Lewis v. Lead Indus. Ass'n

CourtSupreme Court of Illinois
Citation178 N.E.3d 1046,2020 IL 124107,449 Ill.Dec. 195
Docket NumberDocket No. 124107
Parties Mary LEWIS et al., Appellees, v. LEAD INDUSTRIES ASSOCIATION et al. (Atlantic Richfield Company et al., Appellants).
Decision Date21 May 2020

2020 IL 124107
178 N.E.3d 1046
449 Ill.Dec.

Mary LEWIS et al., Appellees,
LEAD INDUSTRIES ASSOCIATION et al. (Atlantic Richfield Company et al., Appellants).

Docket No. 124107

Supreme Court of Illinois.

Opinion filed May 21, 2020.

178 N.E.3d 1049

Dan K. Webb, Matthew R. Carter, and Scott M. Ahmad, of Winston & Strawn, LLP, of Chicago, and Phillip H. Curtis, William H. Voth, and Bruce R. Kelly, of Arnold & Porter Kay Scholer, LLP, of New York, New York, for appellant Atlantic Richfield Company.

Arthur F. Radke, of Manatt, Phelps & Phillips, LLP, of Chicago, for appellant ConAgra Grocery Products Company.

Andre M. Pauka, of Barlit BeckHerman Palenchar & Scott, LLP, of Chicago, for appellant NL Industries, Inc.

Carol A. Hogan and Nicole C. Henning, of Jones Day, of Chicago, for appellant The Sherwin-Williams Company.

Michael H. Moirano and Claire Gorman Kenny, of Moirano Gorman Kenny, LLC, Edward T. Joyce and Rowena T. Parma, of Edward T. Joyce & Associates, P.C., Joan Mannix, and Laurence M. Landsman, all of Chicago, for appellees.

Michael A. Scodro and Brett E. Legner, of Mayer Brown LLP, of Chicago, for amici curiae Illinois Manufacturers’ Association et al.

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

449 Ill.Dec. 198

¶ 1 Plaintiffs, Mary Lewis, Tashswan Banks, and Kathleen O'Sullivan, filed a class action in the circuit court of Cook County against defendants, Atlantic Richfield Company; ConAgra Grocery Products, Inc.; NL Industries, Inc.; and the Sherwin-Williams Company. Plaintiffs sought to recover the costs of blood lead screening, which their children underwent as required by the Lead Poisoning Prevention Act (Act) ( 410 ILCS 45/1 et seq. (West 2000)). The circuit court granted summary judgment in favor of defendants. The appellate court reversed. 2018 IL App (1st) 172894, 430 Ill.Dec. 714, 126 N.E.3d 1241. This court allowed defendants' petition for leave to appeal ( Ill. S. Ct. R. 315(a) (eff. July 1, 2018)). We hold that plaintiffs who do not suffer any economic loss cannot maintain a tort action that is based on a claim that alleges solely an economic injury and no physical injury or property damage. Accordingly, we reverse the judgment of the appellate court, affirm the judgment of the circuit court, and remand to the circuit court for further proceedings.

178 N.E.3d 1050
449 Ill.Dec. 199


¶ 3 Nineteen years ago, plaintiffs Mary Lewis, Tashswan Banks, and Kathleen O'Sullivan, on behalf of themselves and others similarly situated, filed the instant class-action lawsuit against four defendants, each of which is a former manufacturer of white lead pigments or the alleged corporate successor to such a manufacturer. Relevant here, plaintiffs' second amended class action complaint alleged six counts that were captioned as follows: (1) intentional failure to warn, (2) supplier liability, (3) fraud on the public, (4) unjust enrichment, (5) common-law public nuisance, and (6) civil conspiracy. The circuit court dismissed all six counts. The appellate court affirmed the dismissal of the first five counts, which are not at issue here. However, the appellate court reversed the dismissal of count VI. Lewis v. Lead Industries Ass'n , 342 Ill. App. 3d 95, 276 Ill.Dec. 110, 793 N.E.2d 869 (2003) ( Lewis I ) Subsequently, the appellate court reversed the grant of summary judgment in favor of defendants on count VI. Lewis v. Lead Industries Ass'n , No. 1-05-0974, 362 Ill.App.3d 1229, 335 Ill.Dec. 802, 919 N.E.2d 521 (2006) (unpublished order under Illinois Supreme Court Rule 23 ) ( Lewis II ). The sole surviving count is count VI, which is repled in plaintiffs' third amended complaint.

