The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, Chief Judge:
Plaintiffs Claudia and Miguel Irizarry bring this three-count products liability action against various manufacturers and sellers of computer keyboards, alleging that the defendants' defective keyboards caused Claudia Irizarry to develop carpal tunnel syndrome and other medical problems. Presently before the court are the defendants' joint motion to dismiss the complaint for failure to file an adequate affidavit and expert's report as required by 735 ILCS 5/2-623, and the plaintiffs' motion for leave to file those materials. For the reasons set forth below, we grant leave to file the affidavit and report, but because the materials fail to satisfy § 2-623, we order the plaintiffs' to file a conforming affidavit and report within 30 days.
According to the complaint, from 1989 to 1994, Claudia Irizarry "continuously used" keyboards made and sold by the six defendants: Digital Equipment Corporation, Compaq Computer Corporation, Honeywell, Inc., Honeywell Information Systems, Bull HN Information Systems, and Key Tronic Corporation. Compl. P 11. Apparently, she typed on the keyboards as part of her secretarial job at a Helene Curtis facility located in Chicago. See id.; see Pl.'s Reply
at 19. Claudia asserts that she developed physical injuries, including carpal tunnel syndrome, as a result of typing on the so-called "QWERTY" keyboards.
On August 8, 1995, the plaintiffs filed their complaint in Illinois state court. In the first two counts, Claudia premised recovery for her injuries on strict liability and negligence theories; the third count asserted a loss of consortium claim on behalf of Claudia's husband, Miguel Irizarry. On September 8, 1995, the defendants removed the action to this court on the basis of diversity jurisdiction.
When the parties failed to appear at a status hearing, we dismissed the action for want of prosecution. We later granted the plaintiffs' motion to reinstate, and now the defendants move to dismiss the complaint, arguing that the plaintiffs failed to file the affidavit and expert's report required by 735 ILCS 5/2-623. In response, the plaintiffs move for leave to file the materials; the defendants reply that, even if filed, the materials do not meet the requirements of § 2-623. We discuss the arguments in turn.
As part of a larger tort reform measure named the Civil Justice Reform Amendments of 1995, § 2-623 provides for certain requirements applicable specifically to products liability actions in Illinois. In such actions, § 2-623 generally requires that the plaintiff's attorney "file an affidavit, attached to the original and all copies of the complaint," averring either that (1) the attorney "has consulted and reviewed the facts of the case with a qualified expert . . . who has completed a written report" that contains specified information and findings, or (2) the attorney cannot obtain the consultation prior to filing of the complaint due to an imminent expiring of a statute of limitations or because another person prevented testing of the product. § 2-623(a)(1), (2). If the plaintiff's attorney files an affidavit under § 2-623(a)(2), "the affidavit required under paragraph (1) shall be filed within 90 days after the filing of the complaint." § 2-623(a)(2).
Under Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), substantive rules such as § 2-623 apply in diversity actions litigated in federal court. Medrano v. Tenneco Equip. Corp., 907 F. Supp. 1228, 1229 (N.D. Ill. 1995); Gozenpud v. Crown Controls Corp., 897 F. Supp. 372, 374 (N.D. Ill. 1995); Moran v. Ortho Pharmaceutical Corp., 907 F. Supp. 1228, 1995 U.S. Dist. LEXIS 18415, 1995 WL 744968, at *1 (N.D. Ill. 1995). Although "there is no clear criterion for deciding whether a particular state rule is 'substantive' for purposes of deciding whether Erie requires that it be enforced in federal diversity litigation,"
[one] class of pretty easy cases is where the state procedural rule, though undeniably 'procedural' in the ordinary sense of the term, is limited to a particular substantive area, such as . . . tort law. . . . For then the state's intention to influence substantive outcomes is manifest and would be defeated by allowing parties to shift their litigation into federal court unless the state's rule was applied there as well.
S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 60 F.3d 305, 310 (7th Cir.) (citations omitted), cert. denied, 133 L. Ed. 2d 491, 116 S. Ct. 566 (1995). According to this understanding of Erie, § 2-623 is substantive; the affidavit requirement is specifically targeted at products liability actions, and the requirement does not conflict with the Federal Rules of Civil Procedure.
See id. Accordingly, we apply § 2-623 in this action.
In the instant case, the plaintiffs filed an affidavit under § 2-623(2), triggering the 90-day extension to file an affidavit conforming to § 2-623(1). Because the complaint was filed on September 8, 1995, the 90-day period expired on November 6. However, it was not until December 12 that the plaintiffs moved for leave to file the § 2-623(1) affidavit, and that was the first date the plaintiffs tendered the affidavit and report.
Although no Illinois case addresses the consequences of failing to timely file a § 2-623 affidavit, we think the Illinois Supreme Court would not mandate automatic dismissal with prejudice. In McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188, 520 N.E.2d 293, 117 Ill. Dec. 132 (Ill. 1987), the state supreme court held that failure to file a similar affidavit required in medical malpractice actions, 735 ILCS 5/2-622, does not automatically dictate dismissal with prejudice. Although the court relied in part on legislative history specific to § 2-622, the court also reasoned that it would be "absurd, inconvenient or unjust" if courts could not "permit amendments to add the necessary affidavits." 117 Ill. Dec. at 135. Rather, "the decision whether to grant leave to amend the pleadings is within the sound discretion of the trial court." Id.4 Furthermore, the concurrence in McCastle emphasized that § 2-622(g) merely provided that failure to file the affidavit "shall be grounds for dismissal," but did not expressly require dismissal. Id. (Miller, J., concurring). In light of the similarities between the affidavit requirements of §§ 2-622 and 2-623, and between the stated ...