Articles

Defending Products Liability Cases After the Best Decision (Jim Marsh)

DEFENDING PRODUCT LIABILITY CASES IN ILLINOIS AFTER THE BEST DECISION

Gregory L. Cochran
Robert P. Pisani
Margaret M. Foster
McKenna, Storer, Rowe, White & Farrug
Chicago, Illinois

James P. Marsh
Momkus McCluskey, LLC
Lisle, Illinois

Daniel K. Cray
Jeffrey S. Taylor
Williams & Montgomery, Ltd.
Wheaton, Illinois

I. INTRODUCTION

With the Illinois Supreme Court decision in Best v. Taylor Machine Works,¹ product liability defendants suddenly found themselves back where they had been before the tort reforms enacted in the Civil Justice Reform Amendments of 1995, commonly known as the Tort Reform Act. In addition to highly controversial provisions requiring product liability plaintiffs to file a certificate of merit and expanding the application of the product liability statute of repose, the Tort Reform Act included a core set of provisions directly addressing product liability found at Sections 2-2103 through 2-2107.² The subjects of these sections included compliance with statute or regulation (2-2103), feasible alternative design (2-2104), subsequent remedial measures (2-2105), written warnings (2-2106), inherent characteristics (2-2106.5) and punitive damages (2-2107). The provisions created presumptions, limited the admissibility of certain evidence, and set standards for imposing liability and punitive damages in product liability cases. The Best opinion did not directly address these provisions. Rather, these provisions where nullified when other provisions of the Tort Reform Act were found unconstitutional and the Court decided that the remaining provisions could not be severed. The fact that the Court did not directly address the constitutionality of the product liability provisions left the possibility that the same or similar provisions could be resurrected in future legislation. However, the subsequent split in control of the Illinois General Assembly has thwarted the progress of such legislation, and recent election results maintaining this split suggest that attempts at such legislation will be frustrated for the foreseeable future.

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While legislative relief may not be on the immediate horizon, the arsenal of weapons available to Illinois product liability defendants is far from empty. Unlike certain other provisions of the Tort Reform Act, Sections 2-2103 through 2-2107 were not a marked departure from existing Illinois case law. Rather, while the weapons provided in these sections exceeded those available under existing case law in many instances, they bore resemblance to many principals already established by the courts of Illinois. This monograph will review the case law of Illinois as it relates to the subjects of the now defunct Sections 2-2103 through 2-2107 and demonstrate that the purposes of these sections can be largely accomplished through aggressive and creative advocacy by the defense practitioner. Reference will also be made to relevant provisions of the new Restatement (Third) of Torts: Products Liability, and to case law of other jurisdictions, where these can be used to argue for change in Illinois products liability law to the advantage of defendants.

II. SECTION 2-2103
COMPLIANCE WITH STATUTE OR REGULATION

The 1995 tort reform package included Section 2-2103 stating as follows:

Section 2-2103. Federal and State Standards; presumption. In a products liability action, a product or product component shall be presumed to be reasonably safe if the aspect of the product or product component that allegedly caused the harm was specified or required, or if the aspect is specifically exempted for particular applications or users, by a federal or State statute or regulation promulgated by an agency of the federal or State government responsible for safety or use of the product before the product was distributed into the stream of commerce.³

On its face, the statute created a presumption against an "unreasonably dangerous" finding where the product or specific component in issue was either specified or required by Federal or state law or regulation, or if that product or component was "specifically exempted for particular applications or users." Under this provision, only compliance with governmental standards, not industry standards, could trigger the presumption. The statute did not address the mechanics of overcoming the presumption, and new jury instructions dealing with this type of presumption would have been necessary. Its ultimate scope and applicability would have been subject to years of judicial interpretation. Although the tort reform legislation of 1995 was ultimately found unconstitutional by the Illinois Supreme Court in Best v. Taylor Machine Works,⁴ this specific provision was not substantively addressed by the Court.

The utility of such a provision is clear. Defendant manufacturers and sellers are frequently required by law to include certain warnings,⁵ or use certain designs or product components,⁶yet are then potentially subject to liability because one jurisdiction's law is more stringent or is otherwise different than the next. A presumption such as that contained in Section 2-2103 helps foster uniformity and provides some measure of predictability to industry. Government standards usually derive from a partnership between government and industry, and are the result of the thoughts and opinions of many persons, often people with a great deal of expertise and years of practical experience with the product itself and how it is used in the real world. This should be juxtaposed against the adversarial nature of personal injury lawsuits, where each party pursues the singular goal of winning the case, not necessarily balancing the needs of the public for safety, as well as product efficiency and functionality.

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During the short time of its existence, Section 2-2103 was an expansion of existing Illinois case law. Illinois evidentiary law provides that evidence of compliance with either governmental or industry standards is admissible in a strict liability action as part of the process of determining whether a product or a component thereof is "unreasonably dangerous," or in a negligence action as part of the reasonable person standard.⁷ In the case of the latter, the existence of a standard, in large part, defines the standard of care owed by entities in the industry or business to which the standard applies.

For the defense, this evidence provides perspective to the jury as to why a defendant and its employees made the choices they made in determining the design for a product, or why certain features were or were not included, be it as original equipment or instead offered as an option to a buyer or user. At trial, these choices, which are often the product of years or months of analysis and internal debate, are typically viewed with hindsight over the course of a few days or weeks, in the face of a severely injured plaintiff whom the jury has seen on a daily basis in the courtroom. Providing a potentially profit neutral explanation for the defendant's actions can help restore some balance to the proceedings, although a presumption formally communicated by the court to the jurors would clearly be preferable.

A. Preemption Based on Federal Statutes and Regulations

Notwithstanding the lack of a formal presumption, there are a number of strategies a defendant may employ using governmental and industry standards to combat the notion that profit always takes precedence over safety in the business culture of this country. The most effective use of Federal statutes, regulations and standards, in Illinois and most jurisdictions, remains preemption. This doctrine, which derives from federalism, rests on the principal that a state should be prohibited from imposing regulations different from those imposed by the Federal government, where Congress has clearly determined that Federal law should control.⁸ In its most pure sense, the operation of preemption bars a common law action, or parts of one, where allowing the action to proceed would be akin to causing an otherwise regulated act to be re-regulated under perhaps stricter or different regulations, particularly where the initial regulation was mandatory and not subject to the discretion of the defendant manufacturer or seller. A prime example of this is Cipillone⁹ and the mandated warnings on packages of cigarettes. Once warnings were required, and the language and format determined, the manufacturers arguably had no choice as to the content of the warnings. The U.S. Supreme Court has addressed the test to be used to determine whether a matter is preempted numerous times in the last few years and the topic is beyond the scope of this article.¹⁰ However, it is clear that effective use of the preemption defense can provide even greater benefit than the presumption contained in Section 2-2103 of the Illinois Code of Civil Procedure.

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In Busch v. Color Graphic Corp.,¹¹ plaintiff's decedent was found dead after using paint stripper to clean ink vats. She was asphyxiated from exposure to a component of the stripper, the chemical methylene chloride. The decedent did not regularly do this work, and did not use the appropriate safety equipment. Her work area was not properly ventilated. Due to the presence of methylene chloride, the paint stripper was regulated by the Federal Hazardous Substances Act (FHSA)¹² and regulations issued thereunder by the Consumer Products Safety Commission (CPSC). There were regulations issued by the CPSC relating to the labeling of cans of paint stripper containing methylene chloride. In fact detailed sample labels were created and published by the CPSC. The label at issue was entirely consistent with the exemplar label in format and substance. Plaintiff argued the stripper was unreasonably dangerous in the that label did not specifically warn of the asphyxiation risk associated with its use in unventilated areas. The defendant moved for summary judgment which the trial court granted.

In affirming the trial court, the Illinois Supreme Court discussed the test for preemption and applied it. In doing so, the Busch Court noted that Congress expressed concerns about the effect of not preempting labeling related suits and the problems to industry of allowing the states to, in effect, create up to 50 different regulatory schemes through lawsuits for a product sold throughout the U.S. The defendant in Busch followed federal regulations and complied with mandated product container labeling requirements. It would be unfair to penalize them for their compliance. Thus, regulatory compliance here resulted in more than a presumption, it resulted in a no liability finding.

