HB1032ham002 97TH GENERAL ASSEMBLY

Rep. Randy Ramey, Jr.

Filed: 4/8/2011

09700HB1032ham002 LRB097 03852 WGH 54156 a

AMENDMENT TO HOUSE BILL 1032

AMENDMENT NO. ______. Amend House Bill 1032, AS AMENDED, by replacing the title with the following:

"AN ACT concerning civil law."; and

by inserting immediately after Sec. 22 of Section 5-915 the following:

"ARTICLE 10. PRODUCT LIABILITY

Section 10-1. Purpose.

(a) The General Assembly finds and declares that:

(1) "An Act to amend certain Acts in relation to civil actions, which may be referred to as the Civil Justice Reform Amendments of 1995", Public Act 89-7, approved March 9, 1995, added Part 21 to Article II of the Code of Civil Procedure. Public Act 89-7 also contained other provisions.

(2) In Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), the Illinois Supreme Court held that Public Act 89-7 was void in its entirety.

(3) The provisions of Public Act 89-7 adding Part 21 to Article II of the Code of Civil Procedure are of vital concern to the people of this State, and legislative action concerning these provisions is necessary.

(b) It is the purpose of this Article to re-enact the provisions of Public Act 89-7 adding Part 21 to Article II of the Code of Civil Procedure. This Article is intended to remove any questions as to the validity or content of those provisions.

(c) This Article is not intended to supersede any other Public Act. The re-enacted material is shown as existing text (i.e., without striking or underscoring) except for the changes made by this Article to Section 2-2109 of the Code of Civil Procedure, which are shown with striking and underscoring.

Section 10-5. The Code of Civil Procedure is amended by re-enacting the heading of Part 21 of Article II and Sections 2-2101, 2-2102, 2-2103, 2-2104, 2-2105, 2-2106, 2-2106.5, 2-2107, and 2-2108 and by re-enacting and changing Section 2-2109 as follows:

(735 ILCS 5/Art. II Pt. 21 heading)

PART 21. PRODUCT LIABILITY

(735 ILCS 5/2-2101)

Sec. 2-2101. Definitions. For purposes of this Part, the terms listed have the following meanings:

"Clear and convincing evidence" means that measure or degree of proof that will produce in the mind of the trier of fact a high degree of certainty as to the truth of the allegations sought to be established. This evidence requires a greater degree of persuasion than is necessary to meet the preponderance of the evidence standard.

"Harm" means (i) damage to property other than the product itself; (ii) personal physical injury, illness, or death; (iii) mental anguish or emotional harm to the extent recognized by applicable law; (iv) any loss of consortium or services; or (v) other loss deriving from any type of harm described in item (i), (ii), (iii), or (iv).

"Manufacturer" means (i) any person who is engaged in a business to design or formulate and to produce, create, make, or construct any product or component part of a product; (ii) a product seller with respect to all component parts of a product or a component part of a product that is created or affected when, before placing the product in the stream of commerce, the product seller designs or formulates and produces, creates, makes, or constructs an aspect of a product or a component part of a product made by another; or (iii) any product seller not described in (ii) that holds itself out as a manufacturer to the user of the product.

"Product liability action" means a civil action brought on any theory against a manufacturer or product seller for harm caused by a product.

"Product seller" means a person who, in the course of a business conducted for that purpose, sells, distributes, leases, installs, prepares, blends, packages, labels, markets, repairs, maintains, or otherwise is involved in placing a product in the stream of commerce.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2102)

Sec. 2-2102. Effect on other laws. Except as may be provided by other laws, any civil action that conforms to the definition of a product liability action as defined in Section 2-2101 of this Part shall be governed by the provisions of this Part.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2103)

Sec. 2-2103. Federal and State standards; presumption. In a product liability action, a product or product component shall be presumed to be reasonably safe if the aspect of the product or product component that allegedly caused the harm was specified or required, or if the aspect is specifically exempted for particular applications or users, by a federal or State statute or regulation promulgated by an agency of the federal or State government responsible for the safety or use of the product before the product was distributed into the stream of commerce.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2104)

Sec. 2-2104. No practical and feasible alternative design; presumption. If the design of a product or product component is in issue in a product liability action, the design shall be presumed to be reasonably safe unless, at the time the product left the control of the manufacturer, a practical and technically feasible alternative design was available that would have prevented the harm without significantly impairing the usefulness, desirability, or marketability of the product. An alternative design is practical and feasible if the technical, medical, or scientific knowledge relating to safety of the alternative design was, at the time the product left the control of the manufacturer, available and developed for commercial use and acceptable in the marketplace.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2105)

Sec. 2-2105. Changes in design or warning; inadmissibility. When measures are taken which, if taken previously, would have made an event less likely to occur, evidence of the subsequent measures is not admissible to prove a defect in a product, negligence, or culpable conduct in connection with the event. In a product liability action brought under any theory or doctrine, if the feasibility of a design change or change in warnings is not controverted, then a subsequent design change or change in warnings shall not be admissible into evidence. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose such as proving ownership, control, or impeachment.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2106)

Sec. 2-2106. Provision of written warnings to users of product; nonliability.

