DiCosolo v. Janssen Pharmaceuticals, Inc.
951 N.E.2d 1238
Ill. App. Ct.2011Background
- DiCosolo died from fentanyl exposure while using a Duragesic patch made by Janssen/ALZA; the patch came from a lot recalled for a leakage defect.
- Plaintiff DiCosolo, as administrator of the estate, alleged strict products liability and negligence against defendants.
- The patch's recalled lot reportedly leaked; the penultimate patch allegedly caused the exposure; the autopsy showed fentanyl level far higher than expected from patch design.
- Trial evidence included the recalled lot information, the elevated fentanyl level, and the patch’s recall context, along with expert testimony on leakage.
- Defendants argued no observable malfunction and raised evidentiary and prosecutorial issues; the jury returned an $18 million verdict for plaintiff.
- The appellate court affirmed the judgment, addressing challenges to JNOV, evidentiary rulings, closing arguments, and remittitur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying JNOV | DiCosolo showed a defect via circumstantial evidence | No malfunction evidence; defective theory not proven | No; verdict supported by substantial evidence |
| Whether evidentiary rulings requiring exclusion of clonazepam evidence were erroneous | Exclusion deprived causation proof | Exclusion was proper to avoid speculation | No; error not prejudicial enough for new trial |
| Whether recall evidence and related expert testimony were properly admitted | Recall evidence corroborated defect | Recall evidence improper without proper foundation | Yes; admissible and did not deny fair trial |
| Whether remittitur should have been granted | Remittitur not warranted given damages | Damages excessive and should be reduced | No; verdict within range of fair compensation |
Key Cases Cited
- Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570 (Ill. 1976) (prima facie defect proof without specific defect required in strict liability)
- Suvada v. White Motor Co., 32 Ill.2d 612 (Ill. 1965) (elements of strict liability; defect exists when product leaves control)
- Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494 (Ill. 1967) (standard for verdict against the evidence; substantial evidence required)
- Maple v. Gustafson, 151 Ill.2d 445 (Ill. 1992) (reaffirmed deference to jury findings where evidence supports)
- Bollmeier v. Ford Motor Co., 130 Ill.App.2d 844 (Ill. App. 1970) (malfunction or other circumstantial evidence can prove defective condition)