and the doctor used an injector that was given to him by johnson and johnson's representative representative told dr tilden it was a good injector f d a approved it was not and of course when it was  because dr tilton reasonably relied upon the sales representative in using this experimental device to tilt and proceeded to use that device rather than a safe device an intruder the nd charge was under section three approved and he of course gave substantial assistance or encouragement actually both to dr tilton it because he told them it would work and it turns been to use it and in fact loaded the device the injector doctor prescribing either a medication or using a medical device and kirk held that it's up to the doctor to explain the shortcomings or the problems with the device or the medication to the patient in this case we don't have a medical product this was an experimental device that was not to be used it was not a question of of doctor patient discussion or relationship it was a question of whether mr r c aero affirmatively actively interfered with the patient doctor relationship between dr token and his patient nancy plaques and that's what he did when he gave them a device that wouldn't in that case rather this case brings us more under happel the case where the wall street or wal mart druggist described a medication when he knew that the patient should not have the medication because of allergies and the courts said in that situation just like in this case the person with the most knowledge about the problem was the druggist and you're the person with the most knowledge was he is the only one in under all three of those serious the plan to start the facts up in her complaint that to allow her to recover going really at this point open to questions from the court that's the summary of our argument my concern with with your theory is that the sales rep from johnson and johnson not represent yourself or manufacture the injector they manufacture the lenses how do we build a bridge from a different manufacturer to this sales representative  it's not something that somebody was selling and that's the key here i believe it the man did i was going to say the manufacturer of this product but it's not a product that never got to that stage this is this is the same as if i stepped out into my backyard and i gave my neighbor a ladder that i that i purchased someplace and i told that the individual that i've used this ladder is fine and that and my  gives it to his son the sons and sons injured i'm going to be responsible for making that representation to that neighbor for the injury to his son regardless of who manufactured it that the the the bridge between the man using the word manufactured not manufactured in this case the bridge between the entity that was creating the product is a separate bridge that's a separate case and i'm not sure i've answered your question but that i think that's the distinction here all right so here the real question is did our c r i misrepresent something the product that he misrepresent that is irrelevant to the fact that he made that misrepresentation those are two separate sets of conduct  even if the even if the product was a product that had been marketed nonetheless it still falls back on somebody who made a misrepresent to the doctor committed misrepresents misrepresentation to the doctor the learned intermediary doct and that's the difference he took affirmative conduct by making this representation and by giving him a device mean it was being at that i think the same it's actually redundant from it being used to represent that to doctor told them that this was a device that was commercially available when that was not the case that other physicians were actually using it but that's that's what that that's what was intended i think that's what most people would draw from the complaint and the reason he did that was quite as told to rely upon if he had told dr tilton here's an experimental device he knew tilton would not use it by saying everybody is using it tilt and would rely upon it because we alleged in the complaint that doctors frequently will rely upon manufacturers representatives for information about the rices and alleged in its answer a silent bystander he was affirmatively involved at every step of the way i don't know that that's critical as soon as he makes the misrepresentation he has crossed the bridge and done something improper here he just continued to at the trial judge just basically said that was the dismissal was on the basis of learned intermediary correct correct the trial judge my understanding his statement he accepted almost i but doesn't the law intended the didn't the doctor have what might be considered adequate correct information and a person who manufactured representative was present during the surgery and the role of the manufacturer's representative was once the surgeon had inserted the leads then the representative with the see if it worked but the represent as the appellate court there said the representative was not involved in inserting the leads did not tell the doctor how to insert the leads and had no way of knowing whether he had done it correctly or not and therefore  not involved the other thing is that the issue in the kennedy case was where the venue was the the facts in that case not not the allegations of the complaint which is what the johnson and johnson said to the trial court judge incorrectly it was there on summary judg and the facts in the complaint were that the problem was that when a problem resulted they weren't in the venue where they could assist the pain of the place the patient and the manufacturer's representative even though she was in the room and had nothing to do with the  say in in the venue so there was no connection at all but completely separate from our c e o s affirmative conduct here but in part in our case now you've already indicated that in learned intermediary doctrine cannot apply here that the person in the room with the correct information was our c e o and he had a duty under apple to tell somebody that information it or it would kill them or the point that they could tell the plaintiff because he wrong and he injured the patient ok i don't have any other questions at