(a) The warning, instructing, or labeling of a product or specific product component shall be deemed to be adequate if pamphlets, booklets, labels, or other written warnings were provided that gave adequate notice to reasonably anticipated users or knowledgeable intermediaries of the material risks of injury, death, or property damage connected with the reasonably anticipated use of the product and instructions as to the reasonably anticipated uses, applications, or limitations of the product anticipated by the defendant.

(b) In the defense of a product liability action, warnings, instructions or labeling shall be deemed to be adequate if the warnings, instructions or labels furnished with the product were in conformity with the generally recognized standards in the industry at the time the product was distributed into the stream of commerce.

(c) Notwithstanding subsections (a) and (b), a defendant shall not be liable for failure to warn of material risks that were obvious to a reasonably prudent product user and material risks that were a matter of common knowledge to persons in the same position as or similar positions to that of the plaintiff in a product liability action.

(d) In any product liability action brought against a manufacturer or product seller for harm allegedly caused by a failure to provide adequate warnings or instructions, a defendant manufacturer or product seller shall not be liable if, at the time the product left the control of the manufacturer, the knowledge of the danger that caused the harm was not reasonably available or obtainable in light of existing scientific, technical, or medical information.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2106.5)

Sec. 2-2106.5. Inherent characteristics of products; nonliability. In a product liability action, a manufacturer or product seller shall not be liable for harm allegedly caused by a product if the alleged harm was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2107)

Sec. 2-2107. Punitive damages. In a product liability action, punitive damages shall not be awarded against a manufacturer or product seller if the conduct of the defendant manufacturer, seller, or reseller that allegedly caused the harm was approved by or was in compliance with standards set forth in an applicable federal or State statute or in a regulation or other administrative action promulgated by an agency of the federal or State government responsible for the safety or use of the product, which statute or regulation was in effect at the time of the manufacturer's or product seller's alleged misconduct, unless the plaintiff proves by clear and convincing evidence that the manufacturer or product seller intentionally withheld from or misrepresented to Congress, the State legislature, or the relevant federal or State agency material information relative to the safety or use of the product that would or could have resulted in a changed decision relative to the law, standard, or other administrative action.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2108)

Sec. 2-2108. No cause of action created. Nothing in this Part shall be construed to create a cause of action.

(Source: P.A. 89-7, eff. 3-9-95.)

(735 ILCS 5/2-2109)

Sec. 2-2109. This amendatory Act of the 97th General Assembly 1995 adding Part 21 to the Code of Civil Procedure applies to causes of action accruing on or after its effective date.

(Source: P.A. 89-7, eff. 3-9-95.)

ARTICLE 15. VENUE

Section 15-5. The Code of Civil Procedure is amended by changing Sections 2-101, 2-102, 2-103, and 2-104 as follows:

(735 ILCS 5/2-101) (from Ch. 110, par. 2-101)

Sec. 2-101. Generally. Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.

If a check, draft, money order, or other instrument for the payment of child support payable to or delivered to the State Disbursement Unit established under Section 10-26 of the Illinois Public Aid Code is returned by the bank or depository for any reason, venue for the enforcement of any criminal proceedings or civil cause of action for recovery and attorney fees shall be in the county where the principal office of the State Disbursement Unit is located.

If no all defendants that are joined in good faith and with probable cause for the purpose of obtaining a judgment against them are residents nonresidents of the State, an action may be commenced only in the county in which the transaction or some part thereof occurred out of which the cause of action arose any county.

If the corporate limits of a city, village or town extend into more than one county, then the venue of an action or proceeding instituted by that municipality to enforce any fine, imprisonment, penalty or forfeiture for violation of any ordinance of that municipality, regardless of the county in which the violation was committed or occurred, may be in the appropriate court (i) in the county wherein the office of the clerk of the municipality is located or (ii) in any county in which at least 35% of the territory within the municipality's corporate limits is located.

The changes made by this amendatory Act of the 97th General Assembly apply to actions filed on or after its effective date.

(Source: P.A. 91-212, eff. 7-20-99.)

