Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
ERICKSON v. BAXTER HEALTHCARE
July 16, 2001
MARIA ERICKSON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WALTER ERICKSON, DECEASED, PLAINTIFF,
BAXTER HEALTHCARE, INC., A FOREIGN CORPORATION; BAYER CORPORATION, A FOREIGN CORPORATION; ARMOUR PHARMACEUTICAL COMPANY, A FOREIGN CORPORATION; ALPHA THERAPEUTIC CORPORATION, A FOREIGN CORPORATION; AND NATIONAL HEMOPHILIA FOUNDATION, DEFENDANTS.
The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
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
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
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.
Mr. Erickson knew that he was infected with HBV in the 1970s, but he
did not discover that he was HCV-positive until 1991. Baxter argues that
it is all one hepatitis claim, and Mr. Erickson's HCV infection is merely
an unforeseen consequence of his HBV infection, not a separate claim.*fn2
There are five types of viral
hepatitis (A, B, C, D, and E), caused by
different viruses with different incubation periods and methods of
transmission, and the severity varies according to virus type. Stedman's
Med. Dictionary 808 (27th ed. 2000). In short, they are different
diseases. Therefore, Mr. Erickson's knowledge of his HCV infection is not
knowledge of the nature and severity of his known HBV infection; it is a
separate claim. Cf. Golla v. General Motors Corp., 657 N.E.2d 894, 900
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
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