author: PRESIDING JUSTICE McMORROW

text:
    THOMAS SAMANSKY, Plaintiff-Appellant, v. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—0195
    Opinion filed December 27, 1990.
    Rehearing denied January 24, 1991.

      Michael P. Casey, of Calumet City, for appellant.
    Lord, Bissell & Brook, of Chicago (Leonidas C. Malleris, Hugh C. Griffin, and Nancy Shaw, of counsel), for appellees Rush-Presbyterian-St. Luke’s Medical Center and David Shahain.
    Kathy P. Fox, of Wildman, Harrold, Allen & Dixon, of Chicago, for appellees Housing Javid, James A. Hunter, Hassan Najafi, Marshall D. Goldin, Cyrus Serry, and Giacomo A. Delaria.
    Claussen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Lisa Marco Kouba, Richard L. Berdelle, Jr., and Lawrence D. Mason, of counsel), for appellee Deseret Medical, Inc.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Thomas Samansky appeals from the trial court’s dismissal with prejudice of his complaint against Rush-Presbyterian-St. Luke’s Medical Center (hereinafter defendant Rush), several physicians who are members of a professional corporation (hereinafter collectively referred to as defendant physicians) and Deseret Medical, Inc. (hereinafter defendant Deseret). Plaintiffs complaint sought damages for injuries associated with the surgical removal of a central venous pressure catheter (hereinafter CVP line) that had fractured and remained in plaintiffs body following coronary bypass surgery. The coronary bypass surgery, the surgical removal of the remnant CVP line, and the post-operative care associated with these surgical procedures were undertaken by defendant physicians with the assistance of agents or employees of defendant Rush. The CVP line was manufactured by defendant Deseret and sold by defendant Deseret to defendant Rush. Plaintiffs pleading relied upon negligence and the doctrine of res ipsa loquitur with respect to all defendants. An additional count, directed solely against defendant Deseret, relied upon principles of strict product liability and also sought the application of res ipsa loquitur to that count. Construing the defendants’ pleadings as motions to dismiss based on affirmative matter (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)), the trial court dismissed the complaint on the ground that res ipsa loquitur was not applicable to plaintiff’s claims.

Based upon our review of the record, we conclude that plaintiff presented sufficient evidence to create a triable issue of fact, under the principles of res ipsa loquitur, with respect to whether any of the defendants exercised negligent control over the instrumentality that proximately caused the injuries for which plaintiff seeks compensation. We further conclude that plaintiff produced sufficient circumstantial evidence in proof of his strict product liability claim to overcome defendant Deseret’s motion to dismiss. Accordingly, we reverse the trial court’s dismissal of the counts of plaintiff’s complaint directed against defendant Deseret (counts I and IV), defendant physicians (count II) and defendant Rush (count III), and remand the matter for further proceedings consistent herewith.

The following factual allegations of plaintiff’s complaint, as ultimately amended, are accepted as true for the purpose of reviewing the trial court’s dismissal with prejudice. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9); see, e.g., Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 502 N.E.2d 1096.) Defendant physicians performed coronary bypass surgery on plaintiff with the assistance of agents or employees of defendant Rush on October 30, 1980. In the course of this surgery, defendant physicians placed a CVP line in a vein of the plaintiff’s heart. A few days after the surgery, on November 3, the defendant physicians directed that the CVP line be removed. The CVP line fractured during this attempted removal, and a portion thereof remained in plaintiff’s body. On November 4, 1980, defendant physicians performed a surgical procedure to remove the remnant fragment of the CVP line. The CVP line had been manufactured by defendant Deseret, who sold the item to defendant Rush.

In count I of his complaint, as ultimately amended, plaintiff alleged that defendant Deseret had manufactured and sold a defective CVP line and that the CVP line had been unreasonably dangerous for its intended use. Count IV of plaintiff’s amended complaint alleged that defendant Deseret had been negligent in its design, manufacture, and failure to warn of the dangers of the CVP line. Plaintiff alleged his reliance on the doctrine of res ipsa loquitur to prove both of these claims against defendant Deseret.

In count II of his amended complaint, plaintiff alleged that defendant physicians had negligently performed acts unknown to the plaintiff in the placement and removal of the CVP line while plaintiff was under defendant physicians’ care and treatment. Plaintiff alleged reliance on the doctrine of res ipsa loquitur. Count III of plaintiff’s amended complaint made similar allegations with respect to the care and treatment he received from agents or employees of defendant Rush.

Defendant Deseret and defendant physicians filed motions for summary judgment and supported these motions with deposition testimony given by two of the defendant physicians, Drs. Javid and Goldin. Dr. Javid performed the coronary bypass surgery on October 30, 1980, and placed the CVP line in plaintiff during the course of this surgery. Dr. Goldin performed the follow-up surgery on November 4 to remove the fractured CVP line. The remaining physicians who are named as defendants are members of the professional corporation of which Drs. Javid and Goldin are shareholders.

Dr. Javid testified in his deposition that the CVP line is a 12-inch-long, hollow plastic tube whose function is to monitor venous pressure of the heart after surgery and to facilitate post-operative intravenous administration of fluids and medications. Dr. Javid stated that toward the end of the plaintiff’s bypass surgery, the tip of the CVP line was inserted through a puncture hole in the neck, threaded through fatty tissue around the sternum, and placed in the left innominate vein of the heart. A few inches of the CVP line remained outside plaintiff’s neck at the end of this procedure. After the CVP line was put in place, Dr. Javid closed the sternum and completed the surgery.

Dr. Javid stated that the CVP line had no “obvious defect” before it was inserted during plaintiff’s bypass surgery, although he did not inspect it closely at that time. He explained that because of plaintiff’s excessive weight, there was considerable fatty .tissue in the chest area, and that, “chances are something must have been difficult at the -time of closure that had caused such an occurrence [i.e., fracture of the CVP line],” Dr. Javid also stated that it was “possible” that when he “closed the sternum, [he] closed it on the [CVP line].”

Dr. Javid also explained in his deposition that a few days after the coronary bypass surgery, directions were given that the CVP line be removed. He stated that this instruction could have been given by him, or by Dr. Goldin, who was.director of the intensive care unit at defendant Rush and thus had the authority to give such instructions. Dr. Javid stated that the CVP line would have been removed by a nurse, resident, or intern, that removal is not usually performed under the direct supervision of a physician, that an instruction to remove the CVP line is generally not given in writing but is usually given verbally, and that plaintiff’s records did not show who removed the CVP line or that a written instruction for removal had been given. Dr. Javid testified that a CVP line is removed by gently pulling on the portion extending from the patient’s body.

Dr. Goldin’s deposition testimony was substantially similar to that given by Dr. Javid with respect to the nature, function, placement, and removal of a CVP line. Dr. Goldin detailed'the surgical procedure he followed to remove the fractured CVP line from plaintiff’s body on November 4, 1980. He stated that the remnant of the CVP line, which was approximately seven inches in length, was found lying free in the pericardial cavity following a reopening of the sternal incision that had been made during the coronary bypass:surgery. Dr. Goldin testified that there is no “typical cause” of CVP fracture, and that he “surmised” that the CVP line “arched over the top of the sternum and made it difficult to remove.” Dr. Goldin also stated that because of plaintiff’s excessive weight, the “pathway for removal of the cathether [sic] [was] somewhat difficult.” He also testified that he had never seen statistics or studies showing a correlation between a patient’s obesity and a greater difficulty in removal of the CVP line from the patient. Dr. Goldin stated that fracture of the CVP line could have been caused by use of excessive force to remove it.

Both physicians testified that they were not present when removal of the CVP line was attempted and that they did not know with certainty who had attempted its removal. Dr. Javid testified that he had received a telephone call from a nurse at defendant Rush who informed him that there had been a difficulty in removing the CVP line and that the CVP line had fractured during the attempted removal.

Although Drs. Javid and Goldin looked at the remnant of the CVP line after it was surgically removed, neither could provide a definite cause for its fracture based upon this visual inspection. Drs. Javid and Goldin stated that they had each performed well over 1,000 coronary bypass surgeries and knew of only one prior incident where a CVP line had fractured upon removal. Neither doctor could give an explanation for the cause of the CVP line fracture in this prior instance.

Documents supporting the motions for summary judgment established that the CVP line was discarded by agents of defendant Rush following Dr. Goldin’s removal of the fractured CVP line during surgery on November 4, 1980. Additional documents in the record indicate that all of the CVP lines used at defendant Rush were manufactured and supplied by defendant Deseret.

In response to the summary judgment motions, plaintiff presented the affidavit of Dr. Kenneth Barron, a board-certified thoracic surgeon. Dr. Barron stated that he had reviewed the plaintiff’s medical record regarding the coronary bypass surgery and post-operative care thereof. Dr. Barron averred that in his opinion, and to a reasonable degree of medical certainty, fracture of the CVP line was caused by “a defect in the CVP catheter *** negligence on the part of the physicians in placing the CVP catheter *** negligence on the part of hospital personnel in removing the CVP catheter.” Dr. Barron stated in his affidavit that the “fracture of a CVP catheter does not occur in the absence of one or more of the above situations.”

