Honorable Judge Der-Yeghiayan
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT I-FLOW CORPORATION'S SECOND MOTION FOR JUDGMENT ON THE PLEADINGS
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.
III. MOTION FOR JUDGMENT ON THE PLEADINGS
"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 ...