this time thank you counsel thank you i don't have any questions  please the court the theories of liability that plaintiff is pressing in this case are unprecedented in their own precedent and for even a holding in plaintiff favor of this case would radically expand liability in illinois and do so in conflict with existin case law this court should expand illinois law in the manner plaintiff requests before we begin i think it's helpful to provide some context to what's actually at issue here by plaintiff's own admission she does not bring a failure to one claim or a strict liability claim against the j j f a vi defendants both of those avenues of relief are available with respect to a sequel the manufacture of the device that's alleged to have injured plaintiff and in fact the complaints at issue in the case alleged those counts against the fico and plaintiff is now settled them she also continues to pursue her claim against dr tilton and his employer she is decidedly not without recourse here but i'd like to discuss each of the three claims she brings against a g j f e i defendant or the rd group a defendant she seeks to hold viable here i'd like to start with the negligence claim count three of the th amended complaint because i think it's useful to frame the issues before today i understood plaintiff to be arguing that j j sci violated some general duty of care through a misstatements to fill our c e o and that this was not a negligent misrepresentation claim council in opening characterize this is negligent misrepresentation claims i think we're now in agreement this is a negligent misrepresentation claim regardless of what label is put on it  element of negligent misrepresentation under illinois law is plaintiff's own justifiable reliance plaintiff counsel has previously conceded that if you look in the record at c two thousand two hundred and thirty nine and her complaint establishes that she can't meet that element here because there was no discussion between herself and dr tilton between the meeting with mr serio and surgery there's no way and alleging misrepresentation could have reached her plaintiff argues that she can avoid personal reliance and rely on dr was reliance of the plaintiff it states that when it generically states the elements of negligent misrepresentation on page four hundred and fifty two dollars and it also reemphasize is that later when it discusses the quote significant hurdles and quote that it believes the school will case in which negligent misrepresentation with also allowed to proceed based on rd person reliance and there's a good reason not to do that court studiously avoid creating liabilities to the world from a misstatement that would create nearly boundless liability for many run of the mill every day statements chill speech burn the court system with difficult to defend claims about statements purportedly made to others at some time in the past in fact justifiable reliance has been called the thing qua non of a negligent misrepresentation claim and the doe versus dylan case cited in our brief and that he's explained that the reason for that is otherwise purdy's could risk shift based on misrepresentations when they actually have it within their or ability to determine whether a particular statement is true or false so it has to be a plea just reliance and it has to be justifiable that elements set forth in the comic an ac and asked case from the supreme court and appellate court cases like prime leasing and simmons all of which are cited in our br so that takes us to the voluntary undertaking case and to me this is best resolved by asking oneself what exactly is the undertaking here the thing necessary for the protection of plaintiff seems plaintiffs are arguing that it's either bringing the device to the doctor serving as a sales representative or making statements regarding the device but none of those things are actually required necessary to protect a patient which is what voluntary undertaking and tails and  event if any of those were enough to create an undertaking sufficient to give rise to a duty running directly to plaintiff then the learned intermediary doctrine is effectively dead in illinois many pharmaceutical or device representative bring products to physicians they bring samples they bring special order devices in fact and kennedy part of the claim was that the the representative shouldn't have brought the device to the doctor and all service sales representatives and make represent representations to physicians are guarding their company's product but learned intermediary was designed to protect the doctor patient relationship and is critical for that purpose in illinois the law doesn't want to encourage let alone require to prevent liability sales representatives to intervene and the physicians treatment of his or her patient or worse refuse to provide products that doctors deem necessary for their patients for fear that their companies might later be held liable if the doctors judgement is incorrect this logic is set forth in kennedy quite well it's also in kirk and other cases so including misrepresentation as an undertaking also has the added problem of bringing forth all the problems associated with generalized misrepresentation not requiring plaintiff to on reliance and justifiable reliance that we just discussed with respect to the last count and as for being present in surgery your honor was correct that it actually alleges he supervised the loading of the injector that's count three paragraph forty two if you want to take a look at it and it also alleges that he was present in the operating room as he had been on prior occasions for the purpose of assisting the charge nurse i just want to make clear no where is it alleged that he actually assisted in anyone other than supervising the loading of the cartridge and that is supervising with respect to the l imposing no duty to interfere with treatment understandably because you don't want to incentivize interfering with surgery as it's ongoing so that brings us to in concert liability which without an underlying tort you know is  a tough row to hoe that leaves that eliminates a and c subsections all on its own but should the court choose to evaluate further it's it's worth pointing