Mitsias v. I-Flow Corporation ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Mitsias v. I-Flow Corp., 2011 IL App (1st) 101126Appellate Court ANGELA MITSIAS, a/k/a Angel Mitsias, Plaintiff-Appellant, v. I-FLOW
Caption CORPORATION, STRYKER CORPORATION, and STRYKER SALES
CORPORATION, Defendants-Appellees (STEVEN LEVIN, M.D.,
Defendant).
District & No. First District, Fifth Division
Docket No. 1-10-1126
Filed September 23, 2011
Held In an action arising following plaintiff’s shoulder surgery and the
(Note: This syllabus diagnosis of glenohumeral chondrolysis, the destruction of cartilage in the
constitutes no part of shoulder joint, the trial court erred in dismissing plaintiff’s product
the opinion of the court liability action against the manufacturers of the pain pump used to
but has been prepared administer the anesthetic Marcaine during the surgery as barred by the
by the Reporter of two-year statute of limitations, even though that action was filed six years
Decisions for the after her medical malpractice action was filed against the surgeon, since
convenience of the the statute of limitations does not begin to run with regard to a second
reader.)
source of an injury until it becomes discoverable through diligent inquiry,
and in plaintiff’s case, she knew her injury was caused by one source, but
remained unaware of another source that could not be discovered earlier
through the exercise of diligent inquiry.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-01633; the
Review Hon. John A. Ward, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Bruce D. Goodman, Peter M. Dapier, and Bradley D. Steinberg, all of
Appeal Steinberg, Goodman & Kalish, of Chicago, for appellant.
Paul E. Wojcicki and Matthew C. Jardine, both of Segal McCambridge
Singer & Mahoney, Ltd., of Chicago, for appellee I-Flow Corporation.
Anthony J. Anscombe and C. Kinnier Lastimosa, both of Sedgwick,
Detert, Moran & Arnold LLP, of Chicago, for appellees Stryker
Corporation and Stryker Sales Corporation.
Panel JUSTICE J. GORDON delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice McBride concurred in the judgment
and opinion.
OPINION
¶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 shown 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
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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
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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.”
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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. This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, plaintiff contends that the statute of limitations for her product liability claim
should only begin to run when plaintiff knew or should have known that her injury was
wrongfully caused by a product, rather than when she knew or should have known that her
injury was wrongfully caused without regard to any specific source. She additionally
contends that a contrary interpretation of the discovery rule would deny her rights under the
due process and equal protection provisions of the United States and Illinois Constitutions.
The product liability defendants contest each of these contentions. They additionally argue
that, in any event, plaintiff knew or should have known that her injury was wrongfully caused
by a product no later than August 9, 2006, the date of Dr. Romeo’s first deposition, during
which he mentioned the use of a pain pump in connection with her injury. Thus, they claim
that even under the interpretation of the discovery rule advocated by plaintiff, her February
11, 2009, suit was still untimely.
¶ 18 A
¶ 19 The central issue in this case is how the discovery rule is applied when a plaintiff is
aware that her injury might have been wrongfully caused by one source but is unaware that
her injury might have been caused by another source and, in fact, could not be aware of that
source because the causal link was as yet unknown to science. Defendants contend that as
soon as an injured plaintiff becomes aware that her injury might have been wrongfully caused
by any source, the plaintiff is under a duty to inquire as to all potential sources, and the
statute of limitations therefore begins to run as to all causes of action, even causes of action
that would not be discoverable at that time. Under such a rule, the statute of limitations on
all claims resulting from plaintiff’s injury would have started to run no later than October 22,
2003, the date upon which she filed her initial malpractice lawsuit against Dr. Levin, since
she was certainly alerted to the possibility of some form of wrongful conduct at that point,
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even if she did not yet have any means of discovering that she had been injured by
defendants’ product. Plaintiff, on the other hand, contends that where a particular cause of
action would not be discoverable through reasonable diligence, the statute of limitations as
to that particular cause of action should be tolled until that cause of action becomes
discoverable, even if the statute of limitations has already started to run as to other causes of
action arising out of the same injury. Thus, the statute would not begin to run on plaintiff’s
products liability claim until plaintiff knew or had reason to know that her injury could have
been wrongfully caused by a product, which she asserts did not occur until Dr. Romeo’s
testimony regarding pain pumps at the second session of his deposition on October 24, 2007.
¶ 20 The statute of limitations for products liability actions, which governs the instant appeal,
is set forth in section 13-213 of the Code of Civil Procedure and provides, in relevant part:
“(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of
subsection (c) if the injury complained of occurs within any of the periods provided
by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an
action within 2 years after the date on which the claimant knew, or through the use
of reasonable diligence should have known, of the existence of the personal injury,
death or property damage, but in no event shall such action be brought more than 8
years after the date on which such personal injury, death or property damage
occurred.” (Emphasis added.) 735 ILCS 5/13-213(d) (West 2008).
¶ 21 In applying the two-year statute of limitations set forth in section 13-213(d) and similar
statutes of limitations, Illinois courts have adopted a “discovery rule,” which serves to
“postpone the commencement of the relevant statute of limitations until the injured plaintiff
knows or reasonably should have known that he has been injured and that his injury was
wrongfully caused.” Golla v. General Motors Corp., 167 Ill. 2d 353, 361, 657 N.E.2d 894,
898 (1995) (citing Rozny v. Marnul, 43 Ill. 2d 54, 72-73, 250 N.E.2d 656, 665-66 (1969));
see also Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 169, 421 N.E.2d 864, 868 (1981)
(“the cause of action accrues when the plaintiff knows or reasonably should know of an
injury and also knows or reasonably should know that the injury was caused by the wrongful
acts of another”). Our supreme court in Knox College v. Celotex Corp., 88 Ill. 2d 407, 430
N.E.2d 976 (1982), explained the discovery rule in Illinois as follows:
“This court has recently considered the discovery rule in depth in two cases, and has
adopted a construction of the rule which can be termed neither narrow nor expansive.
