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July 16, 2001


The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge


Walter Erickson was a hemophiliac who received intravenous transfusions of commercial blood factors. He contracted HIV and Hepatitis C, and he sued on the HIV claims in the Circuit Court of Cook County, Illinois, on March 23, 1993. The Cook County action was terminated after Mr. Erickson became a named class representative in a case filed in this court, Waldleigh v. Rhone-Poulenc Rorer, No. 93 CV 5969 (N.D.Ill. filed Sept. 30, 1993). On December 9, 1998, Judge Grady ordered Mr. Erickson's claims severed from the Waldleigh case and ordered a new complaint to be filed. Mr. Erickson died on December 27, 1998. Judge Grady extended the time to file a new complaint to February 3, 1999, and on January 29, 1999, Ms. Erickson, Mr. Erickson's surviving spouse, filed this action, alleging jurisdiction under 28 U.S.C. § 1332. She brings survival and wrongful death claims against Baxter Healthcare, Inc. ("Baxter"), Armour Pharmaceutical Co. ("Armour"), and Bayer Corp. ("Bayer").*fn1 She claims that the factor concentrates that Mr. Erickson received were manufactured by the defendants and were infected with Hepatitis C and HIV and caused his infection with those viruses. The defendants move for summary judgment, claiming that Ms. Erickson cannot establish negligence, or in the alternative, that her actions are barred by the statute of limitations. They also move to bar certain opinions of plaintiff's experts. The motions to bar are granted in part and denied in part. The motion for summary judgment is granted as to Armour and Bayer and denied as to Baxter on the claims arising out Mr. Erickson's hepatitis C infection. It is granted as to Armour and denied as to Bayer and Baxter on the claims arising out of his HIV infection. The cross motions to strike exhibits are denied.


When Mr. Erickson was eight years old, he was diagnosed with mild hemophilia A, a hereditary illness that inhibits blood clotting and creates a risk of uncontrolled bleeding. Hemophilia can be treated by a transfusion of clotting factors from human blood plasma. As a teenager, Mr. Erickson received intravenous factor concentrates, many of which were manufactured by the defendants. Ms. Erickson's experts opine that, based on the dates of transfusions and the appearance of symptoms, Mr. Erickson became infected with Hepatitis A ("HAV") in 1973, Hepatitis B ("HBV") in 1970, Hepatitis C ("HCV") between November 1976 and April 1977, and HIV in 1981. He tested positive for HIV on March 29, 1991, and for HCV in December 1991. His death certificate says that he died on December 27, 1998, of end stage liver disease due to Hepatitis B and C, and Ms. Erickson claims that his HIV infection accelerated the liver disease due to HCV.

Factor concentrate is a "pooled" product processed from plasma contributed from multiple donors, some of whom are paid or are otherwise at greater risk for dangerous viral infections than the rest of the population. Commercial factor concentrates like the ones manufactured by the defendants present a significantly higher risk of HBV and HCV infection than single-donor cryoprecipitates. From the late 1960s to the early 1980s, according to one of the defendants' experts, the risk of transmission from commercial factor concentrates was 50%, as opposed to 1 to 2% for cryoprecipitate.

The first article suggesting the existence of Hepatitis C (originally identified as non-A non-B, or NANB) was published in 1974, though no test for the HCV antibody was available until 1990. The parties dispute what the medical community knew about HCV in the 1970s and what the defendants as manufacturers did or could have done to prevent its transmission. The first reported cases of AIDS (caused by HIV) in hemophiliacs were in June 1982. The parties dispute what was known prior to 1982 about the transmission of non-hepatitis, blood-transmitted viruses, particularly MW, and what the defendants could have done to prevent the transmission of HIV.


Summary judgment is appropriate where the record and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A "genuine issue of material fact" exists when there is sufficient evidence that a jury could return a verdict for the non-moving party. Szymanski v. Rite-Way Lawn Maint. Co., Inc., 231 F.3d 360, 364 (7th Cir. 2000). I must construe the facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Evidence opposing a motion for summary judgment, including expert testimony, must be "admissible or usable at trial." Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001).

III. Statute of Limitations

Ms. Erickson says that Mr. Erickson did not know he was HIV positive until March 29, 1991, and that he did not know he was HCV positive until December 1991. The defendants "controvert" the HIV date on the grounds that the test results offered by Ms. Erickson lack a proper foundation. An objection to lack of foundation is formal, and evidence provided at the summary judgment stage need only be admissible in content, not necessarily in form. Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Moreover, the date offered is supported by Mr. Erickson's deposition testimony that he was not tested for HIV until March 1991. Dr. Mitchell, one of Mr. Erickson's treating physicians, also testified that Mr. Erickson had not been tested for HCV as of November 22, 1991, but that he wanted to discuss treatment for HCV on December 28, 1991. A reasonable jury could conclude that Mr. Erickson first learned he was HCV positive sometime in late 1991.

Under the discovery rule, even if Mr. Erickson did not know of his injuries before 1991, the statute of limitations will not be tolled if he should have known. Hermitage Corp., 651 N.E.2d at 1135. Mr. Erickson waited to be tested for HIV because he was in good health and believed that, as a mild hemophiliac with a history of few transfusions, he was not at high risk for HIV. He was also concerned about the stigma and confidentiality problems of testing. The defendants argue that the discovery rule should not apply because Mr. Erickson should have known that he was at risk for HIV. But it is knowledge of the injury and that it was wrongfully caused that starts the limitations period running, not knowledge of the mere risk of potential for injury. See id. The defendants also suggest that, because he knew or should have known he was at risk for HIV, Mr. Erickson had a duty to investigate to discover his HIV status before 1991 and that his failure to do so before then was an "ostrich tactic" tantamount to knowledge. However, there is no duty to be tested for HIV based on membership in a high-risk group; any duty to inquire runs to the knowledge of wrongdoing, not to the knowledge of injury. See Young v. McKiegue, 708 N.E.2d 493, 501 (Ill. App. Ct. 1999). His HIV claims are not time-barred.

IV. Negligence

The complaint alleges negligent failure to warn physicians of certain risks of treating hemophiliacs with factor concentrates and failure to research and develop a viral inactivation process that would have made factor concentrates safer. Both parties treat the duty to warn claims as negligence claims, as will I. See Ward v. K Mart Corp., 554 N.E.2d 223, 226 (Ill. 1990) (applying traditional negligence standards in failure to warn case)

To recover for negligence under Illinois law, a plaintiff must prove that the defendant was under a legal duty to exercise care in favor of the plaintiff, that the defendant breached that duty, and that the defendant's breach of its duty was the proximate cause of the plaintiff's injury. Advincula, 678 N.E.2d at 1015. The existence of a defendant's duty is a question of law, Ward, 554 N.E.2d at 226, but whether there was a ...

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