In 2020, the Illinois Supreme Court is set to decide two closely watched product liability cases, one that could change the landscape of toxic tort litigation in the state and another that could expand the kinds of damages manufacturers are liable for.
The court also has the potential to upset a common defense strategy aimed at “picking off” class action claims by mooting them.
And elsewhere in Illinois, lawyers will be keeping close tabs on Chicago’s case against opioid manufacturers, which was sent back to Illinois federal court from multidistrict litigation. Although the case isn’t expected to reach trial in 2020, lawyers across the country will be tracking pretrial rulings in the Windy City's case against opioid makers that include Purdue Pharma, Teva Pharmaceuticals USA Inc. and Actavis PLC.
Here, Law360 previews four Illinois cases to watch in 2020.
Jurisdictional Fight Could Limit Toxic Tort Suits
Bayer Corp. and a group of 160 non-Illinois residents are gearing up to argue in the Illinois Supreme Court over whether state courts have specific personal jurisdiction over consumer claims that Bayer defectively manufactured and misleadingly marketed its Essure contraceptive device.
The ruling could cause waves in other practice areas, including toxic tort litigation, where it is common to bring suits against companies that do business in Illinois on behalf of individuals who live outside of the state, Catherine Weiler of Swanson Martin & Bell LLP told Law360.
Bayer will argue that the suits led by nonresidents Nichole Hamby and Christy Rios must be booted under the U.S. Supreme Court’s landmark Bristol-Myers Squibb v. Superior Court decision. In that 2017 case, the Supreme Court said a group of plaintiffs couldn’t sue Bristol-Myers Squibb in California over injuries allegedly tied to the company's Plavix blood thinner because they neither lived in the state nor suffered their alleged injury there.
Judges in Madison County and the Fifth District Illinois Appellate Court have taken the side of plaintiffs Hamby and Rios on the issue throughout the Essure litigation.
A decision from the state high court in Bayer’s favor could make it more difficult for toxic tort plaintiffs to settle their cases in southern Illinois, which sees a relatively large concentration of those kinds of cases, Weiler said.
Does a man in Mississippi, for example, have a claim against Ohio-based Bendix Corp. in Illinois for making automobile brakes that exposed him to asbestos and caused mesothelioma? That is how plaintiffs are generally approaching such suits right now, she said.
But one big question over the court’s impending ruling is whether the litigation status quo would remain in those types of suits if the lower rulings are upheld, Weiler said.
“The stakes are pretty high,” she said. “It’s interesting … that we’re getting a very significant personal jurisdiction case in the Illinois Supreme Court, and it’s going to hugely affect the asbestos bar but they’re not litigating any of this, so they don’t have the ability to stop the train.”
Hamby, Rios and Bayer will argue their cases before the state high court on Jan. 22.
The cases are Nichole Hamby et al. v. Bayer Corporation et al., case number 125020, and Christy Rios et al. v. Bayer Corporation et al., case number 125021, before the Illinois Supreme Court.
Plaintiffs Take Aim at Class Action Pickoff
A common defense strategy used in class actions called the pickoff is on the line in Illinois. The Illinois Supreme Court is teed up to decide whether to move away from allowing companies to make settlement offers that effectively moot a plaintiff’s claim early in litigation.
Lawyers in the state are waiting to see how the state high court will come down on two tenants’ argument that a property management company improperly tried to end a valid claim for an unreturned security deposit by tendering a cashier’s check for the full amount of money it allegedly owed.
The tenants want the court to distinguish the case from its 2011 ruling in Barber v. American Airlines Inc. in which the Illinois justices allowed the airline to end a passenger’s class action over baggage fee refunds by tendering the full amount of her damage claim — even though she was taking discovery and didn’t want to drop the case.
The tenants, Chandra Joiner and William Blackmond, want the state supreme court to get behind the U.S. Supreme Court’s 2016 Campbell-Ewald Co. v. Gomez decision in which the high court blocked a pickoff strategy. The court held plaintiffs don’t have to file “shell” class certification motions to ward off attempts to render their claims moot.
The pickoff is a widely used defense strategy in class actions, and the Campbell-Ewald case “caused quite a ripple in the practice several years ago because it took away that practice” in the federal courts, Gretchen Harris Sperry, president of the Illinois Appellate Lawyers Association, told Law360. Sperry said if Joiner and Blackmond are successful, it would cause another ripple in Illinois defense circles.