Another example arose in a cellular telephone case, Verb v. Motorola, Inc.¹³ There, plaintiffs attempted a class action suit arguing that the cellular telephone industry mislead the public by suggesting cellular telephones were "safe," when testing relating to the effects of electromagnetic frequency exposure associated with the use of the telephones had not yet been undertaken. Plaintiffs argued that the defendants, members of the industry, should be required to warn that the pervasive testing the plaintiffs thought should be undertaken was not yet completed. The defendants argued plaintiffs' claims were preempted by the Electronic Product Radiation Control Act,¹⁴ and that Congress, through this Act, gave the Food and Drug Administration (FDA) exclusive control over heath and safety issues surrounding cellular telephone use. The defendants asserted that a court which mandates such a warning would thus tread on that exclusive ground by, in effect, regulating the heath and safety of the telephones. The trial court agreed and the Appellate Court affirmed the finding of preemption. Note that, in this instance, no actual FDA regulations directly focusing on the cellular telephone safety concerns plaintiffs alleged had been issued. The mere fact that Congress had reserved this responsibility to a federal agency was a sufficient basis for preemption. This same analysis was recently approved by a different panel of the First District Appellate Court in a similar case, Schiffner v. Motorola, Inc.¹⁵ Once again, more than just a presumption, the successful use of preemption resulted in a no liability finding.

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B. Other Strategies For Use of Governmental and Industry Standards

Where preemption is unavailable, the effective use of governmental or industry standards at trial can be helpful despite the lack of presumptive effect. In Rucker v. Norfolk & Western Railway Co.,¹⁶ plaintiff was injured when a railroad tanker car exploded after it was punctured by another railroad car in a rail yard. At trial, the manufacturer of the exploding car was barred from introducing evidence that its tanker car complied with federal regulations relating to the construction of such railcars. Plaintiff argued that the tanker car should have been equipped with a "headshield," a protective device to protect a tanker car from damaging contact with other railcars and objects. At the time of manufacture, headshields were not required by federal regulations, and the tanker car otherwise met the regulatory standards. At trial, plaintiff argued that to allow this type of evidence in a strict liability action would result in the jury improperly focusing on the conduct of the defendant, not the product. The Supreme Court reversed. In doing so, the Rucker Court indicated that the focus on governmental regulation was, in fact, on the product as such evidence goes to whether a product is actually defective. Further, should a finding be made that a product was defective, such evidence helps the fact finder determine if a product, albeit defective, is unreasonably dangerous. Compliance with regulations is part of the reasonableness inquiry. However, the Court rejected defense arguments that compliance negates liability, as preemption was not an issue and the issue of whether a product is unreasonably dangerous is a fact issue. Thus, although regulatory compliance was found not to be conclusive evidence of lack of defect, it was found to be admissible on the issue to be considered with all other evidence.

In Moehle v. Chrysler Motors Corporation,¹⁷ plaintiffs were injured when the rear seat of the vehicle they were riding in became dislodged after an accident. Plaintiffs alleged severe abdominal injuries due to the way the seat belts they were wearing contacted their bodies, and argued the fact the seat dislodged was the cause of this phenomenon. Defendant disputed this allegation and sought to introduce evidence of federal regulations concerning how the seat was to be anchored and its compliance with these regulations, which the trial court allowed. A defense verdict was rendered and plaintiffs appealed. On appeal, plaintiffs argued that Rucker¹⁸ was wrongly decided, and that introduction of this type of evidence resulted in an undue highlighting of compliance over other evidence, or would cause the jury to be mislead by antiquated or grossly minimal standards. The Supreme Court affirmed the verdict and rejected plaintiffs' contention regarding the undue highlighting and related arguments. The Court believed that appropriate advocacy by trial counsel and proper jury instructions could solve any such problems.

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Another case involving governmental regulations is Turney v. Ford Motor Co.¹⁹ There, plaintiff was injured when a tractor he was operating tipped over. The tractor involved did not have any rollover protection, and none was offered as original equipment, although it was available as an option. Industry trade associations recommended such protection be present on all such tractors. Ford, the manufacturer of the tractor, instead decided to offer this protection as an option because in uses involving low clearances, such as around trees in an orchard, the clearances would be too low and a tractor so equipped would be too tall to be used, arguably creating a number of different hazards.

At trial, the defendants produced evidence that the Occupational Safety and Health Administration (OSHA) exempted this type of tractor from regulations which would otherwise require such protection, when used in orchards, because of the low clearance issue. Plaintiff objected to this evidence arguing that the focus on this regulation resulted in improper attention being given to the conduct of plaintiff's employer as part of an effort by Ford to delegate its duty of providing a safe product to the tractor's purchaser, the plaintiff's employer. Plaintiff also objected to Ford's use of OSHA regulations in that they were inapplicable to Ford, as Ford was not the employer. The Appellate Court rejected these arguments and affirmed the defense verdict. The Court found the Ford never denied the existence of its duty to provide safe products, and the trial judge specifically instructed the jury as such. As to the use of the OSHA regulations, the Court found that it was proper to admit the OSHA regulations to enable the jury to determine whether the failure of Ford to use alternative design suggested by the plaintiff, i.e. installation of the rollover protection as original equipment, rendered the tractor unreasonably dangerous. Thus, the Court recognized that the context in which Ford designed the tractor was important to enable it to defend its actions and decisions. It did not matter that the regulation asserted did not necessarily apply directly to the defendant. While there was no presumption, the defendant here was permitted to use regulations, and effective compliance thereunder, to justify its decision making, particularly in the context of an industry standard supporting its approach.

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Another example is found in Dugan v. Sears, Roebuck and Co.,²⁰ which involved an industry standard, rather than a governmental regulation. The minor-plaintiff was blinded when a piece of debris was thrown by a lawnmower into his eye. At trial, plaintiff argued that alternative designs were feasible and safer than the design used by the defendant lawnmower manufacturer. Defendant argued that the relevant industry standard promulgated by the American National Standards Institute (ANSI) did not require the design alternatives proposed by plaintiff and that, as a result, the lawnmower was not unreasonably dangerous. A defense verdict was rendered and plaintiff appealed. At the Appellate Court, plaintiff attempted to distinguish Rucker by suggesting a difference existed between government mandated actions through statute and regulation and voluntary industry standards. Further, plaintiff argued that the ANSI standard here failed to require testing for the fact scenario which occurred here, random discharges. The Appellate Court found no reason to distinguish between governmental and industry standards, as either have a tendency to show lack of defectiveness. Additionally, the Court found that factors such as the scope of the standard and its strengths and weaknesses would go to the weight of the evidence. The Court further found that the relative merit of the standard was subject to cross-examination and argument by counsel. The defense verdict was affirmed.

There are numerous other examples of situations where governmental or industry standards have been asserted to help explain or justify a design decision. In Jones v. Black & Decker Manufacturing Co.,²¹ a miner was electrocuted while using a drill which was not double insulated. The defendant asserted a U.S. Bureau of Mines regulation requiring the grounding of such devices, and successfully argued that the design used was, in effect, required. In Hatfield v. Sandoz-Wander, Inc.,²² a failure to warn case involving a prescription drug, defendant successfully argued that the FDA approved its product insert which did not provide a specific warning for an adverse reaction which plaintiff suffered despite the FDA's actual knowledge of the potential problem. Plaintiff attempted to distinguish Rucker²³ and Moehle²⁴ on the basis that FDA approval is based on information largely submitted by the defendant, not independent testing by the agency itself. The Court held these arguments went to weight and did not justify an exception to those cases.

As a matter of basic evidentiary law, the regulation or standard must be relevant in terms of both time and conduct involved.²⁵ An industry standard adopted after the date of manufacture can be admissible if formulated to eliminate past and future hazards,²⁶ or if after the date of manufacture but before the date of sale to the user.²⁷

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Thus, in Illinois, while there may not be a presumption that a product is not unreasonably dangerous stemming from compliance with governmental regulation or standards, there is a body of case law demonstrating that actual compliance with governmental or industry standards can be devastating evidence proffered by defendants and very difficult for plaintiffs to overcome.

C. The Restatement

Illinois law is consistent with Section 288 C of the Restatement 2d Torts which provides:

Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.

As the comment to this section points out,²⁸ this provision suggests that compliance is the minimum expected of a defendant (or product), and that more can be required if circumstances warrant further action. This is very much in line with the cases discussed above, which indicate that compliance is evidence of lack of defect or unreasonable dangerousness, but is not dispositive as a matter of law.

On the other hand, Section 4 of the Restatement (Third) of Torts: Products Liability takes a somewhat different approach in that the concepts of compliance and noncompliance are both addressed so as to create a stark contrast on the effect of the alternatives. This section provides as follows:

In connection with liability for defective design or inadequate instructions or warnings:

(a) A product's noncompliance with an applicable safety statute or administrative regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation; and

(b) A product's compliance with an applicable product safety statute or administrative regulation is properly considered in determining whether the product is defective with respect to the risks sought to be reduced by the stature or regulation, but such compliance does not preclude as a matter of law a finding of product defect.²⁹

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While Section 4(b) is essentially consistent with current Illinois law, Section 4(a) creates a negligence per se situation as to defect. This is arguably more harsh than current Illinois law where such a finding would simply be part of whatever evidence there was on the topics of product defect and unreasonably dangerousness.³⁰

D. Other Jurisdictions

To the extent the law is different in other states and that a presumption for regulatory or industry standard compliance exists, it is largely the result of legislative intervention; that is, by statute through the adoption of the Model Uniform Product Liability Act,³¹ or other legislative enactment.³² Some states, such as Kansas and Colorado, have used presumptions much like Section 2-2103 of the Illinois Code of Civil Procedure,³³ others have stronger statutes, such as Washington state where a statute provided an absolute defense in the context of compliance with a government mandated contractual specification.³⁴ In Maryland, compliance with a governmental standard is evidence to be considered with other evidence to determine whether a product is defective, but compliance where there is no other evidence that something beyond mere compliance was required can lead to a finding of lack of defect and negligence as a matter of law.³⁵

While the inclusion of a presumption for compliance with governmental standards by product manufacturers and sellers makes tremendous sense and would promote compliance, as to do so would lessen the likelihood of being sued, case law in Illinois as it has developed can still be very helpful to defendants. Absent preemption, evidence of compliance helps the jury understand why decisions were made and provides some perspective and balance to trial.

