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91_SB0871
LRB9102335WHmbA
1 AN ACT to amend the Code of Civil Procedure by changing
2 by changing Sections 2-621 and 13-213, adding Section 2-623,
3 and adding Part 21 of Article II.
4 Be it enacted by the People of the State of Illinois,
5 represented in the General Assembly:
6 Section 5. The Code of Civil Procedure is amended by
7 changing Sections 2-621 and 13-213, adding Section 2-623, and
8 adding Part 21 of Article II as follows:
9 (735 ILCS 5/2-621) (from Ch. 110, par. 2-621)
10 (Text of Section WITHOUT the changes made by P.A. 89-7,
11 which has been held unconstitutional)
12 Sec. 2-621. Product liability actions. (a) In any
13 product liability action based on any theory or doctrine in
14 whole or in part on the doctrine of strict liability in tort
15 commenced or maintained against a defendant or defendants
16 other than the manufacturer, that party shall upon answering
17 or otherwise pleading file an affidavit certifying the
18 correct identity of the manufacturer of the product allegedly
19 causing injury, death or damage. The commencement of a
20 product liability action based on any theory or doctrine in
21 whole or in part on the doctrine of strict liability in tort
22 against such defendant or defendants shall toll the
23 applicable statute of limitation and statute of repose
24 relative to the defendant or defendants for purposes of
25 asserting a strict liability in tort cause of action.
26 (b) Once the plaintiff has filed a complaint against the
27 manufacturer or manufacturers, and the manufacturer or
28 manufacturers have or are required to have answered or
29 otherwise pleaded, the court shall order the dismissal of a
30 product liability action based on any theory or doctrine
31 strict liability in tort claim against the certifying
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1 defendant or defendants, provided the certifying defendant or
2 defendants are not within the categories set forth in
3 subsection (c) of this Section. Due diligence shall be
4 exercised by the certifying defendant or defendants in
5 providing the plaintiff with the correct identity of the
6 manufacturer or manufacturers, and due diligence shall be
7 exercised by the plaintiff in filing an action and obtaining
8 jurisdiction over the manufacturer or manufacturers.
9 The plaintiff may at any time subsequent to the dismissal
10 move to vacate the order of dismissal and reinstate the
11 certifying defendant or defendants, provided plaintiff can
12 show one or more of the following:
13 (1) That the applicable period of statute of limitation
14 or statute of repose bars the assertion of a strict liability
15 in tort cause of action against the manufacturer or
16 manufacturers of the product allegedly causing the injury,
17 death or damage; or
18 (2) That the identity of the manufacturer given to the
19 plaintiff by the certifying defendant or defendants was
20 incorrect. Once the correct identity of the manufacturer has
21 been given by the certifying defendant or defendants the
22 court shall again dismiss the certifying defendant or
23 defendants; or
24 (3) That the manufacturer no longer exists, cannot be
25 subject to the jurisdiction of the courts of this State, or,
26 despite due diligence, the manufacturer is not amenable to
27 service of process; or
28 (4) That the manufacturer is unable to satisfy any
29 judgment as determined by the court; or
30 (5) That the court determines that the manufacturer
31 would be unable to satisfy a reasonable settlement or other
32 agreement with plaintiff.
33 (c) A court shall not enter a dismissal order relative
34 to any certifying defendant or defendants other than the
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1 manufacturer even though full compliance with subsection (a)
2 of this Section has been made where the plaintiff can show
3 one or more of the following:
4 (1) That the defendant has exercised some significant
5 control over the design or manufacture of the product, or has
6 provided instructions or warnings to the manufacturer
7 relative to the alleged defect in the product which caused
8 the injury, death or damage; or
9 (2) That the defendant had actual knowledge of the
10 defect in the product which caused the injury, death or
11 damage; or
12 (3) That the defendant created the defect in the product
13 which caused the injury, death or damage.
14 (d) Nothing contained in this Section shall be construed
15 to grant a cause of action on in strict liability in tort or
16 any other legal theory or doctrine, or to affect the right of
17 any person to seek and obtain indemnity or contribution.
18 (e) This Section applies to all causes of action
19 accruing on or after September 24, 1979.
