Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge
Defendant's Motion for Partial Summary Judgment on Plaintiff's Design Defect Claim  is granted.
O[ For further details see text below.] Notices mailed by Judicial staff.
Before the Court is Defendant's Motion for Partial Summary Judgment on Plaintiff's Design Defect Claim. (R. 90.) Defendant's motion is granted.
On June 28, 2004, Plaintiff Jo Belle Baldonado commenced this action against Defendant Wyeth and others, alleging that the prescription medication Prempro promoted the development of her breast cancer. As relevant to the present motion, Count II of the Amended Complaint asserts a products liability claim for design defect. (Am. Compl. ¶¶ 90(a), (c).) The Court presumes familiarity with the underlying factual and procedural history of this litigation, and incorporates its prior written orders herein by reference. (R. 125, 177, 205, 229.)
On February 21, 2012, Defendant filed the present motion for summary judgment on Plaintiff's design defect claim, arguing that Plaintiff "predicates her design defect claim on the existence of a 'safer alternative, [b]ut Plaintiff fails to adduce any evidence that there was a safer alternative design to Prempro."
(R. 91 at 1.) Defendant argues that the opinions of Plaintiff's "designated experts" -- Drs. Wayne Tilley and Donald Austin -- are unavailing. (Id. at 2; see also R. 92, Def.'s 56.1 Stmnt. ¶ 13.) Plaintiff filed her response on March 19, 2012, coming forward with two proposed alternative designs to Prempro: (1) a drug that consists of Premarin and oral micronized progesterone; and (2) low dose Prempro. (R. 134 at 3-4.) Significantly, Plaintiff relies exclusively on the expert opinions of Drs. Austin and Tilley to support her proposed alternative designs. Plaintiff does not rely upon, or otherwise discuss, Dr. Suzanne Parisian, an expert who Plaintiff represents that she previously designated to opine on safer alternatives to hormone therapy. Defendant replied on April 9, 2012. (R. 158.)
On May 30, 2012, after the motion for summary judgment was fully briefed, and after the Court scheduled Daubert hearings as to Drs. Austin and Tilley, Plaintiff withdrew Drs. Austin and Tilley as experts in this case.
(R. 218, 224.) This withdrawal left Plaintiff's response to the motion devoid of expert support. Although Illinois law may not require expert opinion in every design defect case, see Baltus v. Weaver Div. of Kiddie & Co., Inc., 199 Ill. App. 3d 821, 834, 145 Ill. Dec. 810, 557 N.E.2d 580 (1990), where, as here, a design claim involves "an alleged defect in a complex product, an expert is needed to aid the jury's understanding of the defect." Niehaus v. United Seating & Mobility, Inc., No. 10-CV-160, 2011 WL 5325652, at *3 (N.D. Ill. Nov. 3, 2011) (motorized wheelchair); Muller v. Synthes Corp., No. 99 C 1492, 2002 WL 460827, at *6 (N.D. Ill. Mar. 26, 2002) (medical implant); Volpe v. IKO Indus., Ltd., 327 Ill. App. 3d 567, 261 Ill. Dec. 621, 763 N.E.2d 870, 878-79 (Ill. App. Ct. 2002) (deflator device in oxidizer tank). Indeed, the design of hormone therapy prescription medications "involve[s] specialized knowledge or expertise outside of a layman's knowledge," and thus Plaintiff must present expert evidence to survive summary judgment. Salerno v. Innovative Surveillance Tech., Inc., 402 Ill. App.3d 490, 342 Ill. Dec. 210, 932 N.E.2d 101 (Ill. App. Ct. 2010) ("It is not enough for a plaintiff to simply say that there was a better way to design the product without such expert testimony."); see also Gilmore v. Bayer Corp., No. 09-CV-986, 2012 WL 263093, at *2 (S.D. Ill. Jan. 27, 2012) (granting summary judgment on a prescription drug products liability action, where plaintiff failed to present expert opinion).
On May 31, 2012, following Plaintiff's withdrawal of Drs. Tilley and Austin, and in light of the need for expert support, the Court ordered Plaintiff to state whether she intended to pursue her design defect claims. (R. 227.) On June 6, 2012, Plaintiff advised that "she does intend to proceed with her design defect claim[, and] will offer evidence through her expert witness Dr. Suzanne Parisian that Prempro was defectively designed and that safer alternatives existed during the relevant time frame."*fn1 (R. 234.) Defendant responded that Plaintiff has "waived" her reliance on Dr. ...