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III. SECTION 2-2104
FEASIBLE ALTERNATIVE DESIGN

Section 2-2104 of the now-abolished tort reform amendments created an exacting presumption which a plaintiff would have had to overcome in a design defect case. That section provided that a design was presumed to be "reasonably safe" unless there was a practical and technically feasible alternative design available to the manufacturer at the time the product left the manufacturer's control. This practical and technically feasible alternative design must have been one that would have prevented the claimed injury "without significantly impairing the usefulness, desirability, or marketability of the product." An alternative design, under the statute, was deemed practical and feasible if the technical, medical or scientific knowledge related to the safety of the alternative design was available and developed for commercial use when the product was manufactured.³⁶

A. The Kerns Decision

Prior to the tort reform amendments, the Illinois courts had never created any type of presumption regarding a product's safety in the absence of proof of a feasible alternative design. The leading Illinois case on the subject of alternative design feasibility is Kerns v. Engelke.³⁷ In this 1979 decision, our Supreme Court held that a plaintiff may prove design defect through relevant admissible evidence, which may or may not include the feasibility of an alternative design. A plaintiff must prove an unreasonably dangerous defect in the design, but need not plead alternative design feasibility as part of the cause of action.³⁸

The plaintiff in Kerns was injured when a wire used to hold up part of the assembly of a farm machine broke and hit him in the eye. The plaintiff alleged design defect against the defendants and introduced at trial evidence of several practical and effective alternative designs for holding up the mechanism, which were feasible at the time the machine was manufactured. In rejecting the defendants' contention that the verdict in favor of the plaintiff should be reversed because the plaintiff did not plead a feasible alternative design, the Kerns Court held that a plaintiff must simply present pertinent evidence at trial - such as an alternative design that is economical, practical and effective - to the fact finder, who determines whether the complained-of condition was an unreasonably dangerous defect.³⁹

The role of alternative design feasibility in design defect cases, as controlled by the Kerns decision, was succinctly stated by the Court in Seward v. Griffin:⁴⁰

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What must be proved, according to the Kerns Court, is the unreasonably dangerous nature of the defect in design. Clearly, evidence of alternative design feasibility is relevant to the issue that must be proved. In light of the Kerns decision, and until the Illinois Supreme Court determines otherwise, we believe the rule of law in Illinois is that evidence of alternative design feasibility is relevant and admissible in a design defect case, but it is not an essential element of such a case if the finder of fact can be persuaded in the absence of such evidence that the defect in design rendered the product unreasonably dangerous.⁴¹

Once a plaintiff raises the issue of feasible alternative design in a design defect case, however, a manufacturing defendant is entitled to have the jury instructed that there is no duty upon a manufacturer to produce a product with a different design, if the different design is not feasible. Feasibility, the jury may be instructed, includes not only the elements of economy, effectiveness and practicality, but also includes technological possibilities under the state of the manufacturing art at the time the product was produced.⁴²

B. The Restatement

With the abolition of the tort reform amendments, defense counsel should advocate for changes in Illinois law consistent with those provided for in Section 2-2104. A first step toward this goal will be to urge the Illinois courts to adopt the approach set forth in the new Restatement (Third) of Torts: Products Liability. Section 2 of the Third Restatement provides that the plaintiff must plead and prove that foreseeable risks of harm could have been prevented by a reasonable alternative design, and that the absence of that alternative design renders the product "not reasonably safe." The plaintiff must also be able to establish that such a reasonable alternative design was, or reasonably could have been, available at the time of sale or distribution of the product.

Comment f to Section 2 discusses the amalgam of factors which may be considered in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe. Included among those factors are the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product. Another factor referenced in this comment is the relative advantages and disadvantages of the product as designed and as it alternatively could have been designed. The comment further states that it is not sufficient that the alternative design would have reduced or prevented the harm incurred, if it would have also created dangers of equal or greater magnitude.

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C. The Daubert Decision

Another way to take advantage of a feasible alternative design is through the screening of expert testimony under Daubert v. Merrill-Dow.⁴³ Although Daubert is not the law of Illinois, the Illinois Federal courts and, in particular, the 7th Circuit, have been quite proactive in limiting farfetched expert testimony about alternative designs. For example, in an early post-Daubert product liability decision, Stanczyk v. Black & Decker, Inc.,⁴⁴ Judge Zagel granted a defense motion for summary judgment after excluding the testimony of the plaintiff's expert who could not establish the feasibility of the proposed alternative design.⁴⁵

IV. SECTION 2-2105
SUBSEQUENT REMEDIAL MEASURES

The Illinois Tort Reform Amendments of 1995 codified existing case law in Section 2-2105 of the Illinois Code of Civil Procedure. This amendment stated that changes in design or warnings are inadmissible in a product liability action based upon any theory or doctrine unless the feasibility of a design or warning change is controverted or the evidence is offered for another purpose such as proving ownership, control or impeachment. This evidence could not be used to prove a defect in the product, negligence or culpable conduct. While the Supreme Court's decision in Best⁴⁶ held the Tort Reform Amendments unconstitutional, including Section 2-2105, the availability of these defenses in a product liability action remains as the common law of Illinois.

A. Illinois Common Law

Section 2-2105 was the codification of the general principle that had been set forth in Illinois case law prior to its enactment. Illinois courts have long held that evidence of subsequent remedial measures is generally not admissible to prove negligence or culpable conduct.⁴⁷ The rationale for this rule is that defendants should not be deterred from making repairs or modifications, which will increase safety, by the concern that the plaintiff might use those measures as evidence of past negligence.⁴⁸ The Illinois courts have adopted the reasoning behind Rule 407 of the Federal Rules of Evidence,⁴⁹ finding the application of these general principles applicable to product liability actions regardless of whether the basis of that liability is in negligence or the inherent dangerousness of the product.⁵⁰

The admissibility of subsequent remedial measures can be used as a sword and a shield in a product liability action. The typical scenario involves a defendant manufacturer seeking to prevent the jury from hearing evidence of a subsequent remedial design or warning change. For example, see Davis v. International Harvester Co.⁵¹ and Collins v. Interroyal Corp.,⁵² the Courts adopted a narrow view that evidence of post-occurrence design changes in product liability actions is admissible only to establish the feasibility of alternative designs or for impeachment purposes. In Davis, the Appellate Court held that the trial court did not abuse its discretion in excluding evidence of subsequent design changes made by the defendant to its semi-tractor cabs, where the defendant stipulated to the feasibility of the changes with respect to the model in question. The plaintiff had contended that the evidence of post-occurrence changes was admissible despite the stipulation.

Public policy considerations have been the overriding force behind the exclusion of evidence of subsequent remedial measures. If such remedial measures could be used by a plaintiff as evidence of negligence or an admission that a product was inherently dangerous, a disincentive for manufacturers to improve their products would exist.⁵³ Illinois case law has barred this evidence in both instances when the design change occurs in post manufacture, but pre-injury situations, involving theories of negligence and product liability. In Smith v. Black & Decker (U.S.) Inc.,⁵⁴ post manufacture, but pre-injury, design modifications were held inadmissible unless specifically offered for the purpose of showing feasibility of alternative design. In Carrizales v. Rheem Mfg. Co., Inc.⁵⁵ post manufacture and pre-injury design changes were held inadmissible as to the negligent conduct of a product manufacturer. The plaintiff, in Carrizales, alleged that the defendant water heater manufacturer began placing warning labels on its product and offering an 18-inch stand as an option after the subject water heater was manufactured but before it caused plaintiff's injury. The plaintiff sought to introduce this evidence only as to defendant's negligence as to warnings, and not as to feasibility of design. The trial court granted defendant's motion to exclude this evidence, and that ruling was upheld by the Appellate Court. Generally, Illinois courts have excluded such evidence unless it was admitted to controvert the feasibility of a design or warning change or the evidence was offered for another purpose such as proving ownership, control or impeachment.

