Quaid v. Baxter Healthcare Corp.

• Decision Date: 17 June 2009
• Docket Number: No. 1-08-2727.,1-08-2727.
• Citation: 910 N.E.2d 1236
• Parties: Dennis QUAID and Kimberly Quaid, Parents and Next Friends of Zoe Grace Quaid and Thomas Boone Quaid, Plaintiffs-Appellants, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

910 N.E.2d 1236

Dennis QUAID and Kimberly Quaid, Parents and Next Friends of Zoe Grace Quaid and Thomas Boone Quaid, Plaintiffs-Appellants, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.

No. 1-08-2727.

Appellate Court of Illinois, First District, Third Division.

June 17, 2009.

Harry C. Lee, Keith L. Davidson, Laura P. Gordon, Law Offices of Harry C. Lee, Susan E. Loggans, Susan E. Loggans & Associates, P.C., Chicago, IL, for Plaintiffs-Appellants.

Michele Odorizzi, Sheila M. Finnegan, Sara E. Rauh, Mayer Brown LLP, Chicago, IL, for Defendant-Appellee.

Presiding Justice MURPHY delivered the opinion of the court:

Plaintiffs, Dennis and Kimberly Quaid, parents and next friends of Zoe Grace and Thomas Boone Quaid, brought an action in the circuit court of Cook County against defendant, Baxter Healthcare Corp., alleging negligence and strict liability. The trial court granted defendant's motion to dismiss pursuant to the doctrine of forum non conveniens, finding that California is a substantially more appropriate forum. On appeal, plaintiffs argue that the trial court abused its discretion in granting the motion.

I. BACKGROUND

In November 2007, newborn twins Zoe and Thomas Quaid were hospitalized for treatment of a staph infection at Cedars-Sinai Hospital¹ in Los Angeles, California. On November 18, 2007, their physician prescribed 10 unit/ml of Hep-lock to keep their intravenous lines clear, but hospital personnel made a "medical error" and administered 10,000 unit/ml of Heparin instead.

On December 4, 2007, plaintiffs filed a two-count complaint against Baxter alleging strict liability and negligence. Plaintiffs alleged that the 10 unit/ml vials of Hep-lock and 10,000 unit/ml vials of Heparin manufactured by defendant were in an unreasonably dangerous condition because the labels of both vials had a blue background, which made them difficult to distinguish. They alleged that the background colors should have been different and that the vials should have been completely distinguishable in size and shape. They further alleged that defendant was negligent because it (1) failed to recall or repackage the 10,000 units/ml vial of Heparin, or issue an urgent warning to healthcare providers, when it had actual knowledge of infant deaths that occurred as a result of medication errors, (2) sold different dosages with the same blue background, (3) failed to issue an urgent warning about the fatal medication errors to all healthcare providers who purchased the product or require that such providers initiate mandatory education and implement safety measures so that a fatal medication error would not occur, and (4) failed to provide an adequate after-market solution to the existing vials and to assure that none of the existing vials were used until the after-market solution was implemented.

Defendant filed a motion to dismiss the complaint pursuant to the doctrine of forum non conveniens. It argued that plaintiffs reside in California, the incident occurred in California, all nonparty fact witnesses are likely to be residents of California, and California law would apply. Defendant alleged that it has a "large presence" in California, with 2,600 employees working there, and all of the witnesses who could testify as to how and why the medication error occurred live in California, beyond the subpoena power of the court. Furthermore, defendant alleged that if the case were to proceed in Illinois, it would be unable to implead Cedars-Sinai because the hospital does not do business in Illinois and has no apparent contacts with the state.

Defendant submitted statistical records showing that in 2006, the average time between the opening of a case and a jury verdict in Cook County was 38.1 months. In 2005 through 2006 in Los Angeles County, 65% of general unlimited civil cases were disposed of in less than 12 months, 86% in less than 18 months, and 94% in less than 24 months.

Defendant also relied on the California Department of Health Services' investigation of the error and conclusion that there were "multiple failures by the facility to adhere to established policies & procedures for safe medication use": pharmacy technicians mistakenly sent the pediatric unit 100 vials of 10,000 unit/ml of Heparin instead of the 10 ml/unit vials of Hep-Lock used for flushing intravenous lines, and the nurses who administered the vials then violated hospital procedures by failing to read the labels. The Department of Health Services ordered the hospital to take immediate corrective action to remedy the deficiencies in its procedures and training, which the Department concluded placed patients in "immediate jeopardy" of serious injury or death.

