Muhammad v. Abbott Labs., Inc.
| Docket Number | 1-21-0478 |
| Decision Date | 23 June 2022 |
| Citation | 2022 IL App (1st) 210478,203 N.E.3d 1001,461 Ill.Dec. 399 |
| Parties | Charles MUHAMMAD and Angie Muhammad, as Parents of C.M., a Minor; and C.M., Individually, Plaintiffs-Appellants, v. ABBOTT LABORATORIES, INC.; and AbbVie Inc., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Milo W. Lundblad, of Brustin & Lundblad, Ltd., of Chicago, for appellants.
Lauren J. Caisman, of Bryan Cave Leighton Paisner LLP, of Chicago, and Dan H. Ball and Stefani L. Wittenauer, of Bryan Cave Leighton Paisner LLP, of St. Louis, Missouri, for appellees.
JUSTICE MARTIN delivered the judgment of the court, with opinion ¶ 1 In 2006, C.M. was born with the neural tube defect spina bifida. As he grew, he exhibited severe cognitive impairment and physical abnormalities. C.M.’s birth defects have been attributed to in utero exposure to Depakote, an anticonvulsant drug that his mother, Angie Muhammad, was prescribed to treat her mental illness. The Muhammads sued Angie's mental health physicians and their employer, Northwestern Memorial Hospital (Northwestern), alleging medical negligence for prescribing Depakote when Angie could become pregnant (the Northwestern case). Following a jury trial, the Muhammads obtained a judgment of $18.5 million. Subsequently, the Muhammads brought an action against Depakote's manufacturer, Abbott Laboratories, Inc., and its related entities (collectively, Abbott), alleging that Abbott failed to sufficiently warn physicians regarding Depakote's risks of causing birth defects. Abbott moved for summary judgment, arguing that the Muhammads should be judicially estopped from asserting this claim since, as Abbott contended, they took an inconsistent position in the prior Northwestern case. In addition, Abbott insisted the Muhammads cannot prove that Abbott caused C.M.’s injuries since, inter alia , the physicians testified in depositions that greater warnings would not have affected their decisions to prescribe Depakote. The circuit court granted Abbott's summary judgment motion, finding that the Muhammads were taking a position against Abbott contrary to their previous position in the Northwestern case. Based on that finding, the court concluded that judicial estoppel precluded the Muhammads’ claim and that Abbott was entitled to judgment as a matter of law. The Muhammads appeal.
¶ 2 I. BACKGROUND
¶ 3 Angie Muhammad had a history of acute psychotic episodes and was hospitalized on several occasions as a result. In December 2003, Angie began receiving treatment at Northwestern's psychiatry department, known as the Rehabilitation Clinic of the Stone Institute of Psychiatry (Rehab Clinic). Angie was hospitalized four times between January and May 2005 with acute psychotic symptoms, including auditory hallucinations and suicidal and homicidal ideation (thoughts of killing herself, husband, and two young children).
¶ 4 Dr. Christian Stepansky, a second-year psychiatry resident at the Rehab Clinic, was part of Angie's treatment team and began seeing her every Tuesday to assess her symptoms and medication regimen. Angie's psychiatric condition was considered severe, complicated, and difficult to treat. She was diagnosed with schizoaffective and bipolar disorders. She experienced "mixed episodes" of simultaneous manic and depressive symptoms and "rapid cycling"—frequent episodes of mania or depression. These symptoms were not controlled by Angie's antipsychotic medication, and she was at risk of harming herself or others unless her mood could be stabilized. Dr. Stepansky referred Angie to Dr. Pedro Dago for evaluation, in part to assess whether a language barrier was inhibiting Angie's care. Angie's first language was Spanish, and Dr. Dago was a Spanish speaking psychiatrist. After his evaluation on May 19, 2005, Dr. Dago recommended that Angie be prescribed either lithium or Depakote1 to stabilize her mood.
¶ 5 Dr. Stepansky, under the supervision of attending psychiatrist Dr. Marcia Brontman, decided to recommend that Angie take Depakote. He reasoned that lithium was not a good option since lithium's therapeutic dosage is near the toxic dosage, which could result in death, and Angie had a history of suicidal ideation and a prior overdose attempt. He also ruled out another drug, Tegretol, since that drug was known to counteract birth control medication, which Angie was using, and she did not want to become pregnant. In addition, Depakote was more effective than the other drugs at controlling rapid cycling and mixed episodes.
