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Angie Muhammad had been receiving treatment at Northwestern Memorial Hospital since December 2003. She was hospitalized four times between January and May 2005 with psychotic symptoms.
In May 2005, she was prescribed Depakote as a mood stabilizer.
She became pregnant. After being advised by her physician, she discontinued using Depakote in October 2005. However, between May and October 2005 she received increasingly large doses of Depakote. Her child, C.M., was born with severe spina bifida, a known potential side effect from exposure to Depakote in utero.
The Muhammad family filed a lawsuit against Northwestern Memorial Hospital and received an $18.5 million jury verdict, arguing that the physicians chose not to properly supervise or treat Muhammad. They also filed a lawsuit against Abbott Laboratories Inc. and AbbVie Inc., the companies that manufactured and sold Depakote.
The Muhammads alleged that Abbott failed to adequately warn about Depakote’s risk of birth defects, noting the warning against spina bifida showed a 1-2% risk. However, recent studies, of which Abbott was aware, put the risk of birth defects generally at 10-17%, which was never mentioned.
Abbott moved for summary judgment, arguing that the Muhammads’ current claims were inconsistent with their position in the case against Northwestern, where they maintained improper monitoring and treatment were the issue. Abbott also stated that the Muhammads could not prove that Abbott’s failure to warn was a proximate cause of the injury, citing testimony from the doctors that they already did not prescribe Depakote to women not on reliable birth control because of the risk of spina bifida.
The trial judge granted summary judgment to Abbott. The Muhammads appealed.
On appeal, Abbott argued the Muhammads were taking a position inconsistent that they took in winning their case against Northwestern. Abbott argued that the doctors already had sufficient information to know that Muhammad should not be prescribed Depakote and were negligent in prescribing it.
The Muhammads claimed this was not inconsistent as there may be more than one proximate cause of the injury. They claimed that Northwestern’s substandard care may have been a proximate cause of the injury with Abbott’s failure to warn being another.
The appellate court agreed, citing precedent that physician malpractice does not automatically relieve a drug manufacturer of liability for failure to warn.
Abbott asserted that the Muhammads, in a motion in limine in the prior case, indicated that the physicians would have made the same judgment if more adequately warned. Abbott further asserted, regarding this suit against the company, if “we win this [Northwestern] trial, there will be no need to take further action.”
The appellate court rejected this argument, emphasizing that judicial estoppel is aimed at claims of fact directed at the jury. The statements Abbott cited are summaries of physician testimony and a claim about future plans for a separate lawsuit, none are statements of fact, and all were made before the judge out of the presence of the jury. Accordingly, the appellate court found that judicial estoppel did not apply.
The appellate court reversed the decision of the trial judge and remanded the case back to the trial court for further proceedings against Abbott.
Charles and Angie Muhammad v. Abbott Laboratories, Inc. and AbbVie, Inc., 2022 IL App (1st) 210478 (June 23, 2022).
Kreisman Law Offices has been handling hospital negligence lawsuits, failure to warn in prescription drug lawsuits, wrongful death cases, and birth injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Aurora, St. Charles, Carol Stream, Clarendon Hills, Naperville, Alsip, Elk Grove Village, Arlington Heights, Calumet City, Tinley Park, Chicago (Hyde Park, South Shore, Chinatown, South Austin, Little Village, Humboldt Park, Logan Square, Goose Island, Park West), Oak Park, Northlake and Maywood, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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