Cassidy v. China Vitamins, LLC

2018 IL 122873
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122873)
MARTIN CASSIDY, Appellant, v. CHINA VITAMINS, LLC, Appellee.
Opinion filed October 18, 2018.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Garman, Burke, Theis, and Neville concurred in the judgment and
opinion.
Chief Justice Karmeier dissented, with opinion, joined by Justice Thomas.
OPINION
¶1 Alleging injuries caused by a defective product that was manufactured in
China, the plaintiff, Martin Cassidy, filed a strict product liability action against
China Vitamins, LLC (China Vitamins), a nonmanufacturer defendant. China
Vitamins was dismissed from the lawsuit, however, after providing Cassidy with
information about the product’s Chinese manufacturer, Taihua Group. A default
judgment of over $9 million was eventually entered against the manufacturer, but
Cassidy’s efforts to collect on the judgment were unsuccessful. Consequently, he
sought to reinstate China Vitamins as a defendant under section 2-621(b)(4) of the
Illinois Code of Civil Procedure (735 ILCS 5/2-621(b)(4) (West 1994)). 1
¶2 After initially reinstating China Vitamins, the trial court vacated that order and
denied Cassidy’s reinstatement motion, finding that he had failed to establish the
statutory requirement “[t]hat the manufacturer is unable to satisfy any judgment as
determined by the court.” In making that finding, the trial court relied on the
standard set forth in Chraca v. U.S. Battery Manufacturing Co., 2014 IL App (1st)
132325, conditioning reinstatement on the plaintiff’s showing that the
manufacturer was bankrupt or no longer in existence. On appeal, a divided
appellate court rejected Chraca’s interpretation of section 2-621(b), instead
requiring evidence that the manufacturer was “judgment-proof” or
“execution-proof.” 2017 IL App (1st) 160933, ¶¶ 33-34.
¶3 This court is now tasked with interpreting section 2-621(b)(4) in light of our
rules of statutory construction and the legislative intent underlying this state’s strict
product liability laws. We affirm the appellate court’s judgment and remand the
cause for further proceedings on Cassidy’s motion to reinstate China Vitamins.
¶4 I. BACKGROUND
¶5 Martin Cassidy was working at the Ridley Feed Ingredients facility in Mendota,
Illinois, in October 2006, when he was severely injured. He filed a three-count
complaint in the circuit court of Cook County against New Jersey-based defendant
China Vitamins, the distributor of an imported flexible bulk container of vitamins
that allegedly broke, causing a stacked bulk container to fall and seriously injure
him. His complaint raised theories of recovery based on strict product liability,
negligence product liability, and res ipsa loquitur. China Vitamins filed an answer
admitting that it distributed and sold the product inside the flexible bulk containers
but denying that it manufactured either that product or the containers. Later, the
1
Section 2-621, as amended by Public Act 89-7 (eff. Mar. 9, 1995), was held unconstitutional in
its entirety and not severable in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Accordingly,
the version of section 2-621 in effect prior to the 1995 amendment applies to this case.
-2­
trial court dismissed Cassidy’s res ipsa loquitur count for failure to state a cause of
action.
¶6 In May 2008, China Vitamins identified the manufacturer of the flexible bulk
containers as Taihua Group Shanghai Taiwei Trading Company Limited, 2
headquartered in China. Cassidy then filed a nine-count amended complaint adding
Taihua Group and Zhejiang Nhu Company, Ltd. (Zhejiang Nhu), the Chinese
manufacturer of the vitamins, as defendants. Taihua Group’s legal counsel filed an
answer admitting it designed, manufactured, distributed, supplied, and/or sold a
flexible bulk container but withdrew from the case in January 2010. The trial court
ordered Taihua Group to obtain new counsel by March 2010. In 2011, China
Vitamins filed a summary judgment motion and sought dismissal of the strict
product liability and negligence product liability counts against it on the grounds
that it was neither the designer nor the manufacturer of the defective container.
Cassidy opposed the motion, and China Vitamins filed a reply.
¶7 The evidence showed that China Vitamins bought vitamins from Chinese
manufacturer Zhejiang Nhu 3 and imported them for sale to third parties, such as
Cassidy’s employer, Ridley Feed Ingredients (Ridley), for use in animal feed and
human dietary and food supplements. Ridley had purchased bulk vitamins from
China Vitamins since 2000. After China Vitamins placed an order in China, totes
weighing approximately one metric ton would be loaded into shipping containers
before being transported to the west coast of the United States, where they would be
transferred to trains bound for the Chicago area. The container at issue here was
part of an order delivered to Ridley’s Mendota facility, where Cassidy was injured.
¶8 In January 2012, the trial court dismissed China Vitamins from the action under
section 2-621(b) of the Illinois Code of Civil Procedure (735 ILCS 5/2-621(b)
(West 1994)), treating its summary judgment motion as a motion to dismiss without
prejudice. After Taihua Group failed to retain new counsel as ordered in 2010, the
trial judge entered a default judgment against it. The cause of action was transferred
2
During the course of this action, this defendant has been referred to by various names:
“Shanghai Taiwei Trading Co., Ltd.”; “Shanghai Taiwei”; “Taihua Group Shanghai Taiwei Trading
Co., Ltd.”; “Taihua Group Shanghai”; and “Taihua.” Throughout this opinion, we will refer to it as
“Taihua Group.”
3
Zhejiang Nhu is not a party to this appeal.
-3­
for prove-up, and Cassidy was awarded a default judgment of over $9.1 million
against Taihua Group in June 2012.
¶9 Cassidy issued a citation to discover assets against Taihua Group that was
quashed for lack of proper foreign service. Between March and October 2013, he
also issued several third-party citations to discover assets for collection of the
default judgment. When those collection efforts failed, Cassidy filed a motion to
reinstate China Vitamins under section 2-621(b). China Vitamins argued that
Cassidy’s motion did not satisfy the statutory reinstatement requirements. The trial
court granted Cassidy’s motion on jurisdictional grounds in September 2015 but
did not address the statutory requirements. China Vitamins filed a motion to
reconsider, again raising Cassidy’s failure to satisfy the requirements in section
2-621(b). The trial court then vacated its prior order and granted China Vitamins’
motion to reconsider, concluding that Cassidy had not met the statutory
reinstatement requirements and making the order final and appealable under
Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). After filing his own
unsuccessful motion to reconsider, Cassidy filed a timely notice of appeal.
¶ 10 A divided appellate court rejected the appellate court’s interpretation of section
2-621(b)(4) in Chraca, 2014 IL App (1st) 132325. That court concluded the
statutory requirement that the manufacturer be “unable to satisfy any judgment” is
met only if the manufacturer is shown to be bankrupt or no longer in existence.
2017 IL App (1st) 160933, ¶ 28. Instead, the appellate majority in this case
interpreted the statutory language to require a showing that the manufacturer is
“judgment-proof” or “execution-proof” before a previously dismissed seller or
distributor could be reinstated as a party. 2017 IL App (1st) 160933, ¶¶ 29-35. The
majority then remanded Cassidy’s cause of action for an initial determination of
whether Taihua Group was indeed unable to satisfy the default judgment entered
against it under the majority’s new interpretation of section 2-621(b)(4). 2017 IL
App (1st) 160933, ¶¶ 38, 41. 4
¶ 11 In a partial dissent, Justice Rochford agreed with Chraca’s interpretation of
section 2-621(b), believing that it properly focused on the manufacturer’s inability
to pay rather than on the plaintiff’s inability to enforce the judgment. The partial
4
The appellate court also unanimously reversed the dismissal of Cassidy’s negligence product
liability claim against China Vitamins, but that ruling is not before this court.
-4­
dissent also noted that the legislature had not adopted a provision, approved in
other states, allowing reinstatement if a plaintiff could not enforce a judgment.
Finally, because Illinois recognizes out-of-state judgments, the dissent argued that
a defendant is not “judgment-proof” as long as it has assets outside the court’s
jurisdiction. Here, the record showed that Taihua Group was still in operation, with
subsidiaries in China and several other countries. Cassidy even admitted on appeal
that, however unlikely, Taihua Group could still choose to pay the damages
“ ‘voluntarily.’ ” 2017 IL App (1st) 160933, ¶ 62 (Rochford, J., concurring in part
and dissenting in part).