out that the complaint does not allege anywhere that using the device on a patient on mrs plas in general in a surgery was are serious idea that our theory actually stated that that should happen that is not alleged and it you know it never says said let's go do this you can look through the allegations it's not there subsection a with that background fails because that's what the complaint alleges is that our hero made some statements plaintiff alleges those statements source of liability because the action has to be in concert and of common design to satisfy a it doesn't satisfy be either substantial assistance and encouragement as the norman case makes clear require an active role in the tort merely providing the tools to commit the tort is not enough and the case really here rests on the assumption that because our theo was present at surgery he substantially assisted in the surgery but kennedy in kennedy the representative had a much greater role in surgery in the court found no duty arising from matt and again that's not the sort of active role invasion by the norman court so that leaves us with the mist a legend the statements themselves and whether that can constitute encouragement again there's no allegation that our c e o actually said out loud we should use this on a patient or we should use this on mrs plath but even if he had even if that were alleged plaintiff cannot cite a single case where someone's mere words were sufficient to constitute encouragement to support liability as in concert liability indeed and norman there was no dispute for the idea that the car trip issue in the case was defendant's idea yet the court found no in concert liability and subsection c fails again because there was no substantial assistance and no separate tortious conduct and i'd just like to close briefly on this by saying that under plaintiff's own theory of the case this is extremely in concert liability indeed because under plaintiff theory of the case dr tiller's actions were only taken because he was deceived into it i don't know of a single you know conspiracy like plan where one party had to be deceived into participating by the other so their own allegations undermined the theory so for all of these reasons the j j sci defendant defendants ask the court to affirm the judgments below thank you just organs and you have any questions i  undertakings are things that device sales representative and drug sales representative do every day bring a device to an office discuss said device the whole purpose the fact that what was said was allegedly false is no different from every single failure to warn claim in the world your honor so the very logic of the learned intermediary doctrine which is you can't have people concerned about liability when they're set to the patient directly when they're speaking to the doctor the doctor needs to be the one that that is relaying the information and we don't want representatives running in and actively interfering with patient doctor treatment applies here but moreover none of the things that i just described are necessary to protect a patient which is what the standard actually requires new devices new medication etc i think so and that's because and that's why the courts have been so careful with a learned intermediary doctrine because they don't want to create a situation where sales representatives are encouraged by the law to go in and nd guess doctor treatment decisions and and interfere affirmatively with doctor treatment or doctor you know discussions with patients in order to avoid their own liability because that creates real problems both for those who are selling you know the medically necessary products that we all use and for physicians and for patients is just something that we don't want introduced to the system and that's sort of a necessary consequence of the holding that plaintiff seeks here because essentially what the court would would have to say is that if you give incorrect information to a doctor about your product you have a duty running straight to the if i do think the learned intermediary doctrine sort of developed in the context of failure to warn claims i think the same logic of what the very same reasons why it has been used in the failure to warn claim is applicable here so the answer is yes it is a different claim but the reasons and the logic and the consequences point in the exact same direction and that's my question thank you thank you  and i would say you're doing a good job but there is a injured party here who doesn't seem to play into this into your idea of this case at all what do  know how do we provide for this injured party as i noted in the outset of the argument your honor she is not a party without recourse she has at least two other groups of defendants and in fact has settled with one group a defendant and so you're correct that my argument doesn't tend on the fact of whether or not plaintiff was injured but honestly your honor my argument in my mind i'm thinking about a lot of other people who aren't plaintiffs who could be injured by the wrong holding in this case and b requiring drug representative and device representatives to affirmatively interfere with plaintiff's treatment not only that the unbounded liability that could result if you say that with no personal reliance let alone justifiable reliance that that one can be held liable for a statement made to a rd party that would injure a lot of people in a variety of ways that i mentioned during my argument including but a learned intermediary decision and i'm dismissing it on this basis it didn't talk about some of the other issues that have been raised here today the learned intermediary is not learn because he or she is a doctor it's because he or she relied upon reliable accurate information what was reliable or accurate about anything that w well your honor based on the act on the allegations of the complaint which i have to accept for purposes of this argument the statements were were false but again that is true of every single case based on a sales representative statements i will add that you know in a device it's extremely easy to verify reliable information because you go to the f d a website you see whether it's approved you see the label