Following briefing and argument, the trial court initially denied the motion for summary judgment filed by defendant Deseret. Thereafter, the trial court determined that the defendant physicians’ summary judgment motion should be treated as a motion to dismiss based on affirmative matter that denied or defeated the plaintiff's claims. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) On this basis, the trial court dismissed the count in plaintiff’s complaint against the defendant physicians, reasoning that principles of res ipsa loquitur were inapplicable to plaintiff’s claim against these defendants. On this same legal basis, the trial court thereafter denied plaintiff’s motion to reconsider, allowed the motion to dismiss filed by defendant Deseret, and dismissed all the remaining counts of plaintiff’s complaint. Plaintiff’s timely appeal followed.

In order to sustain the trial court’s dismissal of plaintiff’s complaint under section 2 — 619(a)(9), it must appear that the affirmative matter presented in defendants’ motions either (1) completely negated the plaintiff’s cause of action, (2) refuted crucial allegations of law made in the plaintiff’s complaint, or (3) refuted conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. (See Brown v. Morrison (1989), 187 Ill. App. 3d 37, 39, 542 N.E.2d 1308; see also Hall v. DeFalco (1988), 178 Ill. App. 3d 408, 412-13, 533 N.E.2d 448.) In considering the sufficiency of a section 2 — 619 motion to dismiss, the court must construe the documents presented in the light most favorable to the nonmoving party and deny the motion if the documents reveal a disputed issue of material fact. See, e.g., Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444.

The trial court dismissed plaintiff’s complaint because it concluded that plaintiff could not benefit from the res ipsa loquitur doctrine in his claims against the defendants. Res ipsa loquitur is a rule of evidence that permits the trier of fact to infer a defendant’s negligence based upon circumstantial evidence when direct evidence of the injury is primarily in the defendant’s knowledge and control. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449, 207 N.E.2d 305.) In order to benefit from the permissible inference of the res ipsa loquitur doctrine, the plaintiff must demonstrate that the instrumentality causing plaintiff’s injuries was under the defendant’s control at the time that the condition giving rise to the plaintiff’s injuries was created. In addition, the plaintiff must show that his injuries normally would not have occurred if defendant had exercised proper care of the instrumentality. (Imig v. Beck (1986), 115 Ill. 2d 18, 26, 503 N.E.2d 324; see also Dyback v. Weber (1986), 114 Ill. 2d 232, 500 N.E.2d 8 (plaintiff need not plead and prove plaintiff’s freedom from contributory negligence); (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 274, 443 N.E.2d 569 (control is a “flexible standard” and “key question is whether the probable cause is one which defendant was under a duty to the plaintiff to anticipate or guard against”).) Whether a plaintiff may invoke the principles of res ipsa loquitur is a question of law to be resolved by the court. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1113; Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 349, 247 N.E.2d 877.) Once the court has made this preliminary determination, it is the province of the fact finder to decide whether, based upon this inference of negligence and the countervailing evidence presented by the defendant, the plaintiff has proven defendant’s negligence by a preponderance of the evidence. Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216; see also Imig, 115 Ill. 2d at 27-28, 30-31 (res ipsa loquitur does not shift burden of proof to defendant).

We consider first the trial court’s dismissal of plaintiff’s res ipsa loquitur negligence counts against defendant physicians (count II), defendant Rush (count III), and defendant Deseret (count IV). All of the defendants contend that plaintiff could not invoke res ipsa loquitur because plaintiff failed to show that the defendants had joint, concurrent control over the instrumentality causing plaintiff’s injuries. To support this argument, defendants rely upon Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397, and Loizzo v. St. Francis Hospital (1984), 121 Ill. App. 3d 172, 459 N.E.2d 314.

In Kolakowski, plaintiff filed a medical malpractice suit against several physicians and a hospital, seeking damages for injuries allegedly sustained by plaintiff during a surgical procedure in which the plaintiff had received a general anesthetic. Relying upon Ybarra v. Spanguard (1944), 25 Cal. 2d 486, 154 P.2d 687, the Illinois Supreme Court held that the control requirement of res ipsa loquitur was satisfied because plaintiff demonstrated that “the physicians and hospital, at the time of surgery, each owed an independent duty to the patient and exercised concurrent control over the operation and equipment.” Kolakowski, 83 Ill. 2d at 396; see also Lynch, 93 Ill. 2d at 274 (Kolakowski was “a multiple-defendant, shared-control case”).

In Loizzo, the plaintiff sought damages for injuries relating to a CVP line that allegedly had been negligently left in his body. The appellate court held that the trial court properly entered summary judgment in favor of the defendants, since plaintiff failed to present any evidence to contradict the defendants’ assertions that they had no control of the CVP line and no knowledge concerning its placement in plaintiff’s body. (Loizzo, 121 Ill. App. 3d at 179.) The court also noted that in “cases of medical malpractice against multiple defendants the doctrine [of res ipsa loquitur] has been held applicable where the defendants were in joint control of the agency causing the injury” (121 Ill. App. 3d at 179), and that the defendant physicians “were not acting jointly with each other. The situation here involves different treatment by different entities at different times in different locations.” 121 Ill. App. 3d at 180.

Defendants argue that, in view of the Illinois Supreme Court’s decision in Kolakowski and the appellate court’s decision in Loizzo, application of res ipsa loquitur should be limited to instances where the defendants exercised joint, concurrent control during a surgical procedure in which the plaintiff sustained injuries, the cause of which plaintiff has no direct knowledge because general anesthesia was administered during the surgery.

We cannot agree with this argument, since it does not comport with the Illinois Supreme Court’s decision in Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586. In Gatlin, the plaintiff filed a res ipsa loquitur medical malpractice suit for damages relating to a skull fracture and related injuries allegedly sustained by plaintiff during and/or immediately after his birth. Suit was filed against both the physician who attended the delivery and the hospital who cared for plaintiff immediately after his birth. However, plaintiff could not conclusively establish which of the defendants had caused the plaintiff’s injuries. The appellate court affirmed the entry of summary judgment in favor of the defendant physician under these circumstances, reasoning that “[i]n a medical malpractice case, the plaintiff must prove that it is more probably true than not true that the defendant [physicianj’s negligence was a proximate cause of the plaintiff’s injury. [Citation.]” Gatlin v. Ruder (1989), 178 Ill. App. 3d 1059, 1060-61.

The supreme court rejected this reasoning on the ground that it “incorrectly sets forth a party’s burden on a summary judgment motion” (Gatlin, 137 Ill. 2d at 292-93), and impermissibly weighed the sufficiency of plaintiff’s evidence as a matter of law on a motion for summary judgment. (137 Ill. 2d at 294.) In concluding that the plaintiff’s evidence was sufficient to invoke the principles of res ipsa loquitur, the supreme court reasoned that plaintiff was not required to “ ‘establish that it is more probable that [the defendant physician] caused his injuries, and not the hospital personnel’ ” (137 Ill. 2d at 297), and stated that “the trier of fact should decide who maintained control,” the defendant physician or the defendant hospital. (137 Ill. 2d at 298.) The supreme court also determined that the plaintiff did not have to eliminate all other possible causes of his injuries before he could invoke res ipsa loquitur (137 Ill. 2d at 298), reasoning that the “jury must determine who proximately caused [plaintiff’s] injuries.” (137 Ill. 2d at 298.) Relying upon Kolakowski v. Voris (1980), 83 Ill. 2d 388, the Gatlin court held:

“[I]n the case at bar, although [plaintiff] presented evidence which indicated [the defendant hospital] may have caused his injuries, such evidence did not conclusively establish the cause of those injuries. The evidence [plaintiff] presented against [the defendant physician] also did not conclusively establish the cause of [plaintiff’s] injuries. The testimony and statements of [the medical witnesses] were merely the differing opinions of experts. The trier of fact has to decide what facts and opinions to believe. Therefore, [plaintiff’s] res ipsa loquitor theory does not necessarily fail.” Gatlin, 137 Ill. 2d at 299.

As Gatlin demonstrates, a plaintiff may benefit from res ipsa loquitur principles if the plaintiff can present evidence tending to show that the defendants exercised consecutive management or control over the instrumentality that caused plaintiff’s injuries. Consequently, we cannot accept defendants’ argument that plaintiff must show that all of the defendants herein exercised joint and concurrent control over the instrumentality that caused plaintiff’s injuries.

Applying the precedent of Gatlin to the case at bar, we conclude that the negligence counts of plaintiff’s complaint directed against defendant physicians (count II), defendant Rush (count III), and defendant Deseret (count IV) satisfied the requirements for application of the res ipsa loquitur doctrine.

