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Schiffner v. Motorola Inc.

June 30, 1998

FRANK J. SCHIFFNER, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
MOTOROLA, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County

No. 95 CH 01879

Honorable Stephen A. Schiller, judge Presiding.

Plaintiff Frank J. Schiffner appeals the dismissal of his fourth amended complaint against defendant Motorola, Inc., based on defendant's marketing and sale of cellular telephones. The circuit court granted defendant's section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 1996)), finding that federal law preempted plaintiff's state law causes of action pursuant to the decision in Verb v. Motorola, Inc., 284 Ill. App. 3d 460 (1996), appeal denied, 172 Ill. 2d 568 (1997).

The issue on appeal is whether plaintiff's causes of action under state law are preempted by federal law, i.e., the Electronic Product Radiation Control Act (Act) (21 U.S.C.A. §§360hh through 360ss (West Supp. 1998)). The Verb court held that the Act preempted the same causes of action advanced by the instant plaintiff in his fourth amended complaint. We find the Verb case persuasive and dispositive of this issue. Thus, we affirm the dismissal of plaintiff's complaint.

In addition, however, plaintiff contends that his complaint, unlike the Verb complaint, sufficiently stated a compensable injury by alleging the diminished value of a product due to defects associated with the product. We agree with plaintiff that such an allegation states a compensable injury.

The procedural background of this case tracks the path of the Verb complaint through the appellate decision in Verb, which was first filed in March 1996 and then, upon the denial of a petition for rehearing, was issued as a modified opinion in November 1996.

In August 1993, the circuit court dismissed the Verb complaint, holding that its subject matter was preempted by federal law and ruling that the Verb plaintiffs had not alleged a compensable injury. The circuit court's ruling was appealed.

In June 1995, the present plaintiff filed a second amended complaint. Defendant filed a motion to dismiss based on the circuit court's previous dismissal of the Verb complaint, which was then pending on appeal.

In March 1996, the appellate court filed its opinion in Verb and affirmed the dismissal of the Verb complaint. The Verb plaintiffs filed a petition for rehearing with the appellate court.

In response to the March 1996 Verb decision, the present plaintiff sought and received leave to file another amended complaint in June 1996. In September 1996, defendant filed another section 2-615 motion to dismiss plaintiff's third amended complaint or, in the alternative, a stay pending the appellate court's ruling the rehearing petition on Verb. The circuit court granted a stay. In November 1996, the appellate court denied the Verb rehearing petition and filed a modified opinion.

In response to the Verb modified opinion, the circuit court lifted the stay in the present case in February 1997. On February 5, 1997, the circuit court, finding that the Verb opinion was dispositive on the preemption issue and binding on it, dismissed plaintiff's third amended complaint and allowed plaintiff to amend again.

With this background and direct link to Verb, plaintiff then filed his fourth amended complaint, which is at issue in the present appeal. Plaintiff's fourth amended complaint arises out of the marketing and sale of cellular portable telephones by defendant. Plaintiff alleged three causes of action: (1) breach of implied warranty of merchantability under the Uniform Commercial Code (810 ILCS 5/2-103 et seq. (West 1992)); (2) consumer fraud; and (3) violation of the Magnuson-Moss Warranty Act (15 U.S.C. §2301 et seq. (1994)). In addition, plaintiff sought certain injunctive relief to stop defendant from continuing its alleged illegal acts and conduct on an ongoing basis as alleged in the complaint.

The gravamen of plaintiff's complaint is that defendant manufactured and sold cellular portable telephones that were defective because of the uncertain safety of the product and defendant's failure to disclose potential health risks and potential hazards associated with the use of the product. Cellular portable phones operate with a transmission antenna that emits the phone's electromagnetic radio waves into the phone unit. Plaintiff further alleges that defendant did not complete studies to definitively and accurately ascertain the safety of the use of the phones and defendant failed to advise plaintiff that the phones had not been proven safe. Plaintiff also alleged that defendant failed to adequately package or label the phones; failed to provide adequate information about the health risks; failed to provide adequate guards to shield the user from electromagnetic field (EMF) radiation; failed to provide adequate instructions on how to use the phone; and failed to adequately design the phone.

Defendant again filed a section 2-615 motion to dismiss plaintiff's complaint. The circuit court dismissed plaintiff's fourth amended complaint and, relying on the Verb decision, stated that the grounds for dismissal were preemption and "a lack of cognizable injury."

As a threshold matter, defendant asserts that the principles of stare decisis require this panel, the sixth division of the first district, to follow the precedent established by the second division of the first district in Verb. Defendant's assertion fails for two reasons. First, the doctrine of stare decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal or inferior courts. Village of Northbrook v. Cannon, 61 Ill. App. 3d 315, 322 (1978). Second, "[s]tare decisis is a policy of the courts to stand by precedent and leave settled points of law undisturbed." Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). The point of law at issue in the instant case is hardly settled law because, to date, the Verb opinion is the sole decision in the country on federal preemption under the Act. Moreover, a split in authority between the divisions of the first district is not unprecedented and has led to an ultimate resolution by the supreme court. See, e.g., Moore v. Jackson Park Hospital, 95 Ill. 2d 223 (1983) (resolving contrary decisions between the fourth division of the first district ...


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