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 1993. There
would appear to be nothing to favor the choice of Arizona law but the
fact of his later domicile there, and that is not enough. I apply
Illinois law here as well.
Standing is a question of subject matter jurisdiction.*fn2 Retired
Chicago Police Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir.
1996). On a motion to dismiss for lack of subject matter jurisdiction, I
read a complaint liberally and accept as true the well-pleaded
allegations of the complaint and the inferences that may be reasonably
drawn from those allegations. Sapperstein v. Hager, 188 F.3d 852, 855
(7th Cir. 1999). The plaintiff has the obligation to establish
jurisdiction by competent proof. Commodity Trend Service, Inc. v.
Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir. 1998). I
may look beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists. Long v. Shorebank Development
Corp., 182 F.3d 548, 554 (7th Cir. 1999).
The defendants' argument that Ms. Erickson lacks standing is as elegant
as it is chilling. Even if the defendants negligently caused Mr.
Erickson's death by giving him tainted factor VIII, the argument goes,
she cannot sue because her causes of action became the property of the
bankruptcy estate when the Erickson's declared bankruptcy in 1991.
Section 541 of the Bankruptcy Code provides that upon the commencement of
a bankruptcy case, an estate is created comprising "all legal and
equitable interests of the debtor in property . . . ." 11 U.S.C. § 541
(a)(1). A cause of action is property, see Saltzberg v. Fishman,
123 Ill. App.3d 447, 78 Ill.Dec. 782, 462 N.E.2d 901, 905 (1984), and has
been so regarded for purposes of the Bankruptcy Code. See Integrated
Solutions, Inc. v. Service Support Specialties, Inc., 124 F.3d 487,
490-91 (3d Cir. 1997).*fn3 The Ericksons did not list or "schedule" any
causes of action connected with Mr. Erickson's illness in their
bankruptcy filings, but under § 554(d), unscheduled property not
abandoned by the trustee under § 554(a) or (b) remains part of the
estate even when the case is closed. The trustee has not abandoned any
such causes of action, so they remain the property of the estate.
Therefore, perversely, the Ericksons have not been legally injured by
Mr. Erickson's illnesses and death, even if these were caused by the
defendants' negligence, since their right to sue belongs to the
bankruptcy estate and can only be exercised, if at all, by the trustee in
bankruptcy. Because she lacks the requisite injury in fact demanded by
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992), Ms. Erickson has no standing to sue, and I must
dismiss her complaint.
This an argument that only a lawyer could admire, but the defendants
are correct that there is a real issue of standing here. Ms. Erickson's
response that the question is one of the "real party in interest" rather
than one of standing is without merit. Standing is an absolute
jurisdictional requirement to sue in federal court, Valley Forge
Christian College v. Americans United for Separation of Church and
State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and,
contrary to Ms. Erickson's suggestion, not merely in cases against the
government. Ms. Erickson argues that the doctrine of standing has "little
utility in suits between private parties who have clearly enforceable
interests." If so, that is not because the standing requirement need not
be satisfied, but because in such cases it is obviously satisfied. Here,
however, the question is whether Ms. Erickson has an enforceable
interest. If she gave up her right to sue on any matter connected with
Mr. Erickson's illness and death when they declared bankruptcy, she has
no such right.
With respect to the Illinois Wrongful Death Act, 740 ILCS 180, et
seq., however, she clearly does have such a right. The cause of action
did not accrue until Mr. Erickson died in 1998, and therefore could not
have become part of the bankruptcy estate created in 1991 when he filed
for bankruptcy because it did not
exist at that time. A wrongful death action is premised upon the
defendants' wrongful conduct resulting in death, Vaughn v. Granite City
Steel Div. of National Steel Corp., 217 Ill. App.3d 46, 159 Ill.Dec.
951, 576 N.E.2d 874, 880 (1991), but unlike the Survival Act, the
Wrongful Death Act does not provide for the survival of a right of action
the decedent had for damages he incurred. It rather governs the right of
the surviving spouse and next of kin to recover for their own pecuniary
injuries suffered as a consequence of the death of the decedent. See
Wyness v. Armstrong World Indus., Inc., 131 Ill.2d 403, 137 Ill.Dec.