First, the record indicates that plaintiff presented evidence that tended to show that his injuries would not normally occur in the absence of negligence. Construing the documents of record liberally in favor of plaintiff, the nonmoving party with respect to the motion to dismiss, the affidavit of plaintiff’s medical expert creates a triable issue of fact with respect to whether a CVP line fracture normally does not occur in the absence of negligence on the part of the defendants. In this affidavit, plaintiff’s expert stated that it was his opinion, to a reasonable degree of medical certainty, that the fracture of plaintiff’s CVP line was caused by “a defect in the CVP catheter *** negligence on the part of the physicians in placing the CVP catheter *** negligence on the part of hospital personnel in removing the CVP catheter.” The affidavit was properly considered in support of plaintiff’s position, because the opinion of plaintiff’s medical expert was based upon evidentiary facts regarding plaintiff’s medical care as detailed in the pertinent medical records. (See, e.g., Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 688, 494 N.E.2d 1241.) The defendants do not dispute that each had a legal duty to exercise due care in order to guard against the possibility that the CVP line might fracture and thereby cause injury to the plaintiff.

In addition, the record shows that the defendants exercised consecutive control over the CVP line. Documents in the record demonstrated that the CVP line was manufactured and supplied by defendant Deseret to defendant Rush, that the CVP line was used by defendant physicians in their performance of the coronary bypass surgery, and that the CVP line was removed by agents or employees of defendant Rush pursuant to the instructions of the defendant physicians with regard to plaintiff’s in-patient post-operative care.

The defendants argue that plaintiff cannot benefit from res ipsa loquitur because the record discloses that plaintiff’s injuries may have been proximately caused by the negligence of one of the other defendants, or by the defective condition in the CVP line. The defendants also assert that plaintiff has not shown that his injury was probably caused by the negligence of one of them. Relying upon the deposition testimony of Drs. Javid and Goldin, defendants assert that plaintiff’s injuries were not caused by negligence on the part of any of the defendants.

However, as the Illinois Supreme Court observed in Gatlin, in order to overcome the defendants’ motions to dismiss with respect to the applicability of res ipsa loquitur to the case at bar, plaintiff need not present conclusive proof of which of the defendants exercised control over the CVP line at the time that the condition causing plaintiff’s injuries was created. Plaintiff is also not required to show that his injuries were more probably caused by one defendant than by another defendant. Nor must plaintiff eliminate all causes of his injuries other than the negligence of one or more of the defendants. (Gatlin, 137 Ill. 2d at 297-98.) It is for the trier of fact to determine which defendant had control of the CVP line at the time that the injury-causing condition in the CVP line was created, and for the trier of fact to decide whether plaintiff’s injuries were proximately caused by the negligence of any of the defendants. Gatlin, 137 Ill. 2d at 299; see also American States Insurance Co. v. Whitsitt (1990), 193 Ill. App. 3d 270, 549 N.E.2d 988.

The cases cited by the defendants do not conflict with the conclusion we reach herein. Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 683, 531 N.E.2d 413, pertained to the sufficiency of the plaintiff’s res ipsa loquitur evidence following a jury trial. Politakis v. Inland Steel Co. (1983), 118 Ill. App. 3d 249, 454 N.E.2d 811, held res ipsa loquitur inapplicable because the evidence showed that the plaintiff retained control of the injury-causing instrumentality. Piquette v. Midtown Anesthesia Associates (1989), 192 Ill. App. 3d 219, 548 N.E.2d 659, held res ipsa loquitur inapplicable, since the plaintiff there produced no expert testimony regarding the negligent cause of his injury and the question of whether plaintiff’s injury normally would have occurred in the absence of negligence was not in the common knowledge of laypersons.

In light of these considerations, we conclude that the trial court erred in dismissing plaintiff’s res ipsa loquitur negligence claims against defendant physicians (count II), defendant Rush (count III), and defendant Deseret (count IV).

We also conclude that the trial court erred in dismissing plaintiff’s strict product liability claim against defendant Deseret (count I). Plaintiff alleged in this count, as ultimately amended, that he intended to rely upon principles of res ipsa loquitur in proof of his claim. On appeal, plaintiff contends that res ipsa loquitur should apply to a strict product liability suit. To support this contention, plaintiff relies upon Putensen v. Clay Adams, Inc. (1970), 12 Cal. App. 3d 1062, 91 Cal. Rptr. 319. However, the court in Putensen did not apply res ipsa loquitur principles to a strict product liability claim. Consequently, the decision does not support plaintiff’s position. Accordingly, we decline to hold that res ipsa loquitur principles are per se applicable to plaintiff’s strict product liability claim.

Plaintiff also relies upon several Illinois decisions for the proposition that Illinois law recognizes a principle, similar to res ipsa loquitur, as applicable to strict product liability. Under these Illinois cases, a plaintiff may prove a case of strict product liability through circumstantial evidence that affords a reasonable inference that the product was defective at the time it left the manufacturer’s control and that this defective condition was a proximate cause of the plaintiff’s injuries. (See, e.g., Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444; Neighbors ex rel. American States Insurance Co. v. City of Sullivan (1975), 31 Ill. App. 3d 657, 334 N.E.2d 409.) Because the parties have addressed the question on its merits in this appeal, we consider whether plaintiff’s strict product liability claim is sufficient in light of this precedent.

A claim for strict product liability is comprised of three elements: (1) the product was defective, in that it was unreasonably dangerous in light of its nature and intended use; (2) the product’s defective condition was present when it left the manufacturer’s control; and (3) the defective condition of the product proximately caused plaintiff’s injuries. (See, e.g., Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 111, 454 N.E.2d 197; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182.) The claim may be proven by circumstantial evidence (Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 412 N.E.2d 464; Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449; see also Gillespie v. R.D. Werner Co. (1978), 71 Ill. 2d 318, 375 N.E.2d 1294), and the absence of the product at trial is not fatal to the plaintiff’s cause. (See, e.g., Neighbors ex rel. American States Insurance Co. v. City of Sullivan (1975), 31 Ill. App. 3d 657, 334 N.E.2d 409; see also Mateika v. LaSalle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503.) On this basis, Illinois recognizes, as noted above, that a plaintiff may establish a case of strict product liability, even though the plaintiff cannot prove the precise cause of his injury, where the plaintiff presents sufficient circumstantial evidence to afford a reasonable inference that the product was defective at the time it left the defendant’s control and that this defective condition proximately caused the plaintiff’s injury. (See Stewart v. B.F. Goodrich Co. (1987), 153 Ill. App. 3d 1078, 506 N.E.2d 783; Neighbors ex rel. American States Insurance Co. v. City of Sullivan (1975), 31 Ill. App. 3d 657, 334 N.E.2d 409; St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 298 N.E.2d 289; Bollmeier v. Ford Motor Co. (1970), 130 Ill. App. 2d 844, 265 N.E.2d 212; see also Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 412 N.E.2d 464; Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449; Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444; Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503; see generally Annot., Strict Products Liability: Product Malfunction or Occurrence of Accident as Evidence of Defect, 65 A.L.R.4th 346 (1988).) One court has expressly noted the similarity between this rule and the doctrine of res ipsa loquitur, observing that “[i]n some cases the requisite quantum of proof may correspond to that usually required to invoke the doctrine of res ipsa loquitur, although purists would correctly note that res ipsa loquitur is incompatible with a strict liability theory,” and concluding that the “underlying principle that circumstantial evidence may create inferences of fact which are not otherwise subject to direct proof is entirely consonant with a strict liability theory.” St. Paul Fire, 12 Ill. App. 3d at 177-78.

Based upon this precedent, we conclude that plaintiffs proof was sufficient to proceed on the merits of plaintiffs strict product liability claim. The affidavit of plaintiff’s expert, when construed.liberally in plaintiff’s favor, raises an inference that the CVP line was defective and proximately caused plaintiff’s injuries. It is for the trier of fact to determine whether the CVP line was defective at the time it left the control of defendant Deseret. It is also for the trier of fact to determine whether it was the defective condition of the CVP line, or the negligence of one of the other defendants, that was a proximate cause of plaintiff’s injuries. (See, e.g., Stewart v. B.F. Goodrich Co. (1987), 153 Ill. App. 3d 1078, 506 N.E.2d 783; Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213; Varady v. Guardian Co. (1987), 153 Ill. App. 3d 1062, 506 N.E.2d 708.) As a court of review, we cannot weigh the sufficiency of plaintiff’s proof on defendant Deseret’s motion to dismiss. See Gatlin, 137 Ill. 2d at 292-94; see also Pyne v. Witmer (1989), 129 Ill. 2d 351, 368-69, 543 N.E.2d 1304.