That is, we have held that the event which triggers the running of the statutory period
is not the first knowledge the injured person has of his injury, and, at the other
extreme, we have also held that it is not the acquisition of knowledge that one has a
cause of action against another for an injury he has suffered. Rather, *** the statute
starts to run when a person knows or reasonably should know of his injury and also
knows or reasonably should know that it was wrongfully caused.” Knox, 88 Ill. 2d
at 414-15, 430 N.E.2d at 980.
Our supreme court has explained that this rule is intended to encourage diligent investigation
on the part of potential plaintiffs without foreclosing claims of which plaintiffs could not
have been aware, stating, “In that way, an injured person is not held to a standard of knowing
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the inherently unknowable [citation], yet once it reasonably appears that an injury was
wrongfully caused, the party may not slumber on his rights.” Nolan, 85 Ill. 2d at 171, 421
N.E.2d at 868 (citing Urie v. Thompson, 337 U.S. 163, 169 (1949)); see Rozny, 43 Ill. 2d at
70, 250 N.E.2d at 665 (discovery rule has been designed to mitigate “the hardship to the
plaintiff who neither knows nor should have known of the existence of his right to sue”);
Lipsey v. Michael Reese Hospital, 46 Ill. 2d 32, 41, 262 N.E.2d 450, 455 (1970) (“It is
manifestly unrealistic and unfair to bar a negligently injured party’s cause of action before
he had had an opportunity to discover that it exists.”).
¶ 22 The notion of “wrongful cause,” as it has been developed by courts in Illinois, has two
elements: that of cause and that of wrongfulness. With regard to the first element, plaintiff
must have sufficient information to conclude that her injury was caused by the acts of
another. Nolan, 85 Ill. 2d at 169, 421 N.E.2d at 868; Roper v. Markle, 59 Ill. App. 3d 706,
710, 375 N.E.2d 934, 938 (1978) (it is a prerequisite for the triggering of the statute of
limitations that the injured plaintiff has actual or constructive knowledge of “the possibility
that someone is at fault for [the injury’s] existence”). If the plaintiff is not aware that
someone may be “at fault” for her injury, then the statute of limitations will not begin to run.
Roper, 59 Ill. App. 3d at 711, 375 N.E.2d at 938 (“That in some types of cases an awareness
of a physical problem also carries with it awareness of its wrongful causation, does not
dictate a triggering of the limitations period in all malpractice cases when one becomes aware
solely of a physical problem.”). Thus, for instance, in Nolan, where an asbestos worker who
contracted asbestosis brought suit against the manufacturers, sellers, and distributors of
asbestos products, the court held that the statute of limitations did not begin to run until he
had sufficient information to conclude that his condition was caused by exposure to asbestos
materials at work, even though he had allegedly been aware of his lung problems for many
years prior to his receipt of such information. Nolan, 85 Ill. 2d at 171-72, 421 N.E.2d at 869.
Similarly, in Roper, 59 Ill. App. 3d at 712, 375 N.E.2d at 939, cited with approval in Nolan,
85 Ill. 2d at 170, 421 N.E.2d at 868, where a negligently performed hysterectomy caused
plaintiff’s kidney to become infected, the statute of limitations did not begin to run until
plaintiff had reason to know of the possibility that her kidney infection was the result of the
actions of the doctor who performed the hysterectomy, rather than by some nonnegligent
organic cause.
¶ 23 As for the element of wrongfulness, an injured plaintiff should reasonably know that her
injury is wrongfully caused, and the statute of limitations begins to run, as soon as she has
sufficient information about her injury and its cause to spark inquiry in a reasonable person
as to whether the conduct of the party who caused her injury might be legally actionable.
Knox, 88 Ill. 2d at 416, 430 N.E.2d at 980; cf. Nair v. Bloom, 383 Ill. App. 3d 867, 871, 890
N.E.2d 1113, 1116-17 (2008) (statute of limitations was not triggered where, shortly
following abdominal surgery, plaintiff experienced pain and weakness in her legs but was
reassured by her physicians that this was a common side effect of abdominal surgeries). At
this point, the burden is upon the injured plaintiff to investigate whether she has a viable
cause of action. Knox, 88 Ill. 2d at 416, 430 N.E.2d at 980 (stressing “the rule and obligation
of the person to make diligent inquiry” once she knows or reasonably should know of her
injury and that it is wrongfully caused).
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¶ 24 Knowledge of “wrongful cause” does not require knowledge on the part of plaintiff that
the defendant’s conduct fits the technical legal definition of negligence or that all the legal
elements of a particular cause of action are otherwise satisfied. Knox, 88 Ill. 2d at 415-16,
430 N.E.2d at 980. However, it still requires that plaintiff is or should be aware of some
possible fault on the part of the defendant, as has been elucidated by the cases following
Knox. Thus, courts have held that reasonable knowledge of wrongful cause requires more
than a mere suspicion that wrongdoing might have occurred, if that suspicion is not yet
supported by facts known to plaintiff:
“[S]uspecting wrongdoing clearly is not the same as knowing that a wrong was
probably committed. *** The trier of fact must examine the factual circumstances
upon which the suspicions are predicated and determine if they would lead a
reasonable person to believe that wrongful conduct was involved. The fact that a
party suspects wrongful conduct, without examining the reasons underlying those
suspicions, is not enough to constitute constructive knowledge that an injury was
wrongfully caused.” Young v. McKiegue, 303 Ill. App. 3d 380, 390, 708 N.E.2d 493,
501 (1999).
See LaManna v. G.D. Searle & Co., 204 Ill. App. 3d 211, 218 (1990) (“Plainly, suspicion
is not the same as reasonably knowing.”). For instance, in Young, shortly after decedent’s
death, the plaintiff widow questioned doctors about the care received by decedent. Young,
303 Ill. App. 3d at 383, 708 N.E.2d at 497. The Young court held that her mere suspicion that
something might have gone wrong was insufficient to determine as a matter of law that she
knew or should reasonably have known that decedent’s death was wrongfully caused at that
time. Young, 303 Ill. App. 3d at 390, 708 N.E.2d at 501.
