Dicosolo v. Dicosolo

2011 IL App (1st) 093,562

951 N.E.2d 1238

351 Ill.Dec. 574

John DiCOSOLO, as Administrator of the Estate of Janice

v. DiCosolo, Deceased, Plaintiff–Appellee,

v.JANSSEN PHARMACEUTICALS, INC. and Alza Corporation, Defendants–Appellants.

No. 1–09–3562.

Appellate Court of Illinois, First District, Fifth Division.

June 30, 2011.

John Dames, David B. Sudzus, Drinker Biddle & Reath LLP, Chicago, Irene C. Keyse-Walker, pro hac vice, Rita A. Maimbourg, pro hac vice, Tariq M. Naeem, pro hac vice, Tucker Ellis & West LLP, Cleveland, OH, for appellants.F. John Cushing III, Law Offices of F. John Cushing III, P.C., Michael J. Kralovec, Kralovec Meenan LLP, Chicago, Eric D. Pearson, James Craig Orr, Michael Heygood, Charles Miller, Heygood, Orr & Pearson, Dallas, TX, for appellee.

OPINION

Judge EPSTEIN delivered the judgment of the court, with opinion.

[351 Ill.Dec. 577] ¶ 1 Defendants, Janssen Pharmaceuticals, Inc., and ALZA Corporation, appeal from an $18 million judgment in favor of plaintiff, John DiCosolo, as administrator of the estate of Janice V. DiCosolo, deceased, for noneconomic damages entered in a wrongful death product liability case involving the Duragesic® prescription transdermal patch that they manufactured and distributed. Defendants raise several arguments on appeal: (1) they were entitled to a judgment notwithstanding the verdict because plaintiff presented insufficient evidence that the product “malfunctioned” to permit the legal inference of a “nonspecific” defect; (2) in the alternative, multiple errors in evidentiary rulings entitle them to a new trial; (3) an improper and inflammatory closing argument resulted in a grossly excessive verdict that requires reversal; and (4) if the judgment is not reversed, the case should be remanded for a substantial remittitur. We affirm.

¶ 2 BACKGROUND

¶ 3 On February 15, 2004, 38–year–old Janice DiCosolo died while using a Duragesic® skin patch designed, manufactured, and distributed by defendants. DiCosolo was survived by her husband, John DiCosolo (plaintiff) and three children: John, Kristina, and Anthony. The active ingredient in Duragesic® is fentanyl, a strong narcotic painkiller. The fentanyl is mixed with a gel and ethanol and sealed within the patch. The patch is placed on the skin and the fentanyl travels through a rate-controlled membrane into the skin. Once through the skin, the fentanyl collects just beneath the skin and then enters the bloodstream through capillaries.

¶ 4 The Duragesic® skin patch is prescribed for chronic, severe pain that is otherwise unrelieved. DiCosolo suffered from a nerve root problem in her neck that was “exceedingly painful.” After numerous painkillers and a spine stimulator implant failed to manage her pain, DiCosolo began treatment with Dr. Gene Neri. In July 2003, Dr. Neri prescribed a 50 micrograms per hour (mcg/hr) Duragesic® patch and increased the prescription to a

[351 Ill.Dec. 578 , 951 N.E.2d 1242]

75 mcg/hr patch in September 2003. In addition to using the Duragesic® skin patch, DiCosolo was taking several other medications prescribed by her physician.

¶ 5 An autopsy performed by Dr. Lawrence Cogan of the Cook County Medical Examiner's office on February 16, 2004, which was more than 24 hours after DiCosolo's death, showed that DiCosolo's blood contained a fentanyl level of 28.2 nanograms per milliliter (ng/mL). A properly functioning 75 mcg/hr Duragesic® patch, according to defendants' package insert, should have delivered a fentanyl level of approximately 1.7 ng/mL.

¶ 6 Although DiCosolo had access to 11 central nervous system (CNS) depressants immediately prior to her death, plaintiff provided only eight of these for the “First Call List” that the Cicero police department provided to the medical examiner. Plaintiff did not list Avinza (an opiate), clonazepam (a sedative), or butalbital (a barbiturate). The medical examiner did not test DiCosolo's blood for the presence of Avinza or clonazepam, but he did test for butalbital, which was present in the blood. Although plaintiff listed Bextra (a sedative) and Topamax (a sedative) on the First Call List, the medical examiner decided not to test for those drugs. The medical examiner concluded that DiCosolo's cause of death was from “Fentanyl and Gabapentin and Venlafaxine” and that the manner of death was “suicide.”