The cases cited by defendant Deseret are factually distinguishable from the instant cause. In several of these decisions, the plaintiff produced no expert opinion that the defendant’s product was probably defective, and the mere occurrence of plaintiff’s accident did not, under the facts of those cases, warrant a reasonable inference that the product was defective. (See Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444; Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503; Rockett v. Chevrolet Motor Division (1975), 31 Ill. App. 3d 217, 334 N.E.2d 764; Shramek v. General Motors Corp. (1966), 69 Ill. App. 2d 72, 216 N.E.2d 244.) In other decisions, the plaintiff’s expert could not state that the defendant’s product was probably defective or the expert’s opinion was severely impeached by other evidence that negated the expert’s testimony regarding the defective condition of the product. (See D’Olier v. General Motors Corp. (1986), 145 Ill. App. 3d 543, 492 N.E.2d 1040; Miller v. General Telephone Co. (1975), 29 Ill. App. 3d 848, 330 N.E.2d 573; Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 392 N.E.2d 663; Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill. App. 3d 1091, 419 N.E.2d 561; see also Abel v. General Motors Corp. (1987), 155 Ill. App. 3d 208, 507 N.E.2d 1369.) In the remaining case, the undisputed facts showed that the product had probably been altered after it left the manufacturer’s control. (Phillips v. United States Waco Corp. (1987), 163 Ill. App. 3d 410, 516 N.E.2d 670; see also Loy v. Firestone Tire & Rubber Co. (1988), 168 Ill. App. 3d 503, 522 N.E.2d 848 (defendant produced undisputed evidence that product was not defective when it left defendant’s control).) None of these factual scenarios is present in the instant cause.

In contrast to the cases cited by defendant, Illinois decisions have consistently held a plaintiff’s proof sufficient to present a triable factual issue when the plaintiff has produced expert testimony that the' defendant’s product was defective when it left the defendant’s control and was a proximate cause of the plaintiff’s injury. (See Stewart v. B.F. Goodrich Co. (1987), 153 Ill. App. 3d 1078, 506 N.E.2d 783; Neighbors ex rel. American States Insurance Co. v. City of Sullivan (1975), 31 Ill. App. 3d 657, 334 N.E.2d 409; St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 298 N.E.2d 289; Bollmeier v. Ford Motor Co. (1970), 130 Ill. App. 2d 844, 265 N.E.2d 212.) Consistent with this precedent, we conclude that the trial court erred in dismissing plaintiff’s strict product liability claim against defendant Deseret.

Defendant Deseret also argues on appeal that the affidavit of plaintiff’s expert, Dr. Barron, is insufficient to create a genuine issue of fact, because there is nothing in the record to reveal whether Dr. Barron is qualified to render an opinion with respect to a defective condition in a CVP line. We do not address this contention, as defendant Deseret did not raise this argument in the trial court. The qualifications of an expert cannot be tested on appeal when those qualifications were unchallenged before the trial court. See Abel v. General Motors Corp. (1987), 155 Ill. App. 3d 208, 221, 507 N.E.2d 1369.

For the reasons stated, we reverse the trial court’s dismissal of plaintiff’s complaint and remand the matter for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    ACCOUNT SERVICES CORPORATION et al., Plaintiffs-Appellants, v. DAKCS SOFTWARE SERVICES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—0819
    Opinion filed December 27, 1990.

      Daniel V. Kinsella and Doyle C. Valley, both of Hough, Weatherhead & Kinsella, of Chicago, for appellants.
    John Clarke & Associates, Ltd., of Arlington Heights (George Hessberger, of counsel), for appellee DAKCS Software Services, Inc.
    Richard F. Zehnle and Christopher A. Nichols, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee Systems Associates, Inc.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Account Services Corporation (ASC), Constance Firm and Richard Keegan, appeal from an order of the circuit court that dismissed counts I and II of their second amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Under these counts, plaintiffs sought rescission and damages from defendants, DAKCS Software Services, Inc. (DAKCS), John Doramus, Systems Associates, Inc. (SAI), Automated Recovery Systems, Inc. (ARS), Dwight Foster and Kent Green, Cash Management Services, Inc. (CMSI), and Specialized Management Services, Inc. (SMSI). These counts were brought pursuant to the Franchise Disclosure Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 701 et seq.). The trial court found that the plaintiffs had failed to state a cause of action under the Franchise Disclosure Act.

Plaintiffs present the following issues for our review: (1) whether the trial court erred by failing to find that plaintiffs sufficiently alleged that defendants ARS and SAI may be liable under the Franchise Disclosure Act; (2) whether the trial court erred by failing to find that plaintiffs sufficiently alleged that they were granted the right to engage in the business of offering or selling services under a marketing plan or system prescribed or suggested in substantial part by defendants; (3) whether the trial court erred by failing to find that plaintiffs sufficiently alleged that the operation of their business is substantially associated with defendants’ trade name, advertising or other commercial symbol designating defendants or their affiliates; and (4) whether the trial court erred by failing to find that plaintiffs sufficiently alleged that they paid a franchise fee within the meaning of the Franchise Disclosure Act.

We affirm.

Plaintiffs were engaged in the business of providing debt collection services to clients. Defendant DAKCS is in the business of selling computer hardware and software systems designed for debt collection. Defendant SAI designs and sells financial software systems in-eluding those designed for debt collection. Defendant ARS develops and sells bad debt collection software specifically designed for hospitals and the health care industry. Defendant CMSI is a wholly owned subsidiary of SAL Defendant SMSI is a wholly owned subsidiary of DAKCS. Plaintiffs allege that defendants Doramus, Foster and Green were involved with ARS, DAKCS or SMSI as employees, agents or officers.

In plaintiffs’ second amended complaint, it is alleged that in 1986 defendants DAKCS, SAI and ARS developed a computer system and marketing plan for the collection of debts. Pursuant to the plan, hospitals would turn over their uncollected debts to ARS, which would in turn assign these accounts to various collection agencies. SAI, DAKCS and ARS presented this debt collection proposal to hospitals through a general partnership.

Plaintiffs alleged that in April 1986, ASC was established to render debt collection services for clients. In May 1986, plaintiffs considered purchasing computer software and hardware from DAKCS to facilitate them in their debt collection services. Doramus, an alleged agent and employee of DAKCS, informed plaintiffs that DAKCS and ARS had developed a system to provide for the nationwide coordination of collection services for client hospitals. Collections were to be handled on a regional basis by firms acting as agents for ARS. Plaintiffs were told that there was no regional agent in the Chicago area.

Plaintiffs further alleged that ARS advertised in The Collector Magazine that 265 hospitals were already being serviced by defendants’ debt collection services. Plaintiffs note that the advertisement also appealed to collection agencies to invest in the ARS system.

In order to become a member of ARS, plaintiffs allege that they had to purchase or lease DAKCS hardware and software equipment. After becoming a member of ARS, plaintiffs allege that they were told they would receive $3 million of collections on a monthly basis. Doramus allegedly estimated that pre-tax profits from these collections would be in excess of $375,000.

Plaintiffs then entered into a “Sales Agreement” with DAKCS to purchase the equipment. Plaintiffs alleged that pursuant to the agreement to purchase equipment, they initially paid $18,000. They were obligated to pay an additional amount in excess of $55,000 at a later date. Plaintiffs also signed an “Agency Agreement” with ARS in order to become participating collection agents. Plaintiffs allege that defendants failed to assign any accounts to them, as promised. As a result of this alleged breach, plaintiffs complained that they suffered damages and lost profits in excess of $375,000.

Plaintiffs filed a complaint against defendants on April 5, 1989, which was subsequently amended. In counts I and II of their second amended complaint, plaintiffs alleged violations of the Franchise Disclosure Act. At this juncture, we note that the Franchise Disclosure Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 701 et seq.) had been repealed and replaced by the Franchise Disclosure Act of 1987 (Ill. Rev. Stat. 1987, ch. 12IV2, par. 1701 et seq.). Both versions of the statute are substantially the same. For our purposes, the only notable difference is the required franchise fee amount. The repealed statute required that a $100 fee be paid. The current Act requires that a fee in the amount of $500 be paid by the franchisee.

The trial court did not specify which version of the statute was to apply to the instant case, and we believe it is of no consequence here, since plaintiffs have not met the required definitional elements of a franchise as stated in either version. As plaintiffs initially filed their complaint after the new statute was in effect, we will refer to the Franchise Disclosure Act of 1987 (hereinafter the Act) for purposes of this appeal.

The trial court dismissed these counts pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615) for failure to state a cause of action under the Act. The trial court found that the parties had not entered into a franchise agreement as defined in the Act. It is from the dismissal of these counts that plaintiffs appeal. We also note that there are other common law counts that are still pending before the trial court.

In considering a motion to dismiss for failure to state a cause of action, all well-pleaded facts are to be taken as true. (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 232.) Plaintiffs are entitled to all reasonable inferences which can be drawn from the facts. (Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 160.) Conclusions of law, however, which may be drawn from such facts may not be admitted. (Carlson v. Moline Board of Education, School District No. 40 (1984), 124 Ill. App. 3d 967, 970.) An appeal from a dismissal for failure to state a cause action “preserves for review only a question of law as to the complaint’s legal sufficiency.” Teter v. Clemens (1985), 131 Ill. App. 3d 434, 436.

The four issues that plaintiffs present for our consideration constitute the elements of a franchise as defined in the Act. In order to come within the purview of the Act, plaintiffs acknowledge that they must allege the existence of a franchise. “Franchise” is defined as follows:

“ ‘Franchise’ means a contract or agreement, either expressed or implied, whether oral or written, between two or more persons by which:
(a) a franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services, under a marketing plan or system prescribed or suggested in substantial part by a franchisor; and
(b) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) the person granted the right to engage in such business is required to pay, directly or indirectly, a franchise fee of $500 or more.” Ill. Rev. Stat. 1987, ch. 1211/2, pars. 1703(a) through (c).