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An analysis of Illinois case law on this issue reveals one recent decision, Kwon v. M.T.D. Products, Inc.,⁵⁶ wherein the product manufacturer sought the introduction of subsequent remedial measures to refute plaintiff's allegations of a feasible alternative design. In Kwon, the product manufacturer sought to introduce evidence concerning a subsequent remedial measure to rebut plaintiff's expert's testimony concerning the feasibility of a safety feature that could have reduced the likelihood of the plaintiff's injury. The manufacturer's evidence sought to prove that the expert's safety device's design was not feasible at the time of manufacture of the product in question. The Appellate Court ruled that since the plaintiff opened the door to this testimony through expert testimony, the defendant was entitled to introduce this evidence to refute the feasibility of the alternative design.

B. Other Jurisdictions

The Illinois rule excluding evidence of subsequent remedial measures in negligence cases is consistent with most other jurisdictions throughout the United States. There is no consensus, however, among the states when the general rule is to be applied in strict product liability actions. A majority of the federal circuits apply Rule 407 to exclude this evidence.⁵⁷ A similar split among the other states is likewise present.⁵⁸ Short of re-adopting tort reform amendments, Illinois case law on this issue remains as strong as the case law or evidence codes of any other jurisdiction in the United States.

V. SECTION 2-2106 - WRITTEN WARNINGS

735 ILCS 5/2-2106 provided clear standards by which the adequacies of warnings and instructions were to be judged. Under section 2-2106, warnings were considered adequate if they gave notice of material risks to reasonably anticipated users or knowledgeable intermediaries.⁵⁹ Further, warnings or instructions were deemed adequate if they complied with recognized industry standards when the product entered the stream of commerce.⁶⁰ Finally, there was no liability for a defendant under a failure to warn theory if the risk was obvious or known, or if at the time the product left the manufacturers control, the knowledge of the danger was not reasonably available or obtainable in light of existing information.⁶¹

Illinois manufacturers and other entities within the chain of production, defense counsel, and the general public who were aghast at unrealistic failure to warn claims, saw Section 2-2106 as a means to level the playing field in failure to warn cases. The Act provided a statutory basis to test a plaintiff's ability to hold companies hostage in irrational failure to warn claims. Through the provisions of Section 2-2106, product defendants could now seek judgment as a matter of law as to the adequacy of warnings and instructions which had previously been held to be largely questions of fact.⁶²

While product defendants lost a weapon from their arsenal when 735 ILCS 5/2-2-2106 was invalidated by the Best⁶³ decision, there remains sufficient legal authority enabling defendants to establish the primary tenets set forth by this section of the Illinois Code of Civil Procedure. The availability of existing case law, as well as other legal authority which aid in establishing these propositions of law, are addressed in reference to the individual statutory subsections of 2-2106 outlined below.

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A. Warnings and Instructions Are Deemed Adequate If Notice of Risks Encountered During Reasonable Use of the Product is Given to the Reasonably Anticipated Users or Knowledgeable Intermediaries.⁶⁴

Illinois common law pre- and post-tort reform legislation provides that a duty to warn arises when a manufacturer of a product knows or should know of a danger or risk associated with the product, and because of lack of sufficient knowledge on the part of the user, there is a duty to share this information with the user.⁶⁵her a manufacturer should have known of a particular danger of its product is determined by an objective standard not a subjective one.⁶⁶ The inquiry is whether it was objectively reasonable to expect a user of the product to be injured in the manner in which the plaintiff was injured.⁶⁷ It is not enough that the injury mode be conceivable.⁶⁸

Subsection (a) of 2-2106 codified those case decisions which held that warnings will be deemed adequate, as a matter of law, if they give proper notice of a product's risks to reasonably anticipated users who use a product in a manner that was foreseeable by the manufacturer or seller.⁶⁹ The Illinois legislature in Section 2-2106 adopted the use of negligence-type standards in product failure to warn cases - a practice Illinois courts had previously implemented.⁷⁰ Using a negligence-type standard for product failure to warn claims is not, however, a phenomenon unique to Illinois law, as many jurisdictions have found that the application of liability without fault principles cannot be properly applied in failure to warn cases.⁷¹ Such cases require a determination of whether the ordinary, reasonable consumer would need a warning (duty to warn), and if so, is the warning "adequate" as to the risks associated within anticipated use of the product are properly conveyed. These determinations naturally result in a negligence-type test.

Yet, despite this implicit logic, prior to Section 2-2106(a), Illinois courts were without clear statutory authority providing for the application of a reasonableness-negligence standard in product cases premised on a failure to warn theory. Rather, courts were left with the strict liability verbiage of Section 402(a) of the Restatement (Second) of Torts (a section which was created at a time when manufacturing defect cases were in vogue). Even though 2-2106(a) is no longer available to the defense practitioner, negligence-type standards in products cases will still be obtained under the common law.⁷²

The new Restatement (Third) of Torts: Products Liability, has adopted a similar negligence/reasonableness standard under which Subsection 2(c)⁷³ "design defect-failure to warn" claims are to be adjudicated.⁷⁴ The Restatement reporters, James Henderson and Alan Twersky, recognized that notions of fairness to consumers and manufacturers require the application of negligence principles when determining the adequacies of warnings. Words such as reasonableness and foreseeability (clearly negligence terms) were used to determine whether warnings or instructions were required.⁷⁵ Illinois defense attorneys should familiarize themselves with the new provisions of this section of the Restatement, and cite to the Restatement (Third) and past Illinois product decisions in seeking negligence-type standards in failure to warn product cases.

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B. In the Defense of a Products Liability Action, Warnings, Instructions or Labeling Shall Be Deemed Adequate If They Conform With Industry Standards at the Time the Product Entered into the Stream of Commerce.⁷⁶

Although the determination of the adequacy of a warning is generally a question of fact for the jury,⁷⁷ Section 2-2106(b) attempted to change existing law by deeming a warning legally adequate if it conformed with generally recognized industry standards at the time of distribution. By implementing 2-2106(b), the legislature attempted to move the question of adequacy from one of fact to one of law.

Unfortunately, neither before nor after 2-2106(b) have Illinois courts held that proof of conformance with generally recognized industry standards establishes, as a matter of law, the adequacy of a product's warning or instruction. Rather, Illinois courts have allowed industry standards and guidelines to be submitted to aid the jury in determining if a warning was adequate.⁷⁸ Such standards and guidelines have also been admitted into evidence in product claims alleging negligence to determine the appropriate standard of care.⁷⁹

Although a defendant has lost the opportunity to obtain a summary disposition on the adequacy of a warning as a matter of law under 2-2106(b), the defense practitioner should not forget to use industry standards and guidelines to help establish that a particular warning was adequate. By submitting evidence to the trier of fact that the warning in question complied with industry standards and guidelines, a jury will receive strong evidence of adequacy.⁸⁰

Finally, if one looks to Section 2(c) of the Restatement (Third) of Torts: Products Liability, one will see that a reasonableness, negligence-type test is established for judging the adequacy of a product's instruction and warnings. The comments to this Restatement section set forth a number of factors a trier of fact should focus on when evaluating instructions and warnings including: content, comprehensibility, intensity of expression, and characteristics of the expected user group.⁸¹

C. A Defendant Shall Not Be Liable for Failure to Warn of Material Risks That Were Obvious or Known to a Reasonably Prudent User or Were a Matter of Common Knowledge to a Person Similarly Situated to the Plaintiff.⁸²

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Subsection (c) of 2-2106, provided that a defendant would not be liable for failing to warn of obvious or known risks. This subsection attempted to codify certain prior product failure to warn decisions finding no duty to warn of obvious or known risks, and further sought to change the result of certain warnings cases from one where there was a finding of an assumption of risk by the plaintiff toward a finding of no liability.

Prior and subsequent to the enactment of Section 2-2106, Illinois courts have recognized that there is no duty to warn of risks that are obvious to the reasonable, ordinary, consumer.⁸³ This line of cases was codified directly by 2-2106(a).

Illinois courts have also considered the need to warn where the particular knowledge of a plaintiff was beyond that of an ordinary consumer. First, courts have dealt with the issue as one of duty to warn - finding that the particular knowledge of the plaintiff becomes part of the equation in determining if there was a duty to warn.⁸⁴ Secondly, courts have found the particular knowledge of the plaintiff becomes important in judging the adequacy of the warning.⁸⁵ Thirdly, the particular knowledge of the plaintiff may be the basis of a reduction of a verdict where the trier of fact finds there was need to warn the ordinary consumer, but believed the plaintiff, through his particular or specialized knowledge, assumed the risk of injury.⁸⁶ Some courts applying these principles found in the first two categories, as a matter of law, that the danger was obvious or known so long as reasonable minds did not differ on this question.⁸⁷ However, when reasonable minds differed on whether the risk was obvious or known, the question becomes one of fact.⁸⁸

Under the third category above, Section 2-2106(c) took what plaintiffs might consider to be a damages-reducing criterion - the common knowledge of those similarly situated to the plaintiff - and grafted it onto the liability side of the litigation equation. This part of the 2-2106(c) test was a good example of an objective test within a subjective environment.⁸⁹

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The ability to argue a plaintiff's particular knowledge was not lost by the striking down of 2-2106(c). Without reference to 2-2106(c), Illinois courts have considered the education, training and employment of a plaintiff when determining the issue of duty to warn in a products liability action.⁹⁰ Therefore, by citing those cases where the court relied on the "common knowledge" of a particular plaintiff (or the specialized field of which plaintiff is a member), the defense practitioner will likely accomplish what Section 2-2106(c) set out to accomplish.

