D.W.K., Jr. and parents Mary & Daniel Kaleta et al v. Abbott Laboratories, Inc.

Filing 684

ORDER GRANTING 590 Motion for Partial Summary Judgment. Signed by Judge Nancy J. Rosenstengel on 11/15/2017.(jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:

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J.F., a minor, by BEATRICE SIFUENTES )
as next friend of J.F.,
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Plaintiff,
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vs.
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ABBOTT LABORATORIES, INC.,
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Defendant.
)

Case No. 14-CV-847-NJR-SCW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is Abbott’s Amended Motion for Partial Summary
Judgment (“Motion”) for damages related to J.F.’s alleged autism and/or autism
spectrum disorder (Doc. 590). Plaintiff filed a response in opposition to the Motion on
May 1, 2017 (Doc. 628). For the reasons set forth below, the Court grants the Motion.
BACKGROUND
On August 15, 2011, this case was filed in the Circuit Court of Cook County, and it
was removed as part of the Depakote mass action on January 18, 2012 (Doc. 590, p. 2).
Plaintiff claims that Depakote caused J.F.’s spina bifida, club foot, craniofacial
dysmorphic features, tibial torsion, hypospadias, learning disabilities, hydrocephalus,
Arnold Chiari II malformation, neurogenic bladder and bowel, scoliosis, global
psychomotor developmental delay, and ADHD (Doc. 590, p. 4) (citing Doc. 590-1, p. 2).
Previously, Abbott asserted that Plaintiff could not recover for behavioral disorders on
the grounds that Depakote potentially caused cognitive, rather than behavioral,

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disorders (Doc. 538, p. 5). Abbott has since dropped those claims after Plaintiff filed a
response stating that J.F.’s behavioral problems resulted from his cognitive injuries,
which were caused by Depakote (Doc. 548, pp. 3-4).
While Plaintiff has never filed any claim asserting that exposure to Depakote
caused J.F.’s autism, a May 2016 medical record, produced in discovery, revealed that
J.F. was diagnosed with “Autism Spectrum Disorder without Intellectual Disability or
Language Impairment . . . .” (Doc. 590-2, p. 3). Abbott argues that Plaintiff should be
unable to recover autism-related damages because he has failed to produce expert
testimony demonstrating that Depakote proximately caused J.F.’s autism (Doc. 590, p. 4).
Moreover, Plaintiff’s expert, Dr. Olaf Bodamer, has “never included autism in the
‘constellation of congenital defects’ that he has attributed to J.F.’s alleged ‘in utero
exposure to Depakote.’” (Doc. 590, p. 1) (citing Doc. 590-1, p. 2). Plaintiff asserts that it
“ha[s] not and will not claim that J.F. has autism as a result of Depakote exposure.”
(Doc. 628, p. 1). However, Plaintiff opposes Abbott’s argument that autism should be
considered by the jury as an alternative cause of J.F’s damages (Doc. 628, p. 2). 1
DISCUSSION
Summary judgment is only appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014)
(quoting FED. R. CIV. P. 56(a)). Once the movant has set forth the basis for summary
Plaintiff moved to exclude potential arguments such as this one in its Motion In Limine to Exclude
Evidence, Argument, and Testimony That Anything Other Than Depakote Caused J.F.’s Injuries on April
24, 2017 (Doc. 623) (“Motion to Exclude”). On August 18, 2017, Abbott filed its response in opposition to
the Motion to Exclude (Doc. 670). Accordingly, the Court declines the arguments in this Order, subject to
the fully briefed motion in limine.

1

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judgment, the burden then shifts to the non-movant who must go beyond mere
allegations and offer specific facts showing that there is a genuine issue of fact for trial.
FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). The Court
should not grant summary judgment merely because the non-movant does not oppose
the motion. The Court still ”must find that [when] construing all material facts in the
movant's favor as a result of the non-movant's defaulted filing, summary judgment is
appropriate.” Wienco, Inc. v. Katahn Assocs., Inc., 965 F.2d 565, 568 (7th Cir. 1992).
In order to recover in a negligence case, the plaintiff bears the burden of proving
duty, breach of duty, proximate cause, and damages. Ehrhart v. Lockformer Co., No. 02 C
7068, 2005 WL 1869731, at *1 (N.D. Ill. Aug. 2, 2005) (citing Brown v. Baker, 672 N.E.2d 69,
71 (Ill. App. Ct. 1996)). In its Motion, Abbott focuses exclusively on whether Plaintiff has
satisfied his burden of proving proximate causation. See Kleen v. Homak Mfg., Co., 749
N.E.2d 26, 29 (Ill. App. Ct. 2001) (“[P]roximate cause is one that produces an injury
through a natural and continuous sequence of events unbroken by any effective
intervening cause.”). Expert testimony is necessary to establish proximate causation in
cases where a drug manufacturer has failed to provide adequate warnings. N. Trust Co.
v. Upjohn Co., 572 N.E.2d 1030, 1036-37 (Ill. App. Ct. 1991). See also Wintz v. Northrop
Corp., 110 F.3d 508, 515 (7th Cir. 1997) (“Under Illinois law, to serve as the sole basis for a
conclusion that an act was the proximate cause of the plaintiff’s injury, an expert must be
able to testify with a reasonable degree of medical certainty that proximate cause
existed.”).

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Notwithstanding the fact that Plaintiff does not allege that Depakote caused J.F.’s
autism, the record supports judgment as a matter of law for Abbott on the issue.
Plaintiff’s expert, Dr. Bodamer, has never included autism in the list of defects that J.F.
allegedly suffered due to in utero exposure to Depakote. (Doc. 590, pp. 2-3). As explained
above, an autism-related claim necessarily fails “in the absence of any other expert
evidence supporting . . . [the] causation theory.” Ervin v. Johnson & Johnson, Inc., 492 F.3d
901, 905 (7th Cir. 2007). Because Plaintiff has not provided expert testimony to prove
proximate causation with respect to J.F.’s autism, Plaintiff cannot recover for
autism-related damages due to Depakote exposure as a matter of law.
As to Plaintiff’s claim that the jury should not be permitted to consider J.F.’s
autism as an alternative cause of damages, the Court will address this issue when it rules
on Plaintiff’s Motion to Exclude (Doc. 623) and Abbott’s response in opposition
(Doc. 670).
CONCLUSION
Accordingly, Abbott’s Amended Motion for Partial Summary Judgment
(Doc. 590) is GRANTED.
IT IS SO ORDERED.
DATED: November 15, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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