Mitsias v. I-Flow Corp.

• Decision Date: 23 September 2011
• Docket Number: No. 1–10–1126.,1–10–1126.
• Citation: 355 Ill.Dec. 66,2011 IL App (1st) 101126,959 N.E.2d 94
• Parties: Angela MITSIAS, a/k/a Angel Mitsias, Plaintiff–Appellant, v. I–FLOW CORPORATION, Stryker Corporation, and Stryker Sales Corporation, Defendants–Appellees (Steven Levin, M.D., Defendant).
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 101126

355 Ill.Dec. 66

959 N.E.2d 94

Angela MITSIAS, a/k/a Angel Mitsias, Plaintiff–Appellant,

v.I–FLOW CORPORATION, Stryker Corporation, and Stryker Sales Corporation, Defendants–Appellees (Steven Levin, M.D., Defendant).

No. 1–10–1126.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 23, 2011.

Bruce D. Goodman, Peter M. Dapier, Bradley D. Steinberg, Steinberg, Goodman & Kalish, Chicago, for Appellant.

Paul E. Wojcicki, Matthew C. Jardine, Segal McCambridge Singer & Mahoney, Ltd., Chicago, for I–Flow.

Anthony J. Anscombe, C. Kinnier Lastimosa, Sedgwick, Detert, Moran & Arnold LLP, Chicago, for Stryker Corporation and Stryker Sales Corporation.

OPINION

Justice JOSEPH GORDON delivered the judgment of the court, with opinion.

[355 Ill.Dec. 68] ¶ 1 Plaintiff appeals the dismissal of her products liability suit against I–Flow Corporation, Stryker Corporation, and Stryker Sales Corporation (collectively, the product liability defendants) as time-barred under the two-year limitations period for product liability actions as set forth in section 13–213(d) of the Code of Civil Procedure (735 ILCS 5/13–213(d) (West 2008)).

¶ 2 Dr. Steven Levin performed surgery on plaintiff's left shoulder on October 24, 2001. Subsequently, plaintiff experienced severe pain in her shoulder and was diagnosed with glenohumeral chondrolysis, the destruction of cartilage in the shoulder joint. On October 22, 2003, plaintiff filed an initial medical malpractice suit against Dr. Levin. (Dr. Levin is not a party to the instant appeal.) During the course of discovery in that suit, plaintiff's expert Dr. Anthony Romeo was deposed in two phases, namely, on August 9, 2006, and on October 24, 2007. On August 9, 2006, he testified that the administration of a particular anesthetic agent via a continuous infusion device, also known as a “pain pump,” had been showed to be “highly associated” with loss of articular cartilage. On October 24, 2007, at the second phase of his deposition, Dr. Romeo testified that recently published medical literature suggested a link between pain pumps and plaintiff's condition.

¶ 3 Based upon this second deposition, on November 12, 2008, plaintiff voluntarily nonsuited her medical malpractice action. She then refiled her malpractice claims against Dr. Levin on February 11, 2009, adding two product liability counts sounding in strict liability and negligence against the pain pump manufacturers, which are the product liability defendants in the instant appeal.

¶ 4 The product liability defendants filed motions to dismiss plaintiff's product liability claims as untimely. The trial court granted their motions to dismiss. Plaintiff now appeals. For the reasons that follow, we reverse and remand.

¶ 5 I. BACKGROUND

¶ 6 The facts as alleged by plaintiff are as follows. Plaintiff injured her left shoulder while exercising on August 19, 2001. On October 24, 2001, Dr. Levin performed orthopedic surgery on her shoulder at Alexian Brothers Medical Center. As a part of the surgery, Dr. Levin installed a pain pump in plaintiff's left shoulder in order to release Marcaine, a local anesthetic, into the surrounding area during the postoperative recovery period. Following surgery, plaintiff allegedly experienced severe pain in her left shoulder and a significant reduction in its range of motion. As noted, she was eventually diagnosed with glenohumeral chondrolysis, the destruction of “articular cartilage,” i.e., joint cartilage, in the shoulder.

¶ 7 On October 22, 2003, plaintiff filed her initial medical malpractice suit against Dr. Levin and Alexian Brothers Medical Center, alleging direct negligence on the part of Dr. Levin and direct negligence and respondeat superior liability on the part of Alexian Brothers Medical Center. Plaintiff did not assert any claims against the product liability defendants in that action.