623, 546 N.E.2d 568, 571 (1989). As noted, therefore, the action accrues
upon the decedent's death and provides a remedy for damages incurred as a
result of the death itself. Bradbury v. St. Mary's Hosp. of Kankakee,
273 Ill. App.3d 555, 210 Ill.Dec. 252, 652 N.E.2d 1228, 1229 (1995). Not
only is death an element of such an action, it is the last element
necessary to render an actor liable for the pecuniary injuries suffered
by the surviving spouse and next of kin. Id. at 1230, 210 Ill.Dec. 252.
Mr. Erickson died in 1998, and Ms. Erickson could not have sued under the
statute before then, and certainly not before the creation of the
bankruptcy estate in 1991.
The defendants argue that the Wrongful Death Act says that there will
be no liability unless the decedent could have maintained an action for
damages if death had not ensued. Varelis v. Northwestern Mem. Hosp.,
167 Ill.2d 449, 212 Ill.Dec. 652, 657 N.E.2d 997, 1001 (1995). On the
defendants' interpretation, however, in these circumstances there could
never be liability under the Wrongful Death Act, because plaintiff must
be dead to sue, but cannot sue unless he could have sued if he were not
dead, which he could not have done because he was alive. This is a
classic Catch-22.*fn4 The Illinois Supreme Court, however, has sensibly
interpreted the counterfactual statutory language not to mean that the
statute defeats itself but that multiple recoveries in personal injury
and wrongful death for the same injuries are precluded, 212 Ill.Dec.
652, 657 N.E.2d at 1000 (citing Mooney v. City of Chicago, 239 Ill. 414,
88 N.E. 194, 196 (1909)). Because a district court sitting in diversity
must apply state substantive law as interpreted by the highest state
court, Lexington Ins. Co. V. Rugg & Knopp, Inc., 165 F.3d 1087, 1090,
1092 (7th Cir. 1999), and because absurd constructions are to be
avoided, id. at 1091, I reject the defendants' proposed reading.
Accordingly, the wrongful death action properly belongs to Ms. Erickson,
who has standing to sue under that statute, and I have jurisdiction over
The Survival Act claims are a different story. Illinois law provides
for the survival of a decedent's claim for predeath physical injuries,
including conscious pain and suffering. Suit to recover damages for such
injuries is to be brought on behalf of the estate by the administrator.
Bass v. Wallenstein, 769 F.2d 1173, 1189 (7th Cir. 1985). Unlike a
wrongful death action, a survival action must have accrued prior to
death. Fetzer v. Wood, 211 Ill. App.3d 70, 155 Ill.Dec. 626,
569 N.E.2d 1237, 1242 (1991). A tort cause of action
in Illinois accrues at the latest when the plaintiff discovers, or should
have discovered, facts establishing the elements of a claim. Kaplan v.
Shure Brothers, Inc., 153 F.3d 413, 421 (7th Cir. 1998) (citing Barratt
v. Goldberg, 296 Ill. App.3d 252, 230 Ill.Dec. 635, 694 N.E.2d 604, 607
(1998) (malpractice context)). Mr. Erickson's own surviving negligence
claims accrued before the Ericksons filed bankruptcy, since he admitted
that he was aware of the HIV infection and its source by April 1991,
months before the bankruptcy commenced in November of that year. Likewise
undisputed discovery material reveals that Mr. Erickson knew of his
hepatitis infections before his bankruptcy.
Ms. Erickson argues that she only seeks damages for the period after
the bankruptcy. But she could not recover any damages, however limited,
under the Survival Act if the cause of action was not hers, and it was
not. She had a cause of action when it accrued before the filing; it was
rolled into the bankruptcy estate; and it has not been abandoned by the
trustee in bankruptcy. Property of the estate that is not abandoned under
§ 554 of the Bankruptcy Code and not administered in the case remains
the property of the estate. 11 U.S.C. § 554 (d). The trustee in
bankruptcy has, with certain immaterial exceptions, the exclusive right
to sue on behalf of the debtor's estate, In the Matter of Heath,
115 F.3d 521, 523 (7th Cir. 1997), and so Ms. Erickson cannot, at this
point, bring a survival action.