In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4011

KAREN ROBINSON, et al.,

Plaintiffs-Appellants,

v.

MCNEIL CONSUMER HEALTHCARE, a division of

MCNEIL-PPC, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 5603—James F. Holderman, Chief Judge.

ARGUED JUNE 2, 2010—DECIDED AUGUST 11, 2010

Before EASTERBROOK, Chief Judge, and POSNER and

KANNE, Circuit Judges.

POSNER, Circuit Judge. Karen Robinson and her

husband (suing for loss of consortium) brought a

products liability suit against McNeil Consumer Healthcare in an Illinois state court. The case was removed to

a federal district court in Illinois under the diversity

jurisdiction. McNeil’s parent, Johnson & Johnson, was
2 No. 09-4011

a defendant in the district court, but the jury found in

its favor and the appellants do not challenge the finding,

so it is out of the case.

The district judge ruled that Virginia law governed the

substantive issues in the case. That law both rejects strict

liability as a basis for a products liability suit, Harris v. T.I.,

Inc., 413 S.E.2d 605, 609-10 (Va. 1992); Sensenbrenner v.

Rust, Orling & Neale, Architects, Inc., 374 S.E.2d 55, 57 n. 4

(Va. 1988); Lust v. Clark Equipment Co., 792 F.2d 436, 439-40

(4th Cir. 1986) (applying Virginia law); compare Restatement (Second) of Torts § 402A (1965), so that a plaintiff

has to prove negligence; and deems contributory negligence a complete defense to a claim of negligence. E.g.,

Litchford v. Hancock, 352 S.E.2d 335, 337 (Va. 1987); Fein

v. Wade, 61 S.E.2d 29, 31-32 (Va. 1950).

After a six-day trial the jury found that McNeil had

been negligent, and calculated Mrs. Robinson’s compensatory damages at $3.5 million. But the jury also found

that she had been contributorily negligent, and so—

since contributory negligence is a complete defense to

negligence under the law of Virginia—the judge entered

judgment for McNeil. The Robinsons appeal, but since

Mr. Robinson’s claim is derivative from his wife’s, we

needn’t discuss it, and for the sake of simplicity we’ll

pretend that his wife is the only plaintiff.

McNeil manufactures and sells Children’s Motrin, an

over-the-counter drug (though there’s also a prescription version, as we’ll have occasion to note). The active

ingredient is ibuprofen, a non-steroidal anti-inflammatory drug (NSAID), used primarily to alleviate pain and
No. 09-4011 3

fever, that is also the active ingredient in Advil. The

“Warnings” section on the label of the bottle of Motrin

that Mrs. Robinson bought for her child begins: “Allergy

alert: Ibuprofen may cause a severe allergic reaction which may include: hives, facial swelling, asthma

(wheezing), shock.” After additional warnings of side

effects the label says: “Stop use and see a doctor if an

allergic reaction occurs.” She read the warnings before

buying the drug.

In September 2005, four or five months later, she awoke

in the middle of the night with a headache and took two

teaspoonfuls of the Children’s Motrin that she had

bought—the dose suggested for a child six to eight

years old—without reading the warnings (the specifics of

which she had forgotten) on the label. When she awoke

the next morning she noticed a rash on her chest. The

rash worsened throughout the day. That night she woke

up with a fever and took two more teaspoonfuls of the

Motrin, again without reading the warnings. The next

morning she went to see her doctor, who gave her a

dose of Benadryl and prescribed a Medrol pack, both

being drugs for treating allergic reactions. She mentioned

that she had taken Children’s Motrin; he did not react.

Later that day she noticed that the rash on her chest was

sprouting blisters, and her fever increased. After waking

up late that night she again took two teaspoonfuls of the

Motrin without reading the warnings. The next morning,

with her condition deteriorating rapidly, she went back

to her doctor, who immediately ordered her hospitalized.

She was diagnosed with TEN (toxic epidermal necrolysis),
4 No. 09-4011

an especially severe form of SJS (Stevens-Johnson syndrome). TEN is a rare but life-threatening disease

that causes severe blistering and consequent sloughing

off of skin over much of the body, together with serious

damage to the mouth, eyes, throat, and esophagus. JeanClaude Roujeau, Robert S. Stern & Bruce U. Wintroub,

“Cutaneous Drug Reactions,” Harrison’s Principles of

Internal Medicine 343, 346 (Anthony S. Fauci et al. eds.,

17th ed. 2008); Pierre-Dominique Ghislain & Jean-Claude

Roujeau, “Treatment of Severe Drug Reactions—StevensJohnson Syndrome and Toxic Epidermal Necrolysis,”

www.sjsupport.org/pdf/tsdr.pdf (visited July 21, 2010).

