## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hernandez v. Schering C orp. , 2011 IL App (1st) 093306

Appellate Court Caption GI L BERTO HERNANDE Z and RUTH EL I Z ON DO, PlaintiffsAppellants, v. SCHERI

NG CORPOR AT I ON, SCHERI NG-PL OUGH CORPOR ATI ON and V I CTORI A McGI L L , Def endants-A

ppellees.

District & N o. First District, F irst Division Docke t No. 1-09-3306

Filed September 30, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action for the injuries plaintiffs suffe re d fr o m the use of PEGI ntron, a drug manufa cture d by defe ndants, the g rant of summary judgme nt for defe ndants on the counts alleg ing strict liability
, p roduct liability neg lige nce and neg lige n c e in p e r f orming a voluntary undertaking

was a ffirme d, since the le arne d intermediar y doctrine did not apply , the lear ned intermediar

y doctrine wou ld be violated by a holding that defe ndants voluntarily undertook t o wa rn of the drug’s side eff ects, the absenc e of a

ny direc t-to-consumer

adver tising in the case prec luded the imposit ion of an exception to the doctrine based on t h e m anufacture r becoming the prim ary provider of information about the drug
, and plaintiffs failed to pr ovide compete nt expert testimony on the ade quacy of the wa rningto support their products liability claim.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No.04-L -9028; the Hon. Marc ia Mara s, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Eric J ones and Peter D. Tarp ey , both of Paul B. Episcope L L C, of Chicag o, for a

ppellants.

Maja C. Eaton, Prentice H. Marsha ll, J r., Gar y Fe inerman, and Eliz abeth M. Chiarello, all of Sidley Austin L L P, of Chicag o, for a ppellees.

L eslie J. R osen, of L eslie J. R osen, of Chica g o, for amicus curiae

.

Panel J USTI CE HAL Ldelivere d the judg ment of the c ourt, with opinion. Presiding J ustice Ho ff

m an and J ustice Kar

nezis concur

red in the judgme nt and opinion.

OP INION

¶ 1 The plaintiffs, Gilberto Her nandez and his wife, Ruth Eliz ondo, filed a complaint ag ainst the defe ndants, Schering Corporation, Schering -Plough Corporation (collec tively Schering ) and Victoria McGill, R.N., (her einaf ter, Nurse McGill) seeking damag es for bodily injuries 1 stemming from Mr. Her

nandez’ s u s e of PEG-Intron, a drug manufa cture d and sold by Schering

. The circ uit court g rante d the defe ndants’ motion for summary judgme nt as to six of the counts of the complaint but denied summary judgme nt on the rema ining counts. The 2 circ uit c ourt g rante d the plaintiffs’ motion for a finding pursuant to I llinois Supreme Court Rule 304(a) (ef

f. J an. 1, 2006), and the plaintiffs filed a timely notice of appea l. Subsequently
, this court g rante d the motion of the I llinois Trial L awy ers Association (I TL A) to file an amicus curiae brief in support of the plaintiffs. ¶ 2 On ap p ea l
, t h e p l ai n t iffs contend that the circ uit court err ed in g rantingsummary judgme nt to the defe ndants on the strict liability
, product liability neg lige nce and neg lige nce in perf orming a voluntary undertaking counts. They maintain that g enuine issues of materia l fac t prec luded t h e s u m m ary resolution of t hese counts of t heir fourth amende d complaint.

¶ 3 BA CKGROUND ¶ 4 Counts I throug h I V of the plaintiffs’ fourth amende d complaint alleg ed cause s of ac tion in strict liability and product liability neg lige nce and loss of consortiu m claims ag ainst

”Def end ant s” wil l r ef

erto Sch er ing and Nur se Mc Gil l. 1

Count V I I al le ging comm on la w fr aud and cou nt V I I I al le ging st at uto ry fr aud ar e not 2 invol ved in thi s a ppe al

