United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
February 8, 2017, Defendants filed several identical motions
for summary judgment concerning the expiration of the Indiana
statute of repose as to the claims of certain
Plaintiffs. Compare (Case No. 12-CV-57, Doc.
115) with (Case No. 13-CV-1345, Doc. 26). Those
Plaintiffs filed uniform responses to the motions on March
10, 2017. See e.g., (Case No. 12-CV-57, Doc. 120);
(Case No. 13-CV-1345, Doc. 27). On March 17, 2017, Defendants
filed uniform replies. See e.g., (Case No. 12-CV-57,
Doc. 127); (Case No. 13-CV-1345, Doc. 30). The motions,
responses, and replies are all identical; therefore the Court
issues one omnibus Order addressing the issue contained
therein. References to the docket in this Memorandum and
Order will be to Case No. 12-CV-57, unless otherwise
and Procedural History
in this mass action allege that they suffered serious birth
defects as a direct result of exposure to
Depakote. (Doc. 1-15, pp. 5; 9). The exposure for
each Plaintiff is alleged to have occurred in utero
after his or her biological mother ingested Depakote during
pregnancy. (Doc. 1-15, pp. 3-4). Plaintiffs contend that
Defendants' failed to warn their biological mothers of
the real risk of birth defects, even though Defendants knew
or reasonably should have known of the true risks.
individual claims subject to the instant motion include: (1)
Ginnifer E. and Philip Baugher, individually as parents and
next friends of F.B., a minor; (2) Denise Estes, individually
as parent and next friend of L.A.E., a minor; (3) Nicky Name
(also known as Nicky Ward), individually as parent and next
friend of J.W.A., a minor; (4) Laurie Campbell, individually
and as parent and natural guardian of M.H., a minor; (5)
Kathy Garrett, individually and as next friend of C.T; (6)
Angie Stevenson, individually as parent and next friend of
D.S., a minor; (7) Sherry Williams, individually and as next
friend of T.C., a minor; (8) Linda Burns; and (9) Christopher
Doty, individually and as personal representative of the
estate of Ryan Doty.
Court has jurisdiction over the Depakote mass action and all
of the individual claims via diversity jurisdiction,
including expanded diversity under 28 U.S.C. §
1332(d)(11)(B)(i), also known as the Class Action Fairness
Act (“CAFA”). See (Doc. 667) (dismissing
several Plaintiffs for lack of subject matter jurisdiction,
as they failed to properly plead typical diversity
jurisdiction or invoke CAFA). Each relevant Plaintiff is a
resident of the state of Indiana; Defendants' principal
place of business is in Illinois. (Doc. 120, p. 2); (Case No.
12-CV-52, Doc. 37-3, pp. 2-5). Additionally, the prescribing
decisions, conception, gestation, and birth all occurred in
the state of Indiana. (Doc. 115-2, p. 2); see also
(Doc. 120, p. 2).
seek summary judgment on the grounds that the Indiana Product
Liability Act's statute of repose extinguishes all of
Plaintiffs' claims “that were filed more than ten
years after the delivery of the Depakote to which they
attribute their claims.” (Doc. 115, p. 2).
courts sitting in diversity apply the choice-of-law
principles of the forum state to determine which law governs
the proceeding. West Ben Mut. Ins. Co. v. Arbor Homes
LLC, 703 F.3d 1092, 1095 (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).
statute of repose requires plaintiffs to commence their
action within twelve years of the date of the first delivery
by a seller, or within ten years from the date of the first
delivery to the initial consumer, whichever expires first.
735 Ill. Comp. Stat. 5/13-213(b) (2016). However, subsection
(d) of the statute provides for a tolling exception based on
a legal disability, including minority status. 735 Ill. Comp.
Stat. 5/13-213(d) (2016).
the Indiana statute of repose provides for a ten year window
to file a claim, without a tolling exception for those
suffering from a legal disability. Ind. Code § 34-20-3-1
(2016). While Indiana provides for a tolling statute, it only
applies to the two year statute of limitations and not the
ten year statute of repose. Ind. Code § 34-11-6-1 (2016)
(“A person who is under legal disabilities when the
cause of action accrues may bring the action within two (2)
years after the disability is removed.”); see
Campbell v. Supervalu, Inc., 565 F.Supp.2d 969, 975
(N.D. Ind. 2008) (explaining Ind. Code § 34-11-6-1 does
not toll the statute of repose “because [the statute of
repose's] very purpose is to provide the manufacturer or
seller with closure for potential liability after a specified
number of years.”).
is no dispute that each claim was filed more than ten years
after the injured Plaintiffs were born. (Doc. 120, p. 3);
(Doc. 115, p. 3). There is also no dispute that under
Illinois law the claims continue, while under Indiana law the
claims are barred by the statute of repose. Rather, the
singular dispute presented to the Court concerns which law to
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
of Laws). Courts are not to conduct a singular
“one-state-fits-all” approach to the
choice-of-law analysis; instead, the Illinois Supreme Court
has declared that courts must engage in depecage.
Townsend, 879 N.E.2d at 901.
“[D]epecage…refers to the
process of cutting up a case into individual issues, each
subject to a separate choice-of-law analysis.”
applies “a two-step process in which the court (1)
chooses a presumptively applicable law under the appropriate
jurisdiction-selecting rule, and (2) tests this choice
against the principles of § 6 [Restatement (Second) of
Conflict of Laws] in light of relevant contacts identified by
. . . § 145 (torts) . . . .” Townsend,
879 N.E.2d at 903; In re Testosterone Replacement Therapy
Prod. Liab. Litig. Coordinated Pretrial Proceedings, 159
F.Supp.3d 898, 924 (N.D. Ill. 2016).
to the first step, Illinois maintains a “strong
presumption that the law of the state where the injury
occurred governs in a personal injury case . . . .”
Smith v. I-Flow Corp., 753 F.Supp.2d 744, 747 (N.D.
Ill. 2010) (citing Miller v. Long-Airdox Co., 914
F.2d 976, 978 (7th Cir. 1990)); Kamelgard v. Macura,
585 F.3d 334, 340-41 (7th Cir. 2009) (explaining
“lex loci delicti-the law of the place of the
wrong” is treated as a presumption).
Court has previously addressed the challenges associated with
determining the “place of injury” in cases
involving in utero exposure to substances that can
cause birth defects:
Interstate 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). ...