Wysocki v. Reed, 1-90-2266

• Citation: 222 Ill.App.3d 268,583 N.E.2d 1139
• Decision Date: 15 November 1991
• Docket Number: No. 1-90-2266,1-90-2266
• Parties: , 164 Ill.Dec. 817 Frieda WYSOCKI, as Special Administrator of the Estate of Bohdan Wysocki, Deceased, Plaintiff-Appellant, v. Charles J. REED, Edward V. Scoby and Charles E. Webster, individually and d/b/a Reed, Scoby & Webster, an Illinois partnership, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1139

583 N.E.2d 1139

222 Ill.App.3d 268, 164 Ill.Dec. 817

Frieda WYSOCKI, as Special Administrator of the Estate of Bohdan Wysocki, Deceased, Plaintiff-Appellant, v. Charles J. REED, Edward V. Scoby and Charles E. Webster individually and d/b/a Reed, Scoby & Webster, an Illinois partnership, Defendants-Appellees.

No. 1-90-2266.

Appellate Court of Illinois First District, Sixth Division.

Nov. 15, 1991.

As Modified on Denial of Rehearing Dec. 27, 1991.

James A. Romanyak & Associates, Chicago (Gregory A. Stayart, of counsel), for plaintiff-appellant.

Charles J. Reed and Edward V. Scoby, Louis Hilfman of Hilfman & Fogel, P.C., Charles E. Webster, Alholm & Monahan, Chicago (Peter A. Monahan and Linda J. Hay, of counsel), for defendants-appellees.

MODIFIED OPINION ON DENIAL OF REHEARING

Justice EGAN delivered the modified opinion of the court:

The plaintiff, Frieda Wysocki, brought this complaint against the individual lawyer defendants and their law firm alleging legal malpractice in the handling of the plaintiff's deceased husband's potential products liability claim against two drug manufacturers. In order to recover against the defendants, the plaintiff would have to show that she would have recovered from one or both of the drug manufacturers but for the malpractice of the defendants. Because she was unable to identify which of the two drug manufacturers provided the drug which injured her husband, the trial judge, invoking the traditional rule of causation in fact and rejecting the rule of alternative liability, dismissed the complaint. In seeking the reversal of the judge's order, the plaintiff asks us to adopt the rule of alternative liability which is set forth in the Restatement of Torts as follows:

"When the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm." Restatement (Second) of Torts § 433B(3) (1965).

The plaintiff is the widow of Bohdan Wysocki. On or about October 3, 1975, Bohdan Wysocki entered Loyola University Hospital to receive treatment for phlebitis. He was given the prescription drug heparin, a generic coagulent, which was manufactured either by the Upjohn Company (Upjohn) or Wyeth Laboratories (Wyeth). Both Upjohn and Wyeth sold heparin to the hospital.

Bohdan Wysocki allegedly suffered a severe adverse reaction to the heparin, causing the formation of arterial emboli which impaired his blood circulation. As a result, he suffered permanent injuries, including a cardiovascular accident, amputation of his right leg below the knee, paralysis of his right arm, mental disorientation, and loss of speech, memory and self-control. He became totally disabled and died in 1984.

The plaintiff retained the defendant firm to bring suit to recover for the injuries sustained by her husband. The firm filed a medical malpractice suit against Loyola University Hospital and certain of its physicians in 1977. That suit was settled during trial in late 1982. The firm then filed a products liability suit against Upjohn and Wyeth in 1983. However, the suit against Upjohn and Wyeth was dismissed with prejudice in 1984 because of language in the release which had been drafted by the firm in connection with the settlement of the medical malpractice suit against Loyola University Hospital and its physicians. The plaintiff appealed, and the appellate court affirmed the dismissal. Wysocki v. Upjohn Co. (1987), 157 Ill.App.3d 868, 109 Ill.Dec. 926, 510 N.E.2d 994.

After the affirmance, the plaintiff filed this action against the defendants, asserting that the negligence of the defendants in drafting the release of Loyola University Hospital and its physicians caused her products liability suit to be dismissed with prejudice. The defendants filed a motion to dismiss, alleging that the plaintiff could not identify the manufacturer of the drug that caused the decedent's injuries; therefore, she could not show that "but for" the negligence of the defendants she would have prevailed in the action against the manufacturers.

The plaintiff responded that, under the doctrine of alternative liability, she would not need to identify the manufacturer of the drug given to the decedent. Her complaint alleged that the drug which was administered by the hospital had been manufactured by Wyeth and/or Upjohn. The plaintiff's response admitted that alternative liability had not yet been adopted by the Illinois Supreme Court. However, the plaintiff contended, had her lawsuit against Wyeth and Upjohn proceeded, the Illinois Supreme Court would have adopted the doctrine of alternative liability and her claim against Upjohn and Wyeth would have succeeded.