At the outset, we note that although plaintiffs entered into two contracts or agreements with defendants, the agreements were not denoted as “franchise” agreements. One agreement was a “Sales Agreement” for the purchase of equipment; the other was entitled “Agency Agreement.” We do not find, contrary to plaintiffs’ contention, that these agreements, when read in conjunction, would constitute a franchise. Furthermore, upon review of the record, we do not find that defendants represented to plaintiffs at any time that they were franchisors or that plaintiffs would be entering into a franchise agreement.

In Vitkauskas v. State Farm Mutual Automobile Insurance Co. (1987), 157 Ill. App. 3d 317, the court was presented with a situation that is analogous to the instant case. In Vitkauskas, the plaintiff alleged that defendant insurance company had violated the Act. The plaintiff had entered into oral and written agreements with defendant to become one of defendant’s insurance agents. The court held that the relationship between the parties did not fall within the purview of the Act. The nature of the relationship between the parties was that of employer-employee. The court found that although it was not bound by “labels” in describing the relationship between the parties, “[ujnder the Act an employee and a franchisee are not synonymous.” Vitkauskas, 157 Ill. App. 3d at 324.

“Businesses such as White Hen, Duro-Clean, McDonald’s, Hardees, Holiday Inn, etc., are relatively new and have created a new business relationship, a different relationship from that of employer and employee, which has been in esse for centuries. It is impossible to conclude that the [Act] was intended to regulate the employer and employee relationship.” Vitkauskas, 157 Ill. App. 3d at 325.

Similarly, in the instant case, we do not find, after reviewing the “Agency Agreement,” that the “agency” as set forth in the agreement is synonymous with “franchise” as defined in the Act. Moreover, the fact that plaintiffs also signed a “Sales Agreement” for the purchase of equipment would not make this arrangement a franchise. (Ill. Rev. Stat. 1987, ch. 121½, par. 1703(14).) Even if the agreements were labeled as “franchise agreements,” we do not find that the parties’ arrangement constituted a franchise as defined in the Act.

The first requirement of the definition of a franchise is that plaintiffs must have been granted the right to offer, sell, or distribute goods or services, under a marketing plan provided or suggested in “substantial part” by defendants. Ill. Rev. Stat. 1987, ch. 121½, par. 1703(a).

“ ‘Marketing plan or system’ means a plan or system relating to some aspect of the conduct of a party to a contract in conducting business, including but not limited to (a) specification of price, or special pricing systems or discount plans, (b) use of particular sales or display equipment or merchandising devices, (c) use of specific sales techniques, (d) use of advertising or promotional materials or cooperation in advertising efforts ***.” Ill. Rev. Stat. 1987, ch. 121½, par. 1703(18).

In the instant case, plaintiffs alleged that “[t]he defendants prepared a business and marketing plan. * * * [UJnder the plan client hospitals would automatically turn over their bad debts to the ARS System. The ARS System would then assign the bad debts for collection to collection agencies.” After collecting the outstanding debt, the chosen agency would remit the collected monies to ARS. The monies would then be divided among ARS, the hospital and the chosen agency.

We are not persuaded that plaintiffs have properly alleged the existence of a “marketing plan” or “system” as defined in the Act. The “plan” that plaintiffs described pertains more to defendants’ structure. In fact, plaintiffs’ description of this so-called “plan” in their second amended complaint is under the heading “The Structure of Defendants.” The described “plan” does not assist plaintiffs in the affirmative act of their selling or their offering of debt collection services. As defendants note, they did not give plaintiffs advice as to how to sell their services.

Even assuming, arguendo, that plaintiffs were granted the right to “offer” or “sell” defendants’ services pursuant to a marketing plan provided by defendants, we are not persuaded that plaintiffs meet the second statutory criterion.

Section 3(b) of the Act requires that the franchisee must become substantially associated with franchisor’s trade symbol, advertising or other commercial symbol. (Ill. Rev. Stat. 1987, ch. 121½, par. 1703(b).) Plaintiffs did not allege that they could or did use defendants’ trade symbol; rather, plaintiffs alleged that “[a]gents who participated in the system could *** become associated with the ARS name and advertising.” (Emphasis added.)

This allegation indicates that the “agents” have an option as to whether or not to become associated with the franchisor’s name or advertising. We do not interpret this section as necessarily providing such an option. The section states that “the operation of the franchisee’s business *** is substantially associated with the franchisor’s *** advertising or other commercial symbol.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 121½, par. 1703(b).) Plaintiffs’ allegations, therefore, arguably do not fall within the Act.

Later in the second amended complaint, plaintiffs allege that “[t]he operation of plaintiffs’ business was to be and was in fact substantially associated with the ARS-Partnership name and advertising.” We, however, find this allegation to be conclusory. Conclusory statements unsupported by sufficient allegations will not withstand a motion to dismiss. (Carlson v. Moline Board of Education v. School District No. 40 (1984), 124 Ill. App. 3d 967, 970.) This allegation also fails with respect to this criterion of the section.

Even if plaintiffs’ allegations were construed so as to meet the second criterion of the section, we are not persuaded that plaintiffs have met the third criterion of the section which requires that plaintiffs pay a franchise fee. (Ill. Rev. Stat. 1987, ch. 121½, par. 1703(c).) “A payment alleged to be a franchise fee must fit precisely within the statutory definition.” (Vitkauskas v. State Farm Mutual Automobile Insurance Co. (1987), 157 Ill. App. 3d 317, 326.) A franchise fee is defined as “any fee or charge that a franchisee is required to pay *** for the right to enter into a business or sell, resell, or distribute *** services.” Ill. Rev. Stat. 1987, ch. 121½, par. 1703(14).

Plaintiffs allege that the sum of $18,000 they were required to pay for the equipment constitutes the franchise fee. However, upon review of the standard “Sales Agreement,” which reflects the terms of the leasing or sale of the equipment, we find no mention that the monies paid were to be considered a franchise fee. The monies paid were simply for the lease or purchase of the computer equipment.

Plaintiffs also allege that they were required to pay a franchise fee when they agreed to remit collected monies to ARS. These remissions, however, were payments for services rendered pursuant to the “Agency Agreement.” As defendants argue, there was no obligation to pay these remissions if plaintiffs had not made any debt collections. We are not persuaded that these nonobligatory remissions should be construed as the mandatory franchise fees set forth in the Act. Plaintiffs’ allegations, therefore, do not meet the franchise fee requirement.

We do not find that the trial court erred in dismissing counts I and II of plaintiffs’ second amended complaint.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McMORROW, P.J., and LINN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KANNAPES, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1917
    Opinion filed December 27, 1990.

      Arthur Engelland, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Cunta Z. Hadac, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant James Kannapes was convicted of delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)) and sentenced to 10 years’ imprisonment. Because we agree with defendant’s argument that he was deprived of a fair trial when the State was permitted to introduce into evidence, and argue an inference of defendant’s guilt from, a photograph of defendant wearing a T-shirt that bore the words “Enjoy Cocaine,” we reverse and remand for a new trial.

Defendant was convicted for the May 4, 1987, sale of approximately 193.9 grams of cocaine to undercover police officers assigned to the Northeastern Metropolitan Enforcement Group (MEG). Brian Reaves (Reaves) and Carina Hernandez (Hernandez) also participated in the transaction. Evidence introduced at trial indicates that arrangements for the drug sale were made by Reaves with MEG Officer Joseph Errico. The controlled substance was delivered in Hernandez’ purse, by defendant and Hernandez, to MEG Officer Patricia Jordan in that officer’s car while Officer Errico and Reaves waited nearby. The transaction occurred at a gas station owned by Reaves’ father in the City of Chicago.

Officer Errico testified that at one point during the transaction, Reaves told Officer Errico that he had to call his “connect, Jimmy,” and that a short time later, defendant drove into the gas station in a black Cadillac and met Reaves, Hernandez, and Officer Errico in the gas station parking lot. Officer Errico testified that while he was alone with defendant, defendant told Officer Errico that he should “deal directly” with defendant, because defendant would charge less money for an ounce of cocaine than did Reaves.

Both Hernandez and Officer Jordan testified that while Hernandez and defendant were sitting in Officer Jordan’s automobile, defendant told Hernandez to give her purse to Officer Jordan. Defendant then turned, took Hernandez’ purse from her, and removed from it a clear plastic bag containing a white substance. Hernandez and Officer Jordan testified that defendant handed the plastic bag to Officer Jordan, asking her if she “knew what good cocaine smelled like.” However, Hernandez and Officer Jordan also acknowledged that at a preliminary hearing, each had testified that she could not recall anything that defendant had said while in the officer’s car.