20 (Source: P.A. 84-1043.)
21 (735 ILCS 5/2-623 new)
22 Sec. 2-623. Certificate of merit; product liability.
23 (a) In a product liability action, as defined in Section
24 2-2101, in which the plaintiff seeks damages for harm, the
25 plaintiff's attorney or the plaintiff, if the plaintiff is
26 proceeding pro se, shall file an affidavit, attached to the
27 original and all copies of the complaint, declaring one of
28 the following:
29 (1) That the affiant has consulted and reviewed the
30 facts of the case with a qualified expert, as defined in
31 subsection (c), who has completed a written report, after
32 examination of the product or a review of literature
33 pertaining to the product, in accordance with the
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1 following requirements:
2 (A) In an action based on strict liability in
3 tort or implied warranty, the report must:
4 (i) identify specific defects in the
5 product that have a potential for harm beyond
6 that which would be objectively contemplated by
7 the ordinary user of the product; and
8 (ii) contain a determination that the
9 product was unreasonably dangerous and in a
10 defective condition when it left the control of
11 the manufacturer.
12 (B) In any other product liability action, the
13 report must identify the specific act or omission or
14 other fault on the part of the defendant.
15 (C) In any product liability action, the
16 report must contain a determination that the
17 defective condition of the product or other fault
18 was a proximate cause of the plaintiff's harm.
19 (2) That the plaintiff has not previously
20 voluntarily dismissed an action based upon the same or
21 substantially the same acts, omissions, or occurrences
22 and that the affiant was unable to obtain a consultation
23 required by paragraph (1) because either a statute of
24 limitations would impair the action and the consultation
25 required could not be obtained before the expiration of
26 the statute of limitations or despite a good faith effort
27 to comply with this Section, the plaintiff was prevented
28 by another person from inspecting or conducting
29 nondestructive testing of the product. If an affidavit
30 is executed pursuant to this paragraph, the affidavit
31 required by paragraph (1) shall be filed within 90 days
32 after the filing of the complaint. The defendant shall be
33 excused from answering or otherwise pleading until 30
34 days after being served with an affidavit required by
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1 paragraph (1). No plaintiff shall be afforded the 90-day
2 extension of time provided by this paragraph (2) if he or
3 she has voluntarily dismissed an action for the same harm
4 against the same defendant.
5 (b) When the defective condition referred to in the
6 written report required under paragraph (1) of subsection (a)
7 is based on a design defect, the affiant shall further state
8 that the qualified expert, as defined in subsection (c), has
9 identified in the written report required under subsection
10 (a) either: (i) a feasible alternative design that existed at
11 the time the product left the manufacturer's control; or (ii)
12 an applicable government or industry standard to which the
13 product did not conform.
14 (c) A qualified expert, for the purposes of subsections
15 (a) and (b), is someone who possesses scientific, technical,
16 or other specialized knowledge regarding the product at issue
17 or similar products and who is qualified to prepare the
18 report required by subsections (a) and (b).
19 (d) A copy of the written report required by subsections
20 (a) and (b) shall be attached to the original and all copies
21 of the complaint. The report shall include the name and
22 address of the expert.
23 (e) The failure to file an affidavit required by
24 subsections (a) and (b) shall be grounds for dismissal under
25 Section 2-619.
26 (f) Any related allegations concerning healing art
27 malpractice must include an affidavit under Section 2-622.
28 (g) This amendatory Act of the 91st General Assembly
29 applies only to causes of action filed on or after its
30 effective date.
31 (735 ILCS 5/Art. II, Part 21 heading new)
32 PART 21. PRODUCT LIABILITY
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1 (735 ILCS 5/2-2101 new)
2 Sec. 2-2101. Definitions. For purposes of this Part,
3 the terms listed have the following meanings:
4 "Clear and convincing evidence" means that measure or
5 degree of proof that will produce in the mind of the trier of
6 fact a high degree of certainty as to the truth of the
7 allegations sought to be established. This evidence requires
8 a greater degree of persuasion than is necessary to meet the
9 preponderance of the evidence standard.
