Motion 5 - product liability defendants 615 motion to dismiss

Download PDF Version


Motion to Dismiss Plaintiff's Second Amended Complaint

Respectfully submitted, Ronald B. Lee (0004957), rlee@ralaw.com, Moira H. Pietrowski (0070308), MPietrowski@ralaw.com, Roetzel & Andress, LPA, 222 South Main Street, Akron, OH 44308, Telephone: 330.376.2700, Facsimile: 330.376.4577, Lead Counsel for Defendant/Fona International, Inc. And Mark S. Dym, Hughes, Socol, Piers, Resnick & Dym, Ltd., 70 West Madison, Suite 4000, Chicago, Illinois 60602, Phone: (312) 604-2610, Fax: (312) 580-1994, mdym@hsplegal.com, Local Counsel for Defendant Fona International, Inc. (“Fona”).

Judge Daniel M. Locallo.

Now comes Defendant FONA International, Inc. (“FONA”), by and through its attorneys, and moves this Court pursuant to 735 ILCS § 5/2- 615 to dismiss Counts 14 and 31 of the Second Amended Complaint filed by Plaintiff and in support thereof states as follows:

INTRODUCTION

1. Plaintiff, Gerardo Solis, has filed a lawsuit against FONA and other Defendants seeking damages allegedly resulting from Solis' claimed exposures from 1985 to 2006 to butter flavoring that included the chemical compound diacetyl while employed at Olmarc Packaging, FONA, and Flavorchem Corporation. Plaintiff's Second Amended Complaint is attached hereto as Exhibit A.

2. Plaintiff's Second Amended Complaint asserts claims based upon theories of products liability , negligence, fraudulent concealment and civil conspiracy.

3. Plaintiff is required to present both a legally and factually sufficient Complaint. Guinn v. Hoskins Chevrolet, et al., 361 Ill.App.3d 575, 586 (1st Dist. 2005).

4. In reviewing the sufficiency of the Second Amended Complaint, the Court must accept as true all well pleaded facts and all reasonable inferences that can be drawn from those facts. However, a Court does not accept as true conclusions of law or factual conclusions that are unsupported by allegations of specific facts. McLean v. Rockford Country Club, 352 Ill. App. 3d 229 (Ill. App. Court 2004). Where a Complaint does not allege sufficient facts to state a cause of action, a motion to dismiss should be granted. Id.

5. A court may disregard legal and factual conclusions which are not supported by allegations of fact. Guinn 361 Ill. App. 3d 586.

6. Counts 14 and 31 of Plaintiff's Second Amended Complaint contain mere conclusions and generalities, unsupported by specific allegations of facts necessary to set forth a cause of action against FONA. For purposes of these Counts, Plaintiff's Second Amended Complaint generally alleges product liability and negligence claims based on alleged exposure “to butter flavors designed, manufactured and/or sold by Defendant FONA.” See Plaintiff's Second Amended Complaint, Paragraphs 202-208 and 330-335. However, the Second Amended Complaint fails to further identify the specific products that Plaintiff was allegedly exposed to, or the amount or frequency of the alleged exposure. The lack of specific identification of the products allegedly used at each facility and the relevant time periods for each leave FONA and this Court to speculate as to when Plaintiff was allegedly exposed to which FONA product(s), if any. Therefore, this Court should disregard the legal and factual conclusions of the Second Amended Complaint, which fails to set forth a cognizable cause of action against FONA, and grant the Motion to Dismiss.

7. The remaining counts of Plaintiff's Second Amended Complaint contain no allegations against FONA and, therefore, require no discussion in this motion. 1

8. For all these reasons, as more fully set forth below, all claims against FONA contained in Plaintiff's Second Amended Complaint must be dismissed with prejudice.

LAW AND ARGUMENT

9. A motion pursuant to 735 ILCS § 5/2- 615 attacks the legal sufficiency of a complaint by asserting that it fails to state a cause of action upon which relief can be granted. Vitro v. Mihelcic, 209 Ill.2d 76, 81 (Ill. 2004). Fact pleading is required in Illinois. A plaintiff must allege sufficient facts to bring a claim within the scope of the cause of action asserted, because “a plaintiff cannot rely simply on mere conclusions of law or fact unsupported by specific factual allegations.” Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (Ill. 1996). The complaint must plead facts which bring the claim within the legally recognized cause of action alleged. Otherwise, the complaint must be dismissed. People ex. rel. Fahner v. Carriage Way West, Inc., 88 Ill.2d 300, 308 (Ill. 1981).

