Illinois Official Reports 

Appellate Court

Lewis v. Lead Industries Ass’n, 2018 IL App (1st) 172894

Appellate Court 

Caption

MARY LEWIS, TASHSWAN BANKS, and KATHLEEN 

O’SULLIVAN, Plaintiffs, v. LEAD INDUSTRIES ASSOCIATION, 

INC.; ATLANTIC RICHFIELD COMPANY; CONAGRA 

GROCERY PRODUCTS, INC.; NL INDUSTRIES, INC.; and THE 

SHERWIN-WILLIAMS COMPANY, Defendants (Mary Lewis and 

Tashswan Banks, Plaintiffs-Appellants; Atlantic Richfield Company;

ConAgra Grocery Products, Inc.; NL Industries, Inc.; and 

Sherwin-Williams Company, Defendants-Appellees).

District & No. First District, Fifth Division 

Docket No. 1-17-2894

Filed September 7, 2018

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 00-CH-9800; the

Hon. Peter Flynn, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Michael H. Moirano and Clair Gorman Kenny, of Moirano Gorman 

Kenny, LLC, of Chicago, for appellants.

Andre M. Pauka, of Barlit Beck Herman Palenchar & Scott LLP, of 

Chicago, for appellees.
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Panel JUSTICE HOFFMAN delivered the judgment of the court, with 

opinion.

Justices Cunningham and Connors concurred in the judgment and 

opinion.

 OPINION 

¶ 1 Mary Lewis and Tashswan Banks appeal from an order of the circuit court granting 

summary judgment in favor of Atlantic Richfield Company; ConAgra Grocery Products, Inc.; 

NL Industries, Inc.; and The Sherwin-Williams Company (hereinafter collectively referred to 

as defendants). For the reasons that follow, we reverse and remand the matter back to the 

circuit court for further proceedings. 

¶ 2 Lewis, Banks, and Kathleen O’Sullivan, on behalf of themselves and others similarly 

situated, maintained the instant class-action suit against the defendants, seeking to recover the 

costs of blood lead screening that their children underwent as required by the Lead Poisoning 

Prevention Act (Act) (410 ILCS 45/1 et seq. (West 2000)). As certified, the class consists of 

the parents or legal guardians of children who, between August 18, 1995, and February 19, 

2008, were between six months and six years of age and, during that age bracket, lived in zip 

codes identified by the Illinois Department of Public Health as “high risk” areas pursuant to 

section 6.2(a) of the Act (410 ILCS 45/6.2(a) (West 2000)) and had a venous or capillary blood 

test for lead toxicity. Excluded from the class were parents and legal guardians who incurred 

no expense, obligation, or liability for the lead toxicity testing of their children. 

¶ 3 On October 6, 2016, the defendants filed a motion for summary judgment against Lewis, 

Banks, and O’Sullivan, contending that none of the three incurred any expense, obligation, or 

liability for the lead toxicity testing of their children. Supported by the deposition testimony of 

Lewis and Banks, the defendants asserted that both were Medicaid recipients when their 

children were tested and neither paid for those tests. As to O’Sullivan, the defendants 

supported the motion with her deposition, establishing that her family was insured by Blue 

Cross Blue Shield and that she had no recollection of paying for blood testing of her children. 

¶ 4 On April 20, 2017, the circuit court entered a memorandum order, granting the defendants’ 

motion for summary judgment against Lewis, Banks, and O’Sullivan. The circuit court found 

that neither Lewis nor Banks is a member of the class previously certified, as neither incurred 

any expense, obligation, or liability for the lead toxicity testing of their children. As to 

O’Sullivan, the circuit court found that she failed to show that she was a member of the 

certified class by reason of her failure to present facts tending to show that she incurred an 

expense, obligation, or liability for the testing of her children. On October 19, 2017, the circuit 

court entered a written order finding that there is no just reason to delay enforcement of, or 

appeal from, the summary judgment entered against Lewis and Banks on April 20, 2017. It 

declined, however, to make similar findings as to the summary judgment entered against 

O’Sullivan.

¶ 5 On November 6, 2017, Lewis and Banks filed their notice of appeal from the summary 

judgment entered against them, invoking this court’s jurisdiction pursuant to Illinois Supreme 

Court Rule 304(a) (eff. Mar. 8, 2016). O’Sullivan is not a party to this appeal. 
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¶ 6 As this matter comes to us on appeal from an order granting summary judgment, our 

review is de novo. In re Estate of Hoover, 155 Ill. 2d 402, 411 (1993). Summary judgment is 

appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, 

if any, show that there is no genuine issue as to any material fact and the moving party is 

entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016). 

¶ 7 The facts relevant to the disposition of this appeal are not in dispute. Both Lewis and Banks 

were Medicaid recipients when their children were tested for lead toxicity, the cost of the 

testing was paid by Medicaid, and neither paid any portion of the testing costs. In their reply 

brief, Lewis and Banks admit that, to be members of the plaintiff class, they “must establish 

that they incurred an expense, obligation, or liability” for the testing of their children. The 

issue presented is one of law: whether the parents of minor children who underwent lead 

toxicity testing that was paid for entirely by Medicaid incurred an “expense, obligation or 

liability” for the cost of the testing.