10 "Harm" means (i) damage to property other than the
11 product itself; (ii) personal physical injury, illness, or
12 death; (iii) mental anguish or emotional harm to the extent
13 recognized by applicable law; (iv) any loss of consortium or
14 services; or (v) other loss deriving from any type of harm
15 described in item (i), (ii), (iii), or (iv).
16 "Manufacturer" means (i) any person who is engaged in a
17 business to design or formulate and to produce, create, make,
18 or construct any product or component part of a product; (ii)
19 a product seller with respect to all component parts of a
20 product or a component part of a product that is created or
21 affected when, before placing the product in the stream of
22 commerce, the product seller designs or formulates and
23 produces, creates, makes, or constructs an aspect of a
24 product or a component part of a product made by another; or
25 (iii) any product seller not described in (ii) that holds
26 itself out as a manufacturer to the user of the product.
27 "Product liability action" means a civil action brought
28 on any theory against a manufacturer or product seller for
29 harm caused by a product.
30 "Product seller" means a person who, in the course of a
31 business conducted for that purpose, sells, distributes,
32 leases, installs, prepares, blends, packages, labels,
33 markets, repairs, maintains, or otherwise is involved in
34 placing a product in the stream of commerce.
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1 (735 ILCS 5/2-2102 new)
2 Sec. 2-2102. Effect on other laws. Except as may be
3 provided by other laws, any civil action that conforms to the
4 definition of a product liability action as defined in
5 Section 2-2101 of this Part shall be governed by the
6 provisions of this Part.
7 (735 ILCS 5/2-2103 new)
8 Sec. 2-2103. Federal and State standards; presumption.
9 In a product liability action, a product or product component
10 shall be presumed to be reasonably safe if the aspect of the
11 product or product component that allegedly caused the harm
12 was specified or required, or if the aspect is specifically
13 exempted for particular applications or users, by a federal
14 or State statute or regulation promulgated by an agency of
15 the federal or State government responsible for the safety or
16 use of the product before the product was distributed into
17 the stream of commerce.
18 (735 ILCS 5/2-2104 new)
19 Sec. 2-2104. No practical and feasible alternative
20 design; presumption. If the design of a product or product
21 component is in issue in a product liability action, the
22 design shall be presumed to be reasonably safe unless, at
23 the time the product left the control of the manufacturer, a
24 practical and technically feasible alternative design was
25 available that would have prevented the harm without
26 significantly impairing the usefulness, desirability, or
27 marketability of the product. An alternative design is
28 practical and feasible if the technical, medical, or
29 scientific knowledge relating to safety of the alternative
30 design was, at the time the product left the control of the
31 manufacturer, available and developed for commercial use and
32 acceptable in the marketplace.
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1 (735 ILCS 5/2-2105 new)
2 Sec. 2-2105. Changes in design or warning;
3 inadmissibility. When measures are taken which, if taken
4 previously, would have made an event less likely to occur,
5 evidence of the subsequent measures is not admissible to
6 prove a defect in a product, negligence, or culpable conduct
7 in connection with the event. In a product liability action
8 brought under any theory or doctrine, if the feasibility of a
9 design change or change in warnings is not controverted, then
10 a subsequent design change or change in warnings shall not be
11 admissible into evidence. This rule does not require the
12 exclusion of evidence of subsequent measures when offered for
13 another purpose such as proving ownership, control, or
14 impeachment.
15 (735 ILCS 5/2-2106 new)
16 Sec. 2-2106. Provision of written warnings to users of
17 product; nonliability.
18 (a) The warning, instructing, or labeling of a product
19 or specific product component shall be deemed to be adequate
20 if pamphlets, booklets, labels, or other written warnings
21 were provided that gave adequate notice to reasonably
22 anticipated users or knowledgeable intermediaries of the
23 material risks of injury, death, or property damage connected
24 with the reasonably anticipated use of the product and
25 instructions as to the reasonably anticipated uses,
26 applications, or limitations of the product anticipated by
27 the defendant.
28 (b) In the defense of a product liability action,
29 warnings, instructions or labeling shall be deemed to be
30 adequate if the warnings, instructions or labels furnished
31 with the product were in conformity with the generally
32 recognized standards in the industry at the time the product
33 was distributed into the stream of commerce.
