The opinion of the court was delivered by: Bucklo, District Judge.
Walter Erickson was a hemophiliac. The defendants in this case gave him
plasma factor tainted with hepatitis B and C and HIV, causing his death.
They argue here that his surviving spouse's state law wrongful death and
survival actions for negligence should be dismissed because Mr. and Ms.
Erickson declared bankruptcy before his death, and these causes of action
became, by operation of law, the exclusive property of the bankruptcy
estate, so Ms. Erickson lacks standing to sue as a representative of her
husband's estate or on her own behalf. Ms. Erickson, for her part, moves
for a stay to join the bankruptcy trustee to this case. I deny the
defendants' motion to dismiss and Ms. Erickson's motion for a stay.
Mr. Erickson was, and Ms. Erickson still is, a citizen of Arizona, but
they formerly resided in Illinois, where he worked as a truck driver. He
suffered from hemophilia A, a hereditary illness that inhibits blood
clotting and creates risks of uncontrolled bleeding. It can be treated by
transfusions of clotting factors derived from human blood plasma—in
the case of hemophilia A, factor VIII. Mr. Erickson had received factor
VIII intravenously since at least 1979. It is produced by the
defendants: Baxter Healthcare, a Delaware corporation with its principal
place of business in Deerfield, Illinois; Bayer
Corporation, an Indiana corporation with its principal place of business
in Pittsburgh, Pennsylvania; Armour Pharmaceutical, a Delaware
corporation with its principal place of business in Bluebell,
Pennsylvania; and Alpha Therapeutic, a California corporation with its
principal place of business in Los Angeles, California. The National
Hemophilia Foundation has been dismissed from this action.
Ms. Erickson alleges that there are over 20,000 hemophiliacs in the
country, and the majority of them have been infected with HIV. Factor
VIII, like all blood factors, is processed by the defendants into a
concentrate from blood contributed by donors, most of whom are paid, and
many of whom are at greater risk than the general population for
communicable virus infections. The concentrate is then administered
intravenously to patients by medical personnel. Ms. Erickson alleges that
the defendants obtained plasma for their concentrates from sources where
there was known to be an unreasonably high risk of infection, e.g., from
prisoners or plasma donor centers frequented by intravenous drug users or
where there was a higher than normal practice of unsafe sex.
Ms. Erickson contends, first, that despite the existence by 1981 of
technologies to test for, and dominates the risk of, hepatitis virus in
factor VIII, the defendants did not use these technologies; and, second,
despite the known risk that a transmissible agent (later identified as
HIV) was contaminating factor products, the defendants did not warn
hemophiliacs like Mr. Erickson of the risk.
While living in Illinois, Mr. Erickson was infected with HIV, and
contracted AIDS as well as hepatitis B and C. He had come to believe by
April 1991 that the infections were due to his use of factor
concentrates. Unless Mr. Erickson's illness derived from some other
source, which the defendants do not allege, it is virtually certain that
his fatal illnesses were caused by tainted plasma, and in any sage I must
assume this to be true for purposes of this motion. If so, the real issue
in the case would be fault and not causation.
In November 1991, Mr. and Ms. Erickson filed for bankruptcy, and that
case was closed in April 1992. They did not list or "schedule" any cause
of action relating to Mr. Erickson's illnesses in their bankruptcy
filings. In March 1993, however, Mr. Erickson filed a state court case
charging the defendants with negligence in causing his illnesses. It was
dismissed when he joined a class action filed in Northern Illinois
district court in September 1993. On December 9, 1998, the district court
severed Mr. Erickson's claims and directed him to file a new complaint.
Mr. Erickson died in Arizona on December 28, 1998, of complications
associated with AIDS and hepatitis. Pursuant to the district court's
order, Ms. Erickson filed this case in January 1999 on her own behalf and
as representative of Mr. Erickson's estate.
Although jurisdiction is logically determined prior to choice of law, I
begin with a choice of law issue that affects how the jurisdictional
issue is framed, although not its outcome. Ms. Erickson attempts to
invoke the law of Arizona, the state where she and her husband lived, and
defendants oppose this, arguing for Illinois law. A federal court decides
choice of law questions in accordance with the choice of law principles
of the state in which it sits. Ruiz v. Blentech Corp., 89 F.3d 320, 323
(7th Cir. 1996). Illinois uses the "most significant contact" approach of
the Restatement (Second) of Conflicts of Law. Esser v. McIntyre,
169 Ill.2d 292, 214 Ill.Dec. 693, 661 N.E.2d 1138, 1141 (1996) (citing
Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 596 (1970)). In
determining the most significant relationship, I consider what sort of
case it is (tort, contract, etc.) and examine, for each separate claim:
(1) the place of the injury, (2) the place where the injury-causing
conduct occurred, (3) the domicile of the parties, and (4) the place
where the relationship between the parties
is centered. Frederick v. Simmons Airlines, Inc. 144 F.3d 500, 503-4 (7th
Cir. 1998) (citing Esser, 214 Ill.Dec. 693, 661 N.E.2d at 1141). I also
consider the interests and public policies of potentially concerned
states as they relate to the transaction. Id. at 504 (citing Jones v.
State Farm Mut. Auto. Ins. Co., 289 Ill. App.3d 903, 224 Ill.Dec. 677,
Z82 N.E.2d 238, 249 (1997)).
The two most important factors under Illinois choice of law rules are
the place where the injury occurred and the place where the
injury-causing conduct occurred. Miller v. Long-Airdox Co., 914 F.2d 976,
978 (7th Cir. 1990) (citing Ferguson v. Kasbohm, 131 Ill. App.3d 424, 86
Ill.Dec. 605, 475 N.E.2d 984, 986 (1985)). With respect to the wrongful
death claim, see 740 ILCS 180/1, the place of injury in this case was
Arizona, where Mr. Erickson died. See Bradbury v. St. Mary's Hospital of
Kankakee, 273 Ill. App.3d 555, 210 Ill.Dec. 252, 652 N.E.2d 1228, 1230
(1995) ("In a wrongful death action, the place of the wrong is the place
of the decedent's death.").
The injury-causing conduct here, however, took place mainly in
Illinois, where the defendants allegedly failed to adopt appropriate
technologies to screen plasma or provide hemophiliacs with suitable
warnings. Ms. Erickson does not allege that Mr. Erickson was harmed by
any negligence that the defendants may have committed in Arizona. The
only thing that Ms. Erickson herself suggests as favoring the choice of
Arizona law is that she and her husband were domiciled there. Moreover,
Illinois has a greater interest in this case than Arizona because it has
an interest in preventing harm due to negligence in preparation,
testing, and warnings concerning medical treatment of a sort alleged here
to have occurred in Illinois. Arizona wrongful death law might be in fact
more favorable for the defendants than Illinois law, but defendants argue
that I should use Illinois law, and for the reasons explained, I shall.
Unlike a wrongful death action, a survival action, see 755 ILCS
5/27-6, acts to preserve rights of action for personal injury that
accrued before the death of the injured person. Ellig v. Delnor Community
Hosp., 237 Ill. App.3d 396, 177 Ill.Dec. 829, 603 N.E.2d 1203, 1206-7
(1992). A tort cause of action accrues when facts exist that authorize
the bringing of an action.*fn1 Fetzer v. Wood, 211 Ill. App.3d 70, 155
Ill.Dec. 626, 569 N.E.2d 1237, 1242 (1991). Ms. Erickson does not argue
that the negligence claims she seeks to maintain under the Survival Act
accrued only when Mr. Erickson moved to Arizona; indeed, Mr. Erickson
filed his first lawsuit based on these claims in Illinois in ...