¶ 4 Plaintiffs sought to recover the costs of blood-lead screening, which their children underwent as required by the Act ( 410 ILCS 45/1 et seq. (West 2000)). Plaintiffs' complaint specifically excludes any claim for recovery for physical injury to their children. Instead, plaintiffs' claim is solely one for economic injury to the parents in relation to the costs incurred for the lead screening. The class was certified in 2008, and despite attacks from both sides, the class definition has remained essentially the same:

"the parents or legal guardians of children who, between August 18, 1995, and February 19, 2008, were between six months and six years of age and, during that age bracket, lived in zip codes identified by the Illinois Department of Public Health as ‘high risk’ areas pursuant to section 6.2(a) of the Act ( 410 ILCS 45/6.2(a) (West 2000)) and had a venous or blood capillary test for lead toxicity, excluding such parents and legal guardians who incurred no expense, obligation or liability for lead toxicity testing of their children."

¶ 5 On October 6, 2016, defendants filed a motion for summary judgment, contending that none of the three named plaintiffs incurred any expense, obligation, or liability for the lead toxicity testing of their children. Supported by the deposition testimony of plaintiffs Lewis and Banks, defendants asserted that both were Medicaid recipients when their children were tested and neither paid for those tests. Defendants claimed that Lewis and Banks could not prove any economic injury that would be essential to their claims because (1) Medicaid paid the full costs of the screenings, (2) the two received no demands for payment from the medical providers who performed tests or from the Illinois department responsible for administering the Medicaid program, and (3) state and federal laws in fact prohibit the medical providers or Medicaid itself from seeking reimbursement from them. Thus, there is no possibility plaintiffs will incur any cost as a result of their children's screenings. With respect to plaintiff O'Sullivan, defendants asserted that there was no evidence to show that she paid anything for her child's screening or that her plan would have required payment.

¶ 6 In response, plaintiffs conceded that Lewis and Banks did not pay for the tests. But they argued that a recipient of medical

178 N.E.3d 1051
449 Ill.Dec. 200

services or treatment (and in the case of a child, the recipient's parents) incurs the expense of the services or treatment, even where the actual cost of the expense is paid by a third-party payor. Plaintiffs argued that, if they recovered the cost of the testing, the State, which paid the providers for the tests, could seek reimbursement from that recovery. Plaintiffs also argued that, under the collateral source rule, Medicaid's payment for the tests does not negate plaintiffs' economic injury but instead gives them the right to be reimbursed for the costs of the screenings even though a collateral source paid the actual costs.

¶ 7 The circuit court granted defendants' motion for summary judgment. As to plaintiffs Lewis and Banks, the court ruled that they suffered no injury. They did not pay for the test themselves and incurred no obligation or liability for the costs because state and federal law bar both Medicaid and the service providers from seeking reimbursement from these plaintiffs. The court noted that, if a Medicaid recipient recovered the costs of medical care in a tort action, the State might have a claim to a portion of that tort recovery. But such a claim could not constitute an injury to plaintiffs, the court held. This is because any "recoupment [the State could obtain] comes from the judgment against the wrongdoer before the net judgment is paid to the recipient, not from the recipient herself." (Emphasis in original.) Thus, plaintiffs have no "present, or even a prospective, obligation or liability to the State with respect to the medical screening."

¶ 8 The circuit court also rejected plaintiffs' argument that the collateral source rule allowed them to recover in the absence of an actual injury. The court held that the collateral source rule applies only to the measurement of damages in bodily injury cases and cannot be used to overcome plaintiffs' lack of a present expense, obligation, or liability arising from their children's blood screening tests.

¶ 9 The circuit court also dismissed O'Sullivan's claim but on the slightly different ground that she had private health insurance rather than Medicaid yet was unable to present evidence that either she or her insurer had paid anything for her children's lead screening tests. Thus, like the other two plaintiffs, the circuit court found that O'Sullivan was not a member of the defined class.

¶ 10 Plaintiffs' counsel was given time to name one or more new class representatives, but counsel waived that opportunity and did not name a new representative. Instead, plaintiffs moved for certification pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), permitting immediate appeal of the order granting summary judgment on behalf of defendants. The circuit court granted the motion for Rule 304(a) certification as to Banks and Lewis but denied it with respect to O'Sullivan. The court explained that its summary judgment ruling rested upon a legal analysis applicable to all Medicaid recipients so that...

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