKGROUND

¶ 4 Plaintiffs, Cory Benedict and Addison Hand, allege that defendant, Abbott Laboratories, Inc., failed to provide adequate warnings regarding the risk of birth defects from using Depakote and that, as a result, plaintiffs were born with spina bifida and neural tube defects after their mothers ingested the drug during pregnancy.

¶ 5 On this appeal, plaintiffs stress that defendant's decisions regarding product labeling and marketing occurred in Illinois, where defendant is headquartered, whereas defendant emphasizes that plaintiffs and their treating physicians are located outside of Illinois. Plaintiffs, Cody Benedict and Addison Hand, reside, respectively, in Missouri and Colorado, and their mothers were prescribed Depakote in their respective states.

¶ 6 Defendant is in the business of selling pharmaceutical and medical products in all 50 states, including Illinois. Specifically, defendant sold and marketed Depakote across the country, including in Illinois and in Cook County. Defendant's headquarters and principal place of business are in Lake County, Illinois, while its registered agent is in adjacent Cook County. In this action, plaintiff served defendant's agent, CT Corporation, in Cook County. Defendant, a Delaware corporation, concedes that venue is proper in Cook County.

¶ 7 Plaintiffs filed a complaint on December 23, 2016, in Cook County alleging that "the primary compound in Depakote—valproic acid—has been established to cause severe birth defects if taken during the first trimester of pregnancy, especially during the first twenty-eight days of gestation when neural tube closure and other critical mid-line formations are taking place in the cellular structure of the developing embryo."

¶ 8 Plaintiffs further allege that, "[a]mong the ‘major congenital anomalies’ (i.e. , birth defects ) known to result directly from first-trimester exposure to Depakote are, either singly or in some combination with each other, spina bifida, cleft palate, cleft lip, limb and digital deformities, facial dysmorphism, mental developmental delays, genitourinary malformations, and heart defects."

¶ 9 Plaintiffs allege that, on or before defendant began marketing Depakote in 1978, defendant was aware of birth defects associated with it and that, even as further evidence developed, defendant "consistently and systematically sought to minimize the risk and downplay the dangers" and aggressively marketed the drug for additional uses.

¶ 10 Plaintiffs' complaint alleges nine causes of action: (1) strict products liability, (2) negligence, (3) gross negligence, (4) breach of implied warranty, (5) breach of express warranty, (6) misrepresentation by omission, (7) fraud and misrepresentation, (8) intentional infliction of emotional distress, and (9) negligent infliction of emotional distress.

¶ 11 In lieu of filing an answer, defendant moved on March 3, 2017, to dismiss on various grounds, including misjoinder. Specifically, defendant argued that the claims of plaintiffs Benedict and Hand were misjoined. The trial court did not rule on this motion prior to this appeal, and so this issue is not before us.¹

¶ 12 On April 4, 2017, defendant moved to dismiss plaintiffs' claims arguing that they should be refiled in plaintiffs' home states or, in the alternative, transferred to Lake County, where defendant has its principal place of business.

¶ 13 While defendant's motions were pending in this suit, eight additional plaintiffs filed Depakote suits against defendant in Cook County. Their last names were Castillo, Counts, Collier, Kane, McGowan, Peyton, Tasker, and Mohammed. Of these eight, two resided in Illinois. However, the two Illinois plaintiffs (Castillo and Peyton), as well as five others (Counts, Collier, Kane, McGowan and Tasker), chose to voluntarily dismiss their suits. Defendant decided not to file a forum non conveniens motion against the sole remaining plaintiff in these eight cases, namely, the Muhammad plaintiff. In its appellate brief, defendant explained that it did not file a forum non conveniens motion in the Mohammed case because the plaintiff's family in that case resided in Cook County until 2014, "long after the child plaintiff was born."

