{ "id": 291543, "name": "JOHN MICHAEL BRADLEY, Special Adm'r of the Estate of Greta Bradley, Deceased, Plaintiff, v. SANDOZ NUTRITION CORPORATION et al., Defendants (Sandoz Nutrition Corporation, Third-Party Plaintiff-Appellant; Parkside Human Services, Inc., et al., Third-Party Defendants-Appellees)", "name_abbreviation": "Bradley v. Sandoz Nutrition Corp.", "decision_date": "1995-07-14", "docket_number": "No. 1\u201494\u20141416", "first_page": "381", "last_page": "387", "citations": [ { "type": "official", "cite": "274 Ill. App. 3d 381" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "588 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "146 Ill. 2d 477", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597177 ], "weight": 2, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0477-01" ] }, { "cite": "421 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 161", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469841 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0161-01" ] }, { "cite": "590 N.E.2d 1013", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794097 ], "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0148-01" ] }, { "cite": "583 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5264018 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0526-01" ] }, { "cite": "614 N.E.2d 362", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099401 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0333-01" ] }, { "cite": "596 N.E.2d 176", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 493", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5204603 ], "weight": 3, "pin_cites": [ { "page": "498" }, { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0493-01" ] }, { "cite": "627 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2977746 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/1066-01" ] }, { "cite": "563 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "138 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576275 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/138/0482-01" ] }, { "cite": "557 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "136 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255119 ], "weight": 3, "pin_cites": [ { "page": "460" }, { "page": "457" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0450-01" ] }, { "cite": "473 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142201 ], "weight": 2, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0191-01" ] } ], "analysis": { "cardinality": 664, "char_count": 15201, "ocr_confidence": 0.737, "pagerank": { "raw": 5.196332538818934e-08, "percentile": 0.32576416617339465 }, "sha256": "05c2e123fcd6097e5b11275df5a8c850662065749e488976e594420a1a411236", "simhash": "1:51f67c800b281c3c", "word_count": 2423 }, "last_updated": "2023-07-14T20:31:30.839378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN MICHAEL BRADLEY, Special Adm\u2019r of the Estate of Greta Bradley, Deceased, Plaintiff, v. SANDOZ NUTRITION CORPORATION et al., Defendants (Sandoz Nutrition Corporation, Third-Party Plaintiff-Appellant; Parkside Human Services, Inc., et al., Third-Party Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nThis is a wrongful death action which allegedly arises out of the participation of the decedent, Greta Bradley, in a medically supervised weight management program. John Bradley (plaintiff), administrator of the decedent\u2019s estate, filed a fourth amended complaint (complaint) seeking damages from Sandoz Nutrition Corporation (Sandoz), the manufacturer of the nutritional supplement prescribed during the program, and Dr. Ralph Napolitano, the decedent\u2019s treating physician. Seeking contribution, Sandoz filed a cross-claim against Dr. Napolitano and a third-party complaint against Parkside Human Services, Inc., and Lutheran General Hospital (collectively referred to as Lutheran General), the health services corporations responsible for the operation of the program and the health and welfare of the participants. The trial court dismissed the third-party complaint as untimely, and this appeal was taken pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The issue on appeal is whether Sandoz timely filed its third-party complaint for contribution against Lutheran General.