“If it were going to be a successful strategy defendants would use, I would think they would be watching closely to see how the court comes out on this,” she told Law360.
The tenants filed a proposed class action against SVM Management LLC in December 2016, but before they filed a class certification motion, the company sent the full amount of the plaintiffs’ claimed damages and the trial court determined the case was moot.
They took their fight to the state high court with oral arguments in November, arguing that filing placeholder class certification motions to avoid getting mooted out of court makes litigation more expensive and inefficient.
Sperry told Law360 the state high court seems concerned that a class action plaintiff’s interest could change if he or she becomes the only one who receives a settlement tender for a claim, she said.
“As a principled matter, it changes the perspective for that purported lead plaintiff,” she told Law360.
The case is Chandra Joiner et al. v. SVM Management LLC, case number 124671, in the Supreme Court of Illinois.
Tackling Economic Damages Without Injury
An impending Illinois Supreme Court decision over whether companies must compensate parents for child lead testing costs they didn’t pay could significantly impact product liability defendants in the state, Sperry told Law360.
In the case, the Sherwin-Williams Co. and ConAgra Grocery Products Co. are fighting a bid by parents to recover damages for the testing, even though Medicaid ultimately covered the children’s statutorily mandated lead screening expenses.
The companies say the parents don’t have an actual injury to sue over since they never paid for the testing. But a proposed class led by parents Mary Lewis and Tashwan Banks has been seeking repayment of those costs for nearly 20 years, arguing the companies, which formerly manufactured the white lead pigment used in lead paint, shouldn’t be let off the hook just because someone else paid the bill.
The state high court heard arguments in the dispute in November.
Manufacturers have cause for concern if the justices side with the parents on the issue, Sperry told Law360.
“It greatly expands any product liability defendant’s exposure if a plaintiff is not required to prove that he’s been harmed or that he’s suffered an economic loss that he didn’t have to pay,” she said.
If the court rules that the plaintiffs don’t have to have an actual injury to pursue their purely economic claim, “there’s no outer bound on that,” Sperry said.
“That’s the reason why they have to be provable compensable damages,” she said. “How else is one supposed to compensate the plaintiffs for an injury if they can’t show the extent to which he’s been injured?”
A Cook County judge tossed the parents’ suit in 2016, saying they didn’t have a claim because they couldn’t prove they’d suffered an actual economic injury.
The appellate court reversed in a ruling that hinged on two Illinois laws. The first, Illinois’ Lead Poisoning Prevention Act in 1992, mandates that children living in areas that were constructed before a lead paint ban had to undergo blood-lead screening.
The second, Illinois’ Family Expense Act, holds parents responsible for the expenses of their minor children. The appellate court held in 2018 that Lewis and Banks were liable under that law for the cost of their children’s lead testing, and Medicaid paying for it was irrelevant because they had still incurred a liability when their children were required to be tested under the ILPPA.
The case is Mary Lewis et al. v. Atlantic Richfield Co. et al., case number 124107, in the Supreme Court of Illinois.
Chicago’s Opioid Case Comes Home
Chicago filed one of the earliest lawsuits against pharmaceutical manufacturers in the fight against a nationwide opioid dependency epidemic. That case was chosen from a massive multidistrict litigation as one of a wave of bellwether trials, which will occur on the city’s home turf.
A trial date has not been set in the case, but activity will ramp up in the coming months with discovery and other pretrial rulings, Donna Welch of Kirkland & Ellis LLP told Law360.
And since Chicago’s case is the first manufacturer-specific case sent back from the MDL to its originating court, those rulings “will be watched by courts around the country,” Welch said. Lawyers working on any opioid or mass tort cases will also want to pay attention as the case proceeds to trial, she added.
While Chicago sued major opioid manufacturers, other cases in the MDL focus on distributors, pharmacies and retailers.
The bellwether trials are intended to force the parties to test their legal arguments before juries or else ink settlements that would likely funnel large sums of cash to treatment and prevention of painkiller addiction.
The city’s 2014 lawsuit was the first one launched against opioid manufacturers, accusing them of misrepresenting how addictive their products are while aggressively marketing the drugs to doctors. Dozens of other cities, states and counties have filed their own suits over the drugs in the years since.
The National Prescription Opiate Litigation MDL includes more than 2,400 pending cases as of mid-November, according to the Judicial Panel on Multidistrict Litigation website.
The case is City of Chicago v. Purdue Pharma LP et al., case number 1:14-cv-04361, in the U.S. District Court for the Northern District of Illinois.