Officers Errico and Jordan also testified that the drug transaction that occurred on May 4, 1987, and resulted in the arrests and instant prosecution had originally been arranged to occur on April 30. However, at this meeting on April 30, Reaves informed Officers Errico and Jordan that the sale could not be consummated because Reaves’ “connect” could not obtain the cocaine on that date. While in Reaves’ company, Officers Errico and Jordan were approached by defendant, who was driving a black Cadillac. Defendant told the officers that he would have the narcotics the following evening.

At the conclusion of the narcotics purchase on May 4, 1987, and following the arrest of Reaves, Hernandez, and defendant, MEG officers seized defendant’s automobile and the items therein. Included in the defendant’s personal items was a photograph of the defendant. Officer Errico, who inventoried the items, identified the photograph at trial. Officer Errico also testified that defendant telephoned him shortly after defendant’s arrest and requested the return of the photograph. Defendant’s request was refused.

At the close of the State's case against defendant, the court held an in-chambers hearing at which defendant objected to the admission into evidence of the photograph and its publication to the jury, as well as any cross-examination of defendant regarding the photograph or his request for its return. The State argued that the photograph and defendant’s request for the return of the photograph were admissible to show defendant’s “state of mind” and “consciousness of guilt,” because defendant would not have requested the photograph’s return if it were not incriminating. The trial court overruled defendant’s objections.

Defendant testified in his own behalf at trial, stating that he had no knowledge that the events at which he had been present were a drug transaction. He testified that he had never used, sold, or facilitated the sale of any illicit or controlled substance. Defendant explained that he had gone to the gas station on May 4, 1987, because Reaves’ father had agreed to repair the brakes on defendant’s car. Reaves’ father confirmed at trial that on that date, defendant waited at the gas station for Reaves’ father to repair the brakes.

Defendant stated that while he was at the gas station, he saw Reaves, Hernandez, and Officer Errico. Defendant had not previously met Officer Errico, but was acquainted with Reaves and Hernandez. Defendant spoke to Reaves while in the company of Hernandez and Officer Errico. At one point, Reaves suggested that defendant walk Hernandez to a beige Camaro parked nearby. Because Errico and Hernandez also suggested that defendant do so, defendant complied. When they arrived at the car, Hernandez got into the back seat. The woman sitting in the driver’s seat (Officer Jordan) asked defendant to sit in the front seat of the car, and defendant did so. Officer Jordan then asked, “Where’s the stuff?” Defendant testified that Hernandez handed her purse to Officer Jordan, who opened it and withdrew a clear plastic bag containing a white substance. Within moments, police surrounded the vehicle and forcibly removed defendant from the car.

On cross-examination by the State, defendant stated that he had telephoned Officer Errico to request the return of a photograph of defendant that had been taken from defendant’s car and retained in police custody. Defendant explained that the T-shirt in the photograph bore the words “Enjoy Cocaine” and was a parody of an advertisement for Coca-Cola. He stated that the garment was popular and readily available for sale when he had been vacationing in Acapulco and the photograph in question had been taken.

In its closing statements to the jury, the State argued that defendant’s testimony was not credible and suggested to the jury that it could not be a “coincidence that he’s in Acapulco wearing an Enjoy Cocaine tee-shirt that’s with him when he’s arrested, that he feels obliged *** to call the Officer and say I want this *** back.” Later, in rebuttal closing argument, the State argued, “The shirt that says Enjoy Cocaine, that’s circumstantial evidence that he’s a cocaine dealer, that he knows about dealing drugs and that that’s what he’s involved in.”

Based upon all of the evidence, including the photograph published to the jury during deliberations, the jury found defendant guilty as charged. Thereafter, the trial court denied defendant’s post-trial motion, entered judgment in conformity with the jury’s verdict, and sentenced defendant to 10 years’ imprisonment. Defendant’s timely appeal followed.

Defendant argues on appeal that he should receive a new trial because he was prejudiced by the erroneous admission into evidence of the photograph of him, the State’s elicitation of testimony regarding what the photograph depicted and his request for the return of the photograph. He further argues that the remarks of the prosecutor during closing argument with respect to the significance of the photograph and defendant’s request for the return of the photograph constituted reversible error. Based upon our review of the record, we agree. ,

Evidence is relevant, and thus admissible, where it tends to prove a material fact in issue and its probative value outweighs its prejudicial effect. (People v. Eyler (1989), 133 Ill. 2d 173, 217-18, 549 N.E.2d 268.) Defendant’s identity was not at issue during his trial, and no argument is made that the photograph was admissible in order to prove that defendant had been properly identified. (See, e.g., People v. Holman (1984), 103 Ill. 2d 133, 149-50, 469 N.E.2d 119.) Also, the State does not argue that the defendant’s request for the return of the photograph was admissible to show defendant’s consciousness of guilt on the theory that defendant was attempting to conceal or destroy State evidence. (See, e.g., People v. Gacho (1988), 122 Ill. 2d 221, 247, 522 N.E.2d 1146; People v. Veal (1986), 149 Ill. App. 3d 619, 625, 500 N.E.2d 1014.) Nor does the State argue that defendant’s T-shirt was a type of “drug paraphernalia” or distinctive marking indicative of drug use, admissible to show defendant’s knowledge with respect to the use of illicit substances. See, e.g., People v. Harris (1972), 52 Ill. 2d 558, 288 N.E.2d 385; People v. Johnson (1988), 174 Ill. App. 3d 726, 528 N.E.2d 1356.

The State argues on appeal that the photograph, and defendant’s request for its return, were admissible to prove defendant’s bad moral character. To support this argument, the State cites People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732. In Randle, the court determined that the trial court had erred in permitting the State to introduce evidence that a defense witness had prior misdemeanor convictions in order to show that witness’ propensity to violence. Randle is distinguishable and has no significant bearing on the issue in this appeal.

The State also relies upon People v. Allison (1983), 115 Ill. App. 3d 1038, 452 N.E.2d 148. In Allison, the defendant was charged with indecent liberties with a child. He testified on cross-examination that he had no child pornography at his residence. The State was permitted to introduce into evidence exhibits consisting of advertisements for child pornography that had been seized from defendant’s residence after his arrest. The court found that the trial court did not abuse its discretion in admitting these exhibits into evidence for the limited purpose of impeaching defendant’s trial testimony. The court noted that defendant’s trial testimony opened the door for impeachment and that the reception of collateral evidence was a matter within the trial court’s discretion. Allison is inapposite to the instant cause, since the photograph here was not admitted for the limited purpose of impeaching defendant’s trial testimony, but was admitted as substantive evidence of defendant’s guilt.

The cases of Randle and Allison do not support the State’s argument that the defendant’s photograph, or his request for its return, were admissible to prove defendant’s lack of moral character. The Illinois Supreme Court’s decision in People v. Hendricks (1990), 137 Ill. 2d 31, 560 N.E.2d 611, demonstrates that the challenged evidence was inadmissible for the purpose of proving defendant’s lack of moral character.

In Hendricks, the Illinois Supreme Court addressed the question of whether certain evidence regarding a defendant’s past encounters with female models during his business activities was properly admissible against the defendant in his trial for the murder of his wife and children. The supreme court stated that as a general rule, “a defendant’s prior misconduct is not admissible for the purpose of establishing his bad character or propensity to commit illegal or immoral acts, because the prejudicial impact of such evidence outstrips its negligible probative value. [Citation.]” (137 Ill. 2d at 52.) The court noted that such evidence “overpersuades” the jury against the defendant and “undermines the presumption of innocence. [Citation.]” (137 Ill. 2d at 52.) However, the court also noted that such evidence may be admissible to prove a defendant’s motive, intent, identity, or absence of mistake. 137 Ill. 2d at 53.

In this context, the Illinois Supreme Court in Hendricks rejected the State’s argument that the challenged evidence was properly admissible to prove defendant’s motive for the killing of his family. The court observed that the evidence “presents no more than a haphazard series of encounters” (137 Ill. 2d at 52), and that admission of the evidence would permit defendant to be convicted because of “the idiosyncrasies of his past life.” (137 Ill. 2d at 54.) The court also observed that the error of admitting this evidence was not harmless, as the evidence was used by the State to prove its case against defendant. 137 Ill. 2d at 55.

The Illinois Supreme Court’s analysis in Hendricks is applicable to the case at bar. In the instant cause, the State argues that defendant’s decision to be photographed in a T-shirt bearing the words “Enjoy Cocaine,” and his desire that the photograph be returned to him from police custody, tended to prove that the defendant is of low moral character. This evidence might have been properly admitted if it bore upon the defendant’s motive, intent, identity, or absence of mistake (Hendricks, 137 Ill. 2d at 53), but the State does not argue the applicability of any of these exceptions.

Assuming arguendo that the defendant’s photograph and request for its return are properly classified as tending to prove either defendant’s intent, motive, or absence of mistake, we nonetheless conclude that the prejudicial effect of the challenged evidence far outweighed whatever probative value, if any, that such evidence may have had on the question of defendant’s moral character. Consequently, we determine that it was error to admit into evidence, as substantive evidence of defendant’s guilt, both the photograph seized from defendant’s automobile after his arrest and the conversation between defendant and the police officer wherein defendant requested that the photograph be returned.