¶ 8 In urging reversal of the summary judgment entered against them, Lewis and Banks argue 

that, as parents, they were primarily responsible for the medical expenses of their minor 

children. See In the Interest of Wheat, 68 Ill. App. 3d 471, 475-76 (1979). They assert that their 

liability for the cost of the testing of their children was incurred at the time that the services 

were rendered, without regard to the fact that the cost of the testing was paid entirely by 

Medicaid on some future date. Invoking the “collateral source rule,” Lewis and Banks argue 

that their right to recovery for the reasonable value of their children’s lead toxicity testing is 

not diminished by the fact Medicaid paid the entire cost. 

¶ 9 In support of the summary judgment entered in their favor, the defendants argue that, 

because the entire cost of the lead toxicity testing of their minor children was paid by 

Medicaid, Lewis and Banks did not incur any expense, obligation, or liability for the testing. 

The defendants predicate their argument in this regard on the fact that a service provider 

eligible to receive payments under Medicaid may not charge any individual for services that 

the individual is entitled to have payment made through Medicaid (see 42 U.S.C. 

§ 1395cc(a)(1)(A)(i) (2012); 89 Ill. Adm. Code 140.12(i)(1) (2014)), and the State may not 

seek reimbursement from a Medicaid recipient for any payments made to health care providers 

for services rendered on their behalf (see 42 U.S.C. § 1396p(b)(1) (2012)). They contend that 

the statutes governing Medicaid: “(i) completely insulate plaintiffs [Lewis and Banks] from 

any obligation to pay the providers, and (ii) impose no obligation on plaintiffs [Lewis and 

Banks] to reimburse the State.” Although we agree that neither Lewis nor Banks is obligated to 

reimburse the State for all, or any portion, of the payment made for the testing of their children, 

we disagree that their eligibility for Medicaid payments insulated them from any obligation to 

pay for the testing services. 

¶ 10 “[T]he Family Expense Act [(750 ILCS 65/15 (West 2000))] codifies the common-law rule 

making parents liable for the expenses of their minor children.” Manago v. County of Cook, 

2017 IL 121078, ¶ 12 (citing Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 51). 

That statute obligates parents to pay for the “expenses of the family,” which includes 

medical expenses of their minor children. 750 ILCS 65/15(a)(1) (West 2000); Graul v. 

Adrian, 32 Ill. 2d 345, 347 (1965); Pirrello v. Maryville Academy, Inc., 2014 IL App (1st) 

133964, ¶ 11. The obligation to pay the medical expenses for a minor child is that of the parent, 

and, therefore, the cause of action to recover for medical expenses lies in the parent. Estate of 

Hammond v. Aetna Casualty, 141 Ill. App. 3d 963, 965 (1986). The parent’s right of action is 
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not affected by the fact that a third party paid those expenses. Id. And the fact that the source of 

the payment was Medicaid, as opposed to a private insurance company, is a “distinction 

without a difference.” See Wills v. Foster, 229 Ill. 2d 393, 418 (2008). 

¶ 11 The collateral source rule provides that benefits received by an injured party from a source 

wholly independent of, and collateral to, the tortfeasor will not diminish the damages that are 

recoverable from the tortfeasor. See id. at 399. The defendants do not deny that the payments 

by Medicaid for the lead toxicity testing of Lewis’s and Banks’s minor children was 

independent of, and collateral to, them. The defendants contend, however, that the collateral 

source rule does not apply in a case involving a purely economic injury. We disagree. 

¶ 12 One of the justifications for the collateral source rule is that a tortfeasor should not benefit 

from, or take advantage of, the contracts or other relations that may exist between an injured 

party and third persons. Wilson v. The Hoffman Group, Inc., 131 Ill. 2d 308, 320 (1989). That 

justification is no less compelling in a case involving a purely economic injury than in a case 

involving personal injury. In either case, a “ ‘benefit that is directed to the injured party should 

not be shifted so as to become a windfall for the tortfeasor.’ ” Arthur v. Catour, 216 Ill. 2d 72, 

78-79 (2005) (quoting Restatement (Second) of Torts § 920A(2), Comment b, at 514 (1979)). 

And it matters little that the benefit bestowed upon the injured party is the result of a 

relationship with the government such as her entitlement to Medicaid benefits. See Willis, 229 

Ill. 2d at 413. 

¶ 13 Lewis and Banks seek recovery for the cost of the lead toxicity testing of their minor 

children that they allege was the proximate result of the defendants’ civil conspiracy. As 

parents, they were statutorily liable for the cost of that testing. We conclude, therefore, that 

they have a cause of action for the reasonable value of the testing services, without regard to 

the fact that Medicaid paid the entire cost. 

¶ 14 Based on the foregoing analysis, we reverse the summary judgment entered against Lewis 

and Banks on April 20, 2017, and remand this cause to the circuit court for further proceedings. 

¶ 15 Reversed and remanded.