¶ 6 Dr. Stepansky knew, however, that Depakote posed a risk of birth defects if taken during pregnancy, including that a child could be born with spina bifida. The 2005 edition of the Physician's Desk Reference (PDR) included a "black box" warning stating that Depakote can produce birth defects such as spina bifida if taken during pregnancy. In addition, the PDR entry for Depakote reported that Centers for Disease Control (CDC) data showed a 1% to 2% risk of a child being born with spina bifida if taken during the first trimester of pregnancy, up to 20 times the rate in the general population. The same information appeared on the insert Abbott included in Depakote's packaging. Dr. Stepansky was aware of the PDR and insert warnings, but he did not recall reviewing either while he was treating Angie.
¶ 7 On May 24, 2005, Dr. Stepansky discussed his recommendation with Angie that she take Depakote. He informed her about the risk of birth defects if she were to become pregnant while taking it and advised that she not conceive because of that risk. At the time, Angie was using birth control medication that was administered by a patch affixed to her arm. Angie had some history of noncompliance with taking medication as directed, but unlike oral medication that must be taken daily, the patch was effective for several days before needing replacement. In addition, Dr. Stepansky and the nurse who participated in Angie's weekly appointments could monitor Angie's patch compliance. Since Angie stated she did not want to become pregnant and he believed her birth control could be managed, Dr. Stepansky reasoned that the benefit of Depakote to stabilize her mood outweighed the risk.
¶ 8 At her next appointment, on May 31, Angie informed Dr. Stepansky that her menstrual period was late. He ordered an immediate test that revealed she was not pregnant. Over the next few months, Dr. Stepansky increased the Depakote dosage to reach a tolerable therapeutic level. In July, Dr. Thomas Allen replaced Dr. Brontman as the attending psychiatrist supervising Dr. Stepansky. In an appointment on October 11, 2005, Angie again stated that she had missed her menstrual period. On this occasion, Angie refused to undergo an immediate pregnancy test but agreed to take one at home and report the result. Several days later, after an appointment with her psychologist, Angie requested that Dr. Stepansky order a pregnancy test at Northwestern. The laboratory confirmed that Angie was pregnant on October 20. That same day, Dr. Stepansky contacted Angie and instructed her to stop taking Depakote. Angie experienced another psychotic episode in December. Dr. Stepansky then prescribed lithium to stabilize her mood. Angie continued to take lithium for the remainder of her pregnancy.
¶ 9 Angie likely became pregnant in early September 2005. Her son, C.M., was born in May 2006 with spina bifida. C.M. has severe cognitive impairment, his jaw and teeth are maldeveloped, and he suffers from other malformations. A neurologist, Dr. George Siegel, has opined that these medical issues were caused by his in utero exposure to Depakote during the early period of embryogenesis. These conditions are permanent.
¶ 10 The Muhammads first brought an action for medical negligence against Northwestern in 2012. Dr. Allen was named as a defendant, but Dr. Stepansky was not. The complaint alleged that:
"Depakote was well known within the medical and mental health communities as a drug that could cause serious, debilitating birth defects to a developing fetus, including the birth defect known as Spina Bifida, and was therefore well known within the same health care communities to be contraindicated for women who are or might become pregnant while using Depakote."
It further alleged that after Angie reported in May 2005 that she might be pregnant:
"Rather than discontinuing the Depakote, and despite knowledge of the well documented and widely accepted dangers associated with the use of Depakote *** the dosage of Depakote was between May and September 2005 increased rather than halted ***."
¶ 11 The Muhammads filed a separate action against Abbott in August 2017, alleging that Abbott failed to provide adequate warnings of Depakote's risk of birth defects. They voluntarily dismissed the Abbott case in June 2018, and the Northwestern case proceeded to a jury trial beginning in August 2018. Before trial, the Muhammads filed a motion in limine to bar the Northwestern defendants from eliciting any evidence that the Muhammads had filed a separate action against Abbott. At the hearing on the motion in limine , the Muhammads’ counsel explained that the Abbott complaint had been filed to preserve the Muhammads’ ability to pursue a remedy against Abbott within the applicable statute of limitations. He added, "if *** we win this trial, then there would be no need to take further action." He went on to argue that any mention of the Muhammads’ action against Abbott would be prejudicial and was otherwise irrelevant. He pointed out that the Northwestern physicians all acknowledged that they were aware that Depakote posed a risk of birth defects and none of them claimed that they would not have prescribed Depakote if they had more information. Defense counsel indicated that the issue could be relevant for purposes of cross-examining Dr. Siegel, one of the Muhammads’ experts. The trial judge tentatively granted the mo...
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