Thursday, January 24, 2013

Fennell Followup

Earlier this month we featured a guest post on a potentially game-changing forum non conviens decision by the Illinois Supreme Court, Fennell v. Illinois Central Railroad, ___ N.E.2d ___, 2012 WL 6725822 (Ill. Dec. 28, 2012).  While Fennell was an asbestos case, our reading of the case suggested that it would be equally applicable to out-of-state plaintiffs in drug/device cases - meaning that they would be out of court (at least in Illinois).

Things seems to be playing out that way.  In the wake of Fennell, non-Illinois plaintiffs in two pharma-related forum non appeals pending in Illinois' Fifth Appellate District (which includes Madison/St. Clair) have outright given up and agreed to dismiss their cases - even though they won in St. Clair, and the defendants were the appellants.  That's really rare.  Here are copies of the relevant orders (which, of course, are non-precedential because of the plaintiffs' surrender):

Baker v. Johnson & Johnson, No. 5-12-0019, slip op. (Ill. App. Jan. 14, 2013) (involving Levaquin); Wilson v. McNeil-PPC, No. 5-12-0316, slip op. (Ill. App. Jan. 14, 2013) (involving Tylenol).

Obviously, pharmaceutical litigation tourists in Illinois see Fennell's handwriting on the wall.  We should, too.

Thanks to Brendan Kenny from Blackwell Burke (who wrote the original Fennell post) and Stephen Strauss at Bryan Cave - both of whom sent these orders our way.

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