In looking to the new Restatement (Third) on this issue, Comment (j) of Section 2 of the Restatement indicates that the Restatement reporters have embraced the long recognized rule that a seller has no duty to warn against known or obvious risks.⁹¹ In fact, Comment (j) contains an excellent argument for the defense practitioner, the reporters note that warnings concerning obvious or known risks should be discouraged because such warnings will be ignored by users, and in turn these superfluous warnings diminish the significance of warnings concerning non-obvious risks.⁹²

However, a troubling comment concerning written warnings is contained in Comment (l), Section 2, of the Restatement (Third). There, the reporters discuss the relationship between product design and warnings stating that the obviousness of the risk does not necessarily obviate a duty to provide a safer design.⁹³ Thus, a court applying the reasoning set forth in Comment (l) could reach a conclusion that a risk was obvious and/or known and yet the product was still defective because a reasonable alternative design existed which could have made the product safer without compromising its use or desirability.

D. A Defendant Shall Not be Liable for Failing to Warn of a Risk Which Was Not Reasonably Available or Obtainable in Light of Existing Information When the Product Left the Manufacturer or Product Seller's Control.⁹⁴

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Prior to the enactment of 2-2106(d), Illinois courts consistently found that product defendants do not have a continuing duty to warn post-sale if the warnings and instructions were adequate under the existing scientific, technical and medical information available and obtainable at the time of sale.⁹⁵ Subsection (d) codified Illinois case law on the issue of whether a manufacturer had a continuing duty to warn post-sale, and put to rest the dicta in certain case decisions which plaintiffs cited in arguing for a post-sale duty to warn.

One of these cases cited by plaintiffs for the proposition that Illinois had adopted a post-sale duty to warn is Seegers Grain v. U.S. Steel.⁹⁶ Seegers Grain involved the sale of a unique product (282 tons of precisely measured steel plates used to erect a grain bin) by defendant U.S. Steel. The steel supplied by the defendant was too brittle for the cold Midwest winters and the grain bin collapsed. The First District Court in Seegers Grain found U.S. Steel had a duty to warn of the dangers inherent in the steel plates it sold. The language of this decision (authored by Justice Rizzi) at first blush appears to require a fact-specific post-sale duty to warn.⁹⁷ However, as properly pointed out in Birchler v. Gehl Co.,⁹⁸ the language in Seegers Grain is really nothing more than dicta in a unique case involving the sale of one-of-a-kind product. Seegers Grain is actually consistent with prior Illinois cases on the issue of duty to warn in that the Court found the dangerous characteristic of the steel plates were within scientific and technical knowledge available to U.S. Steel prior to the sale, and therefore, U.S. Steel had a duty to warn.⁹⁹

The rule against a continuing duty to warn is of obvious benefit to a product manufacturer. However, this conservative approach could be limited should Illinois adopt the Restatement (Third) of Torts: Products Liability. Section 10 of the Restatement (Third) of Torts: Products Liability addresses a manufacturer's or seller's duty to provide post-sale warnings. Under this section, any entity in the product chain is subject to liability for harm or injury caused by failure to provide a warning after the time of sale and distribution of a product when a reasonable person in the seller's position would have provided such a warning.¹⁰⁰ This section goes on to describe a four-pronged test to be used when determining if a reasonable person in the seller or manufacturer's position should provide a warning after the time of sale: (1) the seller knows or reasonably should have known that the product poses a substantial risk of harm; (2) those for whom the warning might be provided can be identified and may reasonably be assumed to be unaware of the risk; (3) the warning can be effectively communicated and acted upon; and (4) the risk of harm is sufficiently great to justify the burden.

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When considering Section 10, the defense practitioner can reasonably conclude that the seller or manufacturer of a non-mass produced product who becomes privy to subsequently discovered significant hazards will likely have a duty to warn from the time in which it first became aware of the risk. Whether manufacturers and sellers of mass-produced products who become aware of previously unknown dangers have a post-sale duty to warn will depend upon the results of application of the above-described four-factored test.

VI. SECTION 2-2106.5
INHERENT CHARACTERISTICS

735 ILCS 5/2-2106.5 addressed the non-liability of a product manufacturer or seller for injuries caused by inherent characteristics of a product. Through Section 2-2106.5, the product defendant could not be held liable under a product liability theory for harm caused by an inherent characteristic of a product if: 1) the risk could not be eliminated without substantially compromising the product's usefulness or desirability, and 2) the risk was recognized by an ordinary person with common knowledge to the community.¹⁰¹ Even prior to the enactment of Section 2-2106.5, Illinois common law recognized that injuries were not compensable under strict liability principles if they were caused by inherent propensities of a product which were obvious to the ordinary user who came into contact with the product, and the harm resulted from use of the product which it was designed to perform.¹⁰²

A. Risk Utility Analysis

The main thrust of Section 2-2106.5 appeared to be the establishment of a simple, statutory test, unattached from the factual peculiarities of Illinois common law, which could be applied to determine the non-liability of a manufacturer for characteristics of a product which were inherent in its design and function. The first prong of this test required consideration of whether the risk associated with the product could have been eliminated without substantially compromising the product's usefulness or desirability. This is part of what is known as a risk/benefit or a risk/utility analysis. A risk/utility analysis was in place through the common law prior to the passing of this statute.¹⁰³ In applying this analysis, the trier of fact considers, in part, whether there was an alternative design available which could have been used that would have made the product safer without compromising its usefulness or cost.¹⁰⁴

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B. Consumer Expectation Test

The second prong of the 2-2106.5 test required consideration of whether the product danger was one that would be appreciated by the ordinary consumer who has knowledge common to the community. This is nothing more than a reasonable expectation test or as it is more commonly known, the consumer expectation or contemplation test. This test was readily employed by Illinois courts applying Restatement (Second) of Torts §402A principles prior to the passing of Section 2-2106.5.¹⁰⁵ The utilization of both a consumer expectation and risk/utility tests in a product liability case was already occurring under Illinois common law when courts were determining if a product could be considered unreasonably dangerous.¹⁰⁶

C. The Restatement

This same approach of using principles of the consumer expectation test and risk/utility test is also found in the Restatement (Third) of Torts: Product Liability. As addressed in the previous portion of this monograph, Comment (l) of Section 2 of the Restatement (Third) of Torts: Product Liability, suggests that a risk/benefit analysis be considered even in those cases where the inherent risk of the product was known or obvious. The reasoning of the Restatement appears to be that even obvious dangers can be ignored, and the manufacturer or seller should prevent the harm from occurring by a safer, alternative design, if available.

The approach of applying both the consumer expectation and the risk/utility tests in a product case broadens the basis for liability. This works distinctly to the benefit of the plaintiff, who can choose one test at the expense of one defendant, and a different test at the expense of another defendant.

D. The Simple Product Exception

Fortunately, Illinois courts addressed this concern and have found the consumer expectation test and the risk/benefit test should not be applied together in certain product liability cases. In doing so, these courts have carved out an exception where the nature of the danger is particularly obvious and the mechanism of injury simple.¹⁰⁷

The Scoby v. Vulcan-Hart Corporation,¹⁰⁸ case is a good example of the simple product exception. There, the plaintiff, an employee of ChiChi's restaurant, suffered injuries when he tripped and put his arm into a vat of hot oil that was contained in a deep fryer. The manufacturer of the vat moved for summary judgment on the basis that the risk associated with the product was obvious. Plaintiff attempted to defeat defendant's motion on the basis that a risk/utility analysis established that there were alternative designs that could have been used to make the product safer without compromising its usefulness or desirability.¹⁰⁹ The Scoby Court, while recognizing that both the risk/utility and consumer expectation are typically applied together when determining if a product was unreasonably dangerous, ruled that there are certain situations where the risk of injury is so obvious that the application of a risk/utility analysis should not be made.¹¹⁰ The Court applied only the consumer expectation test in affirming the trial court's granting of summary judgment based upon the hot oil being an obvious or inherent condition of the product.¹¹¹