¶ 25 Our supreme court has not directly addressed the operation of the statute of limitations
where a plaintiff is aware that her injury might have been wrongfully caused by one source,
but could not as yet have been aware of another potential source at that time. However, in
defining the contours of the discovery rule in Nolan and Knox, our supreme court looks for
guidance to the United States Supreme Court decision of United States v. Kubrick, 444 U.S.
111 (1979), in which the Court implied that the beginning of the period of limitations would
depend upon the discoverability of the claim at issue.
¶ 26 The Kubrick plaintiff brought suit in 1972 to recover for a hearing loss allegedly caused
by medical malpractice in a Veterans Administration hospital. Kubrick, 444 U.S. at 114. He
was aware in 1969 that the probable cause of his hearing loss was an antibiotic he received
at the hospital, but not until 1971 was he informed by a physician that the antibiotic should
not have been administered. Kubrick, 444 U.S. at 114. The Kubrick Court held that the
statute of limitations began to run in 1969, that is, at the time plaintiff was aware of his injury
and the cause of his injury, even though he had not yet been told that the treatment at issue
was a violation of the standard of care. Kubrick, 444 U.S. at 122. (As noted, this is the same
formulation of the discovery rule adopted by our supreme court, namely, that the period of
limitations begins when plaintiff knows or reasonably should know of her injury and its
cause. See Knox, 88 Ill. 2d at 416, 430 N.E.2d at 980; Nolan, 85 Ill. 2d at 169, 421 N.E.2d
at 868.) The Kubrick Court explained:
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“We are unconvinced that for statute of limitations purposes a plaintiff’s ignorance
of his legal rights and his ignorance of the fact of his injury or its cause should
receive identical treatment. That he has been injured in fact may be unknown or
unknowable until the injury manifests itself; and the facts about causation may be in
the control of the putative defendant, unavailable to the plaintiff or at least very
difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the
critical facts that he has been hurt and who has inflicted the injury. He is no longer
at the mercy of the latter. There are others who can tell him if he has been wronged,
and he need only ask. If he does ask and if the defendant has failed to live up to
minimum standards of medical proficiency, the odds are that a competent doctor will
so inform the plaintiff.” (Emphasis added.) Kubrick, 444 U.S. at 122.
With regard to the facts of the case at hand, the Kubrick Court stated that, given the trial
court’s factual finding that the treatment at issue violated the standard of care, which was not
contested on appeal, plaintiff “need only have made inquiry among doctors with average
training and experience in such matters to have discovered that he probably had a good cause
of action.” Kubrick, 444 U.S. at 122-23. The Court further stated, “If there exists in the
community a generally applicable standard of care with respect to the treatment of his
ailment, we see no reason to suppose that competent advice would not be available to the
plaintiff as to whether his treatment conformed to that standard.” Kubrick, 444 U.S. at 123-
24.
¶ 27 Thus, the fact that plaintiff could have discovered his cause of action within the statutory
period through reasonable diligence forms a central part of the Kubrick Court’s analysis. As
noted, the need for plaintiffs to investigate their potential claims with reasonable diligence
has likewise shaped the development of the discovery rule in Illinois. See Knox, 88 Ill. 2d
at 416, 430 N.E.2d at 980 (stating “the rule and obligation of the [injured] person to make
diligent inquiry” (citing Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874 (1981)
(once an injured person knows or should reasonably know that he is injured and that his
injury was wrongfully caused, “the burden is upon the injured person to inquire further”)));
see Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868 (“once it reasonably appears that an injury
was wrongfully caused, the party may not slumber on his rights”). Although the Kubrick
Court had no occasion to consider a scenario in which the cause of action would not be
discoverable through reasonable diligence, it seems likely that a different result would obtain,
since the rule articulated by the Court is founded upon the presumption of discoverability.
¶ 28 The present case, as noted, requires us to rule upon the operation of the discovery rule
in a situation where a plaintiff is aware of one potential wrongful cause of her injury, but she
does not yet know, nor could she reasonably discover, a second potential wrongful cause,
because the state of our scientific knowledge is as yet inadequate to unearth that second
cause. Permitting knowledge of the one to trigger the discovery rule as to the other would
seem to defeat the policy and purpose behind the discovery rule, which is to accommodate
the need of the victim, upon reasonable inquiry, to discover her cause of action against a
defendant who has wronged her. Therefore, where plaintiff has discovered one cause of her
injury, but has not and, in fact, could not have discovered a second cause, tolling the statute
of limitations with regard to that second claim until such time as “[t]here are others who can
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tell him if he has been wronged, and he need only ask” (Kubrick, 444 U.S. at 122) would
seem to be a logical extension of the Kubrick decision, as well as one that flows from our
supreme court’s concern that plaintiffs conduct diligent inquiry into potential causes of
action without slumbering on their rights.
¶ 29 In the instant case, accepting the allegations in plaintiff’s amended complaint as true,
plaintiff did not slumber on her rights. She brought a timely medical malpractice suit within
two years of her injury, and her delay in bringing her products liability suit was not due to
any lack of diligence on her part but, rather, to the fact that the scientific community was not
aware of the dangers associated with pain pumps until the summer of 2007. Indeed, while
there may be a question of fact as to when the link between pain pumps and chondrolysis
became known to science, there is no question that plaintiff could not have known of any
potential products liability cause of action against the pain pump manufacturers while the
causal link between her injury and the pain pump used upon her was not scientifically
discoverable. As has been discussed, our supreme court has expressed concern that plaintiffs
should not be “held to a standard of knowing the inherently unknowable.” Nolan, 85 Ill. 2d
at 171, 421 N.E.2d at 868 (citing Urie, 337 U.S. at 169); see Lipsey, 46 Ill. 2d at 41, 262
N.E.2d at 455 (“It is manifestly unrealistic and unfair to bar a negligently injured party’s
cause of action before he has had an opportunity to discover that it exists.”). If we were to
adopt defendants’ proposed construction of the discovery rule, holding that the statute of
limitations on plaintiff’s products liability claim began to run and, in fact, expired at a time
when it was yet unknowable, we would be doing precisely that which the Nolan court sought
to avoid.