¶ 14 On September 18, 2017, the trial court entered an order consolidating all current and future cases concerning Depakote filed in the circuit court of Cook County "for all purposes, excluding trial."²

¶ 15 On January 26, 2018, the trial court entered a memorandum opinion denying defendant's forum non conveniens motion. Defendant filed both (1) a motion to reconsider on January 31, 2018, in the trial court and (2) a petition for leave to appeal on February 26, 2018, in the appellate court.

¶ 16 The trial court denied defendant's motion to reconsider on April 2, 2018. The parties then filed a joint motion in the appellate court to file a status report with a copy of the trial court's April 2 memorandum opinion. This court granted the motion on April 18, thereby making the trial court's April 2 memorandum opinion part of this appeal.

¶ 17 Since we must apply an abuse-of-discretion standard to the trial court's forum non conveniens decision,³ we provide here the trial court's findings. In its April 2 opinion, the trial court observed that, "[i]n this case the focus is on [defendant's] failure to warn prescribing physicians that Depakote's main ingredient—valproic acid—is connected to severe birth defects and should not be taken during the first trimester." The trial court found that, since plaintiffs do not reside in Cook County, their choice of forum is entitled to less deference but that less deference does not mean no deference as defendant argued. In support, the trial court quoted Langenhorst , 219 Ill. 2d at 448, 302 Ill.Dec. 363, 848 N.E.2d 927 (" ‘ "the deference to be accorded is only less , as opposed to none " ’ " (emphases in original) (quoting First American Bank v. Guerine , 198 Ill. 2d 511, 518, 261 Ill.Dec. 763, 764 N.E.2d 54 (2002), quoting Elling v. State Farm Mutual Automobile Insurance Co. , 291 Ill. App. 3d 311, 318, 225 Ill.Dec. 426, 683 N.E.2d 929 (1997) ) ).

¶ 18 The trial court observed that, in a product liability case, the place where a plaintiff was injured matters less, and it cited numerous cases in support of this proposition: Quaid v. Baxter Healthcare Corp. , 392 Ill. App. 3d 757, 772, 331 Ill.Dec. 480, 910 N.E.2d 1236 (2009) ("Where a case involves questions of product liability, the concern of having local interests resolved locally ‘is of less significance because products liability cases have broader implications.’ " (quoting Ammerman v. Raymond Corp. , 379 Ill. App. 3d 878, 892, 318 Ill.Dec. 950, 884 N.E.2d 1221 (2008) ) ), Ammerman , 379 Ill. App. 3d at 892, 318 Ill.Dec. 950, 884 N.E.2d 1221 ("the fact that [plaintiff's] accident occurred in Kane County as opposed to Cook County is of less significance because products liability cases have broader implications"); Guerine , 198 Ill. 2d at 525, 261 Ill.Dec. 763, 764 N.E.2d 54 ("plaintiffs' products liability claim against [defendant] * * * is less localized"), Brown v. Cottrell, Inc. , 374 Ill. App. 3d 525, 534, 312 Ill.Dec. 663, 871 N.E.2d 63 (2007) (in product liability cases, "[b]oth this court and the supreme court have found those claims to be ones that are not inherently local in flavor"), Woodward v. Bridgestone/Firestone, Inc. , 368 Ill. App. 3d 827, 836, 306 Ill.Dec. 839, 858 N.E.2d 897 (2006) (due to the nature of a products liability case, "this is not a localized case" but "a case with international implications"), and Hinshaw v. Coachmen Industries, Inc. , 319 Ill. App. 3d 269, 278, 253 Ill.Dec. 460, 745 N.E.2d 583 (2001) ("any local interest on the part of, say, Woodford County is largely supplanted by a more general interest in the safety of Dodge vans").

¶ 19 The trial court found that Illinois had an interest in resolving a controversy over whether a corporation, headquartered in Illinois, may be sending forth products that caused harm. The court found that facts showing Illinois's interest in the controversy included

"(1) gross sales in excess of $42 million on [defendant's]

...