cost considerations alone or, more important, that the cost considerations that contributed to Syntex's decision to change the water supply were in any way related to its decision to cease adding sodium chloride to the formula. It is the latter decision, rather than the decision to change the water component of Neo-Mull-Soy, that is relevant to defendants' motion.
With regard to the deletion order itself, plaintiff offers nothing to dispute Syntex's summary judgment evidence that it was motivated by Dr. Saperstein's legitimate desire to limit the sodium content of the infant diet in light of what was then a nationwide concern over the effects of excessive sodium on infants (Saperstein Aff. para. 7). Indeed, plaintiff's own evidence suggests nothing more than that, having selected an alternative water source that appeared to be causing the sodium content of Neo-Mull-Soy to rise, Dr. Saperstein made a good faith decision to stop adding salt to a product that he believed would contain excessive levels of sodium if he failed to act (Saperstein Dep. Vol I at 57, Vol. II at 30-31). Plaintiff offers nothing to contradict Dr. Saperstein's assertion that he never intended to remove chloride from the formula (Saperstein Dep. Vol. I at 50; Ingram Dep. at 140). Furthermore, plaintiff offers no evidence that Syntex deliberately elected to manufacture a formulation of Neo-Mull-Soy that it knew to be lacking an essential nutritional ingredient in order to save money. Plaintiff has submitted no evidence of conduct in this regard from which a reasonable juror could infer the "evil motive" or "reckless indifference" requisite for punitive damages under Loitz.
Plaintiff next asserts that Syntex's motion for summary judgment should be denied in light of the fact that the quality control sector at Syntex's Elgin plant, which was responsible for product testing, failed to test for chloride from October 1977 to August 1979. This fact is undisputed. Merely demonstrating that testing had ceased at the Elgin plant, however, is insufficient to merit the imposition of punitive damages. Under the "corporate complicity" doctrine followed by the Illinois courts, a corporation will not be held vicariously liable for its employees' actions for purposes of punitive damages unless "a superior officer of the corporation ordered, participated in, or ratified the 'outrageous conduct' of the employee." Pendowski v. Patent Scaffolding Co., 89 Ill. App. 3d 484, 488, 411 N.E.2d 910, 913, 44 Ill. Dec. 544 (1st Dist. 1980); Tolle v. Interstate Systems Truck Lines, Inc., 42 Ill. App. 3d 771, 772-74, 356 N.E.2d 625, 1 Ill. Dec. 437 (5th Dist. 1976).
The undisputed evidence demonstrates no basis from which this court could infer that Dr. Saperstein, who was responsible for such matters within the company, "ordered, participated in, or ratified" the halting of chloride testing at the Elgin plant. Indeed, the evidence submitted by both sides to this litigation demonstrates a complete lack of knowledge on the part of Dr. Saperstein and, therefore, Syntex. It remains undisputed that Syntex's Elgin plant tested for chloride pursuant to Dr. Saperstein's orders prior to 1977 (Def. Statement of Undisputed Facts paras. 5,9; Plaintiff's Statement of Material Disputed Facts at 15-16). This, as defendants contend, becomes critical in light of additional undisputed evidence that this testing took place at Dr. Saperstein's direction, that he believed the testing to be continuing on a regular basis at the Elgin plant, that he never intended that his deletion order reduce chloride levels below the target level, and that he was depending on the quality control personnel in Elgin to let him know if tests revealed any deviations from the target specifications (as opposed to notification if those targets were being met) (Saperstein Aff. paras. 5, 10).