The treatment for the disease is similar to that given

burn victims.

Mrs. Robinson survived, but sixty percent of her skin

had sloughed off, and she lost the vision in one eye and

has only limited vision in the other, which requires constant medical treatment; she is expected to go blind

eventually. She has required multiple operations on her

throat and esophagus as a result of the damage to

those organs caused by the disease.

The initial legal question presented by these unhappy

facts is choice of law. Virginia as we said makes contributory negligence a complete defense to liability for

negligence. Today that is distinctly a minority position,

Restatement (Third) of Torts: Apportionment of Liability

§ 7 comment a (2000), contrary to the prediction in Pennsylvania R.R. v. Aspell, 23 Pa. 147, 149-50 (1854), that a

rule of law “not likely to be changed in all time to come

[is] that there can be no recovery for an injury caused by
No. 09-4011 5

the mutual default of both parties.” Illinois makes the

victim’s negligence a partial defense under the rubric of

“comparative fault,” which merely reduces the damages

awarded the plaintiff unless the plaintiff’s negligence

exceeds the defendant’s, in which event the plaintiff’s

negligence is a complete defense. 735 ILCS 5/2-1116(c);

Board of Trustees of Community College District No. 508

v. Coopers & Lybrand, 803 N.E.2d 460, 465 (Ill. 2003); Miller

v. Illinois Central R.R., 474 F.3d 951, 957 (7th Cir. 2007)

(Illinois law). The jury was not asked to decide whether

Mrs. Robinson’s negligence exceeded McNeil’s, as it

should have been asked if, as the plaintiff argues, the

tort law of Illinois rather than of Virginia governs the case.

Several states have a connection to the events

giving rise to Mrs. Robinson’s claim and therefore a

potential, though for most of the states an attenuated,

interest in the application of their law. She had bought

the bottle of Children’s Motrin in Georgia but was living

in Virginia when she took the drug and her initial

medical treatment was administered there, after which

she spent a month in the burn unit in a hospital in Baltimore where she was diagnosed with TEN. She moved

with her husband and child to Illinois the following

year. McNeil is a New Jersey corporation headquartered

in Pennsylvania; we do not know where the drug was

manufactured or the label composed and affixed to the

bottle.

The applicable conflicts rule is of course that of Illinois,

the forum state, and it uses the common but loose “most

significant relationship” test. Barbara’s Sales, Inc. v. Intel
6 No. 09-4011

Corp., 879 N.E.2d 910, 919-20 (Ill. 2007); Townsend v. Sears,

Roebuck & Co., 879 N.E.2d 893, 898-99 (Ill. 2007). That test

points presumptively to the law of the jurisdiction in

which the tort occurred (that is, the lex loci delicti). Id. (and

cases cited there). This means—because there is no tort

without an injury, e.g., Rozenfeld v. Medical Protective Co.,

73 F.3d 154, 156 (7th Cir. 1996) (Illinois law); Rice v. Nova

Biomedical Corp., 38 F.3d 909, 915-16 (7th Cir. 1994) (same),

and so a tort can’t be said to occur until an injury is

produced—the place where the injury was inflicted.

Kamelgard v. Macura, 585 F.3d 334, 341 (7th Cir. 2009)

(Illinois law); cf. Townsend v. Sears, Roebuck & Co., supra,

879 N.E.2d at 905-06; Esser v. McIntyre, 661 N.E.2d

1138, 1141 (Ill. 1996); Miller v. Long-Airdox Co., 914 F.2d

976, 978 (7th Cir. 1990) (Illinois law); Restatement (Second)

of Conflict of Laws § 146 (1971). That was Virginia. But

because the injury is a continuing one, it is being experienced in Illinois. Indeed, Mrs. Robinson’s condition

has deteriorated since she moved to Illinois and probably will continue to deteriorate; therefore, the plaintiff

argues, Illinois is the real site of the injury.

