2011 IL App (1st) 093306
Ill. App. Ct.2011Background
- Hernandez and Elizondo sued Schering and Nurse McGill for injuries from PEG-Intron use to treat hepatitis C.
- Circuit court granted summary judgment on six counts but denied on others; Rule 304(a) finding entered.
- Dr. Hindi prescribed PEG-Intron/Rebetol and instructed patients to attend Schering educational classes.
- Plaintiffs claim Schering's class and materials failed to warn of vision-related side effects; Dr. Hindi had obligation to warn patients.
- Class materials did not list blindness; documents also included package insert and guides warning of vision issues though not emphasized.
- Mr. Hernandez developed optic nerve damage with permanent vision loss after starting therapy; vision problems were not warned adequately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the voluntary undertaking created a duty to warn | Hernandez argues classes assumed duty to warn patients directly. | Schering argues learned intermediary doctrine applies; no voluntary duty. | Voluntary undertaking not recognized; summary judgment proper |
| Whether the warning to Dr. Hindi was adequate | Rost opinion shows need for stronger warning (Black Box). | Warning to physician sufficient under learned intermediary doctrine; Rost inadmissible. | Adequacy of warning judged by physicians; Rost not competent; summary judgment proper |
| Whether Dr. Hindi’s warning would have altered prescription | If warned about blindness, Hernandez would not have taken PEG-Intron. | Dr. Hindi would have warned; no proven change in prescription | Issue resolved in defendant's favor; no triable issue doubting physician role |
| Whether expert Rost was competent to testify on warning adequacy | Rost has specialized knowledge to assess warning sufficiency. | Rost lacks medical expertise; not qualified. | Court did not abuse discretion; Rost incompetent; counts I–IV proper to grant |
Key Cases Cited
- Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179 (Ill. 2002) (learned intermediary doctrine and pharmacist duty exceptions)
- Martin v. Ortho Pharmaceutical Corp., 169 Ill.2d 234 (Ill. 1996) (no duty to warn beyond physician when adequate physician warning exists)
- Northern Trust Co. v. Upjohn Co., 213 Ill.App.3d 390 (Ill. App. 1991) (expert testimony required for adequacy of drug warnings)
- Bourgonje v. Machev, 362 Ill.App.3d 984 (Ill. App. 2005) (voluntary undertaking analysis for duty questions)
- Sollami v. Eaton, 201 Ill.2d 1 (Ill. 2002) (elements of strict liability for products and warning duties)