¶ 30 Plaintiff additionally contends, and we agree, that the rule she urges comports with the
statutory scheme enacted by the legislature with regard to products liability claims, as
reflected in section 13-213 of the Code of Civil Procedure:
“(b) Subject to the provisions of subsections (c) and (d) no product liability action
based on any theory or doctrine shall be commenced except within the applicable
limitations period and, in any event, within 12 years from the date of first sale, lease
or delivery of possession by a seller or 10 years from the date of first sale, lease or
delivery of possession to its initial user, consumer, or other non-seller, whichever
period expires earlier, of any product unit that is claimed to have injured or damaged
the plaintiff ***.
***
(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of
subsection (c) if the injury complained of occurs within any of the periods provided
by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an
action within 2 years after the date on which the claimant knew, or through the use
of reasonable diligence should have known, of the existence of the personal injury,
death or property damage, but in no event shall such action be brought more than 8
years after the date on which such personal injury, death or property damage
occurred.” 735 ILCS 5/13-213 (West 2008).
Thus, the products liability statute makes a clear distinction between the statute of repose,
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which is either 10 years or 12 years depending on the product’s sales history, and the statute
of limitations for products liability actions, which is 2 years from the date that the plaintiff
discovers her injury. 735 ILCS 5/13-213 (West 2008). The statute further limits liability by
stating that product liability actions based on injury, regardless of the time of discovery, must
be brought within eight years of the injury, thus creating a rigid span of time after which
recovery is impossible regardless of whether plaintiff’s failure to discover her claim was due
to any lack of diligence on her part. 735 ILCS 5/13-213(d) (West 2008). The interpretation
of the discovery rule urged by defendants in this appeal would disrupt this statutory scheme
in cases such as the present one by, in effect, transforming the two-year statute of limitations
into a new statute of repose, since it would serve as an absolute bar on liability on claims that
are not discoverable within that two-year period, as long as plaintiff has been alerted to the
potential presence of at least one other claim.
¶ 31 Thus, in keeping with the statute itself, the thrust of Kubrick as cited with approval by
our supreme court in Nolan and Knox, and our supreme court’s concern that plaintiffs should
investigate their claims with diligence without being “held to a standard of knowing the
inherently unknowable” (Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868 (citing Urie, 337 U.S.
at 169)), we hold that, where a plaintiff knows or should reasonably know that her injury was
caused by one source, but remains unaware of another source that could not be discovered
through the exercise of diligent inquiry, the statute of limitations does not begin to run with
regard to that second source until such time as that second source would become
discoverable through diligent inquiry.
¶ 32 Defendants argue that our holding is contrary to the language of Knox, citing Knox for
the proposition that “the statute [of limitations] is not triggered with ‘the acquisition of
knowledge that one has a cause of action against another for an injury he has suffered.’ ”
(Emphasis in original.) See Knox, 88 Ill. 2d at 415, 430 N.E.2d at 980. However, in context,
the Knox court was not purporting to state that a cause of action can accrue before a plaintiff
could possibly have known of its existence through the exercise of reasonable diligence. As
noted, the Knox court did not directly address such a situation. Rather, the Knox court was
elaborating on the threshold of knowledge required for a plaintiff to be aware that her injury
is “wrongfully caused”: plaintiff does not need to be aware that she has a viable cause of
action, for such awareness “ ‘assumes a conclusion which must properly await legal
determination.’ ” Knox, 88 Ill. 2d at 415, 430 N.E.2d at 980. Thus, as noted, a plaintiff’s duty
of inquiry begins well before she can be certain that defendant’s conduct satisfies all
elements of a particular cause of action, as long as she is aware that her injury might have
been “wrongfully caused” in a general, non-technical sense. Knox, 88 Ill. 2d at 416, 430
N.E.2d at 980. Yet this statement by the Knox court does not foreclose recovery in a case
such as the present one, where a reasonably diligent person in plaintiff’s position would
allegedly have had no reason to believe that her injury might have been wrongfully caused
by a product until years later.
¶ 33 Defendants nevertheless cite Hoffman v. Orthopedic Systems, Inc., 327 Ill. App. 3d 1004,
765 N.E.2d 116 (2002), McCormick v. Uppuluri, 250 Ill. App. 3d 386, 621 N.E.2d 57 (1993),
and Wells v. Travis, 284 Ill. App. 3d 282, 672 N.E.2d 789 (1996), for the proposition that,
as soon as an injured plaintiff knows or should know that her injury might have been
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wrongfully caused by any source, the statute of limitations begins to run as to all potential
defendants and causes of action. However, these cases are at worst distinguishable and, in
fact, can be construed as supportive of our reading of the discovery rule, since in all three of
these cases, the court attributes significance to the fact that the plaintiff’s untimely filing was
due to the fact that he or she failed to conduct sufficient investigation within the statutory
timeframe. Since the courts in these cases consistently rely upon the plaintiffs’ lack of
diligence in declaring their claims to be time-barred, it is implied that a different result might
have been reached if the plaintiffs had acted with full diligence and still been unable to
discover the claims at issue.