The State also claims that error in the admission of this evidence was harmless in light of the overwhelming evidence of the defendant’s guilt. We disagree. The record shows that the evidence presented by the State and defense was in sharp conflict. Although State witnesses testified to the defendant’s words and conduct during the drug transaction on May 4, 1987, and the aborted drug sale that occurred a few days earlier, defendant repudiated any knowledge of or participation in these incidents. Whether defendant had, in fact, made the incriminating statements attributed to him by witnesses for the State was pivotal to the prosecution’s case against defendant. As a result, the jury’s assessment of defendant’s credibility at trial was crucial to its resolution of defendant’s guilt.

In its closing argument, the State expressly directed the jury’s attention to the words appearing on the defendant’s T-shirt and explicitly advised the jury that the words “Enjoy Cocaine” were “circumstantial evidence that he’s a cocaine dealer, that he knows about dealing drugs and that that’s what he’s involved in.” By so doing, the State invited the jury to draw the conclusion that defendant was guilty of the charge of delivery of cocaine, because of defendant’s decision to be photographed in a T-shirt bearing the words “Enjoy Cocaine.” Under these circumstances, the decision cited by the State on appeal (People v. Jimerson (1989), 127 Ill. 2d 12, 42-43, 535 N.E.2d 889) is factually distinguishable, and we cannot say that the error was harmless. See Hendricks, 137 Ill. 2d at 55; People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.

In light of this disposition, we do not address the other arguments raised by defendant on appeal, as the matters are not likely to arise on remand.

For the reasons stated, the judgment of the circuit court of Cook County is reversed, and the cause remanded for a new trial.

Reversed and remanded.

JIGANTI and JOHNSON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARTHOLD ZWART, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—2652
    Opinion filed December 27, 1990.

      Theodore A. Gottfried, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and William P. Pistorius, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Barthold Zwart, was charged by information with four counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14.) After a bench trial, he was found guilty of two counts of aggravated criminal sexual assault and sentenced to two concurrent terms of seven years in the Illinois Department of Corrections.

On appeal, defendant contends that the trial court erroneously admitted hearsay testimony pursuant to the common law “spontaneous declaration” exception. Specifically, defendant objects to the admission of statements made by the victim to her mother, Maria, on July 1 and 14, 1988. Defendant also alleges that these admissions violated his' right to confront witnesses against him guaranteed by the sixth amendment to the United States Constitution and section 8 of the Illinois Constitution. We hold that the testimony was erroneously admitted pursuant to the “spontaneous utterance” exception. However, we do not reach the question of whether the trial court violated defendant’s constitutional right to confront the witness.

We reverse and remand.

Background

The pertinent facts are as follows.

Defendant is a 60-year-old man who resided in Chicago Heights, Illinois. Defendant met Maria in 1987. He testified that he and Maria first had sexual intercourse in the summer of 1987. Since that time, the couple has engaged in sexual intercourse on a regular basis. Maria is the mother of three children — two girls, ages 4 and 3, and a boy, age 10.

In March or April of 1988, defendant began “baby-sitting” for Maria’s children. Defendant baby-sat Maria’s children approximately eight times during the month of June 1988. On six of these occasions, defendant was alone with the two girls.

On the evening of June 24, 1988, defendant made sexual advances toward Maria. Subsequently, the couple argued and defendant left in an angry mood. After defendant left Maria’s home, her older daughter, while lying on the floor, opened her legs and asked Maria to kiss her genitals. Maria was surprised by her daughter’s behavior. The next morning, June 25, defendant returned to Maria’s house and baby-sat for the children. Maria testified that when she returned from work she noticed that her younger daughter was pulling at her diaper and complaining of pain. Maria took both of her daughters to Suburban Heights Medical Center to be examined. When Maria told defendant she was leaving to take her younger daughter to the hospital, defendant said, “Oh my gosh you don’t think I hurt her, do you?” After Maria returned home, defendant appeared pale and anxious. Defendant asked Maria what the doctor had said about her younger daughter. Maria told defendant that the physician “suspected child molestation.” Defendant then told Maria, “I would never hurt your kids.” On June 27, the police and an agent of the Department of Children and Family Services (DCFS) visited Maria’s home to investigate the report of alleged child abuse.

On June 28, 1988, Maria took both of her daughters to Mount Sinai Hospital. Maria stayed in the hospital with them for five days. On June 30, Dr. Marisa Aguila examined Maria’s older daughter. Dr. Aguila diagnosed the child with hymenal trauma. Dr. Aguila testified that her medical diagnosis was consistent with sexual abuse. However, during the examination, the child did not accuse anyone of having sexually abused her. In addition, during a subsequent child development interview, she denied that she had been physically or sexually abused.

Prior to the trial, the judge conducted a hearing pursuant to section 115 — 14 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14). The statute mandates that a witness be capable of expressing himself or herself in an understandable manner, or capable of understanding the duty of a witness to tell the truth. The judge found the complainant incompetent to testify.

At trial, the People were allowed to introduce the complainant’s statements into evidence through testimony by Maria. Four of the statements challenged by defendant were made by Maria’s older daughter on the evening of July 1, 1988, at 8 p.m.; at that time Maria was preparing her for bed. When Maria pulled her daughter’s underpants, the child said, “Don’t do that.” When Maria asked why, she answered, “Because Bart does that.” Maria then asked her daughter, “What else [does] Bart [do?]” The child replied, “He put his lollipop in my cola.” Maria explained to the court that “lollipop” and “cola” are Spanish colloquialisms for the terms penis and vagina, respectively. Another statement in issue was made approximately one hour later when Maria was told by her older daughter that “Bart” put his tongue in her privates and hurt her, and that Bart “put the lollipop in her mouth.”

In addition, defendant contends that several statements made on July 14, 1988, were erroneously admitted by the trial court. On that date, Maria took her older daughter to see Cheryl Wolf, a therapist. Prior to the visit with Ms. Wolf, Maria took her daughter to the bathroom. While in the bathroom, the child told her that Bart once “put her head in a toilet and flushed it.” The child also alleged that defendant told her not to tell her mother about the incident. She also informed Maria that when defendant put his lollipop in her cola, he said, “I’m coming, I’m coming.” Finally, she told her mother that defendant made her “all wet” and “go potty.”

Defendant admitted that he baby-sat for the two girls on June 25. However, he testified that both girls “were fine.” Defendant maintains that he never assaulted any of Maria’s children, and that he did not stick her older daughter’s head in a toilet bowl.

Opinion

The record shows that the trial court admitted the older child’s statements made on July 1, 1988, and her declarations made on July 14, 1988, referring to intercourse with defendant, pursuant to the “spontaneous utterance” exception. The trial judge stated that he “decided only to allow those statements which [he] believe[d] were spontaneous in nature” and “firmly rooted in the hearsay exception to the rule.” The People maintain that the statements were admissible pursuant to section 115 — 10 of the Code of Criminal Procedure (hereinafter the Code). (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.) Defendant contends that the child’s statements are inadmissible pursuant to the Code because she was not an “unavailable” witness within the meaning of the statute.

Section 115 — 10 provides as follows:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability, and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.

We find that complainant is an unavailable witness within the meaning of the statute. This court has already held that “the legislature’s intent was to include within the meaning of ‘unavailable’ witnesses those children who are unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence.” (Emphasis added.) (People v. Rocha (1989), 191 Ill. App. 3d 529, 539.) The witness in the case at bar was “unavailable” because she was adjudicated incompetent to testify.

However, we hold that the statements made by the child on July 1, 1988, and July 14, 1988, are inadmissible pursuant to section 115— 10 of the Code. We also find that the trial court erred when it admitted the child’s statement about defendant’s attempt to flush her head down the toilet bowl. The trial court admitted this testimony pursuant to section 115 — 10 of the Code.

We find that the statements are inadmissible because the facts in the case at bar indicate that there were insufficient safeguards of reliability with respect to the timing of the allegations and with respect to circumstances under which the allegations were made. There were insufficient safeguards of reliability with respect to the timing of the declarations because during the physical examination and the subsequent interview the victim failed to identify anyone as having sexually abused her. Furthermore, there was a time lapse between when the acts occurred and the first time that she allegedly told her mother of the acts. There were insufficient safeguards of reliability with respect to the circumstances surrounding the allegations because Maria had had a sexual relationship with defendant, and the allegations were made after the couple quarreled.

The trial judge conducted a hearing to determine the time, content, and circumstances of the statement pursuant to the Code. However, we find that the time and circumstances of the statement provide insufficient safeguards of reliability because of the time lapse between when the acts occurred and the first time the victim told her mother about the acts. The child failed to allege sexual abuse during the physical examination on June 30 or during the interview which followed. Therefore, the statements are inadmissible pursuant to section 115 — 10 of the Code.