¶ 12 This court allowed China Vitamins’ petition for leave to appeal pursuant to
Illinois Supreme Court Rule 315(a) (eff. Jan. 1, 2015). We also permitted the
Illinois Trial Lawyers Association to file an amicus curiae brief in support of
Cassidy.
¶ 13 II. ANALYSIS
¶ 14 We now examine when a distributor that was previously dismissed as a
defendant in a strict product liability case under section 2-621 of the Illinois Code
of Civil Procedure can be properly reinstated as a party under section 2-621(b)(4).
See 735 ILCS 5/2-621 (West 1994). Section 2-621 sets forth a scheme that allows a
defendant that is not a manufacturer of the allegedly defective product at issue in a
strict liability action to seek dismissal after it accurately certifies the identity of the
product’s manufacturer. If the plaintiff then files a complaint that the manufacturer
is required to answer, the trial court must dismiss the strict tort liability claim
against the certifying nonmanufacturer-defendant, in the absence of certain
limitations not at issue here. 735 ILCS 5/2-621(a), (b) (West 1994). Because the
conditions set forth in section 2-621(b) result in the dismissal of a defendant that is
not the product manufacturer, that section is sometimes deemed the “seller’s
exception.” 2017 IL App (1st) 160933, ¶ 19. Even if the certifying defendant is
dismissed, however, the trial court retains jurisdiction over it, and section 2-621(b)
permits the plaintiff to request the vacatur of the dismissal order and the
reinstatement of that defendant as a party at any time if the plaintiff is able to satisfy
one of five enumerated criteria. 735 ILCS 5/2-621(b)(1)-(5) (West 1994).
-5­
¶ 15 The dispute in this case specifically addresses the application of subsection
2-621(b)(4), requiring the plaintiff to show that “the manufacturer is unable to
satisfy any judgment as determined by the court.” 735 ILCS 5/2-621(b)(4) (West
1994). As a previously dismissed nonmanufacturer resisting reinstatement, China
Vitamins argues Cassidy must show that the manufacturer of the defective flexible
bulk container that caused his injuries is either bankrupt or no longer in existence,
as required in Chraca, 2014 IL App (1st) 132325, ¶ 24. Cassidy, on the other hand,
contends the evidentiary standard for reinstatement should be broader, requiring
only a showing that the manufacturer is either judgment-proof or execution-proof.
See 2017 IL App (1st) 160933, ¶¶ 33-34. Because this dispute requires us to
construe the language of a statute, it presents a question of law, and our standard of
review is de novo. JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d
455, 461 (2010).
¶ 16 The specific language at the core of the parties’ statutory construction
arguments states, in relevant part:
“The plaintiff may at any time subsequent to the dismissal [of a certifying
defendant other than the manufacturer] move to vacate the order of dismissal
and reinstate the certifying defendant ***, provided plaintiff can show one or
more of the following:
***
(4) That the manufacturer is unable to satisfy any judgment as
determined by the court[.]” (Emphasis added.) 735 ILCS 5/2-621(b)(4)
(West 1994).
¶ 17 In construing any statute, the goal of this court is to ascertain and effectuate the
intent of the legislature in enacting the provision. The statutory language, given its
plain and ordinary meaning, is generally the most reliable indicator of that
legislative intent, but a literal reading must fail if it yields absurd, inconvenient, or
unjust results. Bank of New York Mellon v. Laskowski, 2018 IL 121995, ¶ 12. When
reviewing the language in a statute, we must consider the entire provision, keeping
in mind its intended subject matter. Lawler v. University of Chicago Medical
Center, 2017 IL 120745, ¶ 12. Here, that subject matter is strict product liability.
-6­
¶ 18 China Vitamins asserts that the proper focus of subsection (b)(4) is the
manufacturer’s ability to pay a judgment, not the plaintiff’s ability to collect on that
judgment. That interpretation would be viable if the requirement that “the
manufacturer is unable to satisfy any judgment” is read in isolation. When viewed
in light of the remainder of subsection (b) and the legislature’s overarching purpose
in providing relief to injured parties through strict product liability actions,
however, it is not. China Vitamins’ interpretation conflicts with both the express
language of section 2-621(b)(3) and the public policy considerations underlying the
legislature’s decision to create a strict product liability scheme.
¶ 19 As part of that scheme, section 2-621(b)(3) allows a dismissed
nonmanufacturer to be reinstated as a defendant if “the manufacturer no longer
exists, cannot be subject to the jurisdiction of the courts of this State, or, despite due
diligence, the manufacturer is not amenable to service of process.” (Emphasis
added.) 735 ILCS 5/2-621(b)(3) (West 1994). If, as China Vitamins claims, the
phrase “unable to satisfy any judgment” in subsection (b)(4) requires a showing
that the manufacturer is either bankrupt or no longer in existence, then it duplicates
the portion of subsection (b)(3) that expressly premises reinstatement on proof that
“the manufacturer no longer exists” (735 ILCS 5/2-621(b)(3) (West 1994)),
rendering the latter criterion superfluous. Because that result is contrary to our
fundamental rules of statutory construction, we must reject it if another
construction is reasonable. In re Marriage of Goesel, 2017 IL 122046, ¶ 13 (stating
that “each word, clause, and sentence of a statute must be given a reasonable
construction, if possible, and should not be rendered superfluous”).
¶ 20 China Vitamins tries to overcome this glaring defect in its argument by
asserting that the criteria in subsection (b)(3) all relate exclusively to “situations
that arise only at the time that the action is brought against the manufacturer.”
Presumably then, if a manufacturer ceases to exist at any time after a complaint is
filed against it, the dismissed defendant could not be reinstated under subsection
(b)(3). China Vitamins’ view necessarily suggests that subsection (b)(4) was
intended to apply only when a manufacturer ceases to exist after an action was
commenced against it. Unfortunately, however, that interpretation suffers from two
fatal flaws.
-7­
¶ 21 First, the plain language simply does not say what China Vitamins says it does.
Nothing in subsection (b)(3) limits the requirement that the manufacturer no longer
exist to any particular time frame. By limiting the applicable time frame, China
Vitamins is improperly adding a condition to the express statutory language,
contrary to our rules of statutory construction. See In re Estate of Shelton, 2017 IL
121199, ¶ 33. In enacting subsection (b)(3), the legislature carefully enumerated
each relevant prerequisite for reinstatement, expressly including the possibility that
the manufacturer is no longer in existence. In construing subsection (b)(4),
however, China Vitamins would have us conclude that the legislature chose to
merely hint at that very same prerequisite as a hidden meaning within the far more
open-ended phrase “unable to satisfy a judgment.” The validity of that conclusion
is far from apparent when viewed in light of the language actually enacted by the
legislature in subsections (b)(3) and (b)(4).
¶ 22 Second, even if China Vitamins’ construction is correct, it still does not restrict
the conditions for reinstatement that the legislature intended to convey in
subsection (b)(4) to only manufacturers that are bankrupt or no longer exist. The
plain meaning of the language adopted is far broader than that. Our rules of
statutory construction do not permit us to add new limitations to subsection (b)(4)
that the legislature did not specifically enact. Gaffney v. Board of Trustees of the
Orland Fire Protection District, 2012 IL 110012, ¶ 94 (Garman, J., concurring in
part and dissenting in part, joined by Thomas and Karmeier, JJ.). In short, China
Vitamins’ textually unsupported and unnecessarily narrow reading of the statute
fails to comport with our traditional construction rules. Because nothing in the plain
language of section 2-621(b) buttresses China Vitamins’ narrow interpretation, we
decline to adopt that view.
¶ 23 China Vitamins offers yet another statutory construction argument, however. It
points to statutes from other jurisdictions that expressly allow distributors of
defective products to be reinstated as defendants when it is “highly probable that a
claimant would be unable to enforce a judgment.” China Vitamins contends that the
lack of similar language in section 2-621(b)(4) portends our legislature’s intent to
condition reinstatement on the more limited requirement that the manufacturer
must be either bankrupt or nonexistent. Under that view, the appellate court erred
by “rewriting” section 2-621(b)(4) to expand its scope. We disagree.
