Robinson v. Healthcare

615 F.3d 861

Karen ROBINSON, et al., Plaintiffs-Appellants,

v.McNEIL CONSUMER HEALTHCARE, a division of McNeil-PPC, Inc., Defendant-Appellee.

No. 09-4011.

United States Court of Appeals,Seventh Circuit.

Argued June 2, 2010.

Decided Aug. 11, 2010.

COPYRIGHT MATERIAL OMITTED.

Christopher J. Panatier (argued), Simon, Eddins & Greenstone, LLP, Dallas, TX, John D. Cooney, Cooney & Conway, Chicago, IL, for Plaintiffs-Appellants.

John Dames, Drinker Biddle & Reath, LLP, Chicago, IL, Matthew MacKinnon Shors (argued), O'Melveny & Myers, LLP, Washington, DC, Kari L. Sutherland, Butler, Snow, O'Mara, Stevens & Cannada, Memphis, TN, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and KANNE, Circuit judges.

POSNER, Circuit Judge.

Karen Robinson and her husband (suing for loss of consortium) brought a products liability suit against McNeil Consumer Healthcare in an Illinois state court. The case was removed to a federal district court in Illinois under the diversity jurisdiction. McNeil's parent, Johnson & Johnson, was a defendant in the district court, but the jury found in its favor and the appellants do not challenge the finding, so it is out of the case.

The district judge ruled that Virginia law governed the substantive issues in the case. That law both rejects strict liability as a basis for a products liability suit, Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605, 609-10 (1992); Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55, 57 n. 4 (1988); Lust v. Clark Equipment Co., 792 F.2d 436, 439-40 (4th Cir.1986) (applying Virginia law); compare Restatement (Second) of Torts § 402A (1965), so a plaintiff has to prove negligence; and deems contributory negligence a complete defense to a claim of negligence. E.g., Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335, 337 (1987); Fein v. Wade, 191 Va. 203, 61 S.E.2d 29, 31-32 (1950).

After a six-day trial the jury found that McNeil had been negligent, and calculated Mrs. Robinson's compensatory damages at $3.5 million. But the jury also found that she had been contributorily negligent, and so-since contributory negligence is a complete defense to negligence under the law of Virginia-the judge entered judgment for McNeil. The Robinsons appeal, but since Mr. Robinson's claim is derivative from his wife's we needn't discuss it, and for the sake of simplicity we'll pretend that his wife is the only plaintiff.

McNeil manufactures and sells Children's Motrin, an over-the-counter drug (though there's also a prescription version, as we'll have occasion to note). The active ingredient is ibuprofen, a non-steroidal anti-inflammatory drug (NSAID), used primarily to alleviate pain and fever, that is also the active ingredient in Advil. The “Warnings” section on the label of the bottle of Motrin that Mrs. Robinson bought for her child begins: “Allergy alert: Ibuprofen may cause a severe allergic reaction which may include: hives, facial swelling, asthma (wheezing), shock.” After additional warnings of side effects the label says: “Stop use and see a doctor if an allergic reaction occurs.” She read the warnings before buying the drug.

In September 2005, four or five months later, she awoke in the middle of the night with a headache and took two teaspoonfuls of the Children's Motrin that she had bought-the dose suggested for a child six to eight years old-without reading the warnings (the specifics of which she had forgotten) on the label. When she awoke the next morning she noticed a rash on her chest. The rash worsened throughout the day. That night she woke up with a fever and took two more teaspoonfuls of the Motrin, again without reading the warnings. The next morning she went to see her doctor, who gave her a dose of Benadryl and prescribed a Medrol pack, both being drugs for treating allergic reactions. She mentioned that she had taken Children's Motrin; he did not react.

Later that day she noticed that the rash on her chest was sprouting blisters, and her fever increased. After waking up late that night she again took two teaspoonfuls of the Motrin without reading the warnings. The next morning, with her condition deteriorating rapidly, she went back to her doctor, who immediately ordered her hospitalized. She was diagnosed with TEN (toxic epidermal necrolysis), an especially severe form of SJS (Stevens-Johnson syndrome). TEN is a rare but life-threatening disease that causes severe blistering and consequent sloughing off of skin over much of the body, together with serious damage to the mouth, eyes, throat, and esophagus. Jean-Claude Roujeau, Robert S. Stern & Bruce U. Wintroub, “Cutaneous Drug Reactions,” Harrison's Principles of Internal Medicine 343, 346 (Anthony S. Fauci et al. eds., 17th ed.2008); Pierre-Dominique Ghislain & Jean-Claude Roujeau, “Treatment of Severe Drug Reactions-Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis,” www. sjsupport. org/ pdf/ tsdr. pdf (visited July 21, 2010). The treatment for the disease is similar to that given burn victims.