.
-2-Schering

. Counts V and VI alleg ed neg lige nce in perf orming a voluntary undertaking and a loss of consortium claim ag ainst Schering and Nurse McGill. The following pertinent fac ts

are taken from the materia ls submitt ed by the parties in connec tion wi t h t h e summary judgme nt proce eding s, as well as othe r re levant evide nce in the r ecor d. ¶ 5 I n Dec ember 2001, Mr. Her nandez tested positive for hepatitis C (HCV ), as we l l as
exposure to hepatitis A and hepatitis B. Mr. Her nandez was ref

err ed to Dr. Suleiman Hindi, a phy sician spec ializi ng in diseases of the liver and dig estive trac t. ¶ 6 I n his deposition, Dr. Hindi testified as follows. After further tests, the doctor diag nosed 3 Mr. Her nandez with HCV. The trea tment for HCV with the best results was a drug

c o mbination, PEG-Intron/Rebetol, consisting of an interfe ron call e d Pe g y la te d a n d Reb e tr o n , an oral medication. W hile there was another int erf eron on the m ar k et , Dr

. Hindi specifie d PEG-Intron/Rebetol, manufa cture d by Schering
, for his patients beca use it ha d been on the marke t longe r and pr escr ibed more f reque ntly

. ¶ 7 Dr. Hindi was responsible for order ing the medication for Mr. Her nandez. As part of the medication reg ime, Dr. Hindi also expected his pat i ents to attend an educational class sponsored by Schering

. The class was an additional way to instruc t patients how to use the medication and about any possible side eff ects. Dr. Hindi’s nurse would ar ra n ge fo r the classes w hen ther e we re e noug h patients for a class to be he ld. ¶ 8 Dr. Hindi acknow ledg ed that, as a phy sician presc ribing medication, the standard of car e require d him to inform patients as to the potential side eff ects of the medication. He did not b elieve that Schering ’s class relieve d him of hi s duty to provide information as t o the s ide eff ects of the medication. He did advise his patients that the majority of individuals taking the PEG-Intron medication suffe red some side eff ects. Thoug h Dr. Hindi had attended seminars and educa

tional prog rams, he did not rec all lear ning that there wer e vision-relate d side eff ects to PEG-Intron. Since he was unaware of t hem, he would not have warne d Mr. Her nandez of the vision-relate d side eff ects of PEG-Intron. Had he been awa re that there was

a risk the medication could result in bl i n d n es s , h e would have mentioned that fac t to the patient. ¶ 9 Acc ording to their deposition testimonies, on April 10, 2002, the plaintiffs attended the class taug ht by Nurse McGill on behalf of Schering

. The class took about an hour to an hour and a half. Nurse McGill distributed a d o cu ment to the class attendee s entitled “Unde rstanding the Side Effe cts of I nt er fe ron Thera py ” and informed the class that she would discuss all of the side eff ects of PEG-Intron. This document did not list blindness as

a side eff ect, and Nurse McGill did not mention any vision-relate d side eff ects. I n deciding whether to g o on the PEG-Intron medication, Mr. Her nandez relied on the information in that document and what Nurse McGill stated in the class about side eff ects. Had he been awa

re that the side eff

ects included blindness or other vision-relate d problems, he would not have taken the me dication. ¶ 10 Additional documents wer e d i s t ri b u t ed at the class: the PEG-Intron/Rebetol packa g e insert, the medicati o n g uide for PEG-Intron, a “fr equently asked questions” booklet and a

Dr. Hi ndi was dec eas ed a t t he t ime of s umm ar y j udgm ent pr oce edi ngs. 3

-3-pamphlet entitled “Y o u r PEG-I ntron Dose.” Among the repor ted adver se rea ctions, the packa g e insert listed vision disorders, with blindness occur ring in le ss than 1% of patients. The medication g uide stated that persons taking PEG-Intron medication should call their doctors immediately if they experience d decr ease d vision. The booklet and the pamphlet

war ned that “ser ious or clinically signific ant adver se eff ects” including “re tinal hemorrha g es and cotton wool spots” wer e repor ted by less than 1 % o f the patients. The plaintiffs went throug h all the documents distributed a t the class. Ac cordingto Mr. Her nandez, neither

he nor his wife unde rstood the pac kag e insert whic h specific ally war ned of blindness. ¶ 11 I n her deposition, Nurse McGill testified that her role was to educate the patients on how to mix and inject the me dication, how to manag e the basic side eff ects and the i mportance of follow-up visits with their phy sician s. Ba sic side eff ects included flu-like sy

mptoms, fatigue, nausea and injection-site rea ction. Nurse McGill did not di s cu s s in detail other potential side eff

ects, beca use that was the treating phy sician’s role. She did emphasize the importance of following up with the patient’s own doctor. The doctor would be the one to identify the side eff