\nThe original complaint in this wrongful death action was filed on November 15, 1990, naming Sandoz and Lutheran General as party defendants. At that time, plaintiff\u2019s sole legal theory was that Sandoz and Lutheran General were strictly liable in tort based upon their alleged manufacture and distribution of the Optifast weight management program and nutritional supplement. The complaint was amended twice in response to motions to strike filed by Sandoz. As of the third amended complaint, filed on February 7, 1991, no new parties were added and plaintiff\u2019s legal theory was still limited to strict liability.\nPlaintiff was granted leave to file a fourth amended complaint on May 23, 1991, which Sandoz answered on July 1, 1991. The fourth amended complaint added both a new defendant, Dr. Ralph Napoli-tano, and a new legal theory, medical malpractice. Plaintiff alleged that Dr. Napolitano committed malpractice by allowing the decedent to lose weight at a rapid rate after two electrocardiographic recordings documented QT interval prolongations. Plaintiff\u2019s complaint was supported by a letter from plaintiff\u2019s consultant identifying specific electrocardiogram (EKG) tests and related records. This was the first reference made by the plaintiff to Dr. Napolitano\u2019s negligent monitoring of the decedent\u2019s EKG readings as an alleged cause of the decedent\u2019s injuries.\nOn July 30, 1991, Sandoz brought a motion to compel the plaintiff to comply with Sandoz\u2019s previously filed interrogatories and requests for production. (Written discovery requests were originally filed on January 4, 1991.) The motion was granted on August 6, 1991. On September 4, 1991, the plaintiff produced the decedent\u2019s medical records including the EKG readings referenced in the fourth amended complaint.\nSandoz then reviewed the records with its consulting experts, and as a result, concluded that both Dr. Napolitano and Lutheran General failed to properly interpret the decedent\u2019s EKG tests and consequently allowed the decedent to lose too much weight for too long a period of time without receiving sufficient caloric intake.\nOn June 4, 1993, Sandoz was granted leave and filed a cross-claim for contribution against Dr. Napolitano and a third-party complaint for contribution against Lutheran General. (Lutheran General was dismissed without prejudice from the plaintiffs case in chief on November 23, 1992, based upon Lutheran General\u2019s certification of Sandoz as the manufacturer of the product identified by the plaintiff in his complaint.) Lutheran General moved to dismiss Sandoz\u2019s third-party complaint as time-barred under section 13 \u2014 212 of the Illinois Code of Civil Procedure (735 ILCS 5/13 \u2014 212 (West 1992)), which the trial court granted. Section 13 \u2014 212 provides in relevant part:\n\"[N]o action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.\u201d\nSandoz first contends that the medical malpractice statute is not applicable to its third-party complaint and that its complaint was timely pursuant to section 5 of the Contribution Act (740 ILCS 100/5 (West 1992)) and the interpretation of the statutory language in Laue v. Leifheit (1984), 105 Ill. 2d 191, 196, 473 N.E.2d 939. Section 5 provides:\n\"A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.\u201d (740 ILCS 100/5 (West 1992).)\nIn Laue, the court interpreted section 5 as providing that a contribution claim may be asserted by a \"separate action before or after payment\u201d where no suit is pending, but when there is an action pending, the contribution claim must be asserted by counterclaim or third-party claim in that action. Laue, 105 Ill. 2d at 196.\nSandoz argues that the filing of its third-party complaint was timely under the principles set forth in Laue because it filed its contribution claim during the pendency of the underlying action. However, Laue established a procedural requirement that an action for contribution must be filed during the pendency of the underlying direct action. The decision does not hold that all actions for contribution brought within the time that an underlying suit is pending are timely. Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 460, 557 N.E.2d 873.\nIn Hayes, the court applied the four-year repose portion of section 13 \u2014 212(a) to determine whether a third-party claim for contribution was timely filed. The Hayes court stated:\n\"The action for contribution apportions the damages among the parties responsible for the original plaintiff\u2019s injury, and the contributor is obligated for the damages directly created by the contributor\u2019s negligent actions. The third-party plaintiff, therefore, is seeking from the third-party defendant those damages proximately caused by the negligent acts of the third-party defendant which the third-party plaintiff may be obligated to pay in the underlying suit.