-8­
¶ 24 While the presence of express language allowing reinstatement of a dismissed
defendant when a judgment is unlikely to be enforceable would certainly be
probative, and perhaps even determinative, of our legislature’s intent, the absence
of that language correlates similarly. As shown by the widely contrasting degree of
detail specified in sections 2-621(b)(3) and 2-621(b)(4), the legislature was well
aware of how to state the relevant conditions for reinstatement both narrowly, as it
did in subsection (b)(3), and more broadly, as it did in subsection (b)(4). Rather
than providing a list of precise conditions in subsection (b)(4), however, the
legislature chose instead to enact a set of much more open-ended criteria. Compare
735 ILCS 5/2-621(b)(3) (West 1994) (providing for reinstatement when “the
manufacturer no longer exists, cannot be subject to the jurisdiction of the courts of
this State, or, despite due diligence, the manufacturer is not amenable to service of
process”), with 735 ILCS 5/2-621(b)(4) (West 1994) (providing for reinstatement
when “the manufacturer is unable to satisfy any judgment as determined by the
court”). We decline to speculate, as China Vitamins does, that the absence of
verbiage permitting reinstatement when the successful enforcement of a judgment
is not “highly probable” is determinative of some unexpressed legislative intent.
Instead, we honor the legislature’s decision to outline broad general reinstatement
conditions in subsection (b)(4) as evidence of its underlying intent. Contrary to
China Vitamins’ claim, by adhering to the legislature’s distinctive linguistic
choices in subsections (b)(3) and (b)(4), the appellate court did not improperly
rewrite the statute in an act “tantamount to legislation by litigation.” Because we
must review the express limitations in the relevant provisions as written, we remain
unpersuaded by China Vitamins’ final statutory construction argument.
¶ 25 To further ground our construction of section 2-621(b), we also consider the
fundamental public policies underlying our legislature’s enactment of Illinois’s
strict product liability laws. 1010 Lake Shore Ass’n v. Deutsche Bank National
Trust Co., 2015 IL 118372, ¶ 37 (“We presume that several statutes relating to the
same subject are governed by a single spirit and policy and that the legislature
intended the statutes to be consistent and harmonious.”); see also Lawler, 2017 IL
120745, ¶ 12 (our review of statutory language must consider the relevant subject
matter); Board of Education of Springfield School District No. 186 v. Attorney
General, 2017 IL 120343, ¶¶ 25, 62 (noting that in construing legislative intent the
court may rely on “not only the language of the statute but also the purpose and
necessity for the law, the evils sought to be remedied, and the goals to be achieved”
-9­
and that the court’s statutory review was consistent with public policy). “[A]t the
heart of strict liability law” is “the policy of preventing future harm.” Calles v.
Scripto-Tokai Corp., 224 Ill. 2d 247, 263 (2007) (citing 1 David G. Owen, M.
Stuart Madden & Mary J. Davis, Madden & Owens on Product Liability § 8:3, at
447 (3d ed. 2000)). As we explained in Trans States Airlines v. Pratt & Whitney
Canada, Inc., 177 Ill. 2d 21 (1997):
“The purpose of strict liability in tort is to place the loss caused by defective
products on those who create the risks and reap the profits by placing such
products in the stream of commerce. Liberty Mutual Insurance Co. v. Williams
Machine & Tool Co., 62 Ill. 2d 77, 82 (1975). The rationale underlying this
liability is threefold: (1) the public interest in human life and safety demands
broad protection against the sale of defective products; (2) the manufacturer
solicits and invites the use of his products by representing that they are safe and
suitable for use; and (3) the losses caused by defectively dangerous products
should be borne by those who have created the risks and reaped the profits by
placing the products into commerce.” (Emphasis added.) Trans States Airlines,
177 Ill. 2d at 37-38 (citing Suvada v. White Motor Co., 32 Ill. 2d 612, 619
(1965), and 14 Ill. Jur. Personal Injury and Torts § 33:1 (1994)).
¶ 26 All manufacturers, wholesalers, and retailers in the chain of distribution play an
“ ‘integral role in the overall producing and marketing’ ” of the defective product,
uniquely justifying the imposition of strict liability even if they do not have a hand
in its development or manufacture. Crowe v. Public Building Comm’n of Chicago,
74 Ill. 2d 10, 13 (1978) (quoting Dunham v. Vaughan & Bushnell Manufacturing
Co., 42 Ill. 2d 339, 344 (1969)). As we explained in Crowe:
“A seller who does not create a defect, but who puts the defective product into
circulation, is still responsible in strict liability to an injured user. Because the
ultimate loss will ordinarily be borne, through indemnification, by the party
that created the defect, the public policy concern is really who, between the
injured user and the seller, should bear the initial loss. The seller is in a
position to prevent a defective product from entering the stream of commerce.
The seller may either adopt inspection procedures or influence the
manufacturer to enhance the safety of a product. Moreover, the seller is
generally better able to bear and distribute any loss resulting from injury
- 10 ­
caused by a defective product. See Restatement (Second) of Torts sec. 402A,
comment c (1965).” (Emphases added.) Crowe, 74 Ill. 2d at 13-14.
¶ 27 Other authorities have advanced similar policy justifications for imposing
liability on any of the entities in a defective product’s chain of distribution,
regardless of their actual involvement in the production of the injurious defect.
Vandermark v. Ford Motor Co., 391 P.2d 168, 171-72 (Cal. 1964) (en banc);
Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 901 (Cal. 1963) (en banc);
Liberty Mutual, 62 Ill. 2d at 82; Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943,
948 (Mo. Ct. App. 1970); Brandenburger v. Toyota Motor Sales, USA, Inc., 513
P.2d 268, 273 (Mont. 1973); Santor v. A&M Karagheusian, Inc., 207 A.2d 305,
312 (N.J. 1965); Restatement (Second) of Torts § 402A cmt. c (1965). Indeed, in
the context of strict product liability, each of the defendants in the product’s chain
of distribution may be held jointly and severally liable, regardless of its actual
culpability in causing the injury. Frazer v. A.F. Munsterman, Inc., 123 Ill. 2d 245,
265 (1988). To ameliorate the potential harshness of requiring a nonmanufacturer
who lacks a direct hand in creating a defect to mount a strict liability defense, our
legislature has chosen to enact the “seller’s exception” at issue here.
¶ 28 Nothing about that drafting decision, however, diminishes the import of the
fundamental policy interests underlying this state’s strict product liability laws. The
resounding drumbeat of those policies remains the same: to provide full
compensation to plaintiffs injured due to defective or unsafe products whenever
possible based on differences in the parties’ degree of culpability. This court has
consistently recognized those policy rationales: compared to the culpability of
injured plaintiffs, entities in the chain of manufacture and distribution necessarily
bear more responsibility, and inherently possess far superior ability and incentive,
to prevent the initial creation of defective products and, later, to avert their progress
through the stream of commerce. Calles, 224 Ill. 2d at 263 (“[A]t the heart of strict
liability law” is “the policy of preventing future harm.”); Trans States Airlines, 177
Ill. 2d at 37-38 (“The purpose of strict liability *** is to place the loss *** on those
who create the risks and reap the profits ***.” (citing Liberty Mutual, 62 Ill. 2d at
82)); Crowe, 74 Ill. 2d at 13-14 (“the public policy concern is really who, between
the injured user and the seller, should bear the initial loss. The seller is in a position
to prevent a defective product from entering the stream of commerce. ***
Moreover, the seller is generally better able to bear and distribute any loss ***. See
- 11 ­
Restatement (Second) of Torts sec. 402A, comment c (1965).”). Given the purpose
underlying our strict product liability laws, it is more than reasonable to conclude
that the legislature did not intend the phrase “unable to satisfy any judgment” in
subsection (b)(4) to undermine an injured plaintiff’s ability to obtain a full recovery
by cutting off access to other viable sources unless the product’s manufacturer is
bankrupt or no longer in existence. Bankruptcy and business failure are conditions
that are entirely outside the control of the injured plaintiff, and the policy
considerations underlying this state’s strict tort liability laws do not support such a
cramped interpretation of the intentionally broad language in subsection (b)(4).
¶ 29 For the same reasons, we conclude that China Vitamins’ reliance on the
interpretation of section 2-621(b) posited in Chraca, 2014 IL App (1st) 132325, is
misplaced. In that factually similar case, the plaintiff’s shoulder and neck were
injured when the strap he was using to unload a shipment of golf cart batteries,
weighing about 63 pounds each, broke. Initially, he filed a strict product liability
claim against the battery distributor, U.S. Battery. Chraca, 2014 IL App (1st)
132325, ¶ 2. It, in turn, identified the Chinese company that manufactured the strap.
