Braun v. Aspide Med.
| Decision Date | 04 November 2020 |
| Docket Number | No. 1-20-0131,1-20-0131 |
| Citation | 175 N.E.3d 255,447 Ill.Dec. 887,2020 IL App (1st) 200131 |
| Parties | Johnna BRAUN, Plaintiff-Appellee, v. ASPIDE MEDICAL and BG Medical, LLC, Defendants, (BG Medical, LLC, Defendant-Appellant). David Cheney, Plaintiff-Appellee, v. Aspide Medical and BG Medical, LLC, Defendants, (BG Medical, LLC, Defendant-Appellant). Kathy Van Ryswyk, Plaintiff-Appellee, v. Aspide Medical and BG Medical, LLC, Defendants, (BG Medical, LLC, Defendant-Appellant). Natsha Stanley, Plaintiff-Appellee, v. Aspide Medical and BG Medical, LLC, Defendants, (BG Medical, LLC, Defendant-Appellant). |
| Court | United States Appellate Court of Illinois |
Jeffrey M. Schieber and Paul J. Coogan, of Taft Stettinius & Hollister LLP, of Chicago, for appellant.
Allen N. Schwartz and Jennifer K. Scifo, of Kravolec, Jambois & Schwartz, of Chicago, and Robert L. Salim and Lisa Causley-Streete, of Salim-Beasley, LLC, of Natchitoches, Louisiana, for appellees.
¶ 1 Plaintiffs Johnna Braun, David Cheney, Kathy Van Ryswyk, and Natasha Stanley individually sued Aspide Medical (Aspide) and BG Medical, LLC (BG Medical), in the circuit court of Cook County on claims sounding in product liability after surgical meshes
implanted in their bodies to repair hernias allegedly caused further injury. Believing venue was improper in Cook County, BG Medical filed a motion to transfer venue to Lake County that the circuit court denied. BG Medical appeals the court's denial and argues that, because neither it nor Aspide reside in Cook County and no part of the transaction from which plaintiffs' claims arose occurred in Cook County, venue in Cook County was improper. For the reasons that follow, we affirm.
¶ 3 Defendant Aspide Medical is a French corporation that designs and manufactures Surgimesh, a synthetic surgical mesh
, approved by the Food and Drug Administration for the treatment of abdominal hernias. Defendant BG Medical, LLC, is an Illinois limited liability company that operates as the exclusive distributor of Surgimesh in the United States. Between August 2015 and January 2018, plaintiffs Johnna Braun, a resident of Arkansas; David Cheney, a resident of New York; Kathy Van Ryswyk, a resident of Washington; and Natasha Stanley, a resident of West Virginia, all had Surgimesh implanted in their bodies to repair hernias. After being implanted with Surgimesh, plaintiffs allegedly suffered further injuries, which necessitated additional medical procedures.
¶ 4 Before 2019, several plaintiffs, who are not a part of this appeal, filed individual lawsuits against Aspide and BG Medical in the circuit court of Cook County after being implanted with Surgimesh. Those cases were consolidated for discovery and pretrial purposes (Pauley v. Aspide Medical, No. 18-L-4464 (Cir. Ct. Cook County)).
¶ 5 In January 2019, Braun, Cheney, and Van Ryswyk individually filed multicount complaints in the circuit court of Cook County against Aspide and BG Medical. Stanley did the same in August 2019. The complaints were nearly identical, each comprising four counts against Aspide and four counts against BG Medical for strict liability, negligence, breach of express warranty, and breach of implied warranties. The crux of the allegations was that defendants designed, manufactured, advertised, and sold Surgimesh as a medical product to repair hernias
but that the product was improperly designed and manufactured for its intended purpose, that defendants failed to adequately warn medical professionals and the public at large of the risks associated with the product, and that defendants marketed the product as safe despite the associated risks.
¶ 6 In response to each complaint, BG Medical filed a motion to transfer venue from Cook County to Lake County, arguing that venue in Cook County was improper because neither it nor Aspide resided there and no part of the transaction from which plaintiffs' claims arose occurred there. In support of each motion, BG Medical attached a printout from the Illinois Secretary of State's website stating that Aspide was not registered to do business in Illinois.