10. The Complaint must contain sufficient, factual averments and set out every fact essential to be proved. Am. Environmental, Inc. v. 3-J Co., 222 Ill. App.3d 242, 248 (2d Dist. 1991). The pleading of conclusions will not suffice for the factual allegations upon which the cause of action must be predicated. Id. If, after disregarding any unsupported legal and factual conclusions, the complaint does not allege facts sufficient to state a cause of action, the complaint must be dismissed. Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill.App.3d 177, 182 (2d. Dist. 2003).

Counts 14 And 31 Of Plaintiff's Second Amended Complaint Fail To Plead Sufficient Facts Against FONA And Must Be Dismissed

11. Illinois is a fact pleading jurisdiction and, when a court considers a motion to dismiss a complaint for failure to plead sufficient facts to state a claim upon which relief may be granted, it will strictly construe the pleading against the pleader. Knox College v. Celotex Corp., 88 Ill.2d 407, 430 N.E.2d 976 (1981). In Illinois, a complaint must allege facts essential to the cause of action which brings the claim within the scope of the cause of action asserted. Vernon v. Schuster, 179 Ill.2d 338, 688 N.E.2d 1171 (1997).

12. A plaintiff must plead sufficient facts to state all of the elements of the asserted cause of action to survive a motion to dismiss under Illinois law. Neurosurgery & Spine Surgery SC v. Goldman, 339 Ill.App.3d 177, 790 N.E.2d 925 (2ndDist. 2003). If, after disregarding legal and factual conclusions, the complaint does not allege sufficient facts to state a cause of action, the trial court should admit all well-pleaded facts as true and disregard legal and factual conclusions that are unsupported by allegations of fact. Id.

13. Additionally, a plaintiff may not rest on factual conclusions in a complaint which are not supported by allegations of specific fact. Schuler v. Abbott Labs, 265 Ill.App.3d 991, 639 N.E.2d 144 (1st Dist. 1993). Conclusory statements will not withstand a motion to dismiss even if the allegations inform the defendant in a general way of the nature of the claim against it. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill.2d 497, 544 N.E.2d 733 (1989). A complaint that fails to allege specific facts does not state a cause of action, and its deficiencies may not be remedied by liberal construction or argument. Belmar Drive-In Theater Co. v. Illinois State Toll Highway Commission, 34 Ill.2d 544, 560 N.E.2d 788 (1966).

14. To plead a claim for personal injury in Illinois, a plaintiff must not only identify the particular product, but also demonstrate a reasonable link between the occurrence giving rise to the injuries and damages complained of, the product or act or omission causing the injury, and the manufacturer or distributor of the product. Lewis v. Lead Industry Assoc., Inc. 342 Ill. App.3d 95, 793 N.E.2d 869 (1st Dist. 2003).

15. Furthermore, the plaintiff must identify the particular product at issue and link it to a named defendant. Smith v. Eli Lilly & Co., 137 Ill.2d 222, 560 N.E.2d 324 (1990). The Illinois Supreme Court has ruled that “it is obvious to hold a producer, manufacturer or seller liable for injury caused by a particular product, [that] there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product.” Smith, 137 Ill.2d at 233; see also, City of Chicago v. American Cyanamid Co., 355 Ill. App.3d 209, 823 N.E.2d 126 (1st Dist. 2005) ; Lewis v. Lead Industry Assoc. Inc., 342 Ill.App.3d 95, 793 N.E.2d 869 (1st Dist. 2003). Plaintiff must therefore establish the identity of the designer, manufacturer, distributor and/or supplier of the product, and a casual relationship betweenthat product and the injury and/or disease at issue. Kramer v. Weedhopper of Utah, 141 Ill.App.3d 217, 490 N.E.2d 104 (1st Dist. 1986) ; Amin v. Knape & Vogt Co., Inc. 148 Ill.App.3d 1075, 500 N.E.2d 454 (1st Dist. 1986).

16. Pleading product identification in product liability cases is well developed in litigation involving asbestos. A necessary element of a plaintiff's personal injury case is that the defendant's product was a “cause” of the decedent's injuries. Thacker v. UNR Indust., Inc. 151 Ill.2d 343, 603 N.E.2d 449, 455 (1992). In order to do so, a plaintiff must establish that “(1) he regularly worked in an area where defendant's product was frequently used; and (2) [plaintiff] did, in fact, work sufficiently close to this area so as to come into contact with the defendant's product.” Id. at 457. In the asbestos context, summary judgment has been found appropriate when a plaintiff failed to identify any product of defendant that plaintiff worked with. Estate of Henderson, 451 N.E.2d 805; Naden v. Celotex Corp., 190 Ill.App.3d 410, 546 N.E.2d 766 (1st Dist. 1989).

