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April 5, 2000


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 ...

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