¶ 8 On August 9, 2006, during the course of discovery, the parties deposed plaintiff's physician, Dr. Romeo. In response to questioning by counsel for Dr. Levin, Dr. Romeo listed three possible ways in which performance of the subject surgery could cause cartilage loss, including the following:

“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-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.”

Later in that same deposition, counsel for plaintiff asked Dr. Romeo about the use of Marcaine pain pumps as a potential cause of plaintiff's condition, and Dr. Romeo answered 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.”

¶ 9 On October 24, 2007, at the second phase of his deposition, Dr. Romeo testified to a link between the use of pain pumps and glenohumeral chondrolysis:

“Q. In 2007, is it recognized in the literature that the use of Marcaine pain pumps can, in fact, be a cause for loss or destruction of articular cartilage at the glenohumeral joint space?

A. Yes.” Dr. Romeo further testified that the connection between pain pumps and glenohumeral chondrolysis “was not known” in 2001 when Dr. Levin performed surgery on plaintiff and was not discovered until “a few years later.”

¶ 10 Plaintiff voluntarily dismissed her initial medical malpractice action on November 12, 2008. Subsequently, on February 11, 2009, plaintiff filed the instant suit, once more seeking damages against Dr. Levin on a medical malpractice theory and adding claims against the product liability defendants on theories of strict liability and negligence.

¶ 11 The product liability defendants filed motions to dismiss plaintiff's complaint as untimely pursuant to the two-year limitations period for product liability actions as stated in section 13–213(d) of the Code of Civil Procedure (735 ILCS 5/13–213(d) (West 2008)). The product liability defendants argued that, at the latest, the statutory limitations period for plaintiff's product liability claims began to run on the day that plaintiff filed her initial action in 2003, because upon the filing of such a claim Illinois law deemed her to be aware of an injury wrongfully caused. In response, plaintiff argued that the limitations period would not begin until October 24, 2007, the date of Dr. Romeo's second deposition session, at which she first became aware of the potential link between the use of a pain pump during her surgery and her injury.

¶ 12 In opposition to the product liability defendants' motion to dismiss, plaintiff filed an affidavit by Dr. Romeo in which he stated:

“It is my understanding, and opinion to a reasonable degree of medical certainty, that any information concerning potential chondrolysis caused by the wrongful use of pain pumps did not occur by publication for which a patient or other lay person might realize that chondrolysis might be wrongfully caused by pain pumps or their design or lack of warnings or instructions until the summer of 2007.”

Dr. Romeo acknowledged that, in his deposition on August 9, 2006, he had mentioned that plaintiff's injuries could have been caused by the use of a pain pump to deliver an anesthetic. However, he stated:

“[M]y testimony only reflected the length of time and the amount of medication that was delivered by the pain pump, and was not intended nor did it reflect any information that any pain pump may be potentially unsafe or had lack of warnings. * * * At my deposition on August 9, 2006, I had no information, and when asked, imparted no information to Mr. Goodman [plaintiff's attorney], that the pain pumps were unsafe or unreasonably dangerous, or negligently designed or manufactured.”

¶ 13 On January 14, 2010, the trial court granted the product liability defendants' motion to dismiss, explaining:

“I ruled on the pure legal issue as to whether or not once a plaintiff is put on inquiry notice that they were injured and that the injury was wrongfully caused, and I accept the premise that by filing a malpractice suit against the medical defendants, there's no doubt that there was that notice generated early and that some of the dates are a little cloudy in my head, but I think it was 2001 or 2002 that that trigger date as to the med mal defendants served as a trigger date for all purposes, defendants, all causes of action. So, that the statute of limitations as to the product liability case would start on that same date.”

The trial court further acknowledged that, under this construction of the discovery rule, “it could well be argued that prior to your ability to file in good faith a products liability case, that statute has already left.”

¶ 14 The next day, on January 15, 2010, upon plaintiff's motion, the trial court granted plaintiff leave to file an amended complaint and struck the previously entered dismissals. In her amended complaint, plaintiff added the factual allegation that, prior to the summer of 2007, she could not have discovered that the pain pump used by Dr. Levin might have been the cause of her injury, because “[p]rior to the summer of 2007, information concerning potential chondrolysis caused by pain pumps did not exist. There was no information available that chondrolysis may be wrongfully caused by pain pumps or their design or lack of safe, suitable or proper warnings until the summer of 2007.”

¶ 15 Following a hearing that day, the court again granted the product liability defendants' motions to dismiss the claims against them. The trial court also issued a finding under Illinois Supreme Court Rule 304(a) (eff.Feb.26, 2010) that there was no just reason to delay enforcement or appeal of its order....