Mrs. Robinson survived, but sixty percent of her skin had sloughed off, and she lost the vision in one eye and has only limited vision in the other, which requires constant medical treatment; she is expected to go blind eventually. She has required multiple operations on her throat and esophagus as a result of the damage to those organs caused by the disease.

The initial legal question presented by these unhappy facts is choice of law. Virginia as we said makes contributory negligence a complete defense to liability for negligence. Today that is distinctly a minority position, Restatement (Third) of Torts: Apportionment of Liability § 7 comment a (2000), contrary to the prediction in Pennsylvania R.R. v. Aspell, 23 Pa. 147, 149-50 (1854), that a rule of law “not likely to be changed in all time to come [is] that there can be no recovery for an injury caused by the mutual default of both parties.” Illinois makes the victim's negligence a partial defense under the rubric of “comparative fault,” which merely reduces the damages awarded the plaintiff unless the plaintiff's negligence exceeds the defendant's, in which event the plaintiff's negligence is a complete defense. 735 ILCS 5/2-1116(c); Board of Trustees of Community College District No. 508 v. Coopers & Lybrand, 208 Ill.2d 259, 281 Ill.Dec. 56, 803 N.E.2d 460, 465 (2003); Miller v. Illinois Central R.R., 474 F.3d 951, 957 (7th Cir.2007) (Illinois law). The jury was not asked to decide whether Mrs. Robinson's negligence exceeded McNeil's, as it should have been asked if, as the plaintiff argues, the tort law of Illinois rather than of Virginia governs the case.

Several states have a connection to the events giving rise to Mrs. Robinson's claim and therefore a potential, though for most of the states an attenuated, interest in the application of their law. She had bought the bottle of Children's Motrin in Georgia but was living in Virginia when she took the drug, and her initial medical treatment was administered there, after which she spent a month in the burn unit in a hospital in Baltimore where she was diagnosed with TEN. She moved with her husband and child to Illinois the following year. McNeil is a New Jersey corporation headquartered in Pennsylvania; we do not know where the drug was manufactured or the label composed and affixed to the bottle.

The applicable conflicts rule is of course that of Illinois, the forum state, and it uses the common but loose “most significant relationship” test. Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 316 Ill.Dec. 522, 531-32, 879 N.E.2d 910, 919-20 (2007); Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 898-99 (2007). That test points presumptively to the law of the jurisdiction in which the tort occurred (that is, the lex loci delicti ). Id.(and cases cited there). This means-because there is no tort without an injury, e.g., Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir.1996) (Illinois law); Rice v. Nova Biomedical Corp., 38 F.3d 909, 915-16 (7th Cir.1994) (same), and so a tort can't be said to occur until an injury is produced-the place where the injury was inflicted. Kamelgard v. Macura, 585 F.3d 334, 341 (7th Cir.2009) (Illinois law); cf. Townsend v. Sears, Roebuck & Co., supra, 316 Ill.Dec. 505, 879 N.E.2d at 905-06; Esser v. McIntyre, 169 Ill.2d 292, 214 Ill.Dec. 693, 661 N.E.2d 1138, 1141 (1996); Miller v. Long-Airdox Co., 914 F.2d 976, 978 (7th Cir.1990) (Illinois law); Restatement (Second) of Conflict of Laws § 146 (1971). That was Virginia. But because the injury is a continuing one, it is being experienced in Illinois. Indeed, Mrs. Robinson's condition has deteriorated since she moved to Illinois and probably will continue to deteriorate; therefore, the plaintiff argues, Illinois is the real site of the injury.

The lingering or worsening of an injury over a considerable period is common in personal injury cases, rather than an exceptional circumstance that might justify a departure from the ordinary principles of choice of law. If you suffer permanent brain damage in a motorcycle accident in Virginia and later move to Illinois, your suffering and treatment will continue and your condition may deteriorate. But to make the continuation or exacerbation of an injury a basis for applying Illinois tort law to your case would open vistas of forum shopping. Severely injured persons would move to the state whose law was most favorable to their tort claim and argue that that state had the “most significant relationship” to the injury because the plaintiff's aggregate suffering and perhaps expense of medical treatment would be greatest there. To avoid this incentive to forum shop, the initial place of the injury is properly deemed the place in which the injury occurred.

This was clearest when lex loci delicti was the rule governing choice of law in tort cases. See Restatement (First...