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Johnston v. I-Flow Corp.


June 25, 2010


Honorable Judge Der-Yeghiayan

Magistrate Judge Kim



Plaintiff Holly Johnston ("Ms. Johnston") and her husband, Marc Johnston, filed suit in this court on June 12, 2009 against defendant I-Flow Corporation ("I-Flow") for: 1) strict products liability involving design defect and failure to warn, 2) negligence, and 3) loss of consortium. The Complaint seeks compensatory and punitive damages against I-Flow that relate to a surgery that occurred more than eleven years ago. On March 30, 2010, this Court granted I-Flow's unopposed motion for judgment on the pleadings with respect to Mr. Johnston's loss of consortium claim.

I-Flow again respectfully moves this Court for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), asking this Court to dismiss Count One (strict products liability) of the Complaint because Plaintiff's claim is time-barred as a matter of law.


For the purposes of this motion for judgment on the pleadings, I-Flow assumes that the allegations of Plaintiff's Complaint are true. Anderson v. Cornejo, 199 F.R.D. 228, 246 (N.D. Ill. 2000) (in viewing a motion for judgment on the pleadings, "[a] plaintiff's well-pleaded allegations of fact are taken as true and all reasonable inferences are drawn in the plaintiff's favor."). According to her Complaint, Ms. Johnston underwent arthroscopic surgery on her left knee in Elk Grove Village, Illinois on June 14, 1999 -- more than eleven years ago, and approximately ten years prior to the filing of the Complaint. Complaint at ¶ 10.*fn1 At the conclusion of her surgery, her doctor allegedly used a device manufactured by I-Flow -- a continuous infusion pump sold under the brand name PainBuster® -- to inject anesthetic medication into her knee on a continuous basis for two or more days following the surgery. Id. According to the Complaint, the PainBuster® was manufactured by I-Flow and distributed, marketed and sold by DJO. Id. at ¶ 11.

The Complaint further alleges that the continuous injection of pain relief medication into the knee joint by means of a continuous infusion device "creates an unreasonable risk of serious and permanent damage to the cartilage in the knee joint" and that Ms. Johnston received "dangerous doses" of medication in her knee joint, causing her to suffer chondrolysis, or narrowing of the joint space, in her left knee. Id. at ¶ 12. The Complaint alleges strict products liability and negligence claims against both defendants. Id. at ¶¶ 16-22.


A. Legal Standard

"A motion for judgment on the pleadings is reviewed under the same standard as a Rule 12(b)(6) motion to dismiss." Zimnicki v. Neo-Neon International, Ltd., No. 06 C. 4879, 2009 WL 3805591 at *2 (N.D. Ill. Nov. 9, 2009) (citing Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007)). Therefore, to defeat a 12(c) motion for judgment on the pleadings, plaintiff must demonstrate that her complaint: 1) provides notice of her claims and the grounds upon which they rest, and 2) "contains sufficient allegations, based on more than speculation, to state a claim for relief that is plausible on its face." Id. (citing St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). A "formulaic recitation of the elements of a cause of action" does not suffice, and a plaintiff's complaint must provide enough "detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Tamayo v. Blagoyevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

As this Court is sitting in diversity jurisdiction, and the surgery in which the alleged injury occurred took place in Illinois, the substantive law of Illinois governs. See Balentine v. Union Mortg. Co., No. 91 C 8213, 1994 WL 34256 (N.D. Ill. Feb. 2, 1994) ("The presumption applied by Illinois courts is that the law of the state where the injury occurred applies in a tort case.") (citing Miller v. Long Airdox Co., 914 F.2d 976 (7th Cir. 1990); see also Spinozzi v. IIT Sheridan Corp., 174 F.3d 822, 844 (7th Cir. 1999); Allstate Ins. Co. v. K-Mart Corp., No. 99 C 8515 (2001 WL 300586 (N.D. Ill. March 23, 2001) (applying Section 13-213's statute of repose).

