The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on the motion of Defendant CIBA Vision Corporation ("CIBA") to dismiss Count VII of the Second Amended Complaint of Plaintiff Marilyn Mathers individually, and as special administrator of the estate of Gerald Mathers, deceased, for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6). For the following reasons, the defendant's motion to dismiss Count VII is granted.
Marilyn Mathers, wife and special administrator of the estate of deceased Plaintiff Gerald Mathers, is a resident of St. Charles, Illinois. Defendant CIBA Vision Corporation is headquartered in Duluth, Georgia with a facility in Des Plaines, Illinois. On March 22, 2000, Gerald Mathers underwent eye lens replacement surgery. A CIBA "Memory Lens," manufactured and distributed by CIBA (hereinafter "the lens"), was implanted in Mr. Mathers' left eye and, following the implantation surgery, Mr. Mathers suffered reduced visual acuity in his eye. This condition required corrective surgery in April, 2001 and again in June, 2001. During the June, 2001 surgery, it was discovered that the lens implanted in Mr. Mathers' eye had clouded in such a way as to prevent him from seeing. The lens was removed and replaced with a new one. Plaintiff's complaint arises from the allegation that the clouding of the lens was premature and the corrective surgeries in April and June, 2001 were caused by this deficiency.
Gerald and Marilyn Mathers filed their initial complaint in January of 2004. Gerald Mathers sought recovery for the bodily injuries he sustained as a result of the defective nature of the lens. Marilyn Mathers sought recovery for loss of consortium. In March, 2007, Gerald Mathers passed away, and Marilyn Mathers continued this lawsuit as special administrator of Gerald's estate and for her own independent claim for loss of consortium. Marilyn Mathers filed a Second Amended Complaint after her husband's death which added Count VII, a claim of gross negligence, and sought punitive damages for her loss of consortium and as special administrator. Defendant now moves to dismiss Count VII of the Second Amended Complaint for failure to state a claim upon which punitive damages can be awarded.
In reviewing a Rule 12(b)(6) motion to dismiss, the court will view all facts in the light most favorable to the plaintiff. The complaint will not be dismissed unless it is clear that the plaintiff cannot prove facts consistent with her allegations that would entitle her to relief. Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999).
Count VII of Plaintiff's complaint alleges that the defendant committed gross negligence when it marketed and distributed the lens which was implanted in Gerald Mathers' left eye. Punitive damages are sought for the injuries suffered by Gerald Mathers and for his wife's loss of consortium. Defendant moves this court to dismiss Count VII, asserting that Plaintiff has failed to state a claim upon which punitive damages may be granted. Illinois common law does not allow punitive damages to be awarded after the death of the plaintiff. Plaintiff asserts that her husband's punitive damages claim did not abate with his death because her claims for punitive damages fit into an exception to the rule against the survival of punitive damages.
Two possible exceptions to the rule against the survival of punitive damages have been previously recognized. (1) An exception to the rule against the survival of punitive damages claims has been recognized if there is a clearly stated statutory claim for punitive damages or if punitive damages are an integral part of the regulatory scheme. (2) A "strong equitable considerations" exception has been recognized if there is a significant policy rationale for allowing a claim of punitive damages to survive the death of the plaintiff. The possible applicability of these exceptions is discussed below. This court has previously decided the question of the survival of punitive damages after the plaintiff's death in Burgess v. Clairol, Inc., 776 F. Supp 1278 (N.D. Ill. 1991) (Norgle, J.). In Burgess, this court found that a claim of punitive damages was not transferred to the plaintiff's estate upon the death of the plaintiff. Id. at 1284-85. The Burgess court held that neither the Illinois Wrongful Death Act nor the Illinois Survival Act allowed a deceased plaintiff's spouse to continue a claim for punitive damages after the deceased plaintiff's death. Id. Furthermore, Burgess did not recognize any exception for "strong equitable considerations." For the reasons discussed below, we find that the case before this court does not present any significant exceptions to the Burgess case and, therefore, we grant the defendant's motion to dismiss Count VII of the plaintiff's Second Amended Complaint.
A. Exceptions to the Bar Against Survival of Punitive Damage Claims
The Supreme Court of Illinois has established that punitive damages based upon common law claims are abated upon the death of the injured claimant. McDaniel v. Bullard, 216 N.E.2d 140, 144 (1966). Defendant claims that an exception only exists if there is a statutory allowance for punitive damages, while Plaintiff claims that an exception also exists if there are "strong equitable considerations" which favor the continuation of the punitive damages claim.
An exception to the rule against the survival of punitive damages has been recognized if there is a clearly stated statutory claim for punitive damages or if the punitive damages are an integral part of the regulatory scheme. Nat'l Bank of Bloomington v. Norfolk & W. Ry. Co., 383 N.E.2d 919, 924 (Ill. 1978). In order for punitive damages to survive the death of the claimant, the cause of action must have been brought pursuant to a statute which specifically allows for punitive damages or creates a regulatory scheme which necessitates the use of punitive damages in order to be effectively enforced. Plaintiff concedes that the Food, Drug and Cosmetic Act does not establish a claim for punitive damages. See 21 U.S.C. § 331, et seq. Instead, Plaintiff asserts that her negligence per se claim qualifies as a statutory basis for an exception to the bar against the survival of punitive damages. However, this reasoning is faulty. This court has already determined that the Food, Drug and Cosmetics Act does not create any private cause of action authorizing punitive damages. See Readel v. Vital Signs, Ins., No. 97 C 3495, 2002 U.S. Dist. LEXIS 18977, at *9 (N.D. Ill. Sept. 26, 2002) (Andersen, J.).
Any exception to the bar against the survival of punitive damages claims based upon "strong equitable considerations" is predicated upon the statutory exception; common law punitive damages claims are not protected by this exception. In Raisl v. Elwood Industries, punitive damages survived the death of the injured party because there was a private cause of action established by the Illinois Workers' Compensation Act. 479 N.E.2d 1106 (Ill. App. 1st Dist. 1985). Consequently, Raisl fits into the statutory exception discussed above rather than creating a new general exception for "strong equitable considerations." In Penberthy v. Price, 666 N.E.2d 352 (Ill. App. 5th Dist. 1996), the defendant died, not the plaintiff. As previously stated by this court, the issue of recovery from a deceased defendant's estate is a different issue from the one presented in the instant case. Readel, 2002 U.S. Dist. LEXIS 18977, at *8-9.
Plaintiff claims that a "strong equitable considerations" exception favors the survival of punitive damages claims. As stated above, in order for this exception to be recognized there must be a statutory basis. Furthermore, once a statutory basis has been established, there must be a significant public policy rationale for allowing a claim for punitive damages to continue after the death of the plaintiff. Penberthy, 666 N.E.2d at 356 (finding that public policy favored the enforcement of punitive damages to deter drunk driving). We find no policy considerations in this case which would favor ...