The trial judge continued the defendants' motion to dismiss until the Illinois Supreme Court issued its opinion in Smith v. Eli Lilly & Co. (1990), 137 Ill.2d 222, 148 Ill.Dec. 22, 560 N.E.2d 324. The Supreme Court's opinion in Smith refused to adopt various market-share and market-risk theories but only briefly discussed the alternative liability theory. It neither accepted nor rejected the theory.

On July 30, 1990, the trial judge granted the defendants' motion and dismissed the complaint with prejudice, stating the following "It's real questionable whether or not the attorney should predict what course Illinois law will take * * * which is a problem I had with it before. I'll grant the motion."

We have quoted the trial judge in order clarify the issues. We interpret his remark to mean that, as a matter of law, he would not find legal malpractice for the reason, in addition to the plaintiff's failure to establish causation in fact, that a lawyer should not be held responsible for failure to anticipate a reviewing court would adopt a particular legal theory. That position has not been advanced in this court by the defendants.

The defendants argue that alternative liability should not be accepted as the law of this state and, if it is accepted, it is not applicable to these facts. The defendant, Webster, argues also that he cannot be liable because he was not a partner in the firm and that the plaintiff's claim is barred by the statute of limitations.

Both sides claim support for their positions in the Smith case. The plaintiff maintains that, because the supreme court expressly rejected other doctrines of tort liability, but not alternative liability, the court implicitly accepted it. The defendants, on the other hand, construe Smith to mean that its refusal to accept the theory advanced by the plaintiff, which was not alternative liability, amounts to a refusal to depart from the traditional requirement of tort law that a plaintiff prove that a defendant did, in fact, cause the injury. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill.2d 401, 256 N.E.2d 6.) Our analysis of the question necessarily begins with discussion of the Smith case.

In Smith, the plaintiff alleged that she had been injured by a drug, abbreviatedly identified as DES, a carcinogen, which her mother had ingested during pregnancy. The plaintiff was unable to identify the manufacturer of the drug given to her mother; she filed suit against 138 drug companies. A witness testified that there were 81 companies that had marketed DES during the relevant time period. Of those 81 potential manufacturers of the drug that injured the plaintiff, 63 were not named in her complaint. After several procedural motions were decided, 20 companies remained in the lawsuit as defendants.

The trial judge denied the defendant's motion for summary judgment on the strict liability count and adopted "market share" liability, based on the California Supreme Court's decision in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 607 P.2d 924. The appellate court affirmed the trial court's holding on the strict liability count and further held that market share liability should also apply to the plaintiff's negligence count. (Smith v. Eli Lilly & Co. (1988), 173 Ill.App.3d 1, 122 Ill.Dec. 835, 527 N.E.2d 333.) However, the appellate court rejected the Sindell rule and instead adopted the Washington Supreme Court's version of market share liability, articulated in Martin v. Abbott Laboratories (1984), 102 Wash.2d 581, 689 P.2d 368. The court also held that the theory of alternative liability was not applicable to DES cases, partly on the ground that "all defendants who could have possibly injured the plaintiff were not before the court." 173 Ill.App.3d at 31, 122 Ill.Dec. 835, 527 N.E.2d 333.

The supreme court granted leave to appeal and examined several exceptions to the traditional causation requirement, including market share liability, enterprise liability, alternative liability, and res ipsa loquitur. However, the court noted that the plaintiff had not cross-appealed from the appellate court's rejection of the alternative liability theory and concluded that it was faced with "only the narrow legal issue of whether to adopt market share liability in negligence and strict liability actions filed by a DES daughter." (137 Ill.2d at 236, 148 Ill.Dec. 22, 560 N.E.2d 324.) In deciding that narrow issue the supreme court refused to accept the doctrine of market share liability as adopted in California (Sindell ) and Washington (Martin). The court also discussed and refused to follow the form of market share liability as adopted by the Wisconsin Supreme Court in Collins v. Eli Lilly Co. (1984), 116 Wis.2d 166, 342 N.W.2d 37 (the "risk contribution" theory) and in the form adopted by the New York Court of Appeals in Hymowitz v. Eli Lilly & Co. (1989), 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (national market share theory).

The Smith opinion is divided into various subheadings, one of which is entitled, "Courts Which Have Rejected Market Share Liability." (137 Ill.2d at 246, 148 Ill.Dec. 22, 560...