Lewis v. NL Industries, Inc. ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Lewis v. NL Industries, Inc., 2013 IL App (1st) 122080
Appellate Court MARY LEWIS, TASHWAN BANKS, and KATHLEEN O’SULLIVAN,
Caption on behalf of themselves and all others similarly situated, Plaintiffs-
Appellants, v. NL INDUSTRIES, INC.; AMERICAN CYNAMID
COMPANY; ATLANTIC RICHFIELD COMPANY; FULLER-
O’BRIEN CORPORATION; SCM CHEMICALS; CONAGRA
GROCERY PRODUCTS COMPANY; and THE SHERWIN-
WILLIAMS COMPANY, Defendants-Appellees.
District & No. First District, First Division
Docket No. 1-12-2080
Filed March 29, 2013
Held In response to a question certified under Supreme Court Rule 308, the
(Note: This syllabus appellate court answered that the Lead Poisoning Prevention Act
constitutes no part of mandating lead toxicity screening for certain children constitutes a legally
the opinion of the court sufficient proximate cause of the costs of such testing.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 00-CH-9800; the
Review Hon. Peter Flynn, Judge, presiding.
Judgment Certified question answered; cause remanded.
Counsel on Nisen & Elliott, Block & Landsman, and Edward T. Joyce & Associates,
Appeal P.C., all of Chicago, for appellants.
Robbins, Salomon & Patt, Ltd., Winston & Strawn, both of Chicago,
McGrath North Mullin & Kratz, of Nebraska, and Arnold & Porter, LLP,
of New York, for appellees.
Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
with opinion.
Justices Cunningham and Delort concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs, Mary Lewis, Tashwan Banks, and Kathleen O’Sullivan (on behalf of
themselves and all plaintiffs similarly situated), filed this interlocutory appeal in connection
with their class-action suit against the defendants, NL Industries, American Cynamid
Company, Atlantic Richfield Company, Fuller-O’Brien Corporation, SCM Chemicals,
Conagra Grocery Products Company, and the Sherwin Williams Company. On appeal, the
plaintiff seeks an answer to a question the circuit court certified for our review pursuant to
Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010).
¶2 To give context to the certified question, we begin with a summary of the procedural
history of this case. This case began when the plaintiffs filed suit to recover damages related
to the defendants’ alleged manufacture, distribution, and promotion of lead paint. That case
was dismissed for failure to state a claim, and the plaintiffs appealed the dismissal to this
court. On appeal, we accepted the plaintiffs’ theory that the cost of lead testing or assessment
could constitute a compensable damage. Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95
(2003) (Lewis I). We held, however, that plaintiffs had not stated a cause of action sounding
in tort, because they had not adequately pled the causation element required of a tort claim.
Lewis I, 342 Ill. App. 3d 95. The plaintiffs argued that they had pled causation by alleging
that “the risk of poisoning from exposure to lead pigments in paint such as that promoted and
supplied by the defendants is so significant that it has become medically necessary that all
children six months through six years of age residing in the State of Illinois be [tested or
assessed] (see Lead Poisoning Prevention Act [(Act)] (410 ILCS 45/1 et seq. (West 2000))).”
Lewis I, 342 Ill. App. 3d at 102. We disagreed, on the ground that the plaintiffs had failed
to “identif[y] the manufacturer or supplier of the lead pigment used in the paint to which
their children were exposed” and thus had failed to allege a causative link “between a
specific defendant’s tortious acts and the plaintiff[s’] injuries.” Lewis I, 342 Ill. App. 3d at
103. In so holding, we rejected the plaintiffs’ reliance on the Lead Poisoning Prevention Act:
“The fact that the Illinois legislature has mandated that all children between six months and
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six years of age be [tested or assessed] does not alter our conclusion in this regard as the
[Act] is not the source of a private right of action.” Lewis I, 342 Ill. App. 3d at 103. We
nonetheless allowed the plaintiffs’ suit to continue based on a claim of civil conspiracy, a tort
that does not require the plaintiffs to identify which of a set of conspiring defendants actually
committed a tort. Lewis I, 342 Ill. App. 3d at 107-08.
¶3 Following our remand, the circuit court granted summary judgment to the defendants on
the plaintiffs’ conspiracy claim, on the grounds that the plaintiffs had failed to prove that the
alleged conspiracy included every producer of lead-based paint pigments and, relatedly, that
some lead-based paints had been applied to residential structures prior to the date the
plaintiffs alleged the conspiracy began. Lewis v. American Cyanamid Company, No. 1-05-
0974 (1st Dist. 2006) (unpublished order under Supreme Court Rule 23) (Lewis II). On
appeal, we held that genuine issues of material fact remained, and we reversed the circuit
court’s summary judgment order and remanded the cause. Lewis II, No. 1-05-0974.