these things are all very publicly available and doctors know where to find them so it's not as if doctors are babes in the woods and have to blindly trust whatever they're told and honestly i think that's a justifiable reliance problem for plaintiffs as well even if there is some kind of rd party alliance which again don't think there should be  so i guess i would say for the purposes of this case i agree with you that we have to accept that what mr sierra said was not true but i disagree with the premise that you know doctors don't have a method of learning accurate information absolutely do so are you saying that in this case are cyril's representations had nothing to do with dr jill using the divide that is certainly i guess i wouldn't say nothing to do because that's not allege one way or the other but what it says is our cyril made certain representations and then dr tilden use the device it doesn't say r c arrow you know after or or noted that this device you know should be used on this plass that's not an allegation in the complaint certainly not at this you know in the immediate future and so whether it had absolutely nothing to do with it you know i guess based on the allegations of the complaint you can't necessarily say that but what i will say is that it doesn't allege that this was some kind of common scheme on the part of our dr tilt but our cyril is in being in the operating theatre with this with the doctor and he's supervising the loading of the devise what does the doctor do at this point i'm not sure i completely understand your question your honor but what i think i understand you to say is is sort of bringing me to my own point which is necessarily what plaintiff is saying should have happened here is that when mr  was in the operating room having not doing anything with respect to the injector just supervising not loading itself supervising the loading of his own lens he should of woken plaintiff up and said hey i got something to tell y or he should have said you know what i'm taking this device away from you i'm taking this treatment option away i don't want you to have it and those things if that's the court's holding are going to have very bad consequences for patients in illinois it's going to encourage device if we decide in your favor here on this learned intermediary doctrine and have facts that are truly misrepresented we are now encouraging manufacturers reps or others to continue to do damage to people by misrepresenting the safety or status devices medications or whatever they're itching i disagree with that your honor and here's why because manufacturers are still liable for strict liability they're still liable for failure to warn they still have f d a consequences to deal with and they have all kinds of mechanisms built into the system already to discourage them from making false representation about their own products the question is in this non manufacturer situation is there a claim where there is no personal reliance by the plaintiff and the answer is no how right short of waking the plaintiff up which would be after knee surgery eight weeks ago if somebody work me up excuse me we're going to go check on something or i've suggested and i don't know that face what exactly am i supposed to do you know what how can i let him mis represent these facts and cause this injury well your honor you would have recourse against the manufacturer and the doctor well who is the manufacturer here in this case is the co who was who is related to whom or what irma de la who is also there and also made the same allegedly misrepresentation then who there has been a settlement with that company ok so johnson and johnson is only there are your j j and i can't get all of the letters apologize is only there on the part of the i correct in believing that he learned intermediary doctrine is a concept that relates to granting immunity to  manufacturers because of the placement of a learned intermediary between the final consumer and the manufacturer i wouldn't say grants immunity i would say it it makes the duty to disclose what been a failure to warn case to the doctor so if it's discussed in terms of duty not  immunity but i would say that it's a doctor and about the duty that as a device manufacturer of those that's designed in part to protect the patient client relationship so you're saying that doctor relationship i'm sorry you're saying if there's an intermediary intermediary then it doesn't make any difference what the manufacturer says the positioning of a an expert precludes the necessity for a manufacturer to warn the the consumer that they are going to be operated or treated with a time bomb so it concerns the level of education of the intermediary and it requires it basically says we want the judgment of the doctor to govern it does that answer your question i'm sorry i'm not sure i fully understand your question it seems to me what you have been saying during this oral argument is that the fact that there is a intermediary who may be learned but isn't learned about this particular widget that your client has manufactured acts as a disconnect between any duty that your client has to warn the consumer that there is something wrong with your widget ok so i think that you're getting a little bit confused st of all my client was not the manufacturer of the product nd of all this is not a failure to warn quints i want to be clear the manufacturer who is a sikh zero does in fact have a duty to warn the doctor and if that warning is incomplete and the doctor relies on incomplete warning the patient has a cause of action against the manufacturer however the law is very clear that that duty rest with the manufacturer only for any variety of reasons that's not johnson and johnson here what is here a rd party who was whose lenses work in conjunction with so it's a manufacturer of a different product that's related to the product that allegedly malfunctioned  then what was the information that was given to the doctor regarding what was f d a approved was he was your agent giving  i have no further questions and the other question by the panel yes i have one please counsel this device however made  injector correct and they could be used with one hand so the doctor had the other