The lingering or worsening of an injury over a considerable period is common in personal injury cases,

rather than an exceptional circumstance that might

justify a departure from the ordinary principles of

choice of law. If you suffer permanent brain damage in

a motorcycle accident in Virginia and later move to

Illinois, your suffering and treatment will continue and

your condition may deteriorate. But to make the continuation or exacerbation of an injury a basis for

applying Illinois tort law to your case would open vistas
No. 09-4011 7

of forum shopping. Severely injured persons would

move to the state whose law was most favorable to their

tort claim and argue that that state had the “most significant relationship” to the injury because the plaintiff’s

aggregate suffering and perhaps expense of medical

treatment would be greatest there. To avoid this incentive to forum shop, the initial place of the injury is

properly deemed the place in which the injury occurred.

This was clearest when lex loci delicti was the rule governing choice of law in tort cases. See Restatement (First)

of Conflict of Laws § 377 (1934). Under the “most

significant relationship” test, which demoted lex loci

delicti to a presumption, a party can argue for applying

the law of the state in which the greatest costs of the

injury were incurred. But normally the argument should

fail because of the encouragement that accepting it

would give to forum shopping. See Reich v. Purcell, 432

P.2d 727, 730 (Cal. 1967) (Traynor, C.J.) (“if the choice

of law were made to turn on events happening after

the accident, forum shopping would be encouraged”); but

see Fisher v. Professional Compounding Centers of America,

Inc., 311 F. Supp. 2d 1008, 1015 (D. Nev. 2004) (Nevada

law). A person who was severely handicapped for life as

a result of a tort could choose among 50 states’ tort laws.

Concern with forum shopping animates the parallel

rule that makes venue proper in the jurisdiction in

which the plaintiff’s claim accrues, which is usually the

initial place of the injury. Quaid v. Baxter Healthcare

Corp., 910 N.E.2d 1236, 1243-45 (Ill. App. 2009); Green v.

North Arundel Hospital Ass’n, Inc., 730 A.2d 221, 229 n. 8

(Md. App. 1999).
8 No. 09-4011

There is, however, a potential ambiguity in the concept of “injury.” Suppose Mrs. Robinson’s symptoms

had first appeared after she left Virginia. It is common

for a disease to have a latency period, which is to say

an interval between the infection or other trauma and

when the first symptoms appear, and maybe in such a

case the place where they first appear should, by analogy

to the discovery rule in statutes of limitations, see, e.g.,

Ross v. Johns-Manville Corp., 766 F.2d 823, 827-28 (3d Cir.

1985); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 115-

17 (D.C. Cir. 1982), be deemed the place of injury. Illinois’s

intermediate appellate court so held in Mllar-Mintz v.

Abbott Laboratories, 645 N.E.2d 278, 282 (Ill. App. 1994); cf.

Montgomery v. Wyeth, 580 F.3d 455, 459-61 (6th Cir. 2009)

(Tennessee law), but we have expressed doubt that the

Supreme Court of Illinois would agree. Pittway Corp. v.

Lockheed Aircraft Corp., 641 F.2d 524, 527-28 n. 5 (7th Cir.

1981) (Illinois law). It is true that the latency period of

most diseases is too short, even if the victim realizes he

has the disease before any symptoms appear, to prompt

him to move to the state whose law would be most favorable to his claim. But there are important exceptions, as for asbestosis and DES, and in such cases the

spur to forum shopping would be great if the law of the

state of the first symptoms would govern. In any event

the present case is not one of latency; Mrs. Robinson had

symptoms of TEN before she left Virginia.

So we think Virginia law does govern this case, and

dooms her appeal because there was, as we shall see,

at least some evidence of contributory negligence. But
No. 09-4011 9

applying Illinois rather than Virginia tort law would not

change the outcome of the appeal.

Exactly what it means to say that a plaintiff’s contributory negligence did (or did not) exceed the defendant’s,

a determination required by Illinois’s comparativefault rule, is unclear. 4 Fowler V. Harper, Fleming James,

Jr. & Oscar S. Gray, Harper, James and Gray on Torts § 22.16,

pp. 471, 475-76 (3d ed. 2007). But Davis v. United States,

716 F.2d 418, 429 (7th Cir. 1983) (Illinois law), suggests

that it means that “though both parties to the accident,

injurer and victim, could have avoided the accident at

reasonable cost—for otherwise both would not have

been negligent and the need to compare their negligence

would not arise—one of them could have avoided the

accident at a lower cost than the other, and he should

bear a larger share of the burden of having failed to do

so.” See also Wassell v. Adams, 865 F.2d 849, 854 (7th Cir.