ects once the patient is on th e drug thera py

. Nurse McGill did not specific ally mention visual problems to the patients in the class. Howeve r, the patients wer e instructed to re ad all the mate rials they wer e g iven. ¶ 12 Mr. Her

nandez beg an taking PEG-Intron/Rebetol in Aug ust 2002. At the time he filled the presc ription at a Walgr eens Drug store, he re ceive d a standa rd shee t of side ef

fec ts. He did not rec all a war

ning on the sheet to contac t his doctor immediately if, among other things, he experience d vision problems. I n the middle of September, he was brushing his teeth when he threw up, and the vision in h i s rig ht eye beca me blurred. I nitially
, he did nothing, believing i t wo u l d resolve itself. After about four day s, he went to the emerg ency room at MacN eal Hospital. I t is uncontested that as a re sult of taking PEG-Intron, Mr. Her nandez sustained optic ner

ve dama g e and pe rmane nt vision l oss. ¶ 13 I n g ranting su m m ar y judgme nt to Schering on the product liability counts, the circ uit

cour t fo u n d as a matter of law that the war nings Schering provided to Dr. Hindi in the product insert wer e adequate. The product ins er t “delineated t he ex act problems” s uffe red by Mr. Her nandez. The court further found that, even if the war ning w as not ade quate, the plaintiffs could not est abli sh proxi mate cause

. Acc ording to Dr. Hindi’s deposition testimony
, had the doctor known of the risk of blindness, he would have told Mr. Her nandez. The doc tor neve r testified that he would have c hang ed the pr escr iption. ¶ 14 I n g ranting summary judgme nt to the defe ndants on the “voluntary undertaking” counts, the court found that whether there was a duty on the part of t he defenda nts was a question of law and that in making s u ch a deter mination, the court could consider public policy considerations. Noting that there was no I llinois decision in which a drug manufa cture r was found to have a duty under the voluntary undertaking theory of liability
, the court rea soned that it was beca

use the lear

ned intermediar

y doctrine rec og nized the close bond betwee n the phy sician and the patient. The court there fore declined to rec og nize a voluntary undertaking

as an e x ception to the lea rned inter mediary doctrine. ¶ 15 The circ uit court made a finding pursuant to I llinois Supreme Court Rule 304(a) (ef f. Jan. 1, 2006). The pla intiffs filed a timely notice of a

ppeal.

-4-¶ 16 ANALYSI S

¶ 17 I . Standard of Re view ¶ 18 This court revie ws the g rant of summary judgme nt de novo

. Mi l l en n i u m Park Joint Venture, LLC v. Houlihan , 241 I ll. 2d 281, 309 (2010).

¶ 19 I I . Summary J udg ment Principles ¶ 20 Our revie w of a g rant of summary judgme nt is g uided by the well-settled principle that “[s] ummary judgme nt is proper if, and only i f, the pleading s, depositions, admissions, aff idavits a nd other re levant matter s on file show that there is no ge nuine issue of mate rial fac t and that the movan t i s entitled to judgme nt as a matter of law.” Illinois Farmers Insurance Co. v. Hall
, 363 I ll. App. 3d 989, 993 (2006). Since summary judgme nt is a drastic

measure , a court should g rant summary judgme nt only when the moving par t y ’s rig ht to judgme nt is fre e and clea r from doubt. Bourgonje v. Mache v , 362 I ll. Ap p

. 3 d 984, 994 (2005). The court must consider all the evidenc e in the light most favor able to the nonmoving party

. Bourgonje
, 362 I ll. App. 3d at 994. A tri ab l e issue of fac t prec luding
summary judgme nt exis ts wher e the materia l fac ts are disputed or, wher e the materia l fac ts

are undisputed, rea sonable persons might draw differ ent infere nces from th e u n disputed fac ts. Gilbert v. Syc amore Munic ipal Hospital , 156 I ll. 2d 511, 518 (1993). ¶ 21 A defe ndant moving for summary judgme nt bear s the initial burden of production, which
may be met either b y prese nting evidenc e that, left unrebutted, would entitle the moving party to a judg ment as a matter of law or by demonstratingthat the plaintiff will be unable
t o p ro v e an el ement of its cause of action. Bourgonje
, 362 I ll. App. 3d at 994. I f the d ef en d ant produce s fac ts entitling it to a judgme nt as a matter of law, the burden o f
p ro d u ct i o n shifts to the plaintiff. The plaintiff must prese nt some evidenc e allowing the imposit ion of liability on the defe ndant and supporting eac h element of his cause of action, there by defining a g enu i n e issue of materia l fac t to be deter mined at trial. W

illiams v. Covenant Me dical Center , 316 I ll. App. 3d 682, 689 (2000).