17. Plaintiff's pleading fails to satisfy these clear standards in that it fails to specifically allege key facts necessary for his claims. In particular, Counts 14 and 31 of Plaintiff's Second Amended Complaint generally allege product liability and negligence claims based on alleged exposure “to butter flavors designed, manufactured and/or sold by Defendant FONA”. See Plaintiff's Second Amended Complaint, Paragraphs 202-208, and 330-335. The Second Amended Complaint fails to further identify the specific products that Plaintiff was allegedly exposed to, or the amount or frequency of the alleged exposure. Without these key facts, the Second Amended Complaint fails to adequately plead an actionable claim against FONA of product liability under Illinois law, warranting dismissal. Kozak v. Armstrong World Industries, Inc. 213 Ill.App.3d 1061, 1065-66, 572 N.E.2d 279 (4th Dist. 1991) (dismissal proper for failure to plead facts identifying the product designed, manufactured, distributed or sold by defendant, and facts alleging where, when and how the alleged exposure took place).

18. In failing to identify the specific products or the time frame of Plaintiff's alleged exposure, Plaintiff fails to plead facts establishing a causative link between the product or conduct of FONA and the injuries or disease for which damages are sought. Such an omission necessitates a finding that Plaintiff fails to state a claim upon which relief may be granted and dismissal is proper. Lewis v. Lead Industries Assoc., Inc., 342 Ill.App.3d 95, 793 N.E.2d 869 (1st Dist. 2003).

19. Plaintiff's allegations are vague, generic, and constitute an incomplete description of the alleged injury-producing products. The Second Amended Complaint does not contain sufficient allegations of fact establishing any connection between FONA and the injuries alleged by Gerardo Solis. This is a fatal pleading defect, and Counts 14 and 31 of the Second Amended Complaint should be dismissed due to their failure to sufficiently state a cause of action against FONA. Misselhorn v. Doyle, 257 Ill.App.3d 983, 986, 629 N.E.2d 1189 (5th Dist. 1994); citing, Doyle v Shlensky, 120 Ill.App.3d 807, 187, 458 N.E.2d 1120 (1st Dist. 1983).

20. Plaintiff's failure to identify the particular FONA product or the amount or frequency of the alleged exposure, and his failure to link any FONA product to his alleged injuries, constitutes a failure to plead facts sufficient to satisfy his burden to plead product identification with specificity, and to link the product, act or omission of FONA to the occurrence causing injury. As such, Counts 14 and 31 of Plaintiff's Second Amended Complaint against FONA should be dismissed.

CONCLUSION

21. Counts 14 and 31 of the Second Amended Complaint fail to properly plead that Plaintiff was exposed to products that FONA allegedly distributed to Olmarc. As such, Plaintiff fails to properly plead either a product liability or negligence cause of action against FONA and dismissal of Counts 14 and 31 of the Second Amended Complaint is warranted pursuant to 735 ILCS § 5/2- 615 and any other relief this Court deems appropriate.

Respectfully submitted,

<<signature>>

Ronald B. Lee (0004957)

rlee@ralaw.com

Moira H. Pietrowski (0070308)

MPietrowski@ralaw.com

ROETZEL & ANDRESS, LPA

222 South Main Street

Akron, OH 44308

Telephone: 330.376.2700

Facsimile: 330.376.4577

LEAD COUNSEL FOR DEFENDANT/FONA INTERNATIONAL, INC.

And

Mark S. Dym

HUGHES, SOCOL, PIERS, RESNICK & DYM, LTD.

70 West Madison, Suite 4000

Chicago, Illinois 60602

Phone: (312) 604-2610

Fax: (312) 580-1994

mdym@hsplegal.com

LOCAL COUNSEL FOR DEFENDANT FONA INTERNATIONAL, INC. (“FONA”)

Client Reviews
Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.
★★★★★
Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own. Ethan Armstrong, Google User
★★★★★
This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you. Daniel Kaim, Avvo User
★★★★★
Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan! Giulia, Avvo User
★★★★★
Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa, Avvo User
★★★★★
Contact Us for a Free Consultation (888) 424-5757
Chicago Office Map