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1 (c) Notwithstanding subsections (a) and (b), a defendant
2 shall not be liable for failure to warn of material risks
3 that were obvious to a reasonably prudent product user and
4 material risks that were a matter of common knowledge to
5 persons in the same position as or similar positions to that
6 of the plaintiff in a product liability action.
7 (d) In any product liability action brought against a
8 manufacturer or product seller for harm allegedly caused by a
9 failure to provide adequate warnings or instructions, a
10 defendant manufacturer or product seller shall not be liable
11 if, at the time the product left the control of the
12 manufacturer, the knowledge of the danger that caused the
13 harm was not reasonably available or obtainable in light of
14 existing scientific, technical, or medical information.
15 (735 ILCS 5/2-2106.5 new)
16 Sec. 2-2106.5. Inherent characteristics of products;
17 nonliability. In a product liability action, a manufacturer
18 or product seller shall not be liable for harm allegedly
19 caused by a product if the alleged harm was caused by an
20 inherent characteristic of the product which is a generic
21 aspect of the product that cannot be eliminated without
22 substantially compromising the product's usefulness or
23 desirability and which is recognized by the ordinary person
24 with the ordinary knowledge common to the community.
25 (735 ILCS 5/2-2107 new)
26 Sec. 2-2107. Punitive damages. In a product liability
27 action, punitive damages shall not be awarded against a
28 manufacturer or product seller if the conduct of the
29 defendant manufacturer, seller, or reseller that allegedly
30 caused the harm was approved by or was in compliance with
31 standards set forth in an applicable federal or State statute
32 or in a regulation or other administrative action promulgated
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1 by an agency of the federal or State government responsible
2 for the safety or use of the product, which statute or
3 regulation was in effect at the time of the manufacturer's or
4 product seller's alleged misconduct, unless the plaintiff
5 proves by clear and convincing evidence that the manufacturer
6 or product seller intentionally withheld from or
7 misrepresented to Congress, the State legislature, or the
8 relevant federal or State agency material information
9 relative to the safety or use of the product that would or
10 could have resulted in a changed decision relative to the
11 law, standard, or other administrative action.
12 (735 ILCS 5/2-2108 new)
13 Sec. 2-2108. No cause of action created. Nothing in
14 this Part shall be construed to create a cause of action.
15 (735 ILCS 5/2-2109 new)
16 Sec. 2-2109. This amendatory Act of the 91st General
17 Assembly adding Part 21 of Article II of the Code of Civil
18 Procedure applies to causes of action accruing on or after
19 its effective date.
20 (735 ILCS 5/13-213) (from Ch. 110, par. 13-213)
21 (Text of Section WITHOUT the changes made by P.A. 89-7,
22 which has been held unconstitutional)
23 Sec. 13-213. Product liability; statute of repose.
24 (a) As used in this Section, the term:
25 (1) "alteration, modification or change" or
26 "altered, modified, or changed" means an alteration,
27 modification or change that was made in the original
28 makeup characteristics, function or design of a product
29 or in the original recommendations, instructions and
30 warnings given with respect to a product including the
31 failure properly to maintain and care for a product.
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1 (2) "product" means any tangible object or goods
2 distributed in commerce, including any service provided
3 in connection with the product. Where the term "product
4 unit" is used, it refers to a single item or unit of a
5 product.
6 (3) "product liability action" means any action
7 based on any theory or the doctrine of strict liability
8 in tort brought against the seller of a product on
9 account of personal injury, (including illness, disease,
10 disability and death) or property, economic or other
11 damage allegedly caused by or resulting from the
12 manufacture, construction, preparation, assembly,
13 installation, testing, makeup, characteristics,
14 functions, design, formula, plan, recommendation,
15 specification, prescription, advertising, sale,
16 marketing, packaging, labeling, repair, maintenance or
17 disposal of, or warning or instruction regarding any
18 product. This definition excludes actions brought by
19 State or federal regulatory agencies pursuant to statute.
20 (4) "seller" means one who, in the course of a
21 business conducted for the purpose, sells, distributes,
22 leases, assembles, installs, produces, manufactures,
23 fabricates, prepares, constructs, packages, labels,
24 markets, repairs, maintains, or otherwise is involved in
25 placing a product in the stream of commerce.