¶ 34 Hoffman, like the present case, involves a plaintiff injured in surgery who was aware of
a potential malpractice claim but did not discover that she might have a products liability
claim until years later. Four to six months after being severely injured as a result of back
surgery, the Hoffman plaintiff asked her attorney to investigate any potential medical
malpractice claim arising out of that surgery, though it would appear that she did not conduct
any investigation into potential products liability claims or file any suit at that time. Hoffman,
327 Ill. App. 3d at 1007, 1011, 765 N.E.2d at 119, 122. Nearly three years after her injury,
when the plaintiff returned to the same hospital for an unrelated surgery, hospital staff
volunteered the information that her injuries had been caused by the surgical platform on
which she was placed during the surgery. Hoffman, 327 Ill. App. 3d at 1007, 765 N.E.2d at
120. She then brought a product liability suit against the manufacturer of the surgical
platform. Hoffman, 327 Ill. App. 3d at 1008, 765 N.E.2d at 120.
¶ 35 Under these facts, the Hoffman court found that plaintiff’s claim was time-barred by the
two-year statute of limitations for product liability actions, holding that it began to run no
later than four to six months after her injury, when she requested that her attorney investigate
a possible malpractice claim. Hoffman, 327 Ill. App. 3d at 1011, 765 N.E.2d at 122. It stated
that the statute of limitations begins to run “when plaintiff becomes aware that the cause of
the problem stems from another’s negligence and not from natural causes,” which, if read
out of context, would seem to support defendants’ position in the instant action. Hoffman,
327 Ill. App. 3d at 1010, 765 N.E.2d at 122. However, the Hoffman court did not rely upon
this statement as a blanket principle that would apply regardless of a plaintiff’s diligence but,
rather, drew additional support from the fact that the plaintiff might have been able to
discover her products liability claim within the limitations period if she had undertaken
diligent inquiry. In this vein, the court stated:
“Plaintiff’s failure to pursue a more thorough inquiry to find the cause of her
injuries does not excuse her from failing to comply with the statute of limitations.
Plaintiff could have attempted to obtain the results of the hospital’s investigation of
this incident, with appropriate further investigation by her attorneys, particularly
since Dr. Conrad voluntarily divulged its conclusions.
*** It would be manifestly unjust to visit a stale claim upon a putative defendant
by reason of inadequate investigative procedures, particularly where the Code and
supreme court rules provide substantial avenues of inquiry to a plaintiff who knew
that the potential for wrongdoing could have been the cause of her injuries.”
Hoffman, 327 Ill. App. 3d at 1011, 765 N.E.2d at 122.
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Thus, the Hoffman decision appears to rely, at least in part, on its determination that
plaintiff’s product liability claim would have been discoverable through diligent
investigation, a reliance which comports with our supreme court’s concern that putative
plaintiffs investigate potential claims instead of slumbering on their rights. See Nolan, 85 Ill.
2d at 171, 421 N.E.2d at 868.
¶ 36 Similarly, in McCormick and Wells, the court also relies in part upon plaintiffs’ failure
to investigate fully upon learning of their injuries in finding the claims at issue to be time-
barred. Both of these cases are medical malpractice suits in which an injured plaintiff
originally sought recovery against a certain doctor or doctors but did not discover facts
implicating the defendant doctor until years later. In McCormick, the defendant physician
treated plaintiff’s kidney obstruction in 1984, and plaintiff’s kidney subsequently became
nonfunctional. McCormick, 250 Ill. App. 3d at 387, 621 N.E.2d at 58. Plaintiff brought a
medical malpractice suit against two other physicians and the hospital, but not the defendant
physician. McCormick, 250 Ill. App. 3d at 387, 621 N.E.2d at 58. More than two years later,
plaintiff received a doctor’s opinion that his injury was caused by the negligence of the
defendant physician, and he brought a second medical malpractice suit against the defendant.
McCormick, 250 Ill. App. 3d at 387, 621 N.E.2d at 58. The McCormick court found that this
second suit was time-barred, holding that, as a matter of law, the statute of limitations began
to run no later than the date upon which plaintiff filed his first medical malpractice suit, since
he must have had knowledge at that time that he was injured and that such injury might have
been wrongfully caused. McCormick, 250 Ill. App. 3d at 391-92, 621 N.E.2d at 61.
¶ 37 In reaching this conclusion, the McCormick court stated that a plaintiff’s cause of action
does not accrue when plaintiff becomes aware that his injury may have been caused by the
wrongful actions of a particular defendant but, rather, as soon as he becomes aware that his
injury may have been caused by wrongful conduct in general. McCormick, 250 Ill. App. 3d
at 391, 621 N.E.2d at 61. However, the McCormick court also states: “Significantly, this is
not a case where defendant’s identity was concealed. His identity was disclosed in Ingalls’
medical records which plaintiff possessed prior to filing the [initial] action. Any reasonable
discovery attempts should have included ascertaining defendant’s involvement in this case.”
McCormick, 250 Ill. App. 3d at 392, 621 N.E.2d at 61. Thus, the McCormick court explicitly
relied upon plaintiff’s lack of diligence in investigating potential claims arising from his
injury. In doing so, it implies that a different result might be reached in a case such as the
present one where plaintiff investigates diligently but is unable to discover a cause of her
injury within two years.
¶ 38 Finally, in Wells, 284 Ill. App. 3d at 284, 672 N.E.2d at 791, following the death of
plaintiff’s decedent, the plaintiff brought a medical malpractice suit against a physician and
then amended her action to add a second physician. The second physician successfully
moved to dismiss the counts against him as time-barred, and the Wells court affirmed. Wells,
284 Ill. App. 3d at 284, 672 N.E.2d at 791. In filing her initial suit, plaintiff had relied on a
report by her section 2-622 expert, who in essence opined that the first physician had
committed malpractice, but the second physician had not. Wells, 284 Ill. App. 3d at 284, 672
N.E.2d at 791. During the course of discovery in that action, experts of the first physician
opined that the second physician was the one at fault, prompting plaintiff to amend her action
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to add the second physician. Wells, 284 Ill. App. 3d at 285, 672 N.E.2d at 791. Under these
facts, the Wells court, following the McCormick decision, held that as a matter of law, the
limitations period commenced as soon as plaintiff received the report from her expert which
implicated the first physician and exonerated the second physician. Wells, 284 Ill. App. 3d
at 292, 672 N.E.2d at 796. However, it is clear from the facts of the case that plaintiff was
aware that the second physician was involved in the treatment of plaintiff’s decedent, even
though she originally did not believe him to have committed any negligence. Wells, 284 Ill.