1989) (also Illinois law). Mrs. Robinson appears to

have been the party who could have avoided the

injury at lower cost, assuming for the moment that her

developing TEN was caused by the Motrin. For the

evidence of McNeil’s negligence in selling Children’s

Motrin, with or without a prescription and with or without additional warnings, was slight.

Ibuprofen is an immensely popular drug for relief of

pain and fever. Although the plaintiff contends that it’s

unreasonably dangerous, or defective in design, either

contention implying (if accepted) that the drug should

be taken off the market, at the oral argument of the appeal her lawyer said “we’re not saying take it off the
10 No. 09-4011

market . . . we’re not saying it should be banned.” So

maybe the plaintiff just wants it sold by prescription only.

But this would increase the drug’s cost (because of the

prescribing physician’s fee and the time required by the

patient to obtain and fill the prescription) and thus

reduce its availability.

And how dangerous is ibuprofen, anyway? Adverse

reactions (which include both allergic reactions and other

side effects) to painkilling drugs are common, see N.

Franklin Adkinson, Jr., “Drug Allergy,” Allergy: Principles

& Practice 1212, 1216 (Elliott Middleton, Jr., et al. eds., 5th

ed. 1998); Fred E. Karch & Louis Lasagna, “Adverse

Drug Reactions: A Critical Review,” 234 JAMA 1236, 1236-

37 (1975); Roujeau et al., supra, at 347; Donald D.

Stevenson & Ronald A. Simon, “Sensitivity to Aspirin

and Nonsteroidal Antiinflammatory Drugs,” in Allergy,

supra, at 1225. Ibuprofen does not appear to carry a

risk of serious allergic reactions or other serious side

effects that is greater than is created by drugs that might

be substituted for it. Compare “Ibuprofen—Adverse

Reactions,” www.merck.com/mmpe/lexicomp/ibuprofen.

html#NF1185, to “Naproxen—Adverse Reactions,” www.

merck.com/mmpe/lexicomp/naproxen.html#N143371, and

to “Aspirin—Adverse Reactions,” www.merck.com/mmpe/

lexicomp/aspirin.html#N36183; see also Daniel H. Soloman, MD, MPH, “Nonselective NSAIDs: Overview of

Adverse Effects,” www.uptodate.com/online/content/topic.

do?topicKey=treatme/7262; “ACPA Consumer Guide

to Pain Medication & Treatment,” www.theacpa.org/

documents/ACPA%20Consumer%20Guide%

202010%20010410.pdf (all visited July 29, 2010). There is
No. 09-4011 11

also no evidence that if the risk from ibuprofen is

greater, it is not offset by the drug’s therapeutic properties. Should aspirin be salable by prescription only?

How about peanuts?

The prevalence of TEN from all causes is estimated to

be only between .4 and 1.2 cases per million users of the

drug, and what fraction of that slight probability is due

to ibuprofen is unknown and may be zero. For while

it is true that SJS/TEN is primarily and perhaps exclusively caused by allergic reactions to drugs, there is

considerable doubt, expressed by the defendant’s expert

witness, Dr. Maja Mockenhaupt, one of the world’s

leading authorities on the disease, that ibuprofen is one

of them. There is unquestionably an association between

SJS/TEN and ibuprofen because headache and fever,

which are symptoms of the diseases, are commonly

treated with drugs containing ibuprofen. But in such

cases the causation runs from SJS/TEN to ibuprofen

rather than vice versa. When a drug is claimed to cause

the very symptoms for which it is a designated treatment, determining the direction of causation is difficult

at best.

Dr. Mockenhaupt was confident that, if there is a

causal connection, still one dose could not cause the

disease. That statement was important to the defense

of contributory negligence because a reasonable jury

could not have found Mrs. Robinson negligent in taking

the first dose. It was the middle of the night and she had

a headache and she was taking just the child’s dose.

