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FONTENOT v. DIGITAL EQUIP. CORP.

September 5, 1996

LUCY FONTENOT and EFRAIN ROCHE, h/w, Plaintiffs,
v.
DIGITAL EQUIPMENT CORP., COMPAQ COMPUTER CORPORATION, HONEYWELL, INC., HONEYWELL INFORMATION SYSTEMS, INC., BULL HN INFORMATION SYSTEMS INC., and KEY TRONIC CORPORATION, Defendants.



The opinion of the court was delivered by: ANDERSEN

 BACKGROUND

 As part of the Civil Justice Reform Amendments of 1995, 735 ILCS 5/2-623 ("section 2-623") sets forth certain requirements applicable to all products liability actions in Illinois. In such actions, section 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. 735 ILCS § 2-623(a)(2). If the plaintiff's attorney files an affidavit under section 2-623(a)(2), the affidavit and expert's report required under paragraph (1) shall be filed within 90 days after the filing of the complaint. 735 ILCS § 2-623(a)(2).

 On August 30, 1995, plaintiffs filed a three-count complaint against Digital, Compaq, and Key Tronic in the Circuit Court of Cook County. *fn1" Specifically, Lucy Fontenot alleges that she suffered carpal tunnel syndrome and other injuries as a result of her continuous use of keyboard equipment manufactured by the various defendants. Counts I and II of the complaint sound in strict liability and negligence, respectively. Count II asserts a loss of consortium claim on behalf of Lucy Fontenot's husband, Efrain Roche.

 Plaintiffs' attorney attached an affidavit to the complaint stating that she was unable to obtain a consultation as required by section 2-623(a)(1) before the expiration of the statute of limitations. This affidavit then triggered the 90-day extension to file an expert's report conforming to section 2-623(a)(1). See 735 ILCS 5/2-623(a)(2). On September 28, 1995, defendants removed the action to this Court based on diversity jurisdiction.

 On November 27, 1995, within ninety days after the filing of the complaint, plaintiffs filed an affidavit and two expert reports authored by Karl Kroemer and one authored by Emil Pascarelli. On December 14, 1995, Compaq moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to satisfy the substantive requirements of section 2-623. This motion was joined by Digital and Key Tronic. Consequently, on December 19, 1995, plaintiffs requested time to file a supplemental report to cure the defects raised in Compaq's motion to dismiss. We permitted plaintiffs to file an amended certificate of merit but expressly noted that defendants did not waive their right to object to the timeliness of the filing as beyond the ninety-day deadline required by the statute. On February 9, 1996, plaintiffs filed supplemental reports authored by Karl Kroemer and David Thompson.

 DISCUSSION

 I. 735 ILCS § 5/2-623

 Federal courts in this district have consistently applied the requirements of section 2-623 in diversity cases. See Irizarry v. Digital Equipment Corp., 919 F. Supp. 301, 304 (N.D.Ill. 1996); Medrano v. Tenneco Equipment Corp., 1995 U.S. Dist. LEXIS 18812, No. 95 C 50187, 1995 WL 756856, at *1 (N.D.Ill. Dec. 12, 1995); see also Farris v. Satzinger, 681 F. Supp. 485, 489 (N.D.Ill. 1987)(applying similar requirements in 735 ILCS 5/2-621); Estate of Cassara by Cassara v. State of Illinois, 853 F. Supp. 273, 281 (N.D.Ill. 1994)(applying 735 ILCS 5/2-622). Section 2-623 provides in part:

 (a) In a product liability action, as defined in Section 2-2101, in which the plaintiff seeks damages for harm, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

 
(1) That the affiant has consulted and reviewed the facts of the case with a qualified expert, as defined in subsection (c), who has completed a written report, after examination of the product or a review of the literature pertaining to the product, in accordance with the following requirements:
 
(A) In an action based on strict liability in tort or implied warranty, the report must:
 
(i) identify specific defects in the product that have a potential for harm beyond that which would be objectively contemplated by the ...

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