\u201d (Hayes, 136 Ill. 2d at 457.)\nThe Hayes court thus concluded that an action for contribution was an \"action for damages\u201d under the medical malpractice statute of repose. (Hayes, 136 Ill. 2d at 457. See also Vogt v. Corbett (1990), 138 Ill. 2d 482, 563 N.E.2d 447; Clardy v. Rapistan Division of Lear Siegler, Inc. (1993), 254 Ill. App. 3d 1066, 627 N.E.2d 249.) Also noted by the Hayes court was the fact that the enactment of the medical malpractice statute was a response by the General Assembly to a perceived medical malpractice insurance crisis. Because a suit for contribution against an insured for damages arising out of patient care exposes insurance companies to the same liability as in the underlying action, the term \"or otherwise\u201d in the medical malpractice statute includes actions for contribution against a physician for injuries arising out of patient care.\nWe do not find any merit in Sandoz\u2019s attempt to distinguish Hayes because it involved the repose portion of the statute. The reasoning in Hayes applies equally to the limitations section. Accordingly, San-doz\u2019s third-party claim for contribution is an action for damages against a physician and hospital. Therefore, the applicable statute of limitations is the two-year time period found in section 13 \u2014 212(a).\nHaving determined the statute of limitations applicable to the contribution claim, we next address the question of when the statute began to run. Sandoz contends that assuming that the medical malpractice statute of limitations is applicable to its third-party complaint, it should be able to utilize the discovery rule which is set forth in the statute. Sandoz argues that the statute did not begin to run until September 4, 1991, the date that Sandoz first received the decedent\u2019s medical records because until that date it did not possess sufficient information to be put on notice that Lutheran General committed an act or omission which contributed to plaintiff's injuries.\nIn support of its argument, Sandoz relies on Carlson v. Moline Board of Education, School District No. 40 (1992), 231 Ill. App. 3d 493, 596 N.E.2d 176. The court in Carlson stated that in the majority of cases, knowledge of the existence of the underlying suit is sufficient notice to the defendant/third-party plaintiff to satisfy the statutory requirement that the person bringing the action \"knew or should reasonably have known of the act or omission giving rise to the contribution action.\u201d (Carlson, 231 Ill. App. 3d at 498.) The court also noted:\n\"It is conceivable, however, that in a particular case a defendant may be justifiably unaware at the commencement of the underlying suit that the acts or omissions of a third party contributed to the plaintiff\u2019s injury. In such a case the limitations period would not begin to run until a third-party plaintiff knew or reasonably should have known of the acts or omissions of the third-party defendant.\u201d Carlson, 231 Ill. App. 3d at 498-99.\nHowever, in the instant case, the trial court concluded and Lutheran General now argues that the statute began to run on November 15, 1990, when the complaint for the underlying action was filed. Lutheran General reasons that a contribution claim accrues: (1) at the time that the party seeking contribution is sued in the underlying direct action, giving him notice of the nature and the potential amount of the obligation necessitating the contribution action, or (2) when there is no underlying action pending, and the party seeking contribution makes payment or undertakes an obligation to make payment to the injured or original complainant. See Clardy, 254 Ill. App. 3d 1066, 627 N.E.2d 249; Caballero v. Rockford Punch Press & Manufacturing Co. (1993), 244 Ill. App. 3d 333, 614 N.E.2d 362; Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill. App. 3d 526, 583 N.E.2d 19.\nRelying on Cornett v. Gromann Service Co.-Retail, Lutheran General argues that the discovery rule is not available to Sandoz.\n\"The discovery rule is designed to allow an injured party sufficient time in which to file suit, once the cause of action has been discovered. *** The discovery rule confers rights upon the plaintiff which cannot be asserted by the third-party plaintiff. It is not a device which can be raised by the third-party plaintiff in an effort to toll the statute of repose.