In February 2007, after a similar medication error at Methodist Hospital in Indianapolis, Indiana, involving 10 unit/ml vials of Hep-lock and 10,000 unit/ml vials of Heparin, defendant distributed a Food-and-Drug-Administration (FDA)-approved "Important Medication Safety Alert" warning that a medication error had occurred when two Heparin products were confused and advising healthcare providers to take certain steps to guard against further errors.

The parties were permitted to take discovery limited to the forum non conveniens issue. In their response to the motion, plaintiffs alleged that defendant is incorporated in Delaware, with its corporate headquarters in Deerfield, Illinois and its registered agent in Chicago. Defendant operates in three business segments, with the subject Heparin products falling under the Medication Delivery Segment, which has offices in Deerfield and Round Lake, Illinois. The plant where the vials were processed and labeled is in Cherry Hills, New Jersey, and some of the employees with responsibility over these products work at a Baxter facility in New Providence, New Jersey. Baxter's distribution center for the vials is in Memphis, Tennessee.

Baxter had 42 employees involved in consideration of labeling and packaging changes for the Heparin and Hep-Lock products: 33 current employees, who work in the Illinois and New Jersey facilities, and 9 former employees whose last known addresses are in New Jersey, Pennsylvania, Illinois, and South Carolina. It also identified 37 members of its safe packaging committee, including 31 current employees, who work at Baxter's Illinois and New Jersey facilities, and 6 former employees, who live in Illinois, New Jersey, and Pennsylvania. In addition, the Baxter employees involved in completing its new drug applications and adverse events reports for the Heparin and Hep-Lock products work at facilities in New Jersey and Illinois.

The last known addresses of the people significantly involved in pharmacovigilance and adverse events related to the subject Heparin products before March 2006 are in Pennsylvania and Park Ridge, Illinois. The Baxter employees involved in pharmacovigilance who investigated the September 2006 incident at Methodist Hospital and the November 2007 incident regarding plaintiffs' children currently work at Baxter's Deerfield facility, and the last known addresses of the two former employees who may have sought information about the incident at Methodist Hospital are in Pennsylvania and Texas. The Baxter employees who had interaction with the FDA concerning the incidents at Methodist Hospital and Cedars-Sinai currently work at Baxter's Illinois and New Jersey facilities. Current Baxter employees involved in the drafting, distribution, or review of the medication safety alert work at Baxter's Illinois and New Jersey facilities, and various former employees involved in that work live in New Jersey (three), Illinois (one), and Pennsylvania (one).

According to a Baxter news release, defendant introduced a "New Drug Safety Initiative" in 2007 for the purpose of reducing "medication errors by creating enhanced packaging that provides additional safeguards to assist clinicians in the correct identification of critical medications." In October 2007, Heparin was the first medication offered with new enhanced labeling. Defendant did not issue a recall of the Heparin lacking the new labeling. Defendant's current employees involved in its "New Drug Safety Initiative" work at its facilities in Illinois and New Jersey, and its former employees involved in that work have last known addresses in Pennsylvania and Minnesota.

As part of the "New Drug Safety Initiative," Baxter conducted interviews with more than 100 pharmacists, physicians, and nurses to identify areas for improvement. The companies that Baxter retained to interview clinicians conducted those interviews in Pennsylvania, Florida, New Jersey, Florida, Texas, and Ohio. The Baxter employee who authorized the research works at the New Providence, New Jersey, facility.

Records relating to the Heparin and Hep-Lock products are located in Illinois and New Jersey. Furthermore, defendant has sold its Heparin products to various hospitals in Illinois and has marketed Heparin products in clinical journals that are delivered to residents and clinicians in Illinois.

The trial court noted that California would not be inconvenient to either party, as plaintiffs live there and defendant has 2,600 employees there. Furthermore, citing Berbig v. Sears Roebuck & Co., Inc., 378 Ill.App.3d 185, 317 Ill.Dec. 721, 882 N.E.2d 601 (2007), Skidmore v. Gateway Western Ry. Co., 366 Ill.App.3d 238, 304 Ill.Dec. 401, 852 N.E.2d 857 (2006), and Vinson v. Allstate, 144 Ill.2d 306, 162 Ill. Dec. 43, 579 N.E.2d 857 (1991), the court found that it had "no power to use compulsory process to secure the attendance" of California witnesses, including Cedars-Sinai employees and employees of the California Department of Health Services. More important "from a `fundamental fairness' standpoint, defendant will be unable to file a third-party complaint for contribution against Cedars-Sinai and other medical personnel." The court rejected plaintiffs' contention that defendant's failure to bring...