Appeal from the Circuit Court of Cook County No. 98 L 09858 The Honorable Mary A. Mulhern, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
Brian Weedon brought an action at law to recover damages from an injury allegedly caused by a defective venous access device. Pfizer, Inc., and Horizon Medical Products, Inc., the alleged manufacturers of the device, moved for summary judgment claiming: (1) that there was no genuine issue of material fact that the device was defective; and (2) that they did not manufacture the device in question. The trial court granted the defendants' motion for summary judgment based on the findings that the plaintiff failed to produce evidence of a defect and all other causes had not been excluded. Weedon appeals claiming that he produced sufficient circumstantial evidence to create a reasonable inference that the product was defective.
Brian Weedon was diagnosed with Hodgkin's disease in May of 1993. He was successfully treated with radiation and chemotherapy. In 1996, Weedon had a relapse of the disease. Dr. Leo Gordon, an oncologist with Northwestern University Hospital, treated Weedon with chemotherapy. A venous access service, commonly known as a "Lifeporte," *fn1 was surgically implanted into Weedon's chest as part of the chemotherapy.
The Lifeporte was implanted in Weedon's chest beneath the skin by Dr. Talamanti, an oncology surgeon at Northwestern University Hospital. There is a reservoir through which a nurse or doctor can inject chemotherapy drugs. The other end of the device traverses the large vein in the neck and enters the large chamber of the heart. Weedon received regular chemotherapy injections through this device from October 1996 until February 1997. Sarah Coveny, an oncology nurse, administered the drugs to Weedon through the venous access device.
After approximately four months of chemotherapy, Weedon began to experience discomfort and swelling near the device. Dr. Gordon examined Weedon and determined that the device should be removed. Dr. Talamanti was asked by Dr. Gordon to explant the device. Dr. Talamanti explanted the device and discarded it before any tests could be conducted for extravasation (leakage). The device was never recovered.
After removal of the device, necrosis of the skin, fat and muscle tissue was detected and continued for a period of time. As a result, Weedon was left with a large hole in his chest. Dr. Talamanti referred Weedon to Dr. Dumanian, a plastic surgeon, to perform a skin graft and close the wound because Dr. Talamanti thought it would be a very difficult procedure requiring the skill of a plastic surgeon. After two plastic surgeries, the wound closure was successful, but Weedon was significantly disfigured.
Dr. Talamanti testified that when he implanted the device, it appeared to function normally. He checked the device for extravasation and observed none prior to and immediately after implanting the device. He testified that the placement of the device was proper as evidenced by an X ray following implantation. Dr. Talamanti testified that there was no evidence that would lead him to believe that the device developed a clot or that the device was malpositioned. He also did not notice any extravasation when explanting the device.
The plaintiff did not produce any witnesses purporting to be experts in the design or manufacturing of the venous access device. The plaintiff's witnesses also could not point to any specific defect in the device that caused leakage. In addition, the doctors that treated Weedon all testified that his injury could have resulted from infection, malpositioning of the device or extravasation. However, each doctor testified that it was more likely that plaintiff had an extravasation injury than an injury due to infection or malpositioning of the device.
Weedon claims that the trial court improperly granted summary judgment in favor of the defendants because he came forward with sufficient circumstantial evidence to create a reasonable inference that the product was defective. The defendants claim that Weedon: (1) never pleaded a nonspecific defect claim and, therefore, cannot now proceed with such a claim; (2) has presented no evidence that tends to negate the other reasonable causes for his injury; and (3) did not present evidence that the product failed to perform in a manner reasonably to be expected in light of its nature and intended function.
A motion for summary judgment should be granted when the pleadings, depositions and affidavits reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 31, 605 N.E.2d 557 (1992). The standard of review of a trial court's decision granting summary judgment is de novo. Schal Bovis, Inc. v. Casualty Insurance Co., 315 Ill. App. 3d 353, 364, 732 N.E.2d 1179 (2000). Summary judgment is a drastic remedy and should be allowed only when the right of a moving party is clear and free from doubt. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119 (2000). In considering a motion for summary judgment, all reasonable inferences must be drawn strictly against the moving party and liberally in favor of the opponent. Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d 359, 363, 719 N.E.2d 1150 (1999).
Relative to their first contention, the defendants argue that Illinois law recognizes two "distinct types of products liability claims." The first is a specific defect claim and the second is a nonspecific defect claim. The defendants contend that in a specific defect claim, the plaintiff must allege that: (1) his injury resulted from a condition of the product; (2) the condition was unreasonably dangerous; and (3) the condition existed at the time it left the manufacturer's control. Pluto v. Searle Laboratories, 294 Ill. App. 3d 393, 398, 690 N.E.2d 619 (1997). In a nonspecific defect claim, the defendants claim that the plaintiff must allege that: (1) he was using the product in a normal manner; (2) there was no other reasonable cause for the product's failure to perform; and (3) the product failed to perform in a manner reasonably to be expected in light of its nature and intended function. Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 376, 618 N.E.2d 909 (1993).
The plaintiff's complaint reads in pertinent part:
"2. That on or about October 3, 1996, a 'LifePorte' or 'Infus-a- Port' designed, manufactured, and sold by the defendants was surgically implanted in the Plaintiff's chest.
3. That the Defendants had a duty to design, manufacture and sell said device so that it would be reasonably safe for its intended use.
