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ROSEN v. CIBA-GEIGY CORP.

August 3, 1995

RAYMOND ROSEN, Plaintiff,
v.
CIBA-GEIGY CORPORATION, Defendant.



The opinion of the court was delivered by: JAMES H. ALESIA

 Plaintiff Raymond Rosen ("Rosen") has filed a complaint against defendant Ciba-Geigy Corporation ("Ciba-Geigy"), wherein plaintiff alleges that Ciba-Geigy's negligent marketing, development, sale, and distribution of the Habitrol patch used by Rosen caused his June 11, 1992, heart attack. Plaintiff alleges Ciba-Geigy was negligent in that it:

 
(a) failed to fully inform physicians and/or patients of the nature and extent of the operation of the Habitrol patch on the system of the patient;
 
(b) failed to provide sufficient instruction and warning in form and content comprehensible to layman patients as to the potential consequences of use of Habitrol;
 
(c) failed to conduct sufficient investigation and testing to become aware of the consequences of smoking cigarettes while using the Habitrol patch;
 
(d) and was otherwise negligent in developing, promoting, marketing, and selling the Habitro1 patch.

 (Plaintiff's Complaint, P 13.) Defendant has since filed a motion for summary judgment which the court now decides.

 I. FACTS

 Ciba-Geigy is the manufacturer of the Habitrol patch system, a transdermal nicotine system designed to help smokers quit smoking. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue ("Defendant's 12(M) Statement") at 2.) This patch releases nicotine through the skin into the bloodstream, replacing some of the nicotine smokers may crave while attempting to quit smoking. (Defendant's 12(M) Statement at 2.)

 Rosen was a smoker for 49 years prior to his use of the Habitrol patch. (Plaintiff's Response to Defendant's Statement of Facts to Which it Believes There is No Dispute ("Plaintiff's 12(N) Statement") at 1.) In 1987, Rosen had a heart attack and subsequently had quadruple bypass surgery. (Defendant's 12(M) Statement at 3.) Rosen was then advised to quit smoking. (Defendant's 12(M) Statement at 3.) However, he did not. (Defendant's 12(M) at 4.) In 1990, Rosen's doctor prescribed nicotine gum to help Rosen quit smoking, but his use of the gum was unsuccessful. (Defendant's 12(M) Statement at 4.) About two years later, he requested that his doctor prescribe a nicotine patch to help him stop smoking. (Defendant's 12(M) Statement at 4.) He wore a sample patch for one day and reported a lack of side effects to his doctor. (Defendant's 12(M) Statement at 5.) His doctor then prescribed the patch to him. (Defendant's 12(M) Statement at 5.) The patient instructions stated that one should not smoke while wearing the patch. (Defendant's 12(M) Statement at 5.) Rosen read these instructions and knew he should not smoke. (Defendant's 12(M) Statement at 5.) On June 11, 1992, while still wearing the patch he had placed on his arm twenty-four hours earlier, Rosen smoked two cigarettes. (Defendant's 12(M) Statement at 5-6.) Rosen then took a bath and removed his patch. (Defendant's 12(M) Statement at 6.) Upon removing the patch, he experienced a sensation that went down his arm. (Plaintiff's 12(N) Statement at 5.) Later that day, he was diagnosed as having a non-Q wave myocardial infarct. (Plaintiff's 12(N) Statement at 6.) After this heart attack, he continued to smoke and has since had an additional heart attack. (Defendant's 12(M) Statement at 6-7.)

 II. STANDARD OF REVIEW

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). When reviewing the record on summary judgment, this court must draw all reasonable inferences in the light most favorable to the non-movant. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir. 1992). To avert summary judgment, however, plaintiff must do more than raise "'some metaphysical doubt as to the material facts.'" Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted)). Instead, he must present specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 III. DISCUSSION

 In order to prevail in a negligence action under Illinois law, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the defendant's breach proximately caused the plaintiff to incur injuries. Espinoza v. Elgin, Joliet and Eastern Ry. Co., 165 Ill. 2d 107, 649 N.E.2d 1323, 1326, 208 Ill. Dec. 662 (Ill. 1995) (citations omitted). Normally, causation is a factual issue for the jury to decide. Collins v. American Optometric Ass'n, 693 F.2d 636, 640 (7th Cir. 1982); Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 603 N.E.2d 449, 455, 177 Ill. Dec. 379 (Ill. 1992). However, where a review of all the evidence permits only one reasonable conclusion on the issue of cause, the trial court may render judgment as a matter of law. Id. Rosen has failed to create any issue of material fact that the Habitrol patches ...


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