App. 3d at 284, 672 N.E.2d at 791. Moreover, the Wells court states, “[W]e will not create
an exception to the statute of limitations because plaintiff elected to rely on the opinion of
her chosen expert rather than continuing her investigation,” implying that, if plaintiff had
continued her investigation, she might have been able to uncover evidence implicating the
second physician in decedent’s death within the statutory period. Wells, 284 Ill. App. 3d at
292, 672 N.E.2d at 796. Thus, as with Hoffman and McCormick, Wells is, at the very least,
distinguishable from the present case, and it does not run contrary to our holding that, where
a plaintiff knows or should reasonably know one cause of her injury, but another cause
remains both undiscovered and undiscoverable, the statute of limitations with regard to that
second cause is tolled until such time as that second cause would become discoverable.
¶ 39 In this regard, we find the California case of Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d
914 (Cal. 2005), to be highly instructive, since, unlike Hoffman, McCormick, and Wells, it
directly confronts the issue of when the statute of limitations begins for a plaintiff who is
aware that her injury might have been “wrongfully caused” by medical malpractice but could
not have discovered her potential product liability claim until years later. The California
Supreme Court sums up its holding in Fox as follows:
“We conclude that, under the delayed discovery rule, a cause of action accrues
and the statute of limitations begins to run when the plaintiff has reason to suspect
an injury and some wrongful cause, unless the plaintiff pleads and proves that a
reasonable investigation at that time would not have revealed a factual basis for that
particular cause of action. In that case, the statute of limitations for that cause of
action will be tolled until such time as a reasonable investigation would have
revealed its factual basis.” Fox, 110 P.3d at 917.
¶ 40 The facts of Fox are analogous to those in the instant case. The plaintiff in Fox was
injured as a result of gastric bypass surgery and brought a medical malpractice suit against
the doctor who performed the surgery on April 6, 2000. Fox, 110 P.3d at 917. In a deposition
given on August 13, 2001, the doctor testified that plaintiff’s injuries might have been caused
by a stapler used during her surgery. Fox, 110 P.3d at 918. Plaintiff subsequently amended
her complaint on November 28, 2001, to add a products liability claim against the
manufacturer of the stapler. Fox, 110 P.3d at 918. She specifically alleged that reasonable
diligence would not have caused her to suspect the stapler as a cause of her injuries at any
time before her doctor’s deposition on August 13, 2001. Fox, 110 P.3d at 918. The
manufacturer sought to dismiss the products liability claim under California’s one-year
statute of limitations for products liability actions. Fox, 110 P.3d at 918.
¶ 41 In assessing these facts, the California Supreme Court applied its discovery rule, which
“postpones accrual of a cause of action until the plaintiff discovers, or has cause to discover,
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the cause of action.” Fox, 110 P.3d at 920. As in Illinois, the period of limitations in
California is not dependent upon a plaintiff’s knowledge that the specific elements of a cause
of action have been satisfied; instead, the court looks to whether plaintiffs have reason to
believe that they have been injured by wrongdoing. Fox, 110 P.3d at 920. Under this rule,
the Fox court held that the plaintiff’s claim would not be time-barred as long as she could
plead and prove facts supporting her allegation that she did not have reason to discover facts
supporting her products liability action until after her doctor’s deposition. Fox, 110 P.3d at
922-23. More broadly, the court found that “if a plaintiff’s reasonable and diligent
investigation discloses only one kind of wrongdoing when the injury was actually caused by
tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute
of limitations on the newly discovered claim.” Fox, 110 P.3d at 924.
¶ 42 In rendering this holding, the Fox court explicitly rejected the proposition that “ ‘[w]hen
a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute starts
to run as to all potential defendants.’ ” (Emphasis in original.) Fox, 110 P.3d at 917 (quoting
Bristol-Myers Squibb Co. v. Superior Court, 38 Cal. Rptr. 298, 304 (Cal. Ct. App. 1995)).
The court explained:
“Were plaintiffs required to file all causes of action when one cause of action
accrued, *** they would run the risk of sanctions for filing a cause of action without
any factual support. [Citations.] Indeed, it would be difficult to describe a cause of
action filed by a plaintiff, before that plaintiff reasonably suspects that the cause of
action is a meritorious one, as anything but frivolous.” Fox, 110 P.3d at 925.
The Fox court further emphasized that such a rule would not encourage plaintiffs to employ
dilatory tactics or “wait for the facts.” Fox, 110 P.3d at 925. It explained that, in order to
utilize the discovery rule to delay accrual of a cause of action, a plaintiff must show that she
was unable to have discovered the necessary information earlier despite reasonable diligence.
Fox, 110 P.3d at 925. Thus, plaintiffs who chose to wait instead of diligently investigating
would not be able to avoid summary judgment on statute of limitations grounds. Fox, 110
P.3d at 925.
¶ 43 We find the rule and the reasoning of Fox to be in line with the discovery rule as it has
developed in Illinois, for the reasons stated above. In particular, as noted, Illinois has an
interest in encouraging reasonable diligence by plaintiffs in investigating potential tort claims
(Knox, 88 Ill. 2d at 416, 430 N.E.2d at 980; Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868;
Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874); this rule will ensure that claims do not accrue
before they could have been discovered through reasonable diligence and, at the same time,
will not permit plaintiffs to slumber on their rights.
¶ 44 Due to our resolution of this issue, we need not reach plaintiff’s contention that
interpretation of the discovery rule to bar her product liability claims would be a violation
of her procedural due process rights and her right to equal protection of the laws.
