A state appeals panel will allow parents to continue suing Abbott Laboratories on allegations its drug, Depakote, is responsible for birth defects in their son, overturning a decision from a Cook County judge who ruled their lawsuit should be barred because their new claims against Abbott contradict the arguments they advanced in a related lawsuit against the medical professionals who prescribed the drug.
The Illinois First District Appellate Court issued an opinion on the matter June 23. The decision acknowledged the parents are pressing arguments that Abbott argued run counter to those they made in court while winning an $18.5 million judgment against several doctors and Northwestern Memorial Hospital.
Charles and Angie Muhammad’s son, identified only as C.M., was born in 2006 with spina bifida, a defect they attribute to her use of the anticonvulsant Northwestern Memorial Hospital doctors prescribed to treat Angie’s mental illness. A jury found in the Muhammads' favor in a medical negligence trial.
Illinois First District Appellate Justice Leroy Martin
They then also sued Abbott, saying it failed to sufficiently warn doctors about the risk Depakote posed to women who are or might become pregnant.
Cook County Circuit Court Judge Brendan O’Brien granted summary judgment to Abbott. In defending against the Muhammads' lawsuit, Abbott noted the doctors in the negligence trial testified that enhanced warnings about the drug wouldn’t have affected their decisions to issue the prescription.
Invoking the principle of judicial estoppel, Judge O'Brien said the seemingly contradictory claims advanced by the Muhammads in two different lawsuits over the same injury - that the doctors were aware of the risks of Depakote, on one hand, but, in the other case, that Abbott had failed to warn doctors enough about those risks - should doom the Muhammads' attempt to also sue Abbott.
The Muhammads appealed, and found a better reception at the First District court.
First District Justice LeRoy Martin wrote the panel’s opinion on the Muhammads’ appeal; Justices Jesse Reyes and Mary Rochford concurred.
“Judicial estoppel should be considered and applied with caution to avoid impinging on the truth-seeking function of the court,” Martin wrote. “It is an extraordinary measure and must be carefully confined to its anti-hoodwinking purpose.”
The panel said a judge doesn’t need to stop a lawsuit based on a party’s contradictory legal strategy unless they can also establish deception or that a failure to act would result in an unwarranted or unjust outcome. However, the panel also explained it didn’t find the Muhammads’ positions in the two lawsuits to be incompatible because there can be more than one cause for a legal injury.
“Abbott’s alleged failure to provide sufficient warnings about Depakote’s risk of birth defects and the physicians’ failure to cease prescribing Depakote to Angie once it became apparent her birth control measures were unreliable could both be found to be proximate causes of C.M.’s injuries,” Martin wrote. “The Muhammads alleged, and the Northwestern case jury necessarily accepted, that the physicians did not meet the standard of care by continuing to prescribe Depakote to Angie when they should have realized her birth control was unreliable. Their negligence was not predicated so much on the extent of their knowledge that Depakote could cause birth defects, but on their misjudgment about Angie’s ability to use effective birth control measures.”
Significantly, Martin said, jury instructions in the Northwestern lawsuit focused on whether the doctors should have continued to use Depakote, not whether they should have written the prescription in the first place.
The panel likened the situation to a 2021 Illinois First District Appellate Court opinion in Davis v. Pace Suburban Bus Division of the Regional Transportation Authority, in which a bus passenger, injured in a fall, first won a judgment from his auto insurer because an unidentified Lexus pulled out in front of the bus he was riding, then sued the bus company over the driver who slammed on the brakes.
“Abbott is like the Lexus driver and the physicians are like the bus driver,” Martin wrote. “In both cases, it is consistent to claim that the later actor’s conduct caused the injury, and such conduct would not have occurred but for the initial actor’s conduct, which is also a cause of the injury.”
The panel said Abbott’s arguments rooted in expert testimony from the Northwestern case aren’t sufficient for summary judgment, especially given the possibility of further discovery, and distinguished between procedural comments the Muhammads made to Judge O’Brien and arguments they advanced before the jury.
Abbott also argued it is entitled to judgment because the family can’t prove the alleged failure to warn proximately caused the spina bifida. The appellate justices explained a plaintiff in this position has to show both an inadequate warning and the fact a risk wasn’t widely known among doctors. While Abbott advanced several supporting contentions, the panel said conflicting evidence is suited for resolution at trial, not summary judgment.
The panel reversed O’Brien’s ruling and remanded the complaint for futher proceedings.
The Muhammads have been represented in the case by attorney Milo W. Lundblad, of Brustin & Lundblad, of Chicago.
Abbott has been represented by attorneys Lauren J. Caisman, Dan H. Ball and Stefani L. Wittenauer, of Bryan Cave Leighton Paisner, of Chicago and St. Louis.
Jonathan Bilyk contributed to this article.