¶ 22 I I I . Discussion ¶ 23 A. Voluntary Undertaking ¶ 24 I n order to preva il in an ac t i o n fo r n egl i gen ce, the plaintiff must establish that the defe ndant owed a duty of ca re to the pla intiff. Adams v. Northern Illinois Gas Co. , 211 I ll. 2d 32, 43 (2004). I n the absenc e of a duty owed to the plaintiff, no rec overy is possible as a matter of law, and summary judgme nt for the defe ndant is proper

. Bourgonje
, 362 I ll. App. 3d at 995. ¶ 25 Whether a defe ndant has voluntarily underta ken a duty to a plaintiff is a question of law for the court. Bourgonje
, 362 I ll. App. 3d at 995. I f there is a dispute as to a mater i al fac t aff ecting the exis tence of the undertaking of a duty
, summary judgme nt is imp roper

. Bourgonje , 362 I ll. App. 3d at 995. ¶ 26 The plaintiffs cont en d t h at co n du ct i n g cl as s es o n P E G- I n t ron was a voluntary undertaking by the defendants to war n patients o f t he si de effec ts of P EG-Intron. L iability

-5-b as ed o n a “voluntary undertaking” is set forth in sections 323 and 324A Restatement

(Second) of Torts. Restateme nt (Second) of Torts §§ 323, 324A (1965). Section 323 deals with t h e n egli g ent perf

ormanc e of an underta

king to rende r service s, while section 324A deals with the liability to a third person for neg lige nt pe rfor mance of a voluntary duty

. The plaintiffs rely

on section 324A, whic h provides as f ollows:
“One who undertakes, g ratuitously or for consideration, to re n d er service s to another which he should r ecognize a s nece ssary for the pr otection of a third person

or his things, is subject to liability to the third person for phy sical harm re s u l ting from his failure to exercise re asonable car e to protec t his undertaking , if (a) his failure to e x erc ise rea sonable c are incre ases the r isk of such har m, or (b) he has under

taken to per form a duty

owed by another to the third person, or (c) the harm is suffe red beca use of relianc e of the other or the third person upon the under taking .” Restateme nt (Second) of Torts § 324A (1965)

. 4 ¶ 27 The parties ag ree that, under the lear ned int erme diary doctrine, the duty to war n of t he side eff ects of a drug is owed by the manufa cture r to the patient’s phy sician, not the patient. The lea rned intermediar

y doctrine provides that “manuf actur ers of presc ription dr ug s have a duty to warn pr escr ibing phy sicians of the dr ug s’ known dang erous pr opensities, and the phy sicians, in turn, using their medical judgme nt, have a duty to convey the war nings to their patients.” Kirk v. Michae l ReeseHospital & Medic al Center , 117 I ll. 2d 507, 517 (1987). ¶ 28 The plaintiffs argue that by offe ring the classes on PEG-Intron, wh i ch p u rp o rt ed to instruct p at i en ts, such as Mr. Her nandez, on all of the side eff ects of PEG-Intron, the defe ndants chose to forg o the protec tion of the lear ned interme diary

doctrine a

nd assumed the phy sician’s duty to war n. See Kasin v. Osco Drug, Inc.
, 312 I ll. Ap p

. 3 d 8 2 3 (2000) (phar macist lost the protec tion of the lear ned intermediar

y doctrine by voluntarily war ning of some but not all side eff ects). ¶ 29 The defe ndants respond that the duty to war n of the side eff

ects of medication based on

a voluntary undertaking may not be imposed on a drug manufa cture r beca u s e i t wo u l d interfe re with the phy sician-pat i en t relationship if the drug manufactur er was held to have

as s u m ed that duty in place of the phy sician. The defe ndants rely on Martin v. Ortho P harmace utical Corp.
, 169 I ll. 2d 234 (1996). In Martin
, our supreme court, a p p l y i n g t h e lear ned intermediary d o ctrine, ref used to impose the duty to war n on a drug manufa cture r that war ned of some but not all of the side eff ects of an oral contra ceptive. The court found that the manufa cture r had fulfilled its duty under I llinois law by providing an ad eq u ate

war ning to the phy sician. Martin , 169 I ll. 2d at 244. ¶ 30 Happel v. W

al-Mart Stores, Inc. , 199 I ll. 2d 179, 193 (2002), is instructive. In Happel
,

T he def end ant s m ai nta in tha t sec ti on 323 of the Rest at ement ( S e con d) of T ort s app li es 4

ra the r tha n sec ti on 324A. Sec ti on 323 add re sse s when the inj ure d par ty is the per son for whom the volunt ar y unde rt aking was m ade