Plaintiff, attempting to create an issue of fact as to whether Dr. Saperstein knew that testing had ceased in Elgin, submits documentary evidence that they claim demonstrates his repeated failure to respond "appropriately" to "pleas for help" from Elgin personnel regarding the target specifications for electrolytes in Neo-Mull-Soy (Pl. Exs. 15, 19, 45, 46). Review of these documents, coupled with plaintiff's excerpts of Dr. Saperstein's deposition testimony concerning them, indicates that they offer no support for the imposition of punitive damages. Plaintiff, for example, offers a letter from Dick Riddle, manager of quality control at Elgin, in which Riddle indicated that he lacked the production manual for Neo-Mull-Soy as manufactured at the Pet, Inc. plant in Coldwater, and that he was particularly concerned with the procedure for adding (rather than deleting) sodium chloride (Pl. Ex. 15). Plaintiff's own deposition excerpts establish that Dr. Saperstein never received this memo (Saperstein Dep. Vol. II at 51-52); even if he had, it contains no reference to chloride testing, thus further diminishing its probative value for purposes of this motion. Similarly, plaintiff submits 1) a memorandum from Dr. Saperstein to Riddle, in which Dr. Saperstein responded to Riddle's inquiry as to the appropriate target figures for electrolytes according to the Neo-Mull-Soy production manual (Pl. Ex. 19); and 2) a follow-up memorandum from Riddle to Dr. Saperstein, inquiring whether the target figures could be met within a range of plus or minus ten percent, as in the pharmaceutical industry (Pl. Ex. 46). Plaintiff emphasizes certain passages from the latter memorandum, in which Riddle stated that he was not "knowledgeable regarding acceptable ranges of these electrolytes in relationship to the physiological health of infants. We need your help here." and "We need your help on all these matters and a prompt response regarding the implications of exceeding our present specifications for various microingredients . . . ." (Pl. Ex. 45). As with plaintiff's other exhibits, these memoranda, which demonstrate Riddle's concern with the consequences of exceeding the target expectations for various ingredients, are in no way relevant to the issue of testing for chloride deficiencies. Plaintiff's claim that these documents evidence Dr. Saperstein's failure to respond "properly," moreover, are controverted by her own excerpts from his deposition, in which he testified that he "was on the phone with [Riddle] immediately" upon receipt of Riddle's request for assistance with the appropriate ranges (Saperstein Dep. Vol. II at 64).
In sum, not one of the plaintiff's documents regarding the halting of testing at the Elgin plant directly addressed the testing issue in any way. Dr. Saperstein has testified, and the evidence is undisputed, that at no point during his communications with Elgin did Dick Riddle indicate to him that the Elgin plant was not conducting chloride testing (Saperstein Dep. Vol. II at 64). Whether the communications from Elgin reasonably should have triggered an inquiry from Dr. Saperstein regarding the status of chloride testing at the plant -- the issue pressed by plaintiff -- is not for this court to decide at this juncture. The relevant issue in the context of Syntex's motion is whether plaintiff has submitted any evidence to indicate that Syntex produced and distributed Neo-Mull-Soy that it knew was not being tested, in conscious disregard of the known risk that would accompany such a practice. The undisputed evidence submitted by both sides to this litigation yields an unequivocal negative response to this question.
Finally, plaintiff contends that Syntex failed to warn the public of the dangers of ingesting chloride-deficient Neo-Mull-Soy. Plaintiff's assertion, however, is based in its entirety on Syntex's admission that it issued no warning of low chloride levels in Neo-Mull-Soy until it learned of them shortly before it recalled the product from the market (Def. Interrog. Response 52). Plaintiff fails, however, to cite any authority -- indeed, this court doubts that any such authority could be found -- for the proposition that a corporation's failure to take action to correct problems of which it is unaware merits the imposition of punitive damages. The undisputed evidence set forth in this court's background discussion, supra, indicates that Syntex implemented a decisive series of corrective measures immediately upon discovery that Neo-Mull-Soy was being produced in a chloride-deficient state. This assertion, as well, clearly fails to meet the standard set forth by the Illinois Supreme Court in Loitz. See In re Salmonella Litigation, 198 Ill. App. 3d 809, 818, 556 N.E.2d 593, 599, 144 Ill. Dec. 915 (1st Dist.), app. denied, 561 N.E.2d 707 (Ill. 1990) (jury verdict refusing to impose punitive damages upheld, where defendant, having received knowledge its milk was defective, recalled the product and investigated the cause of the defect).
Defendants' motion for summary judgment on Counts VII and XII of plaintiff's complaint is granted.