(735 ILCS 5/2-102) (from Ch. 110, par. 2-102)

Sec. 2-102. Residence of corporations, voluntary unincorporated associations and partnerships defined. For purposes of venue, the following definitions apply:

(a) Any private corporation or railroad or bridge company, organized under the laws of this State, and any foreign corporation authorized to transact business in this State is a resident of any county in which it has its registered office or other office or is doing business. A foreign corporation not authorized to transact business in this State is a nonresident of this State.

(b) A partnership sued in its firm name is a resident of any county in which any partner resides or in which the partnership has an office or is doing business. A partnership sued in its firm name, of which all partners are nonresidents of this State and which does not have an office or do business in this State, is a nonresident of this State.

(c) A voluntary unincorporated association sued in its own name is a resident of any county in which the association has an office or, if on due inquiry no office can be found, in which any officer of the association resides. A voluntary unincorporated association sued in its own name, of which all its members are nonresidents of this State and which does not have an office or do business in this State, is a nonresident of this State.

(d) The changes made by this amendatory Act of the 97th General Assembly apply to actions filed on or after its effective date.

(Source: P.A. 83-901.)

(735 ILCS 5/2-103) (from Ch. 110, par. 2-103)

Sec. 2-103. Public corporations - Local actions - Libel - Insurance companies.

(a) Actions must be brought against a public, municipal, governmental or quasi-municipal corporation in the county in which its principal office is located or in the county in which the transaction or some part thereof occurred out of which the cause of action arose. Except as otherwise provided in Section 7-102 of this Code, if the cause of action is related to an airport owned by a unit of local government or the property or aircraft operations thereof, however, including an action challenging the constitutionality of this amendatory Act of the 93rd General Assembly, the action must be brought in the county in which the unit of local government's principal office is located. Actions to recover damage to real estate which may be overflowed or otherwise damaged by reason of any act of the corporation may be brought in the county where the real estate or some part of it is situated, or in the county where the corporation is located, at the option of the party claiming to be injured. Except as otherwise provided in Section 7-102 of this Code, any cause of action that is related to an airport owned by a unit of local government, and that is pending on or after the effective date of this amendatory Act of the 93rd General Assembly in a county other than the county in which the unit of local government's principal office is located, shall be transferred, upon motion of any party under Section 2-106 of this Code, to the county in which the unit of local government's principal office is located.

(b) Any action to quiet title to real estate, or to partition or recover possession thereof or to foreclose a mortgage or other lien thereon, must be brought in the county in which the real estate or some part of it is situated.

(c) Any action which is made local by any statute must be brought in the county designated in the statute.

(d) Every action against any owner, publisher, editor, author or printer of a newspaper or magazine of general circulation for libel contained in that newspaper or magazine may be commenced only in the county in which the defendant resides or has his, her or its principal office or in which the article was composed or printed, except when the defendant resides or the article was printed without this State, in either of which cases the action may be commenced in any county in which the libel was circulated or published.

(e) (Blank). Actions against any insurance company incorporated under the law of this State or doing business in this State may also be brought in any county in which the plaintiff or one of the plaintiffs may reside.

(f) The changes made by this amendatory Act of the 97th General Assembly apply to actions filed on or after its effective date.

(Source: P.A. 93-450, eff. 8-6-03.)

(735 ILCS 5/2-104) (from Ch. 110, par. 2-104)

Sec. 2-104. Wrong venue - Waiver - Motion to transfer. (a) No order or judgment is void because rendered in the wrong venue, except in case of judgment by confession as provided in subsection (c) of Section 2-1301 of this Act. No action shall abate or be dismissed because commenced in the wrong venue if there is a proper venue to which the cause may be transferred. If no defendants are residents of this State, and the transaction, or some part thereof, out of which the cause of action arose did not occur in this State, the action must be dismissed for lack of proper venue.

(b) All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue or a motion to dismiss for lack of proper venue is made by the defendant on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint, except that if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may promptly move for transfer as though the dismissed defendant had not been a party.

(c) Motions to dismiss or for transfer to a proper venue may be supported and opposed by affidavit. In determining issues of fact raised by affidavits, any competent evidence adduced by the parties shall also be considered. The determination of any issue of fact in connection with a motion to transfer does not constitute a determination of the merits of the case or any aspect thereof.

(d) The changes made by this amendatory Act of the 97th General Assembly apply to actions filed on or after its effective date.

(Source: P.A. 83-707.)

