The Seventh Circuit Court of Appeals has determined that the law of the state where a plaintiff allegedly consumed and suffered her first reaction to an over-the-counter (OTC) drug governs product liability claims filed against its manufacturer. Robinson v. McNeil Consumer Healthcare, No. 09-4011 (7th Cir., decided August 11, 2010). The plaintiff, an adult woman, allegedly developed a rash that led to the loss of most of her skin and damage to her mouth, eyes, throat, and esophagus as the result of taking Children’s Motrin®, which she had purchased for her child. She sued the company that makes the drug in an Illinois state court, and the case was removed to federal court, which determined that Virginia law governed the substantive issues because she lived there when the injury allegedly occurred.  

Under Virginia law, strict liability is rejected as a basis for a products liability suit, and even if a plaintiff proves negligence, her contributory negligence is a complete defense. A jury found the defendant negligent and determined that damages amounted to $3.5 million. Because the jury also found the plaintiff contributorily negligent, the judge entered judgment for the defendant.  

On appeal, the plaintiff argued that Illinois was the site of the injury and that its law should have been applied. According to the Seventh Circuit, the plaintiff purchased the drug in Georgia, but was living in Virginia when she took it and first exhibited an adverse reaction to the product. Her initial medical treatment also occurred in Virginia, but then she spent a month in the burn unit of a Baltimore, Maryland, hospital. Later, she moved to Illinois where her condition lingered and worsened. Thus, noted the court, “because the injury is a continuing one, it is being experienced in Illinois.”  

Observing that many injuries linger or worsen in personal injury cases, the court states, “to make the continuation or exacerbation of an injury a basis for applying Illinois tort law to your case would open vistas of forum shopping. Severely injured persons would move to the state whose law was most favorable to their tort claim and argue that that state had the ‘most significant relationship’ to the injury because the plaintiff’s aggregate suffering and perhaps expense of medical treatment would be greatest there. To avoid this incentive to forum shop, the initial place of the injury is properly deemed the place in which the injury occurred.” Applying Virginia law, the court agreed that the evidence was sufficient to show that the plaintiff was contributorily negligent and affirmed the lower court’s judgment.