After the plaintiff added that manufacturer as a defendant in an amended complaint,
the trial court granted Chraca’s motion for a default judgment against it. The
domestic distributor of the strap complied with the requirements of section 2-621
and was dismissed from the lawsuit, over the plaintiff’s objection. Two weeks later,
the plaintiff unsuccessfully attempted to reinstate the distributor under section
2-621(b). The trial court concluded that, while it might be “difficult” for Chraca to
enforce his default judgment against the Chinese manufacturer, that was not one of
the statutory reinstatement criteria. Chraca, 2014 IL App (1st) 132325, ¶¶ 8-12,
15-16.
¶ 30 Chraca appealed, and the appellate court held that he had not established that
the Chinese manufacturer was “unable to satisfy any judgment” under section
2-621(b)(4) because he failed to show that the company was bankrupt or
nonexistent. Chraca, 2014 IL App (1st) 132325, ¶ 24. To the contrary, the court
found that the evidence suggested the manufacturer was an ongoing concern. In its
analysis, the appellate court relied on Harleysville Lake States Insurance Co. v.
Hilton Trading Corp., No. 12 C 8135, 2013 WL 3864244, at *3 (N. D. Ill. July 23,
2013), Finke v. Hunter’s View, Ltd., 596 F. Supp. 2d 1254, 1271 (D. Minn. 2009),
and Malone v. Schapun, Inc., 965 S.W.2d 177, 182 (Mo. Ct. App. 1998). Although
- 12 ­
the plaintiff submitted a joint affidavit from two Chinese attorneys stating that
Chinese courts were unwilling to “ ‘recognize or enforce a judgment obtained in an
American state court,’ ” that evidence was insufficient under the court’s
interpretation of section 2-621(b)(4). Chraca, 2014 IL App (1st) 132325, ¶ 25.
¶ 31 In the instant case, the appellate court rejected Chraca’s “bankrupt or
nonexistent” standard as “flawed” and “not persuasive” because that decision had
misconstrued the three cases it cited in support: Harleysville, Finke, and Malone.
2017 IL App (1st) 160933, ¶ 29. As the appellate court explained, those cases
“actually considered the effect a manufacturer’s judgment-proof status would have
on the plaintiff’s total recovery.” 2017 IL App (1st) 160933, ¶ 30. Because we are
reviewing the viability of the Chraca standard de novo, we, too, must examine the
applicability of those three cases.
¶ 32 In Harleysville, 2013 WL 3864244, the federal district court addressed a
nonmanufacturer’s request to be dismissed as a defendant in a strict product
liability action under section 2-621’s seller’s exception. Tellingly, that case did not
involve a plaintiff’s attempt to reinstate a previously dismissed nonmanufacturer
under section 2-621(b)(4). In fact, its only connection to the reinstatement
requirements at issue here was the plaintiffs’ citation to Rosenthal v. Werner Co.,
No. 06 C 2873, 2009 WL 995489 (N.D. Ill. Apr. 13, 2009).
¶ 33 In Rosenthal, “the defendant sought dismissal on the basis of language in the
Seller’s Exception that permits an injured party to proceed against a seller where
the manufacturer appears to be judgment-proof” under subsections (b)(3) and
(b)(4). Harleysville, 2013 WL 386244, at *3 (citing Rosenthal, 2009 WL 995489,
at *6-7). Prior to concluding that the facts were not sufficiently developed to allow
the retailer’s dismissal, the district court in Rosenthal prematurely appears to have
considered the application of the reinstatement conditions in subsections (b)(3) or
(b)(4) because it misconstrued their relationship to the preceding portion of section
2-621(b) that allowed certifying nonmanufacturers to be dismissed from the case.
Exemplifying its legal misunderstanding, the district court concluded that it could
not apply either section 2-621(b)(3) or (b)(4) because the manufacturer’s pending
bankruptcy proceeding made it “too early to know whether these exceptions to
dismissal might apply.” (Emphasis added.) Rosenthal, 2009 WL 995489, at *6.
- 13 ­
¶ 34 This court has never, however, deemed subsections (b)(3) and (b)(4) to be
“exceptions to dismissal” of a certifying nonmanufacturer under section 2-621. The
Rosenthal court misconstrued the statute, creating an interplay between distinct
portions of section 2-621(b) that simply does not exist. Section 2-621(b) contains
only one “exception to dismissal”: once a strict product liability complaint has been
filed against a manufacturer who is required to answer, “the court shall order the
dismissal of a strict liability in tort claim against the certifying defendant ***,
provided the certifying defendant *** [is] not within the categories set forth in
subsection (c).” (Emphasis added.) 735 ILCS 5/2-621(b) (West 1994). Due to its
misinterpretation of the statute, the Rosenthal court’s discussion of the
reinstatement criteria in subsections (b)(3) and (4) was premature and unsupported
by any authority.
¶ 35 Nonetheless, the federal district court in Harleysville erroneously relied on
Rosenthal’s analysis of the section 2-621(b) reinstatement provisions that
characterized subsections (b)(3) and (b)(4) as exceptions to dismissal. Harleysville,
2013 WL 3864244, at *3. That error severely undercuts the persuasiveness of the
analysis in Harleysville as well as Chraca’s reliance on that case in adopting the
“bankrupt or nonexistent” standard for the reinstatement of a nonmanufacturer.
Chraca, 2014 IL App (1st) 132325, ¶ 24 (citing Harleysville as an “[a]uthority
indicat[ing] that in a section 2-621 proceeding, a company is deemed ‘unable to
satisfy any judgment’ when it is bankrupt or nonexistent”). To the extent that
Harleysville provides this court with any guidance, however, its reliance on
Rosenthal expressly recognizes that section 2-621(b)(4) permits reinstatement if
the manufacturer “appears to be judgment-proof,” supporting the interpretation
advanced by Cassidy and the appellate court in this case. (Emphasis added.)
Harleysville, 2013 WL 3864244, at *3.
¶ 36 Next, we examine the Chraca court’s reliance on Finke for its “bankrupt or
nonexistent” standard. Chraca, 2014 IL App (1st) 132325, ¶ 24. In Finke, the
federal district court explained that in Minnesota a nonmanufacturer is generally
not subject to strict product liability unless the plaintiff can show “ ‘that the
manufacturer is unable to satisfy any judgment as determined by the court,’ ” a
standard identical to that in section 2-621(b)(4)’s reinstatement provision. Finke,
596 F. Supp. 2d at 1270 (quoting Minn. Stat. § 544.41(2)(d) (2004)). Cf. 735 ILCS
5/2-621(b)(4) (West 1994) (requiring a showing “[t]hat the manufacturer is unable
- 14 ­
to satisfy any judgment as determined by the court”). As in Illinois, the Minnesota
statute “ ‘tempers the harsh effect of strict liability as it applies to passive sellers,
while ensuring that a person injured by a defective product can recover from a
viable source.’ ” Finke, 596 F. Supp. 2d at 1270 (quoting In re Shigellosis
Litigation, 647 N.W.2d 1, 6 (Minn. Ct. App. 2002)). Similar to Harleysville and
Rosenthal, the initial dismissal of a Minnesota nonmanufacturer is premised on
whether “ ‘the plaintiff’s action cannot reach a manufacturer or the manufacturer is
insolvent.’ ” Finke, 596 F. Supp. 2d at 1270 (quoting In re Shigellosis Litigation,
647 N.W.2d at 7). In Illinois, however, the initial dismissal standard is different; the
dismissal of a nonmanufacturer under section 2-621 is not dependent on the
availability of damages from the manufacturer. That condition is relevant only in
the context of a plaintiff’s reinstatement action. This distinction alone necessarily
limits Finke’s applicability here for the reasons cited in our discussion of
Harleysville and Rosenthal.
¶ 37 Finally, Malone, 965 S.W.2d at 182, also relied on in Chraca, is readily
distinguishable on both its facts and law. In Malone, an allegedly defective rubber
tarp strap broke while in use, seriously injuring the plaintiff’s eye, face, and hand
and causing him to lose vision in his left eye. In relevant part, the plaintiff and his
wife filed a strict product liability action against the manufacturer, supplier, and
retailer of the strap. Later, they entered into a partial settlement with the disputed
supplier and manufacturer that released them both in exchange for partial payment
of their claims, leaving only the retailer to defend the lawsuit. When the retailer
sought dismissal of the only strict liability claims raised under Missouri’s version
of the seller’s exception statute, 5 the trial court granted the motion, prompting the
plaintiffs’ appeal. Malone, 965 S.W.2d at 179-80.
