United States District Court, S.D. Illinois
MEMORANDUM AND ORDER REQUESTING BRIEFING ON
J. ROSENSTENGEL United States District Judge
parties have submitted to the Court charts outlining the
following as to each case: (1) the relevant Depakote label;
(2) the indication for the use of Depakote; (3) the alleged
primary injury or primary injuries; and (4) the law allegedly
applicable to the claims. (Docs. 469; 470). Plaintiffs'
chart provides the Court with a list encompassing all of the
states that may be relevant to a Plaintiff's claim,
factoring in the state where the prescribing decision was
made, the state where conception occurred, the state where
gestation occurred, and the state where the birth occurred.
Abbott also provides the Court with the state where the child
was conceived and state of each plaintiff's current
courts sitting in diversity apply the choice-of-law
principles of the forum state to determine which state's
law governs the proceeding. West Ben Mut. Ins. Co. v.
Arbor Homes LLC, 703 F.3d 1092, 095 (7th Cir. 2013);
see also Midwest Grain Prods. of Ill., Inc. v.
Productization, Inc., 228 F.3d 784, 787 (7th Cir. 2000).
Illinois only requires a choice-of-law determination
“when a difference in law will make a difference in the
outcome.” Townsend v. Sears, Roebuck &
Co., 879 N.E.2d 893, 898 (Ill. 2007). Illinois applies
the “most significant relationship” test to
choice-of-law disputes. Westchester Fire Ins. Co. v. G.
Heileman Brewing Co., 747 N.E.2d 955, 961 (Ill. 2001);
see also Ingersoll v. Klein, 262 N.E.2d 593 (Ill.
1970) (adopting the “most significant
relationship” test of Restatement (Second) of Conflict
factors should guide the Court's decision- “(a) the
place where the injury occurred, (b) the place where the
conduct causing the injury occurred, (c) the domicile,
residence, nationality, place of incorporation and place of
business of the parties, and (d) the place where the
relationship, if any, between the parties is centered.”
Restatement (Second) of Conflict of Laws § 145(2);
see Kamelgard v. Macura, 585 F.3d 334, 341 (7th Cir.
2009); Townsend, 879 N.E.2d at 905-906. Illinois
maintains a “strong presumption” that the
substantive law of the place of injury governs unless
“plaintiffs can demonstrate that [the place of injury]
bears little relation to the occurrence and the
parties.” Townsend, 879 N.E.2d at 905.
the actual “place of injury” is not always
possible. See Pittway Corp. v. Lockheed Aircraft
Corp., 641 F.2d 524, 527 (7th Cir. 1981) (where the
Court's holding was based in part on the indeterminable
nature of the “place of injury” for cracks
discovered in an airplane mainframe.); see also Best
Canvas Prod. & Supplies, Inc. v. Ploof Truck Lines,
Inc., 713 F.2d 618, 622 (11th Cir. 1983) (“Here,
it is almost impossible to ascertain the location of the
[place of injury] because the water damage occurred during
several interstate shipments over the course of six
months.”); see also Baltimore Football Club, Inc.
v. Lockheed Corp., 525 F.Supp. 1206, 1208 (N.D.Ga. 1981)
(“The actual situs of the place of injury-i.e., [sic]
the exact location of the airplane when the cracks
occurred-is basically impossible to determine.”) In
each of the cited cases, the Courts were challenged with
applying the injury location presumption to an injury that
could have occurred in multiple states. The Courts did not
utilize speculation or statistics to get a “close
approximation” once it became clear that a definitive
location could not be determined. Instead, they analyzed the
remaining “most signification relationship”
factors. See e.g., Pittway Corp. v. Lockheed Aircraft
Corp., 641 F.2d 524, 528 (7th Cir. 1981).
for the cases where the conception and the entire gestation
occurred within a single state, the “place of
injury” is easy to determine, i.e., there is
no other state where the injury to the fetus could have
occurred. For cases where the state of conception is unknown
or where the mother left the state of conception prior to
discovering the injury, however, similar to Pittway,
the place of injury is potentially indeterminable. The
evidence adduced during the first bellwether trial and
through other filings in the Depakote litigation indicates
that valproic acid ingested during the gestation period can
have a variety of effects occurring at a variety times.
travel further frustrates the ability to determine a place of
injury, even when the state of conception is
“known.” The claim of E.G. (parent Christina
Raquel) Case No. 12-cv-55, provides a perfect example of the
difficulty in determining place of injury. Ms. Raquel
allegedly conceived E.G. in California, however, the primary
window for the development of spina bifida occurred in
Alabama. Case No. 12-cv-52 (Doc. 469, at p. 6). The specific
location where the injury first occurred might be California,
Alabama, or any state in-between.
place of injury to be “known, ” and therefore
entitled to the initial presumption under Illinois law, a
plaintiff must have actual knowledge of the state where
conception occurred and be able to certify that she did not
leave the state until the injury was discovered. Such
“book-ending” is required in these cases to avoid
an arbitrary assignment of the place of injury to when the
injury could have started or was actually discovered. See
Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524,
527-28 (7th Cir. 1981).
determining the place of injury does not end the analysis.
Id. at 526-7 (“The relative importance of all
the alleged contacts, including the place of injury, must be
independently evaluated on a case-by-case basis with respect
to the particular issue involved, the character of the tort,
and the relevant policies of the interested states.”)
It is undisputed that the Depakote litigation cases present
common issues of fact between the claims. Some of the common
facts germane to the choice-of-law analysis include: (1) that
Depakote is manufactured in Illinois; (2) Illinois is where
Abbott has made decisions about the development, testing,
manufacturing, labeling, and marketing of Depakote; (3)
Illinois is where Abbott's decisions about the
FDA-approved labeling of Depakote have also occurred; and (4)
virtually all documents regarding the development, testing,
manufacturing, labeling, and marketing of Depakote are
located in Illinois, where Abbott is headquartered.
See Affidavit of Charles Santora, Case No. 12-cv-52
(Doc. No. 37-3, at p. 2-5). Indeed, the parties agree that
“a substantial part of the events giving rise to
Plaintiffs' claims occurred [in Illinois].”
Defendants' Motion to Transfer Venue, Case No. 12-cv-52
(Doc. No. 37, at p. 8); Plaintiffs' Trial Brief, Case No.
13-cv-326 (Doc. 206, at p. 7). Nevertheless, in the Depakote
cases where the place of injury is known and corresponds with
the state where the relationship is centered, i.e.,
the state where the mother was prescribed and ingested the
drug, Illinois' substantial relationship is outweighed.
cases where the place of injury is not known, the Court is
strongly inclined to find that Illinois has the most
significant relationship to Plaintiffs' claims. At their
core, Plaintiffs' claims revolve around an alleged
failure to warn based on inadequate labeling. The state where
Depakote was purchased or the location where the drug was
prescribed has a far more attenuated relationship to the core
of the torts than the location where labeling, manufacturing,
and marketing decisions were made. Before making this
determination, however, the Court invites the parties to
submit briefing as to whether the Court should or should not
take this approach.
Court realizes that a majority of the cases will not involve
any choice-of-law dispute, but directs the parties to list
out and address the handful of cases that will involve such a
dispute in their briefings. The briefing should also include:
list of all cases where there is no dispute between the
parties concerning which state's substantive law applies;
list of all cases/states where the law concerning liability
is substantially similar to Illinois; and
list of all cases/states where the substantive law differs
from Illinois. The parties should include the specific areas
that are different with citations to the applicable statutes
and controlling case law. Finally, the parties should address
whether any of the differences in substantive law ...