ARTICLE 20. EXPERT WITNESSES

Section 20-5. The Code of Civil Procedure is amended by adding Part 29 to Article VIII as follows:

(735 ILCS 5/Art. VIII Pt. 29 heading new)

Part 29. Reliability in Expert Testimony Standards

(735 ILCS 5/8-2901 new)

Sec. 8-2901. Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Section 8-2903.

(735 ILCS 5/8-2902 new)

Sec. 8-2902. Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (a) the testimony is based upon sufficient facts or data, (b) the testimony is the product of reliable principles and methods, and (c) the witness has applied the principles and methods reliably to the facts of the case.

(735 ILCS 5/8-2903 new)

Sec. 8-2903. Bases of expert opinion testimony. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

(735 ILCS 5/8-2904 new)

Sec. 8-2904. Bars to expert testimony.

(a) A witness qualified as an expert by knowledge, skill, experience, training, or education may only offer expert testimony with respect to a particular field in which the expert is qualified.

(b) An expert witness may receive a reasonable and customary fee for the rendering of professional services, provided that the testimony of an expert witness shall not be admitted if any such compensation is contingent on the outcome of any claim or case with respect to which the testimony is being offered.

(735 ILCS 5/8-2905 new)

Sec. 8-2905. Mandatory pre-trial hearing. If the witness is testifying as an expert, then upon motion of a party, the court shall hold a pre-trial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of Sections 8-2902, 8-2903, and 8-2904. The court shall allow sufficient time for a hearing and shall rule on the qualifications of the witness to testify as an expert and whether or not the testimony satisfies the requirements of Sections 8-2902, 8-2903, and 8-2904. Such hearing and ruling shall be completed no later than the final pre-trial hearing. The trial court's ruling shall set forth the findings of fact and conclusions of law upon which the order to admit or exclude expert evidence is based.

(735 ILCS 5/8-2906 new)

Sec. 8-2906. Mandatory pre-trial disclosure of expert testimony.

(a) Whether or not any party elects to request a pre-trial hearing contemplated in Section 8-2905, all parties shall disclose to other parties the identity of any person who may be used at trial to present expert evidence.

(b) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding 4 years.

(c) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (b), within 30 days after the disclosure made by the other party.

(d) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under paragraph (b), the deposition shall not be conducted until after the report is provided.

(735 ILCS 5/8-2907 new)

Sec. 8-2907. Interpretation. In interpreting and applying this Act, the courts of this State shall follow the opinions of the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), Weisgram v. Marley, 528 U.S. 440 (2000), and their progeny; moreover, the courts of this State may draw from other precedents binding in the federal courts of this State applying the standards announced by the Supreme Court of the United States in the foregoing cases.

(735 ILCS 5/8-2908 new)

Sec. 8-2908. Interlocutory appeal. Interlocutory appeal of a ruling on the admissibility of expert evidence shall be available at the discretion of the appellate court. In deciding whether to grant the interlocutory appeal, the court shall consider whether: (i) the ruling involved any challenge to the constitutionality of this Act; (ii) the ruling will help prove or disprove criminal liability; or (iii) the ruling will help establish civil liability at or above $75,000, where the testimony could be outcome-determinative for establishing liability or determining damages. Neither a party's failure to seek interlocutory appeal nor an appellate court's decision to deny a motion for interlocutory appeal shall waive a party's right to appeal a ruling on the admissibility of expert evidence after an entry of judgment in the case.

(735 ILCS 5/8-2909 new)

Sec. 8-2909. Standard of review.

(a) As the proper construction of the expert evidence admissibility framework prescribed by this Act is a question of law, the reviewing court shall apply a de novo standard of review in determining whether the trial court fully applied the proper legal standard in considering the admissibility of expert evidence.

(b) As the application of this Act to determine the admissibility of expert testimony is a question of fact, the reviewing court shall apply an abuse of discretion standard in determining whether the trial court properly admitted or excluded particular expert evidence.

(735 ILCS 5/8-2910 new)

Sec. 8-2910. Application. This Part applies to all actions commenced on or after the effective date of this amendatory Act of the 97th General Assembly and to all pending actions in which trial has not been scheduled or in which trial has been scheduled in excess of 90 days after the effective date of this amendatory Act of the 97th General Assembly.

ARTICLE 25. JOINT AND SEVERAL LIABILITY

Section 25-5. The Code of Civil Procedure is amended by changing Section 2-1117 as follows:

(735 ILCS 5/2-1117) (from Ch. 110, par. 2-1117)

Sec. 2-1117. Joint liability. Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff except the plaintiff's employer, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff except the plaintiff's employer, shall be jointly and severally liable for all other damages.

(Source: P.A. 93-10, eff. 6-4-03; 93-12, eff. 6-4-03.)".