¶ 45 B
¶ 46 Defendants finally contend that, notwithstanding the foregoing, the trial court was correct
in dismissing plaintiff’s product liability claims as time-barred because plaintiff should have
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known that her injury might have been caused by defendants’ product no later than August
9, 2006, the date of Dr. Romeo’s first deposition, when he mentioned that postoperative
delivery of the anesthetic Marcaine via a pain pump might have been a contributing cause
to plaintiff’s injury.
¶ 47 At the outset, plaintiff argues that we do not have jurisdiction to consider this question,
since, in granting defendants’ motion to dismiss, the trial court accepted defendants’
construction of the discovery rule and explicitly rejected the need to reach this issue.
However, we disagree with plaintiff’s contention, as we may affirm on any basis appearing
in the record, whether or not the trial court relied on that basis. See, e.g., Busch v. Graphic
Color Corp., 169 Ill. 2d 325, 347-48, 662 N.E.2d 397, 409 (1996) (affirming portion of
decision for reasons different from those relied upon by the courts below); King v. Paul J.
Krez Co., 323 Ill. App. 3d 532, 536, 752 N.E.2d 605, 608 (2001).
¶ 48 Plaintiff nevertheless cites Goodrich v. Sprague, 376 Ill. 80, 86, 32 N.E.2d 897, 900
(1941), for the proposition that an appellate court may not rule upon matters that were not
ruled upon by the trial court. In Goodrich, after a trial, the jury found in favor of the plaintiff.
Goodrich, 376 Ill. at 82, 32 N.E.2d at 898. The defendant filed a motion for judgment
notwithstanding the verdict and, in the alternative, a motion for a new trial. Goodrich, 376
Ill. at 82, 32 N.E.2d at 898. The trial court granted the defendant’s motion for judgment
notwithstanding the verdict and therefore did not rule upon its motion for a new trial.
Goodrich, 376 Ill. at 82, 32 N.E.2d at 898. On appeal, the appellate court reversed the trial
court with regard to the motion for judgment notwithstanding the verdict. Goodrich, 376 Ill.
at 82, 32 N.E.2d at 898. It then denied the defendant’s motion for a new trial and entered
judgment for the estate. Goodrich, 376 Ill. at 82, 32 N.E.2d at 898. Our supreme court held
that the appellate court lacked jurisdiction to rule upon the defendant’s motion for a new
trial, insofar as that motion had not been ruled upon by the trial court. Goodrich, 376 Ill. at
86, 32 N.E.2d at 900. It was in this context that the Goodrich court explained that “the
Appellate Court’s jurisdiction is appellate, and extends only to those matters in controversy
which have been ruled upon by the trial court.” Goodrich, 376 Ill. at 86, 32 N.E.2d at 900.
¶ 49 Goodrich is inapplicable to the instant case because, unlike in Goodrich, we are not
ruling upon a motion which the trial court declined to consider. Rather, we are considering
the merits of defendants’ motion to dismiss, a motion which the trial court granted.
Defendants are merely attempting to proffer alternative grounds for granting a motion upon
which the trial court has already ruled and from which the instant appeal was taken. This
motion would therefore be a “matter[ ] in controversy which [has] been ruled upon by the
trial court” within the meaning of Goodrich. The case of Canel & Hale, Ltd. v. Tobin, 304
Ill. App. 3d 906, 921-22, 710 N.E.2d 861, 874 (1999) (where trial court failed to rule on
defendants’ section 2-619 motion, appellate court lacked jurisdiction over the merits of that
motion), also cited by plaintiff on this point, is likewise inapplicable to the situation at hand.
¶ 50 Plaintiff’s attempted reliance on Marshall v. Burger King Corp., 222 Ill. 2d 422, 856
N.E.2d 1048 (2006), and on Williams v. Board of Education of the City of Chicago, 222 Ill.
App. 3d 559, 584 N.E.2d 257 (1991), is similarly misplaced. Both of these cases deal with
waiver and forfeiture. Thus, in Marshall, 222 Ill. 2d at 430-31, 856 N.E.2d at 1054, the court
found that defendants forfeited their argument that their conduct did not proximately cause
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the decedent’s injuries because they did not raise such argument before the trial court.
Similarly, in Williams, 222 Ill. App. 3d at 565-66, 584 N.E.2d at 266, where defendant
sought a dismissal order from the trial court based solely on the statute of limitations,
defendant was held to have waived any tort immunity argument on appeal. However, in the
instant case, defendants properly raised the argument before the trial court, urging that, even
if plaintiff’s interpretation of the discovery rule were correct, the statute of limitations would
have begun to run on her claim no later than August 9, 2006, when Dr. Romeo gave his first
deposition. Notwithstanding that the argument was properly raised, the court found no need
to address it. Thus, unlike in Marshall and Williams, the argument here was not waived or
forfeited.
¶ 51 Nor can support for plaintiff’s jurisdictional argument be found in the final case cited by
plaintiff on this matter, Graves v. Illinois Liquor Control Comm’n, 55 Ill. App. 3d 888, 892,
371 N.E.2d 368, 371 (1977), since Graves does not deal with any jurisdictional limitation
but, rather, the inability of a court of appeal to decide an issue where the record is inadequate
for decision. The Graves court reversed the revocation of plaintiff’s liquor license by the
State of Illinois Liquor Control Commission, holding that the charges against plaintiff were
insufficiently clear and specific to allow the preparation of a defense. Graves, 55 Ill. App.
3d at 891-92, 371 N.E.2d at 370. The Commission nevertheless argued that, even if the
charges against the plaintiff were not proper, a revocation was supported by evidence
adduced at the hearing before the Commission. Graves, 55 Ill. App. 3d at 892, 371 N.E.2d
at 371. The Graves court declined to consider this contention, explaining, “To attempt to
consider and review the evidence adduced at a hearing which was commenced by charges
so inadequate as to hamper the preparation of a defense would be an exercise in reductio ad
absurdum.” Graves, 55 Ill. App. 3d at 892, 371 N.E.2d at 370. Thus, the court is not stating
a jurisdictional limitation but finding that, under the circumstances, the court did not have
sufficient facts to render a ruling on the merits. Graves, 55 Ill. App. 3d at 892, 371 N.E.2d
at 370.