The Seventh Circuit agreed with the reasoning utilized by the Court in Scoby when it held in the case of Haddix v. Playtex Family Product Corp.,¹¹² that a plaintiff could not rely on a risk/utility test to establish that tampons, a simple product, were unreasonably dangerous where plaintiff allegedly suffered toxic shock syndrome from her use of a tampon. In Haddix, defendant Playtex moved for summary judgment, in part, arguing that under Illinois law the risks associated with its product were obvious.¹¹³ Plaintiffs countered by arguing that Illinois law required the application of both a reasonable expectation test and risk/benefit test when determining if a product was unreasonably dangerous pursuant to the Illinois Supreme Court's ruling in Lamkin v. Towner, 348 Ill. 2d 510, 563 N.E.2d 449 (1990).¹¹⁴

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In affirming the ruling of the District Court, the Seventh Circuit, in Haddix citing Scoby, agreed that in cases dealing with simple products, a court should only apply a consumer expectation test because the application of the risk/benefit analysis would not be appropriate. The Court further confirmed that the determination of whether a product could be classified as a "simple product" is a question of law to be decided by the Court.¹¹⁵

This same line of reasoning has been adopted by other jurisdictions. In Glittenberg v. Doughboy Recreational Industries, et al.,¹¹⁶ the Michigan Supreme Court affirmed the distinction between simple and complex products when determining if the defendant pool manufacturers had a duty to warn of the dangers associated with diving in shallow water.¹¹⁷ In determining that there was no duty on the part of the manufacturers to warn of the obvious dangers associated with a simple product (backyard, aboveground pool) the Glittenberg Court noted:

[W]here a manufactured article is a simple thing of universally known characteristics, not a device with parts or mechanism, the only danger being not latent but obvious to any possible user, if the article does not break or go awry, but injury occurs through a mishap in normal use, the article reacting in its normal, foreseeable manner, the manufacturer is not liable for negligence.¹¹⁸

A practitioner defending the non-complex product would be wise to argue that the product is "simple," and the risks obvious, so that a court need only apply a consumer contemplation test when determining if liability attaches to this product. Further, a strong argument should be available in a number of product cases by citation to case law holding that an inherent risk of a product which is obvious cannot form the basis of liability.¹¹⁹ With these decisions in mind, it becomes clear that the product defendant is not materially harmed by the invalidation of Section 2-2106.5.

Finally, this result of no liability for inherent characteristics of a product, should not be significantly affected if the Illinois courts adopt the Restatement (Third) of Torts: Product Liability. For if the Illinois Supreme Court's decision in Lamkin¹²⁰ can be harmonized with the use of only the consumer expectation test in simple product cases, defense practitioners should be able to harmonize the language contained in Comment (l) of Section 2 of this part of the Restatement (Third).

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VII. SECTION 2-2107
PUNITIVE DAMAGES

Section 2-2107, a component of the 1995 tort reform efforts in Illinois, provided:

In a product liability action, punitive damages shall not be awarded against a manufacturer or product seller if the conduct of the defendant manufacturer, seller, or reseller that allegedly caused the harm was approved by or in compliance with standards set forth in an applicable federal or State statute or in a regulation or other administrative action promulgated by an agency of the federal or State government responsible for the safety or use of the product, which statute or regulation was in effect at the time of the manufacturer's or product seller's alleged misconduct, unless the plaintiff proves by clear and convincing evidence that the manufacturer or product seller intentionally withheld from or misrepresented to Congress, the State legislature, or the relevant federal or State agency material information relative to the safety or use of the product that would or could have resulted in a changed decision relative to the law, standard, or other administrative action.¹²¹

Under the now defunct Section 2-2107, punitive damage awards against sellers or manufacturers whose conduct was approved by or in compliance with Federal or State standards in effect at the time of the alleged misconduct were barred. In addition, the statute included a savings provision, which allowed the imposition of punitive damages despite compliance when there was clear and convincing evidence of intentional misrepresentation or withholding of relevant product safety or usage information from the applicable governmental agency which might have affected the statute or regulation. This section was not substantively addressed by the Illinois Supreme Court in Best v. Taylor Machine Works.¹²²

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A. Existing Law

Prior to the enactment of the 1995 tort reform legislation, there was neither statutory nor case law support demonstrating such a qualified bar to punitive damages in the face of regulatory compliance. However, under Illinois law, punitive damages may only be awarded "when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others."¹²³ Further, the initial determination of whether a punitive damage claim may be presented is reserved for the trial court in strict product liability cases and negligence cases involving personal injury or property damage.¹²⁴ Thus, it is the plaintiff's burden to initially demonstrate, prior to trial, the existence of evidence sufficient to warrant a punitive damage award, and further to establish entitlement to punitive damages before the trier of fact.

B. Regulatory Compliance

There is scant Illinois law which directly addresses the issue of the availability of punitive damages in the face of regulatory compliance. In re Salmonella Litigation,¹²⁵ a class action involving an outbreak of Salmonellosis from milk produced by the defendant, the plaintiffs appealed the jury's verdict rejecting an award of punitive damages, arguing that the defendant's behavior was willful and wanton. Specifically, plaintiffs noted that defendant's two milk lines shared the same production system, and defendant continued to market one line after pulling the other line from the market due to contamination. In assessing the determination of the jury, the Appellate Court noted, inter alia, that three governmental agencies had participated in the investigation concerning the source of the milk contamination, and none had recommended that the defendant close the second milk line, which eventually became contaminated. Thus, defendant had complied and cooperated, but not gone beyond the applicable governmental requirements. The Court determined that there was ample support for the jury's verdict.

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C. Purpose of Punitive Damages

Any discussion of punitive damages must focus on the unique nature of such awards, which are similar to criminal penalties.¹²⁶ Punitive damages are not intended as compensation or supplementary awards; rather, they serve to punish offenders and to deter the offender and others from similar behavior.¹²⁷ Further, punitive damages are not favored in the law,¹²⁸ and "Illinois courts have long been concerned that punitive damages not be awarded improperly or unwisely."¹²⁹

In keeping with these stated concerns regarding punitive damages, the courts have reversed such awards when the established criteria for their imposition were not met. In Loitz v. Remington Arms Co., Inc.,¹³⁰ the Illinois Supreme Court, in a divided decision, reversed a punitive damages award, noting that willful and wanton misconduct which is sufficient to justify punitive damages must approach the degree of moral blame associated with intentional harm "since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it."¹³¹ The Court analyzed the evidence presented on the issue of the defendant's level of culpability, including the defendant's knowledge of 94 prior accidents, and determined that the evidence did not establish flagrant indifference to public safety nor willful and wanton misconduct.

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D. Other Jurisdictions

Due to the unusual, penal nature of punitive damages, a variety of approaches have been taken in different jurisdictions. Some states have barred the application of punitive damages, unless specifically authorized by statute¹³² or by case law.¹³³ Statutes in some states have eliminated imposition of punitive damages in specific situations, such as barring such penal damages against drug manufacturers whose products comply with governmental regulations and are approved by the appropriate federal agency.¹³⁴ In addition, a number of states impose a heightened standard for imposition of punitive damages, requiring that the necessary elements be established beyond a reasonable doubt or by clear and convincing evidence.¹³⁵ In Illinois, punitive damages are barred in cases of medical and legal malpractice,¹³⁶ and the trial court is accorded the discretion to enter a remittur if it finds a punitive damage award excessive, and to apportion any punitive damage award among the plaintiff, plaintiff's counsel and the State of Illinois Department of Human Rights.¹³⁷

While Illinois defense counsel cannot utilize a statutory bar to punitive damages in the face of regulatory compliance, case law provides significant argument to defeat a punitive damages claim under such circumstances. As set forth in the previous section addressing Section 2-2103, regulatory compliance is a factor for jury consideration on the issue of liability. Accordingly, it is must also be a relevant factor in the assessment of the appropriateness of punitive damages. The willful or wanton standard for imposition of exemplary damages, requiring that a plaintiff establish "the defendant's intent to inflict injury or a 'callous disregard for whether injury will occur,'"¹³⁸ cannot logically be met when the evidence is undisputed that the defendant complied with applicable governmental standards.

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VII. CONCLUSION

While the nullification of Sections 2-2103 through 2-2107 has not gone unnoticed, a host of defenses remain available in existing Illinois case law for use by diligent counsel. By availing themselves of these affirmative defenses to liability, counsel may accomplish much of what was briefly provided by the subject sections of the Tort Reform Act. Given the continuing split of control in the Illinois General Assembly, it would not be prudent to expect relief from another round of legislative tort reform in the foreseeable future. Defense counsel must turn back to the existing case law, where they will find a plentiful source of weapons with which to achieve many of the same objectives as were intended by the subject tort reform provisions. Further, through innovative use of tools such as the Restatement (Third) of Torts: Products Liability and authority from other jurisdictions, Illinois defense counsel may effectively argue for expansion of Illinois common law in select areas of product liability.

