United States District Court, S.D. Illinois
IN RE DEPAKOTE J.F., a minor, by BEATRICE SIFUENTES as next friend of J.F., Plaintiff,
ABBOTT LABORATORIES, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
before the Court is Abbott's Amended Motion for Partial
Summary Judgment (“Motion”) for damages related
to J.F.'s alleged autism and/or autism spectrum disorder
(Doc. 590). Plaintiff filed a response in opposition to the
Motion on May 1, 2017 (Doc. 628). For the reasons set forth
below, the Court grants the Motion.
August 15, 2011, this case was filed in the Circuit Court of
Cook County, and it was removed as part of the Depakote mass
action on January 18, 2012 (Doc. 590, p. 2). Plaintiff claims
that Depakote caused J.F.'s spina bifida, club foot,
craniofacial dysmorphic features, tibial torsion,
hypospadias, learning disabilities, hydrocephalus, Arnold
Chiari II malformation, neurogenic bladder and bowel,
scoliosis, global psychomotor developmental delay, and ADHD
(Doc. 590, p. 4) (citing Doc. 590-1, p. 2). Previously,
Abbott asserted that Plaintiff could not recover for
behavioral disorders on the grounds that Depakote potentially
caused cognitive, rather than behavioral, disorders (Doc.
538, p. 5). Abbott has since dropped those claims after
Plaintiff filed a response stating that J.F.'s behavioral
problems resulted from his cognitive injuries, which were
caused by Depakote (Doc. 548, pp. 3-4).
Plaintiff has never filed any claim asserting that exposure
to Depakote caused J.F.'s autism, a May 2016 medical
record, produced in discovery, revealed that J.F. was
diagnosed with “Autism Spectrum Disorder without
Intellectual Disability or Language Impairment . . . .”
(Doc. 590-2, p. 3). Abbott argues that Plaintiff should be
unable to recover autism-related damages because he has
failed to produce expert testimony demonstrating that
Depakote proximately caused J.F.'s autism (Doc. 590, p.
4). Moreover, Plaintiff's expert, Dr. Olaf Bodamer, has
“never included autism in the ‘constellation of
congenital defects' that he has attributed to J.F.'s
alleged ‘in utero exposure to Depakote.'”
(Doc. 590, p. 1) (citing Doc. 590-1, p. 2). Plaintiff asserts
that it “ha[s] not and will not claim that J.F. has
autism as a result of Depakote exposure.” (Doc. 628, p.
1). However, Plaintiff opposes Abbott's argument that
autism should be considered by the jury as an alternative
cause of J.F's damages (Doc. 628, p. 2).
judgment is only appropriate if the movant “shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Spurling v. C & M Fine Pack, Inc., 739 F.3d
1055, 1060 (7th Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). Once
the movant has set forth the basis for summary judgment, the
burden then shifts to the non-movant who must go beyond mere
allegations and offer specific facts showing that there is a
genuine issue of fact for trial. Fed.R.Civ.P. 56(e); see
Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
The Court should not grant summary judgment merely because
the non-movant does not oppose the motion. The Court still
”must find that [when] construing all material facts in
the movant's favor as a result of the non-movant's
defaulted filing, summary judgment is appropriate.”
Wienco, Inc. v. Katahn Assocs., Inc., 965 F.2d 565,
568 (7th Cir. 1992).
order to recover in a negligence case, the plaintiff bears
the burden of proving duty, breach of duty, proximate cause,
and damages. Ehrhart v. Lockformer Co., No. 02 C
7068, 2005 WL 1869731, at *1 (N.D. Ill. Aug. 2, 2005) (citing
Brown v. Baker, 672 N.E.2d 69, 71 (Ill.App.Ct.
1996)). In its Motion, Abbott focuses exclusively on whether
Plaintiff has satisfied his burden of proving proximate
causation. See Kleen v. Homak Mfg., Co., 749 N.E.2d
26, 29 (Ill.App.Ct. 2001) (“[P]roximate cause is one
that produces an injury through a natural and continuous
sequence of events unbroken by any effective intervening
cause.”). Expert testimony is necessary to establish
proximate causation in cases where a drug manufacturer has
failed to provide adequate warnings. N. Trust Co. v.
Upjohn Co., 572 N.E.2d 1030, 1036-37 (Ill.App.Ct. 1991).
See also Wintz v. Northrop Corp., 110 F.3d 508, 515
(7th Cir. 1997) (“Under Illinois law, to serve as the
sole basis for a conclusion that an act was the proximate
cause of the plaintiff's injury, an expert must be able
to testify with a reasonable degree of medical certainty that
proximate cause existed.”).
the fact that Plaintiff does not allege that Depakote caused
J.F.'s autism, the record supports judgment as a matter
of law for Abbott on the issue. Plaintiffs expert, Dr.
Bodamer, has never included autism in the list of defects
that J.F. allegedly suffered due to in utero
exposure to Depakote. (Doc. 590, pp. 2-3). As explained
above, an autism-related claim necessarily fails “in
the absence of any other expert evidence supporting . . .
[the] causation theory.” Ervin v. Johnson &
Johnson, Inc., 492 F.3d 901, 905 (7th Cir. 2007).
Because Plaintiff has not provided expert testimony to prove
proximate causation with respect to J.F.'s autism,
Plaintiff cannot recover for autism-related damages due to
Depakote exposure as a matter of law.
Plaintiffs claim that the jury should not be permitted to
consider J.F.'s autism as an alternative cause of
damages, the Court will address this issue when it rules on
Plaintiffs Motion to Exclude (Doc. 623) and Abbott's
response in opposition (Doc. 670).
Abbott's Amended Motion for Partial Summary Judgment
(Doc. 590) is GRANTED.