B. Plaintiff's First Cause of Action for Strict Liability Is Time-Barred

Count One of Plaintiff's Complaint, which is based in strict products liability, is not viable because it is time-barred by Illinois's eight year statute of repose for products liability actions based in strict liability. The relevant statute provides that in a product liability action such as this:

(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product that is claimed to have injured or damage the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period. . (d) Notwithstanding the provisions of subsection (b) . if the injury complained of occurs within any of the periods provided by subsection (b) ., the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred. 735 ILCS 5/13-213 (West 1994).*fn2

Here, Plaintiff has alleged that her surgery took place on or about June 14, 1999, and that the I-Flow device that allegedly caused her injury was implanted into her knee at the time of the surgery. According to her Complaint, the device caused her to receive "dangerous doses of continuously injected medication in the knee joint." Complaint at ¶ 12. Illinois courts have held that "for the purposes of the statute of repose, 'injury' is the date at which a plaintiff is exposed to the product in question, not the date that the adverse effects of exposure manifest themselves." Dohra v. Alcon (Puerto Rico), Inc., No. 92 C 2624, 1994 WL 71449 at *3 (N.D. Ill. March 3, 1994) (citing Olson v. Owens Corning Fiberglass Corp., 556 N.E.2d 716, 719 (Ill. App. Ct. 1990). Accordingly, Plaintiff's Complaint makes plain that she was "injured," for purposes of the statute of repose, on or about June 14, 1999. See Dohra, 1994 WL 71449 at *3 (plaintiff was injured, for the purpose of § 13-213's statute of the repose, on the date that she was injected with the drug allegedly causing her injury.); see also Dohra v. Alcon (Puerto Rico), Inc., 1994 WL 395000 (N.D. Ill. Jul. 26, 1994) (on reconsideration, holding that Illinois's fraudulent concealment statute does not toll § 13-213's statute of repose).

Thus, Plaintiff's claim is barred by § 13-213 because it was brought more than eight years after her alleged injury. (Complaint filing date: June 12, 2009; surgery date/date of injury: June 14, 1999). Prior decisions of this Court are in accord with this result. In Hagen v. Richardson-Merrell, Inc., 697 F.Supp. 334, 342 (N.D. Ill. 1988), Judge Norgle explained that Section 13-213's statute of repose barred a claim for personal injury caused by a prescription drug that was ingested by the plaintiff's mother in 1975 and allegedly caused the plaintiff's injury at some point prior to January 7, 1976 (the date of the plaintiff's birth). Because the plaintiff did not file her suit until March 27, 1984 -- just over eight years after the latest possible date of the occurrence of the injury -- the claim was barred. Id.; see also Simon v. American Optical Corp., No. 06-cv-861, 2007 WL 924496 at *4 (S.D. Ill. March 27, 2007) (noting that section 13-213 "plainly bars claims based on injuries that occurred more than eight years before the filing of the complaint"); Hargis v. American Optical Corp., No. 06-cv-862 2007 WL 924486 (S.D. Ill. March 27, 2007) (same).

It matters not that Plaintiff alleges, as she does in her Complaint, that she supposedly did not discover her injury until "a date less than two years before filing of this complaint." Complaint at ¶15. The purpose of a statute of repose such as § 13-213 is to provide an absolute time bar to the inception of a claim regardless of tolling principles. It provides a safe harbor. As one Illinois court put it, "[a] period of repose is one which is intended to terminate the possibility of liability after a defined period regardless of a potential plaintiff's lack of knowledge of his cause of action." Zimmerman v. Abbot Labs., Inc., 747 189 Ill. App. 3d 744, (Ill. App. Ct. 1989). Thus, the "eight year repose period [of Section 13-213] is an absolute cut-off point beyond which no action can be brought regardless of whether the plaintiff knows of the damage or not." Dohra 1994 WL 71449 (internal quotation omitted). Because Plaintiff filed her strict liability claims more than eight years after her alleged injury occurred, her claims are time-barred.


For the reasons set forth above, defendant I-Flow respectfully requests that this Court dismiss Plaintiff's first cause of action for strict products liability because it is time-barred.

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