Furthermore, because headache is one of the earliest
12 No. 09-4011

symptoms of the disease and Mrs. Robinson had both

headache and rash before she took the second dose of

Motrin, and because, according to Mockenhaupt, the

disease is usually latent for four days to four weeks

after the patient first develops it, the fact that Mrs. Robinson exhibited symptoms within a day of taking the first

dose of Motrin, and the further fact that she had

taken ibuprofen in other forms for years without an

allergic reaction, convinced Dr. Mockenhaupt that

Mrs. Robinson had developed TEN before she took the

first dose.

It might seem that the danger of developing TEN from

taking ibuprofen (if there is such a danger) would be

reduced if it were a prescription drug. Although there

don’t appear to be any factors that predispose a person to

have such a reaction to ibuprofen—factors that a doctor

might elicit from a patient in deciding whether to write

a prescription—the warning accompanying a prescription drug, because it is addressed to the prescribing

doctor, can be more detailed than a warning for an overthe-counter drug, which is read only by the consumer.

And indeed the FDA requires that the package insert

for prescription ibuprofen drugs warn of the risk (slight

as it is—maybe even nonexistent) that taking such a

drug might cause SJS/TEN.

But if Children’s Motrin were a prescription drug,

Mrs. Robinson’s doctor would have prescribed it for her

child because there is nothing to suggest that the

child had some condition that might make a prescribing

physician worry that the child might develop SJS/TEN
No. 09-4011 13

from taking the drug. If it were prescribed, this would

tend to allay rather than heighten any fears that

Mrs. Robinson might have about taking the drug herself

(in fact she had no fears). And anyway the warning

about SJS/TEN, being directed to the physician and thus

written in technical language, would mean nothing to

her. A row in the 1996 package insert for prescription

Children’s Motrin (which contains the same amount of

ibuprofen as the over-the-counter version), headed “skin

and appendages,” states that there is a 3 to 9 percent

probability of developing a rash from taking the drug;

that the incidence of toxic epidermal necrosis (TEN) in

persons taking it is unknown but is less than 1 percent;

and that there may be a causal relation between the

drug and the disease. Letter from Willie D. Pagsuyuin,

Director, Regulatory Affairs, McNeil Consumer Products

Company, to Susan Raigrodski, Division of Anti-Inflammatory, Analgesic and Ophthalmologic Drug Products (HFD550) 12-13 (Apr. 16, 1996); see also “Children’s Motrin

Ingredients,” www.motrin.com/page.jhtml?id=/motrin/

products/1_2_1.inc&sec=ingredients (visited July 29, 2010).

(The current insert states that it’s unknown whether there

is any causal relation between the drug and TEN.

“Motrin,” www.pfizer.com/files/products/uspi_motrin.pdf

(visited July 28, 2010).) What would Mrs. Robinson

have learned from reading such a warning?

The decision whether to permit a drug to be sold over

the counter rather than just by prescription is for the

FDA to make. U.S. Food and Drug Administration,

“Nonprescription Drug Products: What We Do,”

www.fda.gov/AboutFDA/CentersOffices/CDER/
14 No. 09-4011

ucm106342.htm (visited July 21, 2010); “Drug Applications for Over-the-Counter Drugs,” www.fda.gov/Drugs/

DevelopmentApprovalProcess/HowDrugsareDeveloped

andApproved/ApprovalApplications/Over-theCounterDrugs/default.htm (visited July 21, 2010); Dan R.

Harlow, “The FDA’s OTC Drug Review: The Development and an Analysis of Some Aspects of the Procedure,”

32 Food Drug Cosmetic L.J. 248, 250-53 (1977); see also

Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 650-

51, 653-54 (1973). The agency bases its decision on whether

the drug is safe and effective for use without a doctor’s

permission, 21 C.F.R. § 310.200(b); and it has decided not

to require that drugs containing ibuprofen be sold by

prescription only.

Granted, that doesn’t bar a court from holding that state

law requires warnings on the label of an over-the-counter

drug beyond what the FDA has required. Wyeth v. Levine,

129 S. Ct. 1187, 1198 (2009); Mason v. SmithKline Beecham

Corp., 596 F.3d 387, 390-91, 394-95 (7th Cir. 2010); Demahy

v. Actavis, Inc., 593 F.3d 428, 433 (5th Cir. 2010). The

plaintiff argues that the label on the bottle of Children’s

Motrin should have added “rash” to the other allergic

reactions warned against and should have mentioned

SJS/TEN as one of the possible allergic reactions and

(since virtually no consumer who was not a physician

would have heard of the disease) recited its horrific

consequences. But then the label would have had to

describe as well every other serious disease that might,

however infrequently, be caused, or even just arguably

caused (for it is unclear whether ibuprofen can cause

SJS/TEN), by ibuprofen. And it would have to recite the
No. 09-4011 15

symptoms of the disease if it was rare. The resulting

information overload would make label warnings worthless to consumers. See Troy A. Paredes, “Information