¶ 38 On appeal, the plaintiffs again relied on Missouri’s seller exception, a statute
that differs significantly from its Illinois counterpart. Under the Missouri statute,
the seller could be dismissed from a strict product liability claim “ ‘if another
defendant, including the manufacturer, is properly before the court and from whom
total recovery may be had for plaintiff’s claim.’ ” Malone, 965 S.W.2d at 181
(quoting Mo. Rev. Stat. § 537.762 (1994)). As in Harleysville and Finke, the
essence of the latter criterion is found in Illinois’s reinstatement statute, not its
5
The statute is described as an “innocent seller statute” in Missouri. Malone, 965 S.W.2d at 181.
- 15 ­
provision for a nonmanufacturer’s initial dismissal. Because statutory construction
lies at the heart of this case, this substantive linguistic difference alone severely
undercuts Malone’s applicability. Ultimately, however, Malone was decided due to
the effect of the plaintiffs’ settlement agreement voluntarily dismissing the
manufacturer and supplier, unique facts that are not present either here or in
Chraca. For those reasons, Malone also fails to provide any support for Chraca’s
“bankruptcy or nonexistence” standard.
¶ 39 The only “authorities” Chraca cites for deeming the section 2-621(b)(4)
criterion that a manufacturer be “unable to satisfy any judgment” synonymous with
its bankruptcy or nonexistence are Harleysville, Finke, and Malone. After carefully
reviewing those three cases, we agree with the appellate court that Chraca’s
reliance on them was misplaced. In enacting the statutes in those foreign decisions,
the legislatures expressly intended a different interplay between that standard and
the dismissal of a nonmanufacturer than did the Illinois legislature. For that reason,
those cases are unpersuasive and offer little guidance. We decline to adopt the
reasoning in Chraca and overrule that decision. Instead, we adhere to our
previously stated analysis of the proper construction of section 2-621.
¶ 40 We hold that reinstatement under section 2-621(b)(4) of a nonmanufacturer
such as China Vitamins is not solely contingent on the manufacturer being
bankrupt or nonexistent. If an injured strict product liability plaintiff can establish
other circumstances that effectively bar recovery of the full measure of judgment
damages awarded, a nonmanufacturer in the chain of distribution may be reinstated
as a defendant under section 2-621(b)(4). That result harmonizes the plain language
of section 2-621(b), when read in its entirety, the legislature’s intent, and the public
policies underlying the enactment of our strict product liability laws to create a
cohesive and consistent statutory scheme.
¶ 41 This holding alone is not dispositive of Cassidy’s reinstatement request,
however, and he argues that we should decide, as a matter of law, whether he has
met his statutory burden and then remand the cause with instructions allowing him
to amend his complaint to reinstate China Vitamins as a defendant. In support, he
cites his efforts to collect on the default judgment shown in the appellate record.
¶ 42 After parsing the record, we conclude that it is far from dispositive. As the party
seeking reinstatement, Cassidy bears the burden of showing that the relevant
- 16 ­
criteria have been met. 735 ILCS 5/2-621(b) (West 1994) (“The plaintiff may at
any time subsequent to the dismissal move to vacate *** and reinstate the certifying
defendant ***, provided plaintiff can show one or more of the following[.]”
(Emphasis added.)). Our review of the appellate record reveals that, from March
through October 2013, Cassidy issued citations to discover assets to Taihua Group
and a number of third parties, including HSBC Bank, in an attempt to identify
assets that could be used to satisfy the judgment. Most of those attempts were either
quashed or ultimately dismissed without revealing any of the manufacturer’s
assets. The fate of the remaining citations, however, is not clear. And, although
Cassidy’s motion to reinstate China Vitamins uses the “attached exhibit D” to
support his claim that he “has made exhaustive attempts to collect the judgment
entered against [the manufacturer] and has been unable to do so,” that attachment
fails to appear anywhere in the record. After piecing together information from
other parts of the record, it appears that “exhibit D” is the affidavit of Douglas
Giese, an attorney Cassidy hired to pursue collection. That affidavit is not in the
record, precluding our review of its contents to determine, as a matter of law, if, or
how, it supports Cassidy’s claim that his collection efforts have been “exhaustive.”
¶ 43 While it may indeed be true that Cassidy’s efforts have not led him to recover
even “a single dollar,” that does not, under the record before us, “lead[ ] to the
inescapable conclusion” that Taihua Group has “no assets with which to satisfy the
judgment against it,” as Cassidy claims. The record includes screenshots indicating
that Taihua Group maintains a functioning website. Its website boasts that the
manufacturer “has its own brand and sales network covering Asia-Pacific, Europe
and North America. 60% of its products are sold and delivered directly to
multinational chemical and food companies.” Taihua Group also touts “its own
brand and global sales and logistics network cover[ing] Asia Pacific, Middle East,
Europe and North America,” noting that exports comprised 70% of its sales and
that it was “superior business partners for many global famous food, chemical
enterprises and distributors of North America.” Both these claims strongly suggest
the manufacturer has close continuing ties with Europe and North America. In
addition, a world map on the website reveals that Taihua Group had a domestic
sales office in the state of Georgia and foreign sales offices in Lille, France, and
Munich, Germany, with a “central warehouse” in Cologne, Germany. The “Key
Account Manager” for its European sales is listed as Mrs. Martina Upphoff, and her
- 17 ­
contact information includes an office in Munich, Germany. 6 China Vitamins also
points to Taihua Group’s LinkedIn page and the pages of a number of workers
claiming to be employed there to argue that the manufacturer is indeed an ongoing
business. Based on the totality of the information in the record before us, it appears
that several viable avenues for Cassidy’s collection efforts may remain untapped.
¶ 44 Nonetheless, we, like the appellate court, cannot properly assess whether
Cassidy’s collection efforts have been sufficient to show that the manufacturer is
“unable to satisfy any judgment,” as required by the statute. The focus of the trial
court proceedings was on whether the court had personal jurisdiction over Taihua
Group and whether Cassidy had met the Chraca standard by showing the
manufacturer was bankrupt or no longer in existence.
¶ 45 In its original September 21, 2015, oral ruling granting Cassidy’s motion to
reinstate, the trial court improperly focused on whether it had jurisdiction over the
reinstatement action and failed to consider the statutory requirements in section
2-621. 7 China Vitamins pointed out those errors in its motion to reconsider the
reinstatement order, and the trial court corrected them, vacating its original
reinstatement order. After starting its analysis anew, the court denied Cassidy’s
motion to reinstate on December 14, 2015, and dismissed China Vitamins from the
case. Cassidy then filed a motion to reconsider the reinstatement denial, basing his
request on his continued reliance on the trial court’s alleged lack of personal
jurisdiction over Taihua Group and adding the argument that reinstatement was
proper under sections 2-621(b)(3) and 2-621(b)(4). Later, Cassidy faxed to
opposing counsel a one-page amended motion to reconsider. In it, he requested an
evidentiary hearing where he would show that Taihua Group “cannot be subject to
the jurisdiction of the courts of this State” and “is unable to satisfy any judgment in
this matter.” The trial court never addressed the amended motion and instead struck
it because Cassidy never actually filed it with the court. His request for an
evidentiary hearing also remained unsupported by any showing of newly
discovered evidence.
6
The website indicates that office is in “Munchen,” a German spelling of “Munich.”
7
The record on appeal contains no transcripts addressing any hearings on the reinstatement
issue. The substance of those proceedings was necessarily gleaned, when possible, from the parties’
filings and the trial court’s orders.
- 18 ­
¶ 46 The trial court ultimately rejected Cassidy’s initial motion for reconsideration
of the order denying China Vitamins’ reinstatement. Its memorandum opinion once
again rejected the claim that the court lacked jurisdiction over Taihua Group and
concluded that “the Taihua Group is a functioning and operational company and
there is no evidence before the Court that it is unable to satisfy the judgment.” The
court noted “the problem here is the Plaintiff’s inability to collect the judgment,
which is not an enumerated basis upon which to reinstate a certifying defendant.”
The court also rejected Cassidy’s reliance on Chraca. Although the court applied
Chraca’s requirement that the plaintiff seeking reinstatement must prove that the
defendant manufacturer is bankrupt or nonexistent, it concluded that the submitted
evidence did not support the entry of those findings.