¶ 52 Plaintiff next contends substantively that the question of when she knew or should have
known that her injury might have been wrongfully caused by a pain pump is a disputed
question of fact and therefore cannot be resolved upon a motion to dismiss. We agree. The
question of when a party knew or reasonably should have known that she was injured and
that her injury was wrongfully caused is a question of fact unless the facts are undisputed and
only a single conclusion may be drawn from them. Nolan, 85 Ill. 2d at 171, 421 N.E.2d at
868-69 (remanding for determination of this factual issue); Knox, 88 Ill. 2d at 416, 430
N.E.2d at 981 (also remanding).
¶ 53 With regard to Dr. Romeo’s 2006 deposition testimony, upon which defendants attempt
to rely, plaintiff argues that such testimony does not unambiguously point to a causal link
between plaintiff’s injury and the use of a pain pump. Rather, she argues, it points to a causal
link between plaintiff’s injury and the use of the anesthetic Marcaine, which incidentally
would have been administered via a pain pump:
“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
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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.”
Plaintiff further argues that this interpretation is supported by Dr. Romeo’s November 23,
2009, affidavit, submitted by plaintiff to the court in opposition to defendants’ motion to
dismiss, in which Dr. Romeo specifically disclaims having had any knowledge in 2006 that
pain pumps themselves were potentially unsafe:
“[M]y [2006] 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.”
In that affidavit, Dr. Romeo additionally denies any possibility that plaintiff could have
discovered the connection between her injury and the pain pump prior to the summer of
2007:
“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.”
This is consistent with plaintiff’s allegation in her amended complaint that she could not
have discovered her potential products liability claim before the summer of 2007 because
“[p]rior to the summer of 2007, information concerning potential chondrolysis caused by
pain pumps did not exist.”
¶ 54 Based upon the averments of Dr. Romeo in his affidavit, as well as the facial ambiguity
of Dr. Romeo’s 2006 testimony as to the nature of the link between Marcaine, pain pumps,
and chondrolysis, we find that it would not be unreasonable for a finder of fact to conclude
that a reasonable person in plaintiff’s position could not have been aware that her injury
might have been wrongfully caused by a pain pump until the summer of 2007, due to the
alleged lack of published information on the causal link between pain pumps and
chondrolysis prior to that time. Accordingly, in ruling upon defendants’ motion to dismiss,
it would be inappropriate for us to resolve the disputed issue of fact as to whether plaintiff
could have discovered her claim through reasonable diligence prior to the summer of 2007.
See Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868-69; Knox, 88 Ill. 2d at 416, 430 N.E.2d at
981.
¶ 55 We note parenthetically that defendants have not attempted to preclude the use of Dr.
Romeo’s subsequent affidavit to explain or modify his testimony in his 2006 deposition. Nor
is it conclusive that any such argument would be likely to succeed in any event, although
there is authority to indicate that, where an expert witness of a party makes a clear,
deliberate, and unequivocal statement of fact, such statement may be treated as the equivalent
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of a judicial admission so as to preclude subsequent contradiction by the deponent. See
Schmall v. Village of Addison, 171 Ill. App. 3d 344, 348, 525 N.E.2d 258, 262 (1988);
Tongate v. Wyeth Laboratories, 220 Ill. App. 3d 952, 962, 580 N.E.2d 1220, 1227 (1991).
However, such rule would only apply to testimony that is clear, deliberate, and unequivocal;
by contrast, where the testimony at issue is ambiguous in context, subsequent clarification
is permitted. Schmall, 171 Ill. App. 3d at 349, 525 N.E.2d at 262-63 (expert’s deposition
testimony did not so unequivocally establish defendant’s freedom from negligence as to
preclude explanation by affidavit); Tongate, 220 Ill. App. 3d at 962, 580 N.E.2d at 1227-28(even if witness’s deposition testimony were “subject to the judicial admission rule,” it was
insufficiently clear and unequivocal as to bar explanatory clarification in later deposition);
cf. Young v. Pease, 114 Ill. App. 3d 120, 124, 448 N.E.2d 586, 589 (1983) (where deponent
“has not made deliberate, repeated and unequivocal statements, it is possible, for purposes
of a motion for summary judgment, to controvert the claimed admissions made in those
statements”).
¶ 56 As urged by the plaintiff, it is at best unclear whether Dr. Romeo’s 2006 testimony is
referring to knowledge that would find fault with the use of the drug Marcaine or whether
he is indicating a deficiency in the pain pump resulting from any inadequacy or defect. Thus,
subsequent clarification would be permitted. However, in any event, even if the expert’s
testimony were sufficiently clear and deliberate, any potential argument as to whether his
subsequent affidavit could contradict his earlier deposition testimony would be subject to
forfeiture since defendants failed to raise this issue at any time. See Ill. S. Ct. Rs. 341(h)(7),
(i) (eff. July 1, 2008); Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 143 n.2,
849 N.E.2d 349, 358 n.2 (2006) (plaintiffs forfeited issue where they failed to raise it in their
brief before the court); Berggren v. Hill, 401 Ill. App. 3d 475, 479, 928 N.E.2d 1225, 1229
(2010) (plaintiff forfeited argument on appeal by failing to raise that argument in her
appellate brief); In re Mark W., 383 Ill. App. 3d 572, 587, 895 N.E.2d 925, 938 (2008)
(failure to raise issue on appeal may be deemed forfeiture of that issue); Maun v. Department
of Professional Regulation, 299 Ill. App. 3d 388, 399, 701 N.E.2d 791, 799-800 (1998)
(plaintiff forfeited argument that he failed to raise in his appellate brief).
¶ 57 Therefore, for the foregoing reasons, the judgment of the trial court is reversed and
remanded for proceedings not inconsistent with this opinion.
¶ 58 Reversed and remanded.
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