Overload and its Consequences for Securities Regulation,”

81 Wash. U. L.Q. 417, 440-43 (2003); Howard Latin, “ ‘Good’

Warnings, Bad Products, and Cognitive Limitations,” 41

UCLA L. Rev. 1193, 1211-15 (1994); cf. Richard Craswell,

“Taking Information Seriously: Misrepresentation and

Nondisclosure in Contract Law and Elsewhere,” 92 Va. L.

Rev. 565, 583-85 (2006); Mark Geistfeld, “Inadequate

Product Warnings and Causation,” 30 U. Mich. J.L. Reform

309, 322 (1997). So forbidding the sale of ibuprofen over

the counter would be very costly—probably more costly

than letting consumers, having been warned by the label

of possible allergic reactions, decide to stop taking the

drug when symptoms that might have been caused

by it appear. See Kelso v. Bayer Corp., 398 F.3d 640, 642-43

(7th Cir. 2005).

The FDA directed McNeil (after the accident, however)

to add “skin reddening, rash, and blisters” to the

warnings on the label for Children’s Motrin. But though

later requested to do so, the agency decided not to

require mention of SJS/TEN (or SJS/TEN plus its horrible

symptoms), believing with reason that the addition

would confuse rather than enlighten. In a letter from

Steven K. Galson, Director, FDA Center for Drug Evaluation and Research, to Roger E. Salisbury, No. 2005P0072/CP1 (June 22, 2006), the FDA stated: “We believe

that the overall benefit versus risk profile for ibuprofen

products remains very favorable when they are used

according to the labeled instructions. It is in the interest
16 No. 09-4011

of the public health to maintain in the pediatric OTC

market a range of therapeutic options for the short-term

relief of pain. Further . . . other available OTC drugs for

short-term relief of pain and fever can also be associated

with serious, potentially life-threatening adverse events

in certain settings and patient populations.” See also W.

Page Keeton et al., Prosser & Keeton on the Law of Torts § 96,

pp. 685, 687 (5th ed. 1984).

And would the word “rash” on the label have dissuaded

Mrs. Robinson from taking the drug? She testified and

we accept that if the label, which she read when she

bought the drug, had been really scary—had it mentioned SJS/TEN as a possible allergic reaction and listed

all the dreadful symptoms of TEN in particular—she

would not have bought it. But it is implausible that if

instead of saying “Allergy alert: Ibuprofen may cause a

severe allergic reaction which may include: hives, facial

swelling, asthma (wheezing), shock,” it had said “Allergy

alert: Ibuprofen may cause a severe allergic reaction

which may include: hives, rash, facial swelling, asthma

(wheezing), shock,” she would not have bought it. If

facial swelling, asthma, and shock are not sufficient

deterrents, rash is not likely to be (or skin reddening

or blisters, but the plaintiff’s particular concern is the

absence of the word “rash” from the list of allergy symptoms). Anyway she didn’t read or remember the

warnings before taking the Motrin, so it wouldn’t matter

what the label had said unless it had contained truly

terrifying warnings that the state of medical knowledge

would not have justified.
No. 09-4011 17

Her doctor may have lulled her into thinking that

Motrin couldn’t have been the source of her symptoms

because he didn’t react to her telling him that she was

taking the drug. She told him she’d taken it and he

thought that her symptoms were caused by an allergy,

yet he merely gave her drugs to combat the allergic

reaction; he didn’t tell her to stop taking Motrin even

though allergic reactions to NSAIDs are well known by

the medical profession. See Roujeau et al., supra, at 347;

Stevenson & Simon, supra, at 1225; Larkin v. Pfizer, Inc., 153

S.W.3d 758, 759-60 (Ky. 2004); see generally Jones v.

Detroit Medical Center, No. 288710, 2010 WL 2010003

(Mich. App. May 20, 2010) (per curiam).