¶ 47 Because of both the paucity of relevant evidence in the record and this court’s
repudiation of the “bankrupt or nonexistent” standard from Chraca that was the
focal point of the parties and the trial judge, we remand this cause to the circuit
court for consideration of the sufficiency of the evidence concerning Cassidy’s
efforts to collect the default judgment. We decline Cassidy’s suggestion to detail
the specific evidentiary showing necessary at this time. As shown by even the
limited record in this case, the myriad combinations of evidence that could suffice
to provide a statutory showing “[t]hat the manufacturer is unable to satisfy any
judgment as determined by the court” dissuades us from attempting to parse the
specific evidentiary showing required in a particular case. See 735 ILCS
5/2-621(b)(4) (West 1994). As the express language enacted by the legislature
states, we leave the requisite showing to be “determined by the court” in each
individual case. The precise formula needed to satisfy the plaintiff’s evidentiary
reinstatement burden is best adduced by the trial court.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we reject the “bankrupt or nonexistent” standard for
reinstatement under section 2-621(b)(4) promulgated in Chraca and overrule that
decision. Instead, we read the statute to permit the trial court to rely on a broader
range of factors to determine if a particular manufacturer is “unable to satisfy” the
judgment against it. We affirm the judgment of the appellate court and remand the
cause to the trial court for its determination of whether the manufacturer Taihua
- 19 ­
Group “is unable to satisfy a judgment as determined by the court,” as mandated by
section 2-621(b)(4).
¶ 50 Appellate court judgment affirmed.
¶ 51 Circuit court judgment reversed.
¶ 52 Cause remanded.
¶ 53 CHIEF JUSTICE KARMEIER, dissenting:
¶ 54 As the majority notes, this court is called on to determine the meaning of
section 2-621(b)(4) of the Code of Civil Procedure (735 ILCS 5/2-621(b)(4) (West
1994)), which permits a dismissed nonmanufacturer defendant to be reinstated in a
strict liability claim on plaintiff’s showing that “the manufacturer is unable to
satisfy any judgment as determined by the court.”
¶ 55 Under the terms of the statute, the circuit court must dismiss a
nonmanufacturing defendant “once the plaintiff has filed a complaint against the
manufacturer” and after the manufacturer has answered or has been required to
answer or otherwise plead. 735 ILCS 5/2-621(b) (West 1994). Therefore, filing a
complaint against the manufacturer and requiring the manufacturer to respond is a
prerequisite to dismissal under section 2-621. Section 2-621(b) permits
reinstatement of a dismissed nonmanufacturer defendant when the plaintiff shows
one or more of the following situations:
“(1) That the applicable period of statute of limitation or statute of repose
bars the assertion of a strict liability in tort cause of action against the
manufacturer or manufacturers of the product allegedly causing the injury,
death or damage; or
(2) That the identity of the manufacturer given to the plaintiff by the
certifying defendant or defendants was incorrect. Once the correct identity of
the manufacturer has been given by the certifying defendant or defendants the
court shall again dismiss the certifying defendant or defendants; or
- 20 ­
(3) That the manufacturer no longer exists, cannot be subject to the
jurisdiction of the courts of this State, or, despite due diligence, the
manufacturer is not amenable to service of process; or
(4) That the manufacturer is unable to satisfy any judgment as determined
by the court; or
(5) That the court determines that the manufacturer would be unable to
satisfy a reasonable settlement or other agreement with plaintiff.” 735 ILCS
5/2-621(b) (West 1994).
¶ 56 Here, it is undisputed that, after certifying Taihua Group, a manufacturer based
in China, as the manufacturer of the defective flexible bulk container at issue,
China Vitamins was properly dismissed from the case. What is at dispute is
whether plaintiff satisfied his burden of proving that the order dismissing China
Vitamins should be vacated and China Vitamins be reinstated in the litigation
pursuant to section 2-621(b)(4).
¶ 57 The majority holds that the circuit court can vacate the dismissal of a
nonmanufacturer defendant under section 2-621(b)(4) upon plaintiff establishing
“circumstances that effectively bar recovery of the full measure of judgment
damages awarded.” Supra ¶ 40. What the majority is actually saying is that section
2-621(b)(4) means that a nonmanufacturer defendant can be reinstated when the
plaintiff is unable to enforce a judgment, not whether the manufacturer has the
ability to satisfy the judgment. For the following reasons, I cannot join the majority
opinion.
¶ 58 This case can be resolved on the basis of plain statutory language and
well-established legal presumptions when analyzed properly. The primary
objective of statutory interpretation is to ascertain and give effect to the legislative
intent. People v. Hardman, 2017 IL 121453, ¶ 19. This inquiry must always begin
with the plain and ordinary language of the statute, which is the surest and most
reliable indicator of legislative intent. People v. Goossens, 2015 IL 118347, ¶ 9. If
the language of a statute is clear and unambiguous, we will apply it as written,
without resort to other aids of statutory construction. In re Jarquan B., 2017 IL
121483 ¶ 22. Accordingly, this court’s analysis should begin by considering the
- 21 ­
plain meaning of the phrase “the manufacturer is unable to satisfy any judgment” as
written in section 2-621(b)(4).
¶ 59 Although the majority accurately recites basic statutory interpretation rules, the
majority fails to apply the rules properly. Nowhere does the majority focus on the
meaning of the words in section 2-621(b)(4). Instead of analyzing the plain
meaning of the statute in accordance with our prescribed rules, the majority tries to
overcome this glaring defect in its analysis by jumping to reasons why it disagrees
with China Vitamins’ statutory interpretation, concluding that the opposite result
must be the correct interpretation. See, e.g., supra ¶ 22 (the majority
finds—without providing its own analysis—that the plain meaning of section
2-621(b)(4) “is far broader” than China Vitamins’ interpretation).
¶ 60 In conducting its statutory interpretation analysis, the majority skips over the
first fundamental step that words must be given their “ordinary and popularly
understood meaning,” absent a definition in the statute indicating legislative intent.
In re Ryan B., 212 Ill. 2d 226, 232 (2004). Under the proper analysis, because there
is no definition in the statute regarding the phrase “unable to satisfy,” we therefore
look to the dictionary meanings of these words. Id.; People v. Ward, 215 Ill. 2d 317,
325 (2005). The majority overlooked this crucial step likely because the dictionary
definitions contradict the majority’s plain language analysis. 8
¶ 61 Merriam-Webster’s Dictionary defines “unable” as “not able: INCAPABLE.”
Merriam-Webster’s Collegiate Dictionary 1359 (11th ed. 2006). While the word
“able” is defined as “having sufficient power, skill, or resources to accomplish an
object” (Merriam-Webster’s Collegiate Dictionary 3 (11th ed. 2006)), Black’s Law
Dictionary defines “satisfaction” as “[t]he fulfillment of an obligation; esp., the
payment in full of a debt.” Black’s Law Dictionary 1460 (9th ed. 2009); see also
Merriam-Webster’s Collegiate Dictionary 1104 (11th ed. 2006) (defining “satisfy”
as “to meet a financial obligation”). Giving the statutory terms—“unable,” “able,”
and “satisfy”—their plain meanings, it is clear section 2-621(b)(4) permits
reinstatement of a dismissed nonmanufacturer defendant when the manufacturer is
not able or is incapable of payment in full of its debt under the judgment. As such,
the plain language of the statute dictates that the ultimate determination for
8
In fact, the majority cites no authority, case law, dictionaries, secondary sources, or the
legislative history of the provision to support its interpretation.
- 22 ­
reinstating a dismissed nonmanufacturer defendant is dependent on whether the
manufacturer is incapable of fulfilling its obligation under a judgment entered by
the court. That judgment here is a default judgment entered against Taihua Group
for over $9 million. Therefore, the proper analysis turns to whether Taihua Group is
unable to fulfill its debt obligation in full.
