Most personal-injury lawsuits, such as those involving car accidents, involve a plaintiff’s allegation that the defendant behaved negligently, causing an injury to the plaintiff. But in some personal-injury cases—namely, those relating to injuries caused by dangerous or defective products—courts don’t require plaintiffs to prove that the defendant was negligent.

Instead, these sorts of cases are decided under a theory of strict liability, in which it doesn’t matter whether the defendant was negligent or not. What matters in such cases is that the defendant sold an unreasonably dangerous product. Here is some basic background information about strict product liability in Illinois.

Types of Defects in Strict Product Liability Cases

Strict product liability cases in Illinois can involve one or more of three distinct types of product defects:

• Manufacturing defects are defects introduced during the manufacturing process.
• Design defects result from a flaw in the original design of the product.
• Marketing defects are a failure to provide adequate instructions or warnings with a product.

To prevail on a manufacturing or design defect claim, a plaintiff must prove:

• A condition of the product that results from manufacturing or design;
• The condition made the product unreasonably dangerous;
• The condition existed at the time the product left the defendant’s control; and
• The condition was a proximate cause of injury suffered by the plaintiff.

To prove a marketing defect, a plaintiff must show that the manufacturer failed to disclose an unreasonably dangerous condition, or that the manufacturer failed to instruct on the proper use of the product as to which the average consumer would not be aware.

Examples of Product Defects

Manufacturing defect: DiCosolo v. Janssen Pharmaceuticals. DiCosolo involved a woman (DiCosolo) who died of a drug overdose. She had been using Duragesic skin patches, which delivered the painkiller fentanyl into her bloodstream. The patch should have delivered only 1.7 nanograms of fentanyl per milliliter (ng/mL) of blood, but a day after she died, a blood test showed 28.2 ng/mL.

The day after her death, the manufacturer recalled any Duragesic skin patches that were part of Lot 192. DiCosolo’s patches came from that lot. Patches within Lot 192 had a defect that would result in too much fentanyl being delivered to patients. Unsurprisingly, DiCosolo’s husband sued, alleging that Lot 192 suffered from a manufacturing defect, and won.

Design defect: Mikolajczyk v. Ford Motor Company. In Mikolajczyk, the plaintiff’s husband (Mikolajczyk) died after a rear-end collision caused by a drunk driver. After the drunk driver hit Mikolajczyk from the rear, his seat collapsed backwards, and he hit his head on the back seat of his Ford Escort, causing severe, and ultimately fatal, brain trauma.

His wife sued both the drunk driver, for negligence, and Ford and Mazda, for defective design. She alleged that the design of the seat itself was unreasonably dangerous, not that a manufacturing error had made it so. The jury awarded her $27 million, finding the drunk driver to be 60% at fault and Ford and Mazda to be 40% at fault.

Marketing defect: Hammond v. North American Asbestos Corp. Hammond involved a worker who packaged raw asbestos fiber into insulating products. He contracted asbestosis in 1971, and his wife sued for loss of consortium in 1975. According to the evidence at trial, there were “no printed warnings of the detrimental effects of asbestos dust either on the bags or in the plant.” Although the hazards posed by asbestos may be common knowledge now, at the time, none of the workers knew of those risks.

Hammond’s wife successfully sued on a failure-to-warn (i.e., marketing defect) theory of product liability.

Who Can Be Sued in Strict Product Liability Cases

A product-liability claim can be asserted against the manufacturer or any supplier or seller in a product’s chain of distribution. For instance, suppose you are injured by a product that you bought at a local retailer, which the retailer obtained from a regional wholesaler, and which the wholesaler purchased from the manufacturer. You could file a product liability lawsuit against all three—the retailer, wholesaler, and manufacturer.

However, 735 ILCS 5/2-621 requires a court to dismiss any defendant other than the manufacturer if the defendant files an affidavit certifying the correct identity of the manufacturer and the plaintiff sues the manufacturer. This provision is intended to eliminate duplicative litigation. If a plaintiff were to prevail in a lawsuit against a defendant other than the manufacturer, that defendant could then turn around and sue the manufacturer. Section 2-621 means that there will be only one lawsuit, rather than two.

There are exceptions to 735 ILCS 5/2-621. For example, if a non-manufacturer defendant had actual knowledge of the product defect, then the court cannot dismiss that defendant. And if the plaintiff is unable to recover against the manufacturer—such as when a statute of limitations has expired, or when the manufacturer is unable to satisfy a judgment—then the plaintiff can ask the court to reinstate a non-manufacturer defendant.

Product Liability Statute of Limitations and Repose

The standard two-year statute of limitations for personal-injury actions also applies to product liability claims. That is, if a person fails to file suit within two years of being injured, then he or she will not be allowed to sue for that injury.

The Discovery Rule can extend that two-year period, however. If a person is injured, but doesn’t know it, then the two-year period will only begin to run when he or she discovers—or through the use of reasonable diligence should have discovered—the injury.

However, Illinois law also limits the time for filing suit with a statute of repose. The statute of repose in product liability cases bars any lawsuit that is filed after the earlier of:

• 12 years after the first sale, lease, or delivery of possession of the product by a seller, including the manufacturer; or
• 10 years after the first sale, lease, or delivery of possession of the product to its initial user, consumer, or other non-seller.

For example, if a manufacturer sold a product to a retailer in 2004, and the retailer sold it to a consumer in 2008, then the statute of repose for any injuries caused by that product expired in 2016, which was 12 years after the first sale “by a seller” (the manufacturer).

Do You Have a Product Liability Claim?

Not every injury incurred while using a product gives rise to a strict-liability claim. Even when it doesn’t, however, a person may still be able to sue on a theory of negligence or breach of warranty. To determine what sort of claim, if any, you have as the result of an injury, you should consult a knowledgeable Chicago personal injury lawyer like those at Costa Ivone, LLC. We offer free consultations and can help you determine the proper course of action following an injury.