Yet she didn’t sue him for malpractice, and she doesn’t

argue that it was reasonable for her (and therefore not

contributorily negligent) to rely on the doctor’s failure

to warn her that Motrin might be the cause of her symptoms. See DiLeo v. Nugent, 592 A.2d 1126, 1133 (Md. App.

1991); Angelo v. Diamontoni, 871 A.2d 1276, 1281-82 (Pa.

Super. 2005). Even if she had argued this, all she could

have gotten from the jury would have been a finding

that she was not negligent to take the third dose of

Motrin. A determination that she had been negligent in

taking the second dose would have stood (we said that

her taking the first dose was not negligent), and under

Virginia’s rule of contributory negligence would have

barred her claim.

She argues, contrary to Dr. Mockenhaupt’s testimony,

that the first dose caused her to develop SJS/TEN, and if

this is right then any carelessness in taking the second
18 No. 09-4011

and third doses at worst aggravated the condition, just as

if she’d delayed visiting the doctor. And then she would

face a defense not of contributory negligence but only of

failure to avoid avoidable consequences, which is the

tort counterpart to the better-known contract doctrine

of mitigation of damages. (Virginia uses the latter term

for tort cases as well, Monahan v. Obici Medical Management Services, Inc., 628 S.E.2d 330, 336 (Va. 2006).) Such a

failure reduces but does not preclude a damages award.

Id. at 337; Sawyer v. Comerci, 563 S.E.2d 748, 754 (Va. 2002);

Lawrence v. Wirth, 309 S.E.2d 315, 317-18 (Va. 1983); Barron

v. Ford Motor Co. of Canada Ltd., 965 F.2d 195, 199 (7th Cir.

1992); Ellerman Lines, Ltd. v. S.S. President Harding, 288

F.2d 288, 289-90 (2d Cir. 1961) (Friendly, J.).

But this argument has been forfeited because the

plaintiff did not propose jury instructions that would

have asked the jury to determine whether she had

merely failed to avoid avoidable consequences, rather

than having been contributorily negligent. In any event,

the argument would have been unlikely to persuade the

jury. There was conflicting testimony on whether the

first dose by itself caused her to develop TEN. While

testifying that ibuprofen does not cause SJS/TEN, Dr.

Mockenhaupt was emphatic that in any event the first

dose would not have done so. The jury must have disbelieved the first assertion because it found McNeil to have

been negligent, implying that the ibuprofen in Motrin

caused the plaintiff’s TEN. (“ ‘Proof of negligence in the

air . . . will not do,’ ” Palsgraf v. Long Island R.R., 162 N.E.

99, 99 (N.Y. 1928)—that is, an injury is required even for

prima facie liability, since as we said earlier there is no tort
No. 09-4011 19

without an injury.) But the jury’s further finding that the

plaintiff was contributorily negligent implies that it

believed Mockenhaupt’s second assertion (that the first

dose had not caused the plaintiff’s TEN), as it was entitled to do for she is, as we said, one of the world’s

leading experts on SJS/TEN, as none of the plaintiff’s

experts was. The two assertions were not inconsistent.

There is no inconsistency in testifying that a dog cannot

walk on its hind legs but that if that’s wrong and it can,

still it can’t (unless perhaps its name is Faith, see

“Faith the Dog’s Official Website,” www.faiththedog.info

(visited July 29, 2010)) walk on its hind legs for an hour

at a time. A dog can walk on its hind legs, with some

training; and a witness who denies this might be

thought less credible, in testifying that a dog can’t walk

on its hind legs for an hour at a time, than if she’d known

that a dog can walk on its hind legs. But such a tension

is for a jury to weigh.

To summarize, there was enough evidence that the

plaintiff was contributorily negligent to bar her

claim under Virginia law, and enough evidence that

her contributory negligence exceeded the defendant’s

negligence to bar her claim even if Illinois rather than

Virginia law applied. But the plaintiff makes the

further argument that in closing argument McNeil’s

lawyer made a “judicial admission” that the plaintiff

had not been contributorily negligent. What the lawyer

said was: “We are, of course, not blaming Karen Robinson for her own injuries. We never have. We never will.”