¶ 62 Unfortunately, plaintiff provides little information about Taihua Group’s
financial viability, and the record is underdeveloped at this point about whether
Taihua Group is unable to discharge its obligation. Rather, in seeking reinstatement
under section 2-621(b)(4), plaintiff argued that he made exhaustive attempts to
collect the default judgment against Taihua Group, that he has been unable to do so,
and that such efforts “will continue to be unavailing.” Those “exhaustive” efforts
included issuing a citation to discover assets against Taihua Group, which the
circuit court quashed on May 23, 2013, for lack of proper service on a foreign
resident and foreign business entity. Between March 27, 2013, and October 16,
2013, the plaintiff also issued third-party citations to discover assets in pursuit of
collection of the judgment only in Illinois, without success. Plaintiff, however,
never sought to enforce the judgment elsewhere outside of Illinois. Instead,
plaintiff sought reinstatement under section 2-621(b)(4) primarily on the basis of
his difficulty in enforcing the judgment in Illinois.
¶ 63 Before this court, plaintiff does not assert that Taihua Group is financially
unable to pay the judgment imposed by the circuit court. In fact, as noted by the
majority, the record tells a different story. The record shows that Taihua Group
owns assets outside of China and has ongoing operations in the United States,
France, and Germany. These facts refute any initial claim that the
manufacturer-defendant is unable to satisfy any judgment.
¶ 64 There is nothing unreasonable about a judgment creditor, like plaintiff, having
to enforce a judgment in another jurisdiction. No civil judgment is
self-executing—even in a personal injury case.
¶ 65 Under article IV, section 1, of the United States Constitution (U.S. Const., art.
IV, § 1), states have a constitutional obligation to give full faith and credit to the
decisions rendered by sister states. But, as the majority notes, plaintiff has
presented no evidence that his judgment would be unenforceable outside Illinois.
Supra ¶¶ 45-47. Thus, plaintiff’s difficultly in enforcing the judgment elsewhere in
- 23 ­
the United States is of no concern. Furthermore, China Vitamins provided evidence
that Taihua Group has ongoing commercial operations through various subsidiaries
in China and other countries. This included sales and warehouse facilities in
Germany and France. As China Vitamins correctly notes, despite any difficulties
plaintiff may have collecting his judgment in China, if it comes to that, plaintiff has
other viable opportunities inside and outside of the United States to satisfy the
default judgment. 9
¶ 66 These mechanisms reflect that it is a normal part of the litigation process to
enforce Illinois judgments outside of this state. As such, all viable legal avenues
should be explored prior to reinstating a nonmanufacturer defendant. Until plaintiff
provides evidence that Taihua Group has no ability to meet its obligation, plaintiff
cannot reinstate a dismissed nonmanufacturer defendant pursuant to section
2-621(b)(4). Accordingly, the circuit court was correct to deny plaintiff’s motion.
¶ 67 Although one might initially find this interpretation of the statute unfair to
plaintiff because it requires him to determine the financial viability of a
manufacturer prior to seeking reinstatement of a nonmanufacturer defendant, I note
that this interpretation does not indefinitely bar plaintiff from recovery in this case.
That is so because nothing in the statute would prevent plaintiff from bringing
another, similar motion if plaintiff can provide relevant evidence regarding Taihua
Group’s inability to satisfy the default judgment. See 735 ILCS 5/2-621(b) (West
1994) (“The plaintiff may at any time subsequent to the dismissal move to vacate
the order of dismissal and reinstate the certifying defendant or defendants ***.”
(Emphasis added.)). Accordingly, I would affirm the trial court’s order, finding that
plaintiff failed to meet the conditions for reinstatement under section 2-621(b).
¶ 68 I take further issue with the majority’s expansive interpretation of section
2-621(b)(4) and its focus on plaintiff’s inability to enforce the default judgment
rather than the manufacturer’s inability to satisfy that judgment.
9
German law, for instance, contains specific provisions for the enforcement of foreign
judgments like the one at issue here. See Zivilprozessordnung [ZPO] [Code of Civil Procedure]
§§ 328, 722, 723, translation at https://www.gesetze-im-internet.de/englisch_zpo/englisch_
zpo.html (Ger.) [https://perma.cc/KK87-6P9N].
- 24 ­
¶ 69 Contrary to the unambiguous language of the statute, the majority interprets
section 2-621(b)(4) to mean that a court can vacate the dismissal of a
nonmanufacturer seller upon a plaintiff establishing “circumstances that effectively
bar recovery of the full measure of judgment damages awarded.” Supra ¶ 40. The
majority remands the cause to the circuit court “for consideration of the sufficiency
of the evidence concerning [plaintiff’s] efforts to collect the default judgment.”
Supra ¶ 47. In other words, the majority remands the matter to allow plaintiff to
show his inability to enforce the default judgment. However, nothing in the statute
refers to a plaintiff’s ability to enforce a judgment. But that is precisely what the
majority’s holding promotes in contravention of the fundamental rule of statutory
construction that “this court cannot read into the statute additional elements not
intended by the legislature.” In re Andrew B., 237 Ill. 2d 340, 352, (2010). The
majority’s interpretation rewrites section 2-621(b)(4) to include “unable to
enforce” language under the guise of statutory construction and would be
tantamount to judicial legislation. Accordingly, I agree with Justice Rochford’s
partial dissent that what is evident from that plain language is that the proper focus
should be on the manufacturer’s inability to satisfy a judgment. 2017 IL App (1st)
160933, ¶ 48 (Rochford, J., concurring in part and dissenting in part). Section
2-621(b)(4) plainly allows vacating the dismissal of the nonmanufacturer based on
the manufacturer’s ability to satisfy the judgment, and not whether the plaintiff can
enforce the judgment.
¶ 70 The majority also fails to explain what “circumstances” a plaintiff must
establish when demonstrating to the circuit court that it has been effectively barred
from recovery. Supra ¶ 40. The majority explicitly refrains from providing any
guidance to the courts or parties regarding its ambiguous holding. Supra ¶ 47.
Rather, the majority reads into section 2-621(b)(4) additional, unlisted factors that
could be considered when determining whether to reinstate a nonmanufacturer
defendant. Supra ¶¶ 47-49. As a result, the majority broadens the language of
section 2-621(b)(4) to include any type of evidence showing that the plaintiff
cannot enforce the judgment. This broad interpretation will not only create
evidentiary conflicts among the circuit courts and appellate districts, it again goes
against a plain reading of the statute, which focuses on the ability of the
manufacturer to fulfill its obligation of a debt under any judgment. Future plaintiffs
are left wondering how much (or little) effort is necessary to convince a circuit
judge to reinstate a nonmanufacturer defendant. As for dismissed nonmanufacturer
- 25 ­
defendants, they must now extensively challenge and prove whether the plaintiff
performed his or her due diligence on enforcing or collecting the judgment in order
to remain dismissed from litigation.
¶ 71 Moreover, the majority’s focus on the plaintiff’s difficulty to enforce the
judgment is not only absent from the plain language of the statute, it improperly
shifts the burden to a nonmanufacturer defendant to prove the financial viability of
the manufacturer defendant. When considering whether to reinstate a dismissed
nonmanufacturer defendant, the plaintiff bears the burden of establishing that a
statutory basis exists for the reinstatement of a dismissed defendant. 735 ILCS
5/2-621(b)(4) (West 1994) (“The plaintiff may at any time subsequent to the
dismissal move to vacate *** and reinstate the certifying defendant ***, provided
plaintiff can show one or more of the following[.]” (Emphasis added.)); Cherry v.
Siemans Medical Systems, Inc., 206 Ill. App. 3d 1055, 1064 (1990) (“The onus is
on the plaintiff to make this showing [for reinstatement], which presumably may be
rebutted by the certifying defendant.”). The majority opinion turns the statutory
burden of proof upside down. Under the majority’s holding, nonmanufacturer
defendants will shoulder the heavy burden of proving that the manufacturer of a
defective product can satisfy a judgment entered against it. In essence, all a plaintiff
must do is file a section 2-621(b)(4) motion under the pretext of showing some
difficulty or “other circumstances” in enforcing the judgment. It would then be
upon the nonmanufacturer defendant to disprove plaintiff’s assertion and prove
there are no set of circumstances preventing the plaintiff from enforcing or
collecting the judgment against the manufacturer. Supra ¶ 40. Nonmanufacturer
defendants should not have the burden of proving whether the plaintiff can enforce
or collect on a judgment. The statute clearly states that this evidentiary burden rests
on the plaintiff.
¶ 72 The majority’s burden shifting is not only contrary to the statute’s explicit
language, it is contrary to the underlying policy of section 2-621 of dismissing
nonmanufacturer defendants.