¶4 Following this second remand, the plaintiffs sought, and obtained, certification of the
class of plaintiffs who were legal guardians of children whom the Act required to undergo
lead testing or assessment. However, after the defendants sought to depose individual
plaintiffs to determine whether they would have undergone lead testing regardless of the
Act’s dictates, the circuit court decertified the class, on the basis that the issue of whether the
Act led to testing or assessment costs would be individualized to each plaintiff. On motion
from the plaintiffs, the circuit court then certified the following question for our review
pursuant to Rule 308:
“Whether the [Act], which mandates lead toxicity screening for all children between
the ages of six months and six years residing in zip codes designated ‘high risk’ by the
Illinois Department of Public Health, constitutes a legally sufficient proximate cause of
the costs of such lead toxicity screening.”
The plaintiffs filed a timely application for leave to appeal this question, and we granted the
application.
¶5 As noted, this appeal comes to us in the form of a certified question pursuant to Rule 308.
The appellants’ choice of appeal device carries important consequences for the scope of our
analysis. In a typical appeal, such as, for example, an appeal from a circuit court order
denying class certification (see Ill. S. Ct. R. 306(a)(8) (eff. Feb. 16, 2011)), we would
consider all relevant facts of the case and apply the law to them, to order a particular outcome
for the specific case at hand. In a Rule 308 appeal, we can do none of these things. In such
appeals, “our jurisdiction is limited to considering the question certified[,] and we cannot
address issues outside that area.” Hudkins v. Egan, 364 Ill. App. 3d 587, 590 (2006); Sassali
v. DeFauw, 297 Ill. App. 3d 50, 51 (1998). We acknowledge that this jurisdictional limitation
is often honored in the breach, and that “[i]t is not uncommon for a reviewing court in class
action to go beyond the certified question and address the propriety of the decision to certify
a class action.” P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d
992, 999 (2004). The reasons for the jurisdictional limitation, however, are plain: “all review
by this court is limited by supreme court rule to final orders and certain interlocutory orders
specified in those rules,” and so the supreme court rules dictate the limits of our jurisdiction.
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Getto v. City of Chicago, 92 Ill. App. 3d 1045, 1048 (1981); see Moore v. Chicago Park
District, 2012 IL 112788, ¶ 5 n.1 (noting that, in a certified question appeal, appellate court
jurisdiction depends on a proper Rule 308 order). To analyze issues beyond the question
certified to us would be to expand our own jurisdiction; this is a prerogative that belongs
solely to our supreme court. See People v. Jones, 213 Ill. 2d 498, 507, 821 N.E.2d 1093
(2004) (“the appellate court does not possess the supervisory powers enjoyed by [the
supreme court]”); e.g., Moore, 2012 IL 112788, ¶ 5 n.1 (explaining that the supreme court’s
supervisory authority empowers it to expand its own jurisdiction). We therefore observe the
limits of our jurisdiction by confining our analysis to the certified question presented to us.
¶6 That limitation renders irrelevant much of the parties’ arguments on appeal, which are
largely directed to the propriety of the circuit court’s class decertification decision; the
viability of the plaintiffs’ claims; the viability of their theory of causation, that the
defendants’ actions caused the Act, which caused them to incur testing costs; and even the
application of the Act to the facts of this case. None of those matters are presented by our
certified question, and, indeed, some present case-specific or factual matters that cannot be
considered in a certified-question appeal. Our certified question asks only, and we consider
only, whether the Act “constitutes a legally sufficient proximate cause of the costs of ***
lead toxicity screening.” We consider this question de novo. Grundy v. Lincoln Park Zoo,
2011 IL App (1st) 102686, ¶ 3.
¶7 We must begin by interpreting the question. Normally, the term “proximate cause” refers
to a “reasonable connection” between a negligent “act or omission of the defendant and the
damage which the plaintiff has suffered.” Prosser and Keeton on Torts § 41, at 263 (W. Page
Keeton et al. eds., 5th ed. 1984). That conception has uneasy application here, because a
legislative enactment can hardly be treated as an act of negligence, at least for purposes of
tort law. We therefore interpret the question’s use of the phrase “proximate cause” loosely,
so that the question asks whether the Act can be considered reasonably connected to the costs
of lead screening.
¶8 To that question, we answer in the affirmative. Although they dispute whether it has been
enforced, the parties agree that the Act mandates lead screening and contains no cost-shifting
provisions. See 410 ILCS 45/6.2 (West 2004) (requiring doctors to screen children for lead
exposure). Thus, in general, the Act may cause a parent to assume the costs of lead screening.
This is not to say, of course, that the Act is the sole cause for all lead screening, or that it is
or is not the cause for the plaintiffs’ lead screening costs. It is only to say that the Act can be
such a cause, which is all the certified question asks.
¶9 In so answering, we do not imply that our answer has (or does not have) any relevance
to the case at hand; it is quite possible that it will not affect the litigation. Indeed, the parties
dispute the important issue of whether the Act can be the proximate cause of the costs for the
plaintiffs in this case, when it is possible that several would have undergone testing
notwithstanding the Act. We do not answer that question today, because we are asked only
whether the Act may in general be a cause for the costs, not whether it is the cause in this
case. Nor do we answer the questions of whether the plaintiffs’ causation theory is viable,
or whether the circuit court properly denied class certification. These are all matters not
contained in our certified question, and thus beyond our jurisdiction.
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¶ 10 For the foregoing reasons, we answer the certified question in the affirmative.
¶ 11 Certified question answered; cause remanded.
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