. Bour gonj e , 362 I ll

. App. 3d at 996. I n the pre sen t cas e, the def end ant s are al le ged to have under ta ken the dut y owed by Dr. Hi ndi to Mr . Hernan dez, the thi rd
par ty, inj uri ng Mr. Her nan dez (t he t hir d pa rt y). See Res ta te m ent (Se con d) of T ort s § 324A cmt. d (19 65) . Henc e, s ect ion 324 A app li es in thi s c ase

.
-6-Wal-Mart fill ed a p re s cr i p tion for the plaintiff, even though it was aware of t he plainti ff’ s

drug allerg ies and tha

t th e p r e s c r ib e d me d ic a

tion was “ contra indicated” g iven those allerg ies. The supreme court first addre ssed the lear ned intermediar

y doctrine, explaining as follows: “[T] he rationale underlying the lear ned intermediar

y doctrine is that beca

use the
presc ribing phy sician has knowledge o f t h e drug s he is presc ribing and, more importantly
, knowledg e of his patient’s medical history
, it is the phy sician who is in the best position to presc ribe drugs and monitor their use. Thus manufa cture rs of these drug s should not be require d to war n individual patients of the dang ers inhere nt in thei r use. That is the proper province of the presc ribing phy sician, not the drug manufa cture r, who has a duty only to war n the phy sician.” Happel
, 199 I ll. 2d at 193. ¶ 31 I n light of the rationale b eh i n d t h e lear ned intermediar

y doctrine, the supreme c ourt reje cted Wal-Mart’s argument that the doctrine prec luded imposing a d uty to war n of the dang ers of a drug onto a pharma cy

. The court found that imposing a duty to war n “would not have intruded Wal-Mart into the doctor-pa tient relationship, forc ing it to ‘pra ctice medicine without a li cense .’ [ Citation.] We ag ree wi t h t h e appellate court below that ‘[t] his is not a

case in which the p l ai n tiff is asking the pharma cist to exercise any modicum of medical judgme nt or t o interjec t himself into the doctor-patient relationship.’ ” Happel
, 199 I ll

. 2 d at 194-95 (quoting Happel v. W al-Mart Stores, Inc. , 316 I ll. App. 3d 621, 627-28 (2000))

. ¶ 32 Unlike Happel
, imposing the duty to war n of t h e s i d e ef

fe ct s o f PEG-Intron on the defe ndants based on the classes Schering sponsored would interjec t the defe ndants into Mr. Her nandez’s relationship with Dr. Hindi. I n his deposition, Dr. Hi n di testified that the standard of car e require d him to inform his patien t s o f the potential side eff ects of the medication he presc ribed for them. He further testified that sending his patients to the Schering class did not relieve him of his duty to provide information as to the side eff ects of the medication. I n addition, Nurse Mc Gill testified that the patients attending the Schering class we re instruc ted to discuss the side ef fec ts with their phy sicians. ¶ 33 The plaintiffs offe r an alternative basis for finding that the defe ndants owed them a duty
, relying on Happel

. The court in Happel found that the pharma cy owed a duty of ordinary

car e to the plaintiff, based on the following elements: fore seea bility that the conduct would

cause harm, the likelihood of the injury
, the burden of g uarding ag ainst such injury and the
conseque nces of placing that burden on the defe ndant. Happel
, 199 I ll. 2d at 186-87. But the
court then deter

mined that the lear

ned intermediar

y doctrine did not apply under the fac ts of that case beca

use imposing the duty would not interfere with the phy sician-patient relationship. Happel , 199 I ll. 2d at 194-95. ¶ 34 I n t h e p re s en t case, the lear ned intermediar

y doctrine does appl y

. T h e ev i d en ce established that Dr. Hindi rec og nized and acc epted the responsi b i l i t y for war ning the plaintiffs about the s i d e ef fe cts of PEG-Intron. In this case , to hold that the defe ndants voluntarily undertook to wa rn of the side eff ects of PEG-Intron would violate the lear ned intermediar

y doctrine. ¶ 35 Finally
, the I TL A amicus curiae urg es this court to rec og nize an exception to the lear ned interm ed i ar y doctrine wher e a manufa cture r and seller of a drug repla ces the patient’s phy sician as the primary provider of information as to the ris k s and benef its of a drug

.