ENDNOTES

¹179 Ill. 2d 367, 689 N.E. 2d 1057 (1997).
²735 ILCS 5/2103 through 5/2107 (1995).
³735 ILCS 5/2103 (1995).
⁴ 179 Ill. 2d 367, 689 N.E.2d 1057 (1997).
⁵ Busch v. Color Graphics, 169 Ill. 2d 325, 662 N.E.2d 397 (1996).
⁶ Jones v. Black & Decker Mfg. Co., 202 Ill. App. 3d 401, 559 N.E.2d 1004 (1st Dist. 1990).
⁷ Moehle v. Chrysler Motors Corporation, 93 Ill. 2d 299, 443 N.E.2d 575 (1982); Rucker v. Norfolk & Western Railway Co., 77 Ill. 2d 434, 396 N.E.2d 534 (1979).
⁸ See Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Cipillone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992).
⁹ Supra.
¹⁰ See Endnote 6 above.
¹¹ Supra.
¹² 15 U.S.C.A. §1261, et seq. (1988).
¹³ 284 Ill. App. 3d 460, 672 N.E.2d 1287 (1st Dist. 1996).
¹⁴ 21 U.S.C.A. §360kk(a)(1) (1995).
¹⁵ Slip Op. No. 1-97-2456, 1998 WL 348202 (1st Dist. 6/30/98).
¹⁶ 77 Ill. 2d 434, 396 N.E.2d 534 (1979).
¹⁷ 93 Ill. 2d 299, 443 N.E.2d 575 (1982).
¹⁸ Supra.
¹⁹ 94 Ill. App. 3d 678, 418 N.E.2d 1079 (1st Dist. 1981).
²⁰ 113 Ill. App. 3d 740, 447 N.E.2d 1055 (1st Dist. 1983).
²¹ 202 Ill. App. 3d 401, 559 N.E.2d 1004 (1st Dist. 1990).
²² 124 Ill. App. 3d 780, 464 N.E.2d 1105 (1st Dist. 1984).
²³ Supra.
²⁴ Supra.
²⁵ Murphy v. Messerschmidt, 68 Ill. 2d 79, 368 N.E.2d 1299 (1977).
²⁶ Davis v. Marathon Oil Co., 64 Ill. 2d 380, 356 N.E.2d 93 (1976).
²⁷ Doyle v. White Metal Rolling & Stamping Co., 249 Ill. App. 3d 370, 618 N.E.2d 909 (1st Dist. 1993).
²⁸ See Comment a to §288 C of Restatement 2d Torts (1965).
²⁹ Restatement (Third) of Torts: Products Liability, §4.
³⁰ See Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 618 N.E.2d 909 (1st Dist. 1993); King v. American Food Equipment Co., 160 Ill. App. 3d 898, 513 N.E.2d 958 (1st Dist. 1987).
³¹ 44 Fed.Reg. 62, 714 (1979).
³² See Miller v. The Lee Apparel Company, Inc., 19 Kan.App.2d 1015, 881 P.2d 576 (1994) and statutory citations therein.
³³ See Miller, supra; K.S.A. 60-3304(a); States v. R.D. Werner Co., Inc., 799 P.2d 427 (Colo. Ct. App. 1990).
³⁴ Foster v. Fibreboard Corp., 55 Wash.App. 545, 779 P.2d 272 (1989).
³⁵ Beatty v. Trailmaster Products, Inc., 330 Md. 726, 625 A.2d 1005 (1993).
³⁶ 735 ILCS 5/2-2104 (1995).
³⁷ 76 Ill. 2d 154, 390 N.E.2d 859 (1979). The underpinnings of the Kerns decision are Lolie v. Ohio Brass Co., 502 F.2d 741 (7th Cir., 1974), Wright v. Massey-Harris, Inc., 68 Ill. App. 3d 70, 215 N.E.2d 465 (1966), and Sutkowski v. Universal Marion Corp., 5 Ill. App. 3d 313, 281 N.E.2d 749 (1972), none of which, the Kerns Court found, holds that a plaintiff must plead alternative design.
³⁸ But see McClellan v. Chicago Transit Authority, 34 Ill. App. 3d 151, 340 N.E.2d 61 (1st Dist. 1975), relying on the Federal court case of Lolie v. Ohio Brass Co., 502 F.2d 741 (7th Cir. 1974), and holding that the "standard of proof" for a plaintiff in a defective design case includes establishing feasible alternative design.
³⁹ 76 Ill. 2d at 162-63, 390 N.E.2d at 863.
⁴⁰ 116 Ill. App. 3d 749, 450 N.E.2d 558 (3rd Dist. 1983).
⁴¹ 116 Ill. App. 3d at 766, 452 N.E.2d at 571. Accord, Schaffner v. Chicago and North Western Transportation Co., 161 Ill. App. 742, 515 N.E.2d 298 (1st Dist. 1987).
⁴² Kerns v. Engelke, supra. See also Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 547, 658 N.E.2d 371, 374 (1995), Anderson v. Hyster Co., 74 Ill. 2d 364, 368, 385 N.E.2d 690, 693 (1979), and Rios v. Navistar International, 200 Ill. App. 3d 526, 534, 558 N.E.2d 252, 258 (1st Dist. 1990).
⁴³ 113 S.Ct. 2786, 125 L.Ed. 469 (1993).
⁴⁴ 836 F. Supp. 565 (N.D. Ill. 1993).
⁴⁵ Supra at 568.
⁴⁶ Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997).
⁴⁷ See, Hodges v. Percival, 132 Ill. 53, 23 N.E. 423 (1890); Day v. Barber-Coleman Co., 10 Ill. App. 3d 494, 135 N.E.2d 231 (2nd Dist. 1956).
⁴⁸ Supra, at 56-57.
⁴⁹ Rule 407 of the Federal Rules of Evidence, Subsequent Remedial Measures, states when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.
⁵⁰ The First District Appellate Court in Burke v. Illinois Power Company, 57 Ill. App. 3d 498, 373 N.E.2d 1354 (1st Dist. 1978) ruled that evidence of post-occurrence design changes are generally admissible in strict liability actions. The First District cases since that time have generally retreated from this expanded ruling again limiting this evidence's admissibility to demonstrate the existence of feasible alternatives. See Kwon v. M.T.D. Products, Inc., 285 Ill. App. 3d 192, 673 N.E.2d 408 (1st Dist. 1996); Carrizales v. Rheem Mfg. Co., Inc., 226 Ill. App. 3d 20, 589 N.E.2d 569 (1st Dist. 1992); Schaffner v. Chicago & North Western Transportation Co., 161 Ill. App. 3d 742, 505 N.E.2d 298 (1st Dist. 1987); and Tenant v. Clark Equipment Co., 143 Ill. App. 3d 33, 492 N.E.2d 632 (1st Dist. 1986).
⁵¹ 167 Ill. App. 3d 814, 521 N.E.2d 1282 (2nd Dist. 1982).
⁵² 126 Ill. App. 3d 244, 466 N.E.2d 1191 (1st Dist. 1984).
⁵³ Smith v. Black & Decker (U.S.) Inc., 272 Ill. App. 3d 451, 650 N.E.2d 1108 (3rd Dist. 1995)
⁵⁴ 272 Ill. App. 3d 451, 650 N.E.2d 1108 (3rd Dist. 1995).
⁵⁵ 226 Ill. App. 3d 20, 589 N.E.2d 569 (1st Dist. 1992).
⁵⁶ 285 Ill. App. 3d 192, 673 N.E.2d 408 (1st Dist. 1996).
⁵⁷ The 1st, 2nd, 4th, 5th, 7th and 9th Federal Circuit Courts apply this approach.
⁵⁸ Arizona, Idaho, Nebraska, Colorado, Maryland, Montana and New Jersey follow the Illinois approach while Florida, Kentucky, Nevada, Ohio, Pennsylvania and Wisconsin do not.
⁵⁹ 735 ILCS 5/2-2106(a) (1995).
⁶⁰ 735 ILCS 5/2-2106(b) (1995).
⁶¹ 735 ILCS 5/2-2106(c) and (d) (1995).
⁶² For cases holding failure to warn claims and generally questions of fact see, Palmer v. Arco Distributing Corp., 82 Ill. 2d 211, 221, 412 N.E.2d. 959, 964 (1980) and Collins v. Sunnyside Corp., 146 Ill. App. 3d 78, 496 N.E.2d 1155 (1st Dist. 1986).
⁶³ Best v. Taylor Mach Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997).
⁶⁴ 735 ILCS 5/2-2106(a) (1995) - paraphrased.
⁶⁵ Hammond v. North American Asbestos Corp., 105 Ill. App. 3d 1033, 435 N.E.2d 540 (1982).
⁶⁶ Sparacino v. Andover Controls Corporation, 227 Ill. App. 3d 980, 592 N.E.2d 431 (1992).
⁶⁷ Renfro v. Allied Industrial Equipment Corp., 155 Ill. App. 3d 140, 507 N.E.2d 1213 (1987).
⁶⁸ Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465 (1976).
⁶⁹ Werckenthein v. Bucher Petrochemical Co., 248 Ill. App. 3d 282, 618 N.E.2d 902 (1993).
⁷⁰ Beese v. Deere Co., 237 Ill. App. 3d 497, 604 N.E.2d (1992).