26 (b) Subject to the provisions of subsections (c) and (d)
27 no product liability action based on any theory or the
28 doctrine of strict liability in tort shall be commenced
29 except within the applicable limitations period and, in any
30 event, within 12 years from the date of first sale, lease or
31 delivery of possession by a seller or 10 years from the date
32 of first sale, lease or delivery of possession to its initial
33 user, consumer, or other non-seller, whichever period expires
34 earlier, of any product unit that is claimed to have injured
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1 or damaged the plaintiff, unless the defendant expressly has
2 warranted or promised the product for a longer period and the
3 action is brought within that period.
4 (c) No product liability action based on any theory or
5 the doctrine of strict liability in tort to recover for
6 injury or damage claimed to have resulted from an alteration,
7 modification or change of the product unit subsequent to the
8 date of first sale, lease or delivery of possession of the
9 product unit to its initial user, consumer or other
10 non-seller shall be limited or barred by subsection (b)
11 hereof if:
12 (1) the action is brought against a seller making,
13 authorizing, or furnishing materials for the
14 accomplishment of such alteration, modification or change
15 (or against a seller furnishing specifications or
16 instructions for the accomplishment of such alteration,
17 modification or change when the injury is claimed to have
18 resulted from failure to provide adequate specifications
19 or instructions), and
20 (2) the action commenced within the applicable
21 limitation period and, in any event, within 10 years from
22 the date such alteration, modification or change was
23 made, unless defendant expressly has warranted or
24 promised the product for a longer period and the action
25 is brought within that period, and
26 (3) when the injury or damage is claimed to have
27 resulted from an alteration, modification or change of a
28 product unit, there is proof that such alteration,
29 modification or change had the effect of introducing into
30 the use of the product unit, by reason of defective
31 materials or workmanship, a hazard not existing prior to
32 such alteration, modification or change.
33 (d) Notwithstanding the provisions of subsection (b) and
34 paragraph (2) of subsection (c) if the injury complained of
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1 occurs within any of the periods provided by subsection (b)
2 and paragraph (2) of subsection (c), the plaintiff may bring
3 an action within 2 years after the date on which the claimant
4 knew, or through the use of reasonable diligence should have
5 known, of the existence of the personal injury, death or
6 property damage, but in no event shall such action be brought
7 more than 8 years after the date on which such personal
8 injury, death or property damage occurred. In any such case,
9 if the person entitled to bring the action was, at the time
10 the personal injury, death or property damage occurred, under
11 the age of 18 years, or under a legal disability, then the
12 period of limitations does not begin to run until the person
13 attains the age of 18 years, or the disability is removed.
14 (e) Replacement of a component part of a product unit
15 with a substitute part having the same formula or design as
16 the original part shall not be deemed a sale, lease or
17 delivery of possession or an alteration, modification or
18 change for the purpose of permitting commencement of a
19 product liability action based on any theory or the doctrine
20 of strict liability in tort to recover for injury or damage
21 claimed to have resulted from the formula or design of such
22 product unit or of the substitute part when such action would
23 otherwise be barred according to the provisions of subsection
24 (b) of this Section.
25 (f) Nothing in this Section shall be construed to create
26 a cause of action or to affect the right of any person to
27 seek and obtain indemnity or contribution.
28 (g) The provisions of this Section 13-213 of this Act
29 apply to any cause of action accruing on or after January 1,
30 1979, involving any product which was in or entered the
31 stream of commerce prior to, on, or after January 1, 1979.
32 (h) This amendatory Act of the 91st General Assembly
33 applies to causes of action accruing on or after its
34 effective date.
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1 (Source: P.A. 85-907; 86-1329.)
2 Section 990. Severability. The provisions of this Act,
3 including both the new and the amendatory provisions, are
4 severable under Section 1.31 of the Statute of Statutes.
5 Section 995. Effective date. This Act takes effect upon
6 becoming law, and applies to causes of action as specified in
7 each Section or part of this Act.