-7-Howeve r, su ch an exception would not apply here as this case does not involve direc t-toconsum er adver

tising. There was no evidenc e that prior to taking Schering ’s clas s , M r. Her n an d ez h ad ever hear d of PEG-Intron until Dr. Hindi presc ribed it for him or that he
reque sted that Dr. Hindi pre scribe PEG- I ntron to treat his HCV. ¶ 36 We conclude as a matter of law that providing classes dealing with PEG-Intron was not a voluntary

undertaking a

nd thus, the issue was prope rly resolved by

summary judgme nt.

¶ 37 B. The Product Liabili ty Claims ¶ 38 “To rec over in a products liability action, a plaintiff must plead and prove that the injury resulted from a condition of the product, that the condition was an unrea sonably dang erous one, and that the condition exi sted at the time the produc t left the manufa cture r’s control.” Sollami v. Eaton
, 201 I ll. 2d 1, 7 (2002). A product may be unrea sonably dang erous beca use of the manufa cture r’s “fa ilure *** to war n of [a] dang er or instruct on the proper use of the product a s to which the ave rag e consume r would not be a war e.” Sollami , 201 I ll. 2d at 7. ¶ 39 The plainti ffs contend that the circuit court erre d by findi ng as a matter of law that the

war ning provided by the defe ndants to Dr. Hindi was adequate. They maintain that a question of fa ct as to the a dequac y of the wa rning prec luded summary judgme nt. ¶ 40 I n a strict liability ca s e, t h e adequacy of the war ning usually prese nts a jury question. Palmer v. Avc o Distributi ng Corp.
, 82 I ll. 2d 211, 221 (1980). The sufficie ncy of the war ning

can become a question of law wher e the war ning is clea

r, acc urate and unambig uous. Upjohn Co. v. MacM

urdo
, 562 So. 2d 680 (F la. 1990); see Kelso v. Baye r Corp.
, 398 F.3d 640 (7th Cir. 2005) (apply

ing I llinois law and holding summary judgme nt wa s proper wher e the

war ning w as plain, cle ar a

nd acc urate ). ¶ 41 I n support of its motion for summary judgme nt on the product liability counts, Schering relied on the packa g e insert which specific ally war ned of blindness. In response to the motion, the plaintiffs relied on the deposition testimony of Dr. Peter Rost. Dr. Rost testified that blindness was a serious side eff ect. I n his opinion, the manufa cture r should have draw n attention to the blindness side eff ect by placing the war

ning as to blindness in a “B lack Box.” Fa ilure to do so rende red the war ning inadequa

te. The circ uit court noted that Dr. Rost was the only witness to offer

an opinion on the ade quacy of the wa rning

. Howeve r, as Dr. Rost

was not a licensed phy sician who could presc ribe medication in I llinois
, the court found that he wa s not competent to g ive an e x pert opinion on the ade quacy of the wa rning

. ¶ 42 The defe ndants maintain that the plaintiffs have forf eited the issue as to the competenc y of Dr. Rost’s opinion testimony by failing to raise and argue the issue in their opening brief

on appea l. See I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008). I n their reply brief, the plaintiffs did respond to the defe ndants’ discussion of the issue in their appellee ’s brief. Even if the issue

was not forf

eited, the plaintiffs failed to establi s h t h at Dr

. Rost was competent to g ive an expert opinion on the adequa cy o f the war ning as to the risk of blindness contained in the packa g e insert. ¶ 43 The duty to war n of the dang ers of presc ription drug s is owe d t o t h e p h y s ician, and there fore
, the adequa cy of the war ning must be judge d by whether it sufficie ntly apprises phy sicians of the risks associate d with the use of the drug