¶ 73 Much of the majority’s opinion emphasizes the general public policy behind
strict product liability. Supra ¶¶ 25-28. That policy, however, is not at issue in this
case. Rather, we are concerned with the “seller’s exception” of section 2-621,
which permits a nonmanufacturer defendant sued for strict product liability to be
- 26 ­
dismissed if certain requirements are met. 735 ILCS 5/2-621(b) (West 1994).
Moreover, I find that the majority’s sole reliance on the general policy notions of
strict liability is essentially meaningless in this situation because “ ‘[v]ague notions
of a statute’s “basic purpose” are . . . inadequate to overcome the words of its text
regarding the specific issue under consideration.’ ” (Emphasis omitted.) Montanile
v. Board of Trustees of National Elevator Industry Health Benefit Plan, 577 U.S.
___, ___, 136 S. Ct. 651, 661 (2016) (quoting Mertens v. Hewitt Associates, 508
U.S. 248, 261 (1993)); People v. Laubscher, 183 Ill. 2d 330, 337 (1998) (“Where an
enactment is clear and unambiguous, this court is not at liberty to read into it
exceptions, limitations, or conditions that the legislature did not express; nor should
this court search for any subtle or not readily apparent intention of the
legislature.”). Therefore, regardless of how compelling the majority views the
general policy arguments, such analysis is insufficient to contradict the plain
language of the statute, which concerns policy reasons regarding the “seller’s
exception” to strict product liability. Universal Health Services, Inc. v. United
States ex rel. Escobar, 579 U.S. ___, ___, 136 S. Ct. 1989, 2002 (2016) (“policy
arguments cannot supersede *** clear statutory text”).
¶ 74 Contrary to the majority’s reliance on general policy notions on strict product
liability, the Restatement (Third) of Torts explains that imposing strict liability on
nonmanufacturers does not advance the general policies of strict liability because,
often, nonmanufacturers are not in a good position to feasibly adopt safer products.
Restatement (Third) of Torts: Product Liability § 2, cmt. o (1998); see also M.
Stuart Madden, Selected Federal Tort Reform and Restatement Proposals Through
the Lenses of Corrective Justice and Efficiency, 32 Ga. L. Rev. 1017, 1085-86
(1998) (“It has, however, never been successfully explained what marginal
improvement in safety is gained when compared to the safety levels that follow
from a manufacturer’s already existing incentives to avoid liability costs associated
with suits against it directly, as practically all modern products liability suits
proceed.”); John G. Culhane, Real and Imagined Effects of Statutes Restricting the
Liability of Nonmanufacturing Sellers of Defective Products, 95 Dick. L. Rev. 287,
293-94 (1991) (the argument that sellers can exert pressure on those manufacturers
to create safer products is based “on several questionable assumptions,” including
that “nonmanufacturing sellers have sufficient knowledge to exert the desired
pressure” and “nonmanufacturing sellers have sufficient market power and choice
to make their decisions count”). Generally, seller exception statutes have been
- 27 ­
enacted to save a nonmanufacturer’s resources in protecting itself when the
nonmanufacturer did not, itself, render the product defective or was not in a
position to prevent the defect. Restatement (Third) of Torts: Product Liability § 1,
cmt. e, at 9 (1998) (“The legislation is premised on the belief that bringing
nonmanufacturing sellers or distributors into products liability litigation generates
wasteful legal costs. Although liability in most cases is ultimately passed on to the
manufacturer who is responsible for creating the product defect, nonmanufacturing
sellers or distributors must devote resources to protect their interests. In most
situations, therefore, immunizing nonmanufacturers from strict liability saves those
resources without jeopardizing the plaintiff’s interests.”).
¶ 75 In Illinois, section 2-621 was enacted so that innocent nonmanufacturers can
defer liability upstream to the ultimate wrongdoer and avoid wasteful litigation
costs. Brobbey v. Enterprise Leasing Co. of Chicago, 404 Ill. App. 3d 420, 428-29
(2010); Murphy v. Mancari’s Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 775
(2008); Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d 185, 193 (1990);
Cherry, 206 Ill. App. 3d at 1060-61; Sims v. Teepak, Inc., 143 Ill. App. 3d 865, 868
(1986).
¶ 76 A review of the legislative history of section 2-621 reveals that the legislature
intended to provide stronger protections for nonmanufacturer defendants in cases
of strict product liability. During the Illinois Senate’s third reading of House Bill
2658, which culminated in the “seller’s exception,” Senator Moore stated that this
provision “merely provides that a non-manufacturer shall not be liable in products
liability actions based upon the doctrine of strict liability in tort if the manufacturer
is available for action.” 81st Ill. Gen. Assem., Senate Proceedings, June 27, 1979, at
139 (statements of Senator Moore). Before the Illinois House of Representatives,
Representative Bradley, the bill sponsor, explained that the policy of the statute
attempts “to remove some of the liability to people who are not directly involved in
the manufacture of that product that causes the damage or the injury or the death.”
81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 214 (statements of
Representative Bradley). Representative Bradley further clarified that the “seller’s
exception” of section 2-621 was enacted to alleviate the unjust result of applying
strict liability to every entity in the distributive chain when a nonmanufacturer did
not create the defective product and therefore would be ill-equipped to defend a
product that it did not design. 81st Ill. Gen. Assem., House Proceedings, May 25,
- 28 ­
1979, at 212 (statements of Representative Bradley). These statements illustrate
that the legislature was focused on protecting innocent nonmanufacturer
defendants by providing only limited, not broad, circumstances when a strict
liability claim may be reinstated against them.
¶ 77 Turning from the general policy reasons for the “seller exception,” floor
transcripts further support a plain reading that the ultimate determination for
reinstating a dismissed nonmanufacturer defendant is dependent on whether the
manufacturer is incapable of fulfilling its obligation under a judgment entered by
an Illinois court. When explaining that a plaintiff may at any time move to vacate
the order of dismissal and reinstate the nonmanufacturer, Representative Bradley
specifically mentioned the situation of when the manufacturer does “not have
enough insurance coverage to take care of the amount of judgment.” 81st Ill. Gen.
Assem., House Proceedings, May 25, 1979, at 213 (statements of Representative
Bradley). Representative Bradley later noted that an innocent distributor,
wholesaler, and retailer would be liable “if [the manufacturer has] gone bankrupt.”
81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 214 (statements of
Representative Bradley). Throughout the legislative process, the entirety of the
floor debates regarding reinstatement concerned only whether the manufacturer
was subject to this court’s jurisdiction or was financially able to satisfy the
judgment. Notably absent from the legislative history are any statements implying
that reinstatement should occur based on a plaintiff’s inability to enforce the
judgment against the manufacturer in Illinois or elsewhere. As such, the legislative
history is consistent with the plain meaning of section 2-621(b)(4).
¶ 78 In addition, since the purpose of section 2-621 was to counter the harsh
consequences of general strict liability law on innocent nonmanufacturers, the
majority’s heavy reliance on the general policies behind strict product liability in its
interpretation of section 2-621(b)(4) is unwarranted and misleading. By focusing
on the general policies underlying strict product liability to support its
interpretation of the “seller’s exception,” the majority negates the specific policies
behind the enactment of section 2-621. Instead, China Vitamins should be given the
policy protections underlying the “seller’s exception” where, according to the
record, it was never involved in the production or design of the defective product at
issue but, rather, the defective product was only used to transport China Vitamins’
goods. The majority ignores the fact that the legislature carefully balanced strict
- 29 ­
product liability policies with the fairness of imposing liability on the ultimate
wrongdoer. The majority’s interpretation disrupts this careful balance by allowing
a plaintiff to obtain a judgment against an equally innocent party although
questions remain unanswered on whether the ultimate wrongdoer has the ability to
pay for plaintiff’s injuries.
¶ 79 In sum, I find that the meaning of the phrase, “the manufacturer is unable to
satisfy any judgment as determined by the court” under section 2-621(b)(4) is clear:
Is the manufacturer incapable of fulfilling its debt obligation pursuant to a
judgment entered by the court? If a plaintiff can prove that the manufacturer is
financially unable to fulfill its debt obligation as determined by the court,
reinstatement may be warranted under section 2-621(b)(4). Accordingly, in this
case, until plaintiff makes such a showing, China Vitamins should remain a
dismissed nonmanufacturer defendant.
¶ 80 JUSTICE THOMAS joins in this dissent.
- 30 ­