¶ 7 BG Medical also attached an affidavit from John Huelskamp, its president, wherein he stated that BG Medical was the exclusive United States distributor of Surgimesh, a medical product designed and manufactured by Aspide. According to Huelskamp, he and his wife were the sole members of BG Medical, and both resided in Lake County, Illinois. Huelskamp averred that, in December 2018, BG Medical moved its only office from Cook County to Deer Park, Illinois, located in Lake County. In addition, Huelskamp stated that BG Medical's registered agent was in Lake County. Huelskamp asserted that BG Medical did not conduct any meaningful business in Cook County, noting that, in 2018, it sold approximately $4900 worth of Surgimesh to two hospitals in Cook County. Additionally, Huelskamp stated that BG Medical's 2018 revenue from selling Surgimesh in Cook County accounted for 0.05% of its 2018 revenue in Illinois and 0.0007% of its 2018 revenue in the United States. Lastly, Huelskamp stated that, thus far in 2019, BG Medical had no revenue from selling Surgimesh in Cook County, it did not employ a sales representative to solicit sales of Surgimesh in Cook County, and it had no sales contracts with any of the hospitals or surgical centers located in Cook County. While BG Medical filed its motion to transfer venue, Aspide challenged the circuit court's personal jurisdiction over it, resulting in Aspide not being a party to this appeal. According to BG Medical, as of the filing of its opening brief, Aspide's motion remains pending in the circuit court.
¶ 8 By September 2019, Braun, Cheney, Van Ryswyk, and Stanley's cases had been consolidated with the several other hernia
mesh cases for discovery and pretrial purposes only. The following month, Braun, Cheney and Van Ryswyk filed a combined response to BG Medical's motion to transfer venue, and Stanley filed a separate response. In both motions, plaintiffs argued that Surgimesh entered the stream of commerce through BG Medical, which, at the time they had their surgeries, conducted all of its activities in Cook County. As such, according to plaintiffs, part of the underlying transaction occurred in Cook County, thus making venue proper there.
¶ 9 BG Medical replied and maintained that no part of the transaction of any of plaintiffs' causes of action occurred in Cook County. In support, it attached another affidavit from Huelskamp, wherein he stated that BG Medical purchased Surgimesh directly from Aspide and sold the product directly to hospitals and physician offices, not to patients.
¶ 10 Following the parties' briefings, the circuit court entered a written ruling, initially observing that venue was proper in a county where (1) any defendant brought in good faith resides or (2) the transaction or some part thereof from which the plaintiffs' claims arose occurred. With regard to the transactional pathway, the court noted that BG Medical was the exclusive distributor in the United States of Aspide's Surgimesh product. Relying on information from BG Medical's website, the court observed that BG Medical promoted itself as a sales and marketing distribution partner of Aspide. Highlighting that plaintiffs' lawsuits sounded in product liability, the court determined that the location of the accident was not as significant as traditional personal injury actions. Because plaintiffs' basis of liability against BG Medical was its marketing and selling of an allegedly dangerous and defective medical product, which occurred while BG Medical was based in Cook County, the court concluded that at least part of the transaction from which plaintiffs' claims arose occurred in Cook County.
¶ 11 Regarding venue based on BG Medical's residence, the circuit court's conclusion was less clear. The court observed that, at the time the earlier lawsuits against BG Medical and Aspide were filed—the ones that plaintiffs' cases were ultimately consolidated with for discovery and pretrial purposes only—BG Medical had yet to move its office to Lake County and thus was a resident of Cook County for venue purposes. As such, the court found that "venue in Cook County is proper." Later in its order, the court reiterated that, "[a]t the time the first twelve consolidated actions were filed, BG Medical had its main office in Cook County" and repeated its finding regarding the transactional pathway. The court then concluded again that "venue is proper in Cook County" and ultimately denied BG Medical's motion to transfer venue.
¶ 12 Thereafter, BG Medical successfully petitioned this court for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(4) (eff. Oct. 1, 2019).
¶ 14 On appeal, BG Medical contends that the circuit court improperly denied its motion to transfer venue from Cook County to Lake County where neither it nor Aspide were residents of Cook County under the venue rules and no part of the transaction out of which plaintiffs' causes of action arose occurred in Cook County.
¶ 16 "Proper venue is an important statutory privilege" ( Bucklew v. G.D. Searle & Co. , 138 Ill. 2d 282, 288, 149 Ill.Dec. 722, 562 N.E.2d 186 (1990) ), and the defendant is entitled to have a lawsuit proceed in a proper venue so long as it timely raises an objection (Corral v. Mervis Industries, Inc. , 217 Ill. 2d 144, 154, 298 Ill.Dec. 201, 839 N.E.2d 524 (2005)). Section 2-101 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-101 (West 2018) ) provides the general venue rule in Illinois:
"Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the...
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