. Northern Trust Co. v. Upjohn Co.
,

-8-2 1 3 I l l

. App. 3d 390, 401 (1991). “F or that rea son, only a phy sician or someone wit h

specia liz ed knowledge wo u l d be qualified to deter mine whether the war

ning was inadequate.” Northern Trust Co.
, 213 I ll. App. 3d at 398. The court in Northern Trus t Co. further held that just as medical malprac tice case s in I lli n o i s re q uired expert testimony
, “expert t estimony shall be necessar y and proper *** wher e a drug manufa cture r’s li ability for a presc ription drug is based upon its failure t o provide adequate war nings.” Northern Trust Co.
, 213 I ll. App. 3d at 399. The court limit ed the expert witness require ment to those situations wher e t h e ad eq u ac y of the label was not so obvious that a lay person could not

rea dily understand the insufficienc y of the war ning. Northern Trust Co.
, 213 I ll. App. 3d at 399. ¶ 44 I n deter

mining whether a witness i s co m petent to rende r an expert opinion, the cour t considers whether the witness’s education, training
, knowledg e and skill aff ord the witness knowledg e and experience beyond that of t he avera g e citiz en and whether that knowledg e wi l l as s i st the trier of fac t. Thompson v. Gordon
, 221 I ll. 2d 414, 429 (2006). A person’ s prac tical experience in a field may serve well enoug h to qualify him. Thompson
, 221 I ll. 2d
at 429. Whether to admit expert tes t i m o n y i s within the discretion of the trial court. Thompson , 221 I ll. 2d at 428. ¶ 45 The de fenda

nts maintain that Dr. Rost’s compete ncy to testify as an e x pert in this case
must be determined by applying the three -par t an al y sis set forth in Purtill v. Hess
, 111 I ll. 2d 229 (1986). We disag ree

. That test is applicable to whether a medical expert is qualified
to g ive an opinion on the standard of car e applicable to a phy sician in a malprac tice case

. See Alm v. L oyola Unive rsity Medical Center , 373 I ll. App. 3d 1, 4-5 (2007). The adequac y of the war ning, not the sta

ndard of car e, is at issue in this case. ¶ 46 T h e p l ai n t i ff

s m ai n t ain that Dr. Rost was qualified to g ive an expert opinion on th e adequa cy of the war

ning beca use of his “ specia liz ed knowledg e.” Dr. Rost g radua ted from medical school in Sweden, wher e he prac ticed as an anae sthesiologist for one y ear

. He then worke d in the are as of adver t i s i n g, m edical education and marke ting for sever al drug companies. Betwe en 2001 and 2005, he over saw the c reation, publication and distribution of marke ting materia ls for drug s and medical device s for drug companies. He visited phy sicians’ office s with the drug repr esentatives and provided input as to packa g ing inserts, which eve ntually

beca me par t of the druglisti ngin the Phy sician’s De sk Refer ence

. ¶ 47 Acc ording to his deposition testimony
, Dr. Rost was not an expert in pharmac ology
, ophthalmology or neuro- ophthalmology an d wa s n ot an expert in the side eff ects of int erf erons. He had no experience as a phy sician presc ribing medication for a patient. Dr. Rost’s experience was in marke ting, and he acknow ledg ed that his expert’s repor t in this case

was from the point of view of a pharma ceutica l marke ting expert. Dr. Rost had no knowledg e g ained by either educa

tion or experience as to what a prac ticing phy sician, as opposed to a marke ting expert, would consider an adequa te war ning whe n deter

mining whether to p re s cribe a particula

r medication for a patient. There fore
, Dr. Rost had no specia l i z ed knowledg e to qualify him to testify as an expert on the adequacy of a side eff ects wa rn ing to prescr ibing phy sicians. ¶ 48 We conclude that the circ uit court did not abuse its discretion when it found that Dr. Rost

-9-was not competent to rende r an expert opinion on the adequa cy of the war ning. Wit hout the expert testimony
, the plaintiffs cannot preva il on their product liability cl ai ms. Northern Trust Co.
, 213 I ll. App. 3d at 399. There fore
, summary judgme nt on counts I throug h I V was p ro per. Dec iding this issue as we do, we need not addre ss the defe ndants’ altern at i v e argument that an inadequate war ning was not a proxi mate cause of the injury to Mr. Her nandez. ¶ 49 The order of the circ uit court g ranting summary judgme nt to the defe ndants on counts I throug h VI

of the four

th amended c omplaint is affirmed.

¶ 50 Affir

med.

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