4. That withstanding [sic] said duty, said device was defective when it left the control of the Defendants in one or more of the following respects:
a. A small leak in the device allowed the infiltration of chemicals into the Plaintiff's chest;
b. A failure of the device to operate as designed caused chemicals to infiltrate into the Plaintiff's chest;
c. A defect in the materials incorporated in said device caused chemicals to infiltrate into the Plaintiff's chest.
5. That a direct proximate result of the leakage of chemicals into the Plaintiff's chest from said defect, the Plaintiff suffered severe and permanent personal injury, great pain and suffering, was cause [sic] to incur medical bills, to lose wages, and to be otherwise damaged."
The defendants argue that the complaint does not allege that the plaintiff was using the device properly, that there were no other reasonable causes for the device's failure and the product failed to perform in a manner reasonably to be expected in light of its nature and intended function. Therefore, the plaintiff has pleaded a specific defect claim and should not be allowed to go forward on a nonspecific defect theory. We disagree.
In support of his position that this was not a proper case for summary judgment, Weedon cites to Tweedy v. Wright Ford Sales, Inc., 64 Ill. 2d 570, 357 N.E.2d 449 (1976), and Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 618 N.E.2d 909 (1993). In Tweedy, the plaintiff was injured when the brakes on an automobile manufactured and sold by the defendants failed. Tweedy, 64 Ill. 2d at 572. The plaintiff offered no expert testimony concerning a specific defect in the automobile's brake system. Tweedy, 64 Ill. 2d at 572. An insurance company representative and the owner of the parts yard examined the vehicle and testified that there was no evidence of leakage at the wheels and they heard the cable move when the parking brake was operated. Tweedy, 64 Ill. 2d at 573. An expert from Ford testified that the power "assist" on the automobile was too badly damaged, but tests on the master cylinder indicated no malfunction whatsoever. Tweedy, 64 Ill. 2d at 573. The defendant in Tweedy claimed that the plaintiff failed to prove that the automobile was defective at the time of the injury and when it left the defendant's possession. Tweedy, 64 Ill. 2d at 573.
The Tweedy court held that a prima facie case that a product was defective and the defect existed when it left the control of the manufacturer is made by proof that, in the absence of abnormal use or reasonable secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. Tweedy 64 Ill. 2d at 574.
In the Doyle case, the plaintiff filed a products liability action against the manufacturer of a ladder alleging that the ladder was unreasonably dangerous when the ladder collapsed, causing the plaintiff injury. Doyle, 249 Ill. App. 3d at 373. The defendant ladder manufacturer claimed that the plaintiff must point to some specific defect in the product. Doyle, 249 Ill. App. 3d at 376. The Doyle court, relying on Tweedy, held that the plaintiff need not point to a specific defect, but may create an inference that a product was defective by direct or circumstantial evidence that: (1) there was no abnormal use of the product; (2) there was no reasonable secondary cause of the injury; and (3) the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. Doyle, 249 Ill. App. 3d at 377. Although the Doyle court makes reference to a "'Tweedy' count" in the pleadings, we do not read these cases to hold that a plaintiff must plead anything other than that which is required in a products liability action but, rather, that plaintiff may establish a nonspecific defect claim by circumstantial evidence. Doyle, 249 Ill. App. 3d at 377.
Here, Weedon's position is that he pleaded the necessary elements of a products liability claim: (1) the product was defective; (2) the defect existed when it left the manufacturer's control; and (3) the product was unreasonably dangerous. The depositions and other circumstantial evidence that he produced created the inference that there was no abnormal use, no reasonable secondary cause existed and the product failed to perform as reasonably expected in light of its nature and intended function.
Accordingly, we find that the plaintiff's products liability action was properly pled.
The plaintiff asserts that summary judgment was not proper in the instant case because he presented evidence that tends to negate the other reasonable causes for his injury. The defendants first suggest the possibility that an infection of the device was the cause of Weedon's injuries. Relative to the issue of infection, Dr. Talamanti testified at deposition as follows:
"Q: Now, in this case you reached the conclusion at the time of the explant of Mr. Weedon's device that he exhibited the signs and symptoms of infection?
Q: What was the basis for your conclusion?
A: I don't remember what his systemic signs were, but his local signs were that his Port-A-Cath had become tender, he had localized swelling and edema at the site. And if I remember correctly, there was some redness associated at the site.
Q: Did the fact that you concluded that there was an infection around the port, around the venous access device in Mr. Weedon, mean to you that there was a defect in the device?
Q: Now when devices are infected, is it possible that one of the consequences is skin necrosis?
A: That would have to be a particularly virulent type of skin infection. We are using the word infection as a diagnosis for an indication for an operation. The indication for the operation in this patient was localized inflamation. An infection is a diagnosis that's usually established after the operation, and if the cultures are taken and organisms are seen on the stain. The indications for this operation were localized inflamation. The diagnosis is different and not always the same as the indications ***.
Q: *** What are the signs and symptoms of extravasation?
A: They are localized signs of inflamation. The inflamation is usually more intense and it may be temporally related to the injection of chemotherapy agents.
Q: What are the possible causes of extravasation around a venous access device like the Life-Port device?
A: Basically there is only two that I know of, and that's malfunction of the Port-A-Cath device or a mal-position of the needle during the infusion of chemotherapy.
Q: And what kind of tests would a pathologist do?
A: They would look for blood clots. They might culture the tip. If you tell them that you were concerned about the flow or ...