⁷¹ Section 2, Comment l of the Restatement (Third) of Torts: Products Liability, provides a good analysis of this reasoning. The Restatement notes that strict liability cases based on failure to warn require the consideration of whether the product could have "reasonably been made safer" by better design or warning.
⁷² Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 477 N.E.2d 1293 (1985); O'Berg v. Advance Transformer Co., 210 Ill. App. 3d 246, 569 N.E.2d 50 (1991) (negligence-type standard in products liability failure to warn cases).
⁷³ Restatement (Third) of Torts - Products Liability.
⁷⁴ Note that Section 6 of the Restatement (Third) of Torts: Products Liability addresses the liability of seller or distributor for harm caused by prescription drugs and medical devices in failure to warn cases.
⁷⁵ Restatement (Third) of Torts: Product Liability, Section 2, Comment (a).
⁷⁶ 735 ILCS 5/2-2106(b) (1995) - paraphrased.
⁷⁷ Martin v. Ortho Pharmaceuticals, 169 Ill. 2d 234, 661 N.E.2d 352 (1994), Hanlon v. Airco Industrial Gases, 219 Ill. App. 3d 777, 579 N.E.2d 1136 (1991).
⁷⁸ Hanlon v. Airco Industrial Gases, 219 Ill. App. 3d 777, 579 N.E.2d 1136 (1991).
⁷⁹ Carrizales v. Rheem Manufacturing Co., 226 Ill. App. 3d 20, 589 N.E.2d 569 (1992).
⁸⁰ The defense practitioner must determine whether a particular product falls within the parameters of federal regulations. Federal Acts and Regulations set forth a number of warning standards that must be followed by manufacturers in warning and instruction cases. These regulations may preempt state law and provide a basis for dispositive motion. Haddix v. Playtex Family Products Corp., 138 F.3d 681 (1998), Ackles v. Luttrell, 252 Neb. 273, 1997 Neb. Lexis 100 (Neb. 1997); Bush v. Graphic Color Corp., 169 Ill. 2d 325, 662 N.E.2d 397 (1996).
⁸¹ Restatement (Third) of Torts: Products Liability, §2, Comment (i).
⁸² 735 ILCS 5/2-2106(c) (1995) - paraphrased.
⁸³ Genaust v. Illinois Power Company, 62 Ill. 2d 456, 343 N.E.2d 465 (1976), Proctor v. Davis, 291 Ill. App. 3d 265, 682 N.E.2d 1203 (1997).
⁸⁴ Weiss v. Rockwell Manufacturing Co., 9 Ill. App.3d 906, 293 N.E.2d 375.
⁸⁵ Werckenthein v. Bucher Petrochemical Co., 248 Ill. App. 3d 282, 618 N.E.2d 902 (1993).
⁸⁶ Erickson v. Muskin Corporation, 180 Ill. App. 3d 117, 535 N.E.2d 475 (1989).
⁸⁷ Weiss, Id., Werckenthein, Id.
⁸⁸ Genaust v. Illinois Power Co., 62 Ill.23d 456, 343 N.E.2d 465 (1976), Smith v. American Motor Sales Corp., 215 Ill. App. 3d 951, 576 N.E.2d 146 (1991).
⁸⁹ In doing so, the legislature properly determined that if the risk to be warned against was within the common knowledge of those individuals, like the plaintiff, who were specialized in a field, no warning should be required.
⁹⁰ O'Berg, 569 N.E.2d 50 (1991), Werckenthein, 618 N.E.2d 902 (1993).
⁹¹ See e.g. Comment (j) of Section 2, Restatement (Third) of Torts: Products Liability.
⁹² See e.g. Comment (j) of Section 2, Restatement (Third) of Torts: Products Liability.
⁹³ Comment l of Section 2, Restatement (Third) of Torts: Products Liability.
⁹⁴ 735 ILCS 5/2-2106(d) (1995) - paraphrased.
⁹⁵ Collins v. Hyster Co., 174 Ill. App. 3d 972, 529 N.E.2d 303 (1988).
⁹⁶ 218 Ill. App. 3d 357, 577 N.E.2d 1364 (1991).
⁹⁷ Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996).
⁹⁸ Supra.
⁹⁹ Seegers, 577 N.E.2d at 803; Birchler v. Gehl Co., 88 F.3d 518, 521.
¹⁰⁰ §13 of the Restatement (Third) of Torts: Products Liability concerns a successor company's post-sale duty to warn.
¹⁰¹ 735 ILCS 5/2-2106.5 (1995).
¹⁰² McColgan v. Environmental Control Systems, Inc., 212 Ill. App. 3d. 696, 571 N.E.2d 815.
¹⁰³ Palmer v. Avco Dist. Corp., 82 Ill. 2d 211, 412 N.E.2d 959 (1980).
¹⁰⁴ Besse v. Deere Co., 237 Ill. App. 3d 497, 604 N.E.2d 998 (1992).
¹⁰⁵ See, Hunt v. Blasius, 74 Ill. 2d 203, 384 N.E.2d 368 (1979). ¹⁰⁶ Lamkin v. Towner, 138 Ill. 2d 510,563 N.E.2d 449 (1990).
¹⁰⁷ Scoby v. Vulcan-Hart Corporation, 211 Ill. App. 3d 106, 569 N.E.2d 1147 (1991); Haddix v. Playtex Family Products Corp., 138 F.3d 681 (7th Cir., 1998) (applying Illinois law).
¹⁰⁸ Id.
¹⁰⁹ 569 N.E.2d at 1150.
¹¹⁰ 569 N.E.2d at 1151.
¹¹¹ 569 N.E.2d at 1151.
¹¹² Haddix v. Playtex Family Products Corp., 138 F.3d 681 (1998).
¹¹³ Supra at 683.
¹¹⁴ Supra at 683.
¹¹⁵ Supra at 684.
¹¹⁶ 441 Mich. 379, 491 N.W.2d 208 (1992).
¹¹⁷ Glittenberg v. Doughboy, 491 N.W.2d at 210.
¹¹⁸ Supra at 217. (Note: The State of Michigan applies a negligence test in its product cases.)
¹¹⁹ McColgan v. Environmental Control Systems, 212 Ill. App. 3d 696, 571 N.E.2d at 817 (1991), (opaque nature of mine screen was obvious); Lara v. Thoro-Matic Vacuum Systems, 194 Ill. App. 3d 781, 551 N.E.2d 390 (1990), vacuum cleaner cord was an obvious tripping hazard); and Koyoyachuk v. Aeroquip Corp., 172 Ill. App. 3d 432, 526 N.E.2d 607 (1988) (refrigeration unit not defective for leaving icy condensation on floor).
¹²⁰ Id., 138 Ill. 2d 510, 563 N.E.2d 449.
¹²¹ 735 ILCS 5/2-2107 (1995).
¹²² 179 Ill. 2d 367, 689 N.E.2d 1057 (1997).
¹²³ Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186, 384 N.E.2d 353 (1978).
¹²⁴ 735 ILCS 5/2-604.1 (1997).
¹²⁵ 198 Ill. App. 3d 809, 556 N.E.2d 593 (1990).
¹²⁶ Deal v. Byford, 127 Ill. 2d 192, 537 N.E.2d 267 (1989).
¹²⁷ Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
¹²⁸ Loitz v. Remington Arms Company, Inc., 138 Ill. 2d 404, 563 N.E.2d 397 (1990).
¹²⁹ Proctor v. Davis, 291 Ill. App. 3d 265, 285, 682 N.E.2d 1203, 1216 (1997).
¹³⁰ Supra.
¹³¹ Lovitz, 138 Ill. 2d at 402, citing Bresland v. Ideal Roller & Graphics Co., 150 Ill. App. 3d 445, 457, 501 N.E.2d 830 (1986).
¹³² See, e.g., La.Civ.Code, Art. 3546; N.H. Rev. Stat. Section 507:16 (Supp. 1995).
¹³³ See, e.g., Distinctive Printing & Packaging v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989); Kammerer v. Western Gear Corp., 96 Wash.2d 416, 421, 625 P.2d 708 (1981).
¹³⁴ See, e.g. Ariz. Rev. Stat. Ann. Section 12-701(A)(1992); Utah Code Ann. Section 78-18-2(1)(1992).
¹³⁵ See, e.g., Colo. Rev. Stat. Section 13-25-127(2)(1997); Okla. Stat. Title 23 Sectin 9.1 (1998).
¹³⁶ 735 ILCS 5/2-1115 (1995).
¹³⁷ 735 ILCS 5/2-1207 (1997).
¹³⁸ In re Salmonella Litigation, 198 Ill. App. 3d at 817, citing Del Muro v. Commonwealth Edison Co., 124 Ill. App. 3d 473.481, 464 N.E.2d 772 (1984).

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