\u201d Cornett v. Gromann Service Co. Retail (1992), 227 Ill. App. 3d 148, 152, 590 N.E.2d 1013.\nWithout addressing the issue of whether the discovery rule was available to Sandoz, its argument that it did not have notice of acts or omissions of Lutheran General which contributed to the plaintiff\u2019s injuries is without merit. Not only was Lutheran General a defendant in the initial complaint filed on November 15, 1990, but the plaintiff\u2019s fourth amended complaint added a medical malpractice count against the physician, Dr. Napolitano. The fourth amended complaint was filed on May 23, 1991. The allegations against Dr. Napolitano were that he failed to properly oversee the decedent\u2019s medical condition while participating in the Optifast diet, allowed the decedent to lose weight too rapidly, and allowed the decedent to lose weight at a rapid rate after two electrocardiographic recordings documented QT interval prolongations. The allegations against Lutheran General were that it manufactured, distributed and sold the Optifast Program in a condition so that death was likely to occur when it was used for weight loss, it did not contain adequate warnings that the program might result in death, it was likely to cause cardiac arrhythmias, and use of the program resulted in too rapid weight loss. Thus, even if Sandoz did not know at the time of the original complaint that it had an action for contribution based on medical malpractice, Sandoz certainly received notice of the acts or omissions of Lutheran General when the plaintiff\u2019s fourth amended complaint was filed on May 23,1991. Sandoz, however, did not file its third-party complaint for contribution until June 2, 1993.\nSandoz next argues that when it knew or should have known of the existence of a third-party claim is a question of fact. Sandoz cites Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, in support of the proposition that when a party knew or should have known of both an injury and its probable wrongful cause is one of fact, unless the facts are undisputed, and only one conclusion may be drawn from them. In the instant case, the only conclusion that can be drawn from the facts is that, even if Sandoz did not receive notice that it had a claim for contribution at the time of the original complaint, it did receive notice based on the allegations of the fourth amended complaint when it was filed in May 1991.\nSandoz\u2019s final argument is that to the extent that plaintiff\u2019s action was brought on behalf of the decedent\u2019s three minor children, the statute of limitations has not yet run. Therefore, its third-party claim for contribution is timely. Sandoz relies on Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 588 N.E.2d 1111, which applied the eight-year repose period for minors (735 ILCS 5/13 \u2014 212(b) (West 1992)) to the third-party plaintiff\u2019s claim for contribution. The Antunes court reasoned that to hold otherwise could lead to the unjust result of barring a defendant from filing a third-party complaint for contribution before he was even named as a party in the underlying action. (Antunes, 146 Ill. 2d at 488.) However, these are not the facts in the instant case. In this case, John Michael Bradley, as special administrator, filed the suit on behalf of the decedent\u2019s children in the underlying action. Thus Sandoz had notice that it was named as a party when the suit was filed on November 15,1990. Accordingly, the order of the circuit court is affirmed.\nAffirmed.\nEGAN and ZWICK, JJ., concur.", "type": "majority", "author": "JUSTICE RAKOWSKI" } ], "attorneys": [ "Oppenheimer, Wolff & Donnelly, of Chicago (David C. Bohrer and M. Thaddeus Murphy, of counsel), for appellant.", "Cassiday, Schade & Gloor, of Chicago (Rudolf G. Schade, Jr., and Sandra E. Kupelian, of counsel), for appellees." ], "corrections": "", "head_matter": "JOHN MICHAEL BRADLEY, Special Adm\u2019r of the Estate of Greta Bradley, Deceased, Plaintiff, v. SANDOZ NUTRITION CORPORATION et al., Defendants (Sandoz Nutrition Corporation, Third-Party Plaintiff-Appellant; Parkside Human Services, Inc., et al., Third-Party Defendants-Appellees).\nFirst District (6th Division)\nNo. 1\u201494\u20141416\nOpinion filed July 14, 1995.\nOppenheimer, Wolff & Donnelly, of Chicago (David C. Bohrer and M. Thaddeus Murphy, of counsel), for appellant.\nCassiday, Schade & Gloor, of Chicago (Rudolf G. Schade, Jr., and Sandra E. Kupelian, of counsel), for appellees." }, "file_name": "0381-01", "first_page_order": 399, "last_page_order": 405 }