Defendant next contends that the trial court violated his constitutional right to confront a witness against him at trial by admitting the child’s declarations. It is not necessary for us to address this issue as we have reversed defendant’s conviction on the aforementioned grounds.

For the foregoing reasons, we reverse defendant’s conviction and remand this cause for a new trial.

Reversed and remanded.

McMORROW, P.J., and JIGANTI, J., concur.


text:
    ALISA COURTNEY et al., Plaintiffs-Appellants, v. SEARLE PHARMACEUTICALS, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—2884
    Opinion filed December 27, 1990.

      Drumke & Patterson, Ltd., of Chicago (Ronald A. Drumke and Danielle M. Jaeschke, of counsel), for appellants.
    Sidley & Austin, of Chicago (Arlene C. Erlebacher and Barbara M. De-Coster, of counsel), for appellees.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Alisa Courtney (plaintiff) and her husband filed suit for injuries plaintiff allegedly sustained following her use of a copper intrauterine contraceptive device (hereinafter CU-7) manufactured and distributed by defendants. The trial court entered summary judgment in defendants’ favor on the ground that plaintiff’s suit was barred by the applicable two-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.) The record establishes as a matter of law that plaintiff knew or should have known, more than two years prior to the filing of her suit, that the injuries for which she seeks compensation were caused by defendants’ allegedly defective product. Accordingly, we affirm.

The record reveals the following pertinent facts. Plaintiff was fitted with a CU-7 in May 1977. She was not told or warned of any complications that could arise from the device. The following month, she began to bleed profusely, but was told that these symptoms were normal. About a year later, plaintiff developed cramping and discharge. She was advised that she had an infection and was given antibiotics.

In October 1978, plaintiff requested that the CU-7 be removed, because she had again developed cramping and was “convinced” that the CU-7 was the source of this problem. Plaintiff was advised by her physician that she had pelvic inflammatory disease (PID), and that this condition was caused by the CU-7. The device was removed as plaintiff requested. Plaintiff was not informed at this time that there was any correlation between her use of a CU-7, the development of PID, and the resulting possibility that she might suffer reduced fertility.

Approximately 3V2 years later, in March 1980, plaintiff advised her gynecologist, Dr. Harold Loeff, that she was experiencing lower abdominal pain during intercourse. In reviewing her medical history, Dr. Loeff noted that plaintiff had suffered PID and informed her that this had been caused by use of the CU-7. The physician also advised plaintiff that he would not have fitted plaintiff with any type of an intrauterine contraceptive device, since they can cause problems with “the reproductive organs.” However, Dr. Loeff did not specifically advise plaintiff that she might or would be rendered infertile because of the PID she had suffered from use of the CU-7.

Plaintiff was married in September 1981 and returned to Dr. Loeff in the winter of 1981 because she had been unable to conceive a child since the marriage. In the spring of 1982, Dr. Loeff performed fertility tests that indicated one of plaintiff’s fallopian tubes was clogged. At this time, he did not give plaintiff a specific reason for this condition. Thereafter, in the spring of 1983, Dr. Loeff performed a surgical procedure that determined plaintiff’s fallopian tubes were severely scarred. The physician repaired the scarring during the operation. After the surgery, Dr. Loeff told plaintiff that the scarring was “just terrible” and that she had only a 40% chance of conceiving a child. He informed plaintiff that the scarring was caused by the PID she had suffered resulting from use of the CU-7. Efforts with a fertility drug prescribed by Dr. Loeff during the summer of 1983 proved unsuccessful.

In August 1983, plaintiff sought the medical treatment and advice of a fertility expert, Dr. Rodney Hoxsey. During the initial consultation, Dr. Hoxsey advised plaintiff that her PID, which resulted from use of a CU-7, was probably causing her infertility problems. Dr. Hoxsey performed surgery in November 1983 that revealed additional scarring which reduced plaintiff’s likelihood of conception to 15%. He reported to plaintiff, after his subsequent surgical repair of the scarring in March 1984, that her chances of becoming pregnant were 50%. Dr. Hoxsey never informed plaintiff that her decreased fertility was caused by anything other than the PID she suffered from the CU-7.

Although plaintiff became pregnant in December 1984, she miscarried in January 1985. Subsequent efforts, including fertility medication and in vitro treatments between October 1986 and September 1987, have been unsuccessful.

In April 1986, plaintiff requested and received a written statement from Dr. Loeff that, in his opinion and to a reasonable degree of medical certainty, plaintiff’s reduced fertility was caused by the PID she suffered as a result of the CU-7. Plaintiff filed suit against defendants on May 13, 1986. Following briefing and argument, the trial court entered summary judgment in defendants’ favor, concluding that plaintiff’s suit was barred by the two-year statute of limitations. Plaintiff’s timely appeal followed.

Illinois law requires that plaintiff’s strict product liability claim against defendants be filed within two years after plaintiff “knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864; Ill. Rev. Stat. 1987, ch. 110, par. 13-202.) Although the discovery rule does not require that plaintiff know with certainty that she has suffered a legal injury, it does anticipate that plaintiff be possessed of sufficient information to cause her to inquire further in order to determine whether a legal wrong has been committed. (Nolan, 85 Ill. 2d at 171; see also Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976.) Summary judgment is appropriate when the record shows as a matter of law that plaintiff had notice more than two years prior to filing suit that her injury was caused by defendants’ wrongful act. Nolan, 85 Ill. 2d at 171-72.

Defendants contend that plaintiff knew or should have known, at least by November 1983 or March 1984 following the treatments plaintiff received from Dr. Hoxsey, that plaintiff’s fertility was substantially impaired because of the PID she suffered from the use of a CU-7. We agree.

The record in the case at bar demonstrates that plaintiff was first informed by Dr. Loeff in March 1980 that her earlier development of PID could cause problems with “the reproductive organs.” Approximately three years later, in 1983, Dr. Loeff confirmed to plaintiff that her fertility was significantly reduced because of the effects of PID, and advised plaintiff that the PID was caused by use of the CU-7. Dr. Loeff’s statements to plaintiff were repeated to plaintiff by Dr. Hoxsey later in 1983, when Dr. Hoxsey informed plaintiff that her fertility problems were probably caused by PID that resulted from use of the CU-7. Following the surgical repairs undertaken by Dr. Hoxsey in March 1984, plaintiff was advised that her likelihood of conception was 50%. Dr. Hoxsey never indicated that plaintiff’s reduced fertility was caused by anything other than the PID she suffered from defendants’ CU-7.

In view of these circumstances, we conclude that the record shows, as a matter of law, that plaintiff had sufficient information, by the time she was rendered treatment from Dr. Hoxsey between August 1983 and March 1984, to place her on inquiry that she had a cause of action against defendants because of her reduced fertility from defendants’ CU-7. Dr. Loeff’s letter to plaintiff, in April 1986, provided written confirmation of the advice he had given plaintiff over 21k years earlier and does not serve to extend the applicable time period for the filing of plaintiff’s complaint against defendants. See Kruk v. Birk (1988), 168 Ill. App. 3d 949, 958, 523 N.E.2d 93; Beasley v. Abusief (1986), 146 Ill. App. 3d 54, 60, 496 N.E.2d 263.

In addition, we are unable to say that plaintiff’s pregnancy in December 1984 compels a different conclusion in the instant cause. This event was possible because of the efforts of plaintiff’s two physicians, both of whom had advised plaintiff of her reduced fertility from use of the CU-7. We do not believe that the medical treatments rendered by these doctors, which were intended to overcome the complications caused by defendants’ CU-7, should serve to nullify the advice given by the physicians that plaintiff’s fertility was substantially impaired because of the use of a CU-7.

The cases cited by plaintiff are factually distinguishable from the instant cause. In LaManna v. G.D. Searle & Co. (1990), 204 Ill. App. 3d 211, and Ravin v. A.H. Robins Co. (1989), 182 Ill. App. 3d 46, 538 N.E.2d 164, the plaintiffs were not clearly informed by their physicians, until less than two years before suit was filed, that the plaintiffs’ reduced fertility was associated with the defendants’ intrauterine contraceptive device. As a result, the appellate court in La-Manna and Ravin determined that there was a genuine issue of material fact with respect to when the plaintiffs knew or should have known that their reduced fertility was caused by defendants’ allegedly defective product. (See also Martinez v. Rosenzweig (1979), 70 Ill. App. 3d 155, 387 N.E.2d 1263.) In the case at bar, plaintiff was repeatedly advised that her fertility was significantly reduced because of the PID she developed from use of the defendants’ CU-7. These specific admonitions were given to plaintiff by two physicians on separate occasions during the course of medical treatment that culminated in Dr. Hoxsey’s second surgical treatment, in March 1984, when plaintiff was told that her likelihood of conception was 50%. Neither of plaintiff’s physicians ever informed plaintiff that her reduced fertility was caused by any factor other than the PID she had suffered from defendants’ CU-7. Under these circumstances, we can find no error in the trial court’s ruling that plaintiff’s suit against defendants, filed in May 1986, was barred by the two-year statute of limitations.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI and JOHNSON, JJ., concur.