¶ 7 On February 16, 2004, the day after DiCosolo died, defendants announced an “Urgent Class I Drug Recall” of lot control No. 0327192 (Lot 192). DiCosolo's patch came from this lot. The recall notice stated, in part, that “[a] small percentage of these patches may leak medication along one edge.” The notice further stated that exposure to the patch's gel “could result in an increased exposure to the active opioid component, fentanyl” and that “[s]uch increased exposure can lead to increased drug effect including nausea, sedation, drowsiness, or potentially life-threatening complications.”

¶ 8 Plaintiff received a letter regarding the recall shortly after DiCosolo's death. After receiving information from plaintiff's attorney that DiCosolo's patch had come from the recalled lot, the medical examiner changed his conclusions regarding DiCosolo's manner of death from “suicide” to “accident.”

¶ 9 On May 12, 2004, plaintiff filed a complaint alleging strict products liability against defendants and asserting defects in the manufacture, design, and labeling of Duragesic®. On March 28, 2005, plaintiff amended his complaint. Both complaints alleged that the patch that DiCosolo was wearing at the time of her death caused her respiratory arrest and death.

¶ 10 On June 21, 2006, the director of process engineering for defendant ALZA Corporation examined the preserved patch that DiCosolo had been wearing at the time of her death and determined that it did not leak and contained no defect. On December 28, 2006, plaintiff filed a second amended complaint that deleted the allegation regarding the patch she was wearing at the time of her death. With respect to the patch that had been removed and discarded on February 14, 2004, the day before DiCosolo's death (the penultimate patch), in an affidavit dated November 17, 2007, plaintiff stated that when he removed the penultimate patch from his wife's back, he “noticed that it slid from her skin, and almost fell off, almost as if all the adhesive material from the patch and large adhesive overlay bandage was gone, leaving a slick film behind on [her] skin.” Plaintiff filed a third amended complaint on July 18, 2008 alleging negligence and strict products liability, and further alleging that “one or more of the two” patches

[351 Ill.Dec. 579 , 951 N.E.2d 1243]

worn by DiCosolo prior to her death contained a manufacturing defect. At trial, plaintiff's theory was that the penultimate patch was defective and the sole cause of DiCosolo's death. The jury returned a verdict in favor of plaintiff. The trial court denied defendants' posttrial motions. This appeal followed.

¶ 11 ANALYSIS

¶ 12 I. Judgment Notwithstanding the Verdict

¶ 13 Defendants argue that the trial court erred in denying their motion for judgment notwithstanding the verdict. Specifically, they contend that plaintiff presented insufficient evidence of product “malfunction” to support a jury verdict based on inferences of a “nonspecific” product defect.

¶ 14 A judgment notwithstanding the verdict (judgment n.o.v.) presents a question of law that we review de novo. Knauerhaze v. Nelson, 361 Ill.App.3d 538, 547, 296 Ill.Dec. 889, 836 N.E.2d 640 (2005). A judgment n.o.v. should be “entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967); accord Maple v. Gustafson, 151 Ill.2d 445, 452, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). A trial court should not “enter a judgment n.o.v. if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.” Maple v. Gustafson, 151 Ill.2d at 454, 177 Ill.Dec. 438, 603 N.E.2d 508. “[T]he standard for obtaining a judgment notwithstanding the verdict is a very difficult standard to meet and limited to extreme situations only. [Citation.]” (Internal quotation marks omitted.) Knauerhaze v. Nelson, 361 Ill.App.3d 538, 548, 296 Ill.Dec. 889, 836 N.E.2d 640 (2005). As the Illinois Supreme Court has explained:

“A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable. [Citations.] Likewise, the appellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way.” Maple v. Gustafson, 151 Ill.2d at 452–53, 177 Ill.Dec. 438, 603 N.E.2d 508.

Additionally, where a jury is presented with the testimony of experts with conflicting opinions, “our task is not to reweigh the evidence and make our own determinations.” Knauerhaze v. Nelson, 361 Ill.App.3d 538, 550, 296 Ill.Dec. 889, 836 N.E.2d 640 (2005).

¶ 15 A plaintiff in a products liability case, must prove three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). A plaintiff is not required to present expert testimony that the product contained a specific defect. Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 574, 2 Ill.Dec. 282, 357 N.E.2d 449 (1976). I...