hand free to position the lens where he or she wanted correct that is the allegation in the complaint about the injector yes and finally there is some relationship between your client in johnson and johnson correct are they specific only to the device at issue here that was manufactured by the other company no your honor ok thank you i have no further questions thank you miss an jacket was because it's alleged in the complaint other companies injectors could not work with johnson and johnson lenses so johnson and johnson was losing sales so the answer yes the lens that was in that room could only be inserted  with this kind of what this kind of an injector going back they claim was that a sequel had a duty to warn dr tilton or the patient rather than  johnson the problem with that is a sequel didn't have any duty to warn anybody because it didn't have a product a sequel had no intention of having this device of their being used so why would a sequel ever want to protect anybody to warn anybody the only person that knew all of the ingredients for this pending disaster was our c e o and i'm sorry one of your honor said the intermediary can do can't do no better then what is given to them and in this case the learned intermediary dr tilton could only work with the information that our c e o had just given him and moving slighted by the way our c e o supervise he did not actually i'm so i got confused with what i read in the depositions with what's alleged that the complaint the bottom line here is that the argument is that the learned to mirror learned into media doctrine and policy is to not set up a situation where manufacturers representatives interfere with medical care johnson's problem here and the problem they're going to have before the jury is that they did interfere actively and that nancy plas had to personally rely upon it was rejected by this district in the village a pencil case which is a page nine i replied we've very specifically rejected the idea that the person who is injured has to be the one who actually relied less the court particular but yes the judge i have to add that's why i was trying to modify or change my structure my answer to the problem was that johnson and johnson lenses can be used with other devices but the other devices are such that the doctor has to use both hands on the device and the problem was that the doctors did not want to use those devices they wanted to use this kind of a device which led left one hand free so th johnson and johnson lenses could not be inserted with the other devices they could only be if it was going to be used with an injector that could be used with one hand it had to be this injector all right and he did  step in the direction it never should have been given to anybody it wasn't supposed to be used on a patient a sequel we did sue a sequel we stood a number of people said that that's not relevant to what johnson and johnson had a duty to do here would despite the suggestion to the catch to it the bottom line is a sequel did not want this to be used with anybody they weren't going to warn anybody because why would i give a warning to somebody not to use something when i never wanted them to use it in the st place and i had no idea that they actually had it if somebody takes my product and gives it to somebody else there's no ability for me to warn somebody it's not something that the human in my universe of possibilities the only person that knew what was going on here was johnson's represent recall some representation by mr cyril that this device had been successfully used by others is there any evidence in the record that it had been used by any  the complaint that if this device it actually gone through the testing and then f d a true it might have been marketed by johnson or is that something you found out subsequently i believe that's in one of the the complaint that it would have eventually been marketed either by johnson or by johnson or with or with johnson's name on it that some fashion so it was a so associated with johnson ok i don't know that i frankly i don't know that what could happen with a down the road if this if this experimental device actually proceeded to manufacture should not i believe affect the duty that johnson had not to make it misrepresentation not to actively understanding of the learned intermediate intermediary doctor and in so far as whether or not it creates liability immunizes from liability what exactly is the public policy that is supposed to be reinforced or supported by this doctrine move of the supreme court and kirk you did it as i think a policy decision on the grounds that the person with the most knowledge of the product or the drug is the one that we're going to put the duty on to talk to the patient and kirk that was the doctor but the supreme court they said in that case the doctor prescribed the prescription and the wal mart druggist or walgreens whichever drugs filled that they still put the duty in that case on the  that's the equivalent of the manufacturer the person giving the drug not the doctor to correct the situation because in that case wal mart and its druggist had the most knowledge about the problem and that same policy argument is present when we're talking about a sales rep using a demonstrative prototype and making representations only that only the rep knows that it's wrong a sequel didn't all that was even then used would it be safe to say that you disagree with ms henning's interpretation of the doctor and in so far as you disagree with the concept that this doctrine applies even when the information that is given is either incorrect or an actual misrepresentation absolutely that i hope i hope again through that is our whole point once you actively insert yourself into the relationship by basically lying to the doctor because that's what occurred here but the whole policy underlying the learned in a media intermediary doctrine disappears that's why we have went to a voluntary undertaking and that's why we have negligent misrepresentation th there's no exception in section three hundred and eleven for cases that somehow involve medical care nor does there need to be i have no further questions to the panel have any other questions no thank you connection thank you