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02/09/87 Edward Malek Iii, A Minor v. Lederle Laboratories

February 9, 1987





504 N.E.2d 893, 152 Ill. App. 3d 493, 105 Ill. Dec. 608 1987.IL.144

Appeal from the Circuit Court of Cook County; the Hon. Harry S. Stark, Judge, presiding.


PRESIDING JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.


Plaintiff, Sherry Malek, as mother and next friend of the minor plaintiff, Edward Malek III, brought a personal injury action to recover damages against several defendants, including Lederle Laboratories (Lederle). In December 1982, the case proceeded to trial against Lederle only, and at the Conclusion of the trial, the jury found in favor of defendant and against plaintiff on all counts. Judgment was subsequently entered on that verdict. Thereafter, plaintiff filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401) requesting that the judgment be vacated and a new trial ordered. Following a hearing, the trial court granted plaintiff's petition. Defendant's motion for reconsideration was subsequently denied, and the defendant now appeals.

We reverse.

The facts pertinent to this appeal are as follows. The plaintiff filed a two-count complaint directed against defendant Lederle which included a count for strict products liability and a count for negligence. The complaint alleged that the minor plaintiff had been given vaccinations of diphtheria tetanus pertussis manufactured and marketed by Lederle under the brand name Tri-Immunol. The complaint further alleged that the Tri-Immunol vaccine manufactured by Lederle was unreasonably dangerous in that it was not accompanied by adequate warnings and that Lederle was negligent in failing to properly test the vaccine. Following the entry of the jury's verdict in favor of defendant, plaintiff's post-trial motion was denied, and, thereafter, the verdict was affirmed on appeal. (Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 466 N.E.2d 1038.) However, prior to this court's affirmance of the trial court's judgment, plaintiff had filed a section 2-1401 petition (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401), asserting as the basis for her petition that there was newly discovered evidence.

In her petition under section 2 -- 1401, plaintiff alleged that evidence had been withheld by the defendant which would have caused a different result at the trial of this case. In particular, the plaintiff set forth the following basis for her contentions. On March 31, 1981, during the course of discovery, plaintiff's attorney filed the following request for production:

"(f) Any and all correspondence, pamphlets, brochures, advertisements, promotional materials, displays, doctor's letters, newsletters, reports, articles, labels and inserts containing the drug DTP and/or Pertussis."

Plaintiff asserted that in response to this request, defendant made certain documents available for inspection at its headquarters at Pearl River, New York, on October 22 and 23, 1981, and that one of plaintiff's attorneys, Boyd McDowell, visited defendant's headquarters and inspected all documents for reproduction and delivery to the office of plaintiff's attorneys. Attached to plaintiff's complaint was Boyd McDowell's affidavit, which contended that certain documents that fell within the purview of the above request were withheld by the defendant., Plaintiff further alleged in her petition that on March 26, 1982, by letter to counsel for defendant Lederle, plaintiff requested that Lederle produce:

"Any and all reported pertussis vaccine reaction claims, including but not limited to convulsions, seizures, shock and paralysis, in the possession of Dr. Szumski, as indicated in his deposition, or in the possession of the Professional Services Department."

Plaintiff said that in response to this request, defendant did produce 31 product complaints, but only 14 of those complaints had been received by defendant prior to December 5, 1978, the date on which plaintiff was vaccinated with Tri-Immunol. In support of this allegation, plaintiff attached the affidavit of Allen McDowell, another of plaintiff's attorneys.

Plaintiff also contended in her petition that the defendant had "fraudulently" failed to disclose and produce all the documents that fell within the purview of the above discovery requests. Plaintiff later amended her petition to specifically contend that defendant "fraudulently, wrongfully, and/or mistakenly failed to fully disclose and produce all the documents." In support of these allegations of fraud, plaintiff alleged that in the case of Yankovich v. Lederle Laboratories, which was then pending in the circuit court of Cook County, plaintiff's attorneys there (plaintiff's attorneys in the instant case also served as plaintiff's attorneys in Yankovich), filed a request for production substantially identical to the request for production filed in the Malek case. However, the plaintiff contended that during an inspection of documents at defendant's New York headquarters, which was similar to the inspection that took place in the Malek case, defendant Lederle produced over 60 additional complaints of severe reactions to Tri-Immunol, as well as additional correspondence which had not been produced by Lederle in the Malek case. Plaintiff claimed that these additional documents disclosed in the Yankovich case fell within the scope of the request for production filed in the Malek case. The additional complaints and correspondence produced in Yankovich were attached to plaintiff's petition as exhibits 1 through 71. Also, the plaintiff ...

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