What he meant—for he was speaking to laypersons—was

that McNeil was not contending that Mrs. Robinson had

been justly punished for being careless. The suffering
20 No. 09-4011

she has experienced from SJS/TEN has been disproportionate to her failure to exercise due care in consuming

McNeil’s product. It would be monstrous to suggest

otherwise, and McNeil’s lawyer didn’t want to leave

the jury with the impression that he was trying to

insinuate such a thought—an impression that the plaintiff’s lawyer had sought to create by stating that “they

[the defendants] blame her for being misled.”

A judicial admission is a statement, normally in a

pleading, that negates a factual claim that the party

making the statement might have made or considered

making. Were the plaintiff’s conception of judicial admissions accepted, statements made by lawyers in opening

and closing arguments, in making objections, at side

bars, and in questioning witnesses would be treated as

pleadings and searched for remarks that might be construed as admissions though neither intended nor understood as such. Trials would be turned into minefields. That

is why “in order to qualify as judicial admissions, an

attorney’s statements must be deliberate, clear and unambiguous.” MacDonald v. General Motors Corp., 110 F.3d 337,

340 (6th Cir. 1997); see also Best v. District of Columbia,

291 U.S. 411, 415-17 (1934); Oscanyan v. Arms Co., 103

U.S. 261, 263-64 (1880); McCaskill v. SCI Management Corp.,

298 F.3d 677, 680 (7th Cir. 2002); Butynski v. Springfield

Terminal R.R., 592 F.3d 272, 277-78 (1st Cir. 2010). That

standard has not been satisfied in this case.

The plaintiff complains finally of the district court’s

refusal to allow an amendment to the final pretrial order

that would have added a claim, under Virginia law, of

breach of implied warranty. In their proposed final
No. 09-4011 21

pretrial order, the parties had agreed that the plaintiff

would not be pursuing such a claim even though it was

in the complaint. Between then and the filing of the

final pretrial order the district court decided that

Virginia law would apply rather than Illinois law, and

Virginia law as we know does not recognize strict

liability as a ground for products liability. The plaintiff

moved promptly to amend the final pretrial order to

reinstate the warranty claim, but with trial scheduled to

begin in just a few days the judge refused to allow the

amendment.

The plaintiff’s lawyer says he had every reason to think

that Illinois law would apply and that’s why he dropped

the warranty claim. But there was no reason to think

that—indeed it was unlikely that Illinois law would

apply, as we have explained, or that McNeil would fail

to argue for applying Virginia law, which was more

favorable to it than Illinois law. McNeil had already

proposed jury instructions based on Virginia law, for

example an instruction—the key instruction in the

case—that contributory negligence if proved would be

a complete defense to the plaintiff’s negligence claim.

So the plaintiff dropped the ball; and if the fault was,

as undoubtedly it was, her lawyer’s, she may have a

remedy against him. But given the proximity of trial, the

judge was within his authority in holding the lawyer to

his waiver of the breach of warranty claim—and for

the further reason that such a claim was unlikely to

succeed, except possibly in confusing the jury. It can’t be

argued seriously that McNeil implicitly warranted that
22 No. 09-4011

Children’s Motrin will not cause SJS/TEN. That would

imply that the company had a duty to guarantee against

every conceivable adverse consequence of taking the

drug, however remote, esoteric, or even conjectural; and

that is not the law. Featherall v. Firestone Tire & Rubber Co.,

252 S.E.2d 358, 366-67 (Va. 1979); Adelman-Tremblay v.

Jewel Cos., 859 F.2d 517, 521-22 (7th Cir. 1988); Keeton et al.,

supra, § 96, p. 687. The FDA decided not to require such

a warning because it would confuse rather than inform;

and a court cannot order a drug company to place on a

label a warning if there is “clear evidence” that the FDA

would not approve it. Wyeth v. Levine, 129 S. Ct. 1187,

1198 (2009); Lofton v. McNeil Consumer & Specialty Pharmaceuticals, 682 F. Supp. 2d 662, 678 (N.D. Tex. 2010). The

“clear evidence” in this case is the agency’s refusal to

require a reference to SJS/TEN on the label of over-thecounter drugs containing ibuprofen, when it had been

asked to do so in the submission to which the agency

was responding. And it would be odd to think that

McNeil had a legal duty to guarantee against a risk that

the FDA thought not worth warning against.

Even if the plaintiff had been permitted to try to establish a breach of implied warranty, and had succeeded in

making a prima facie case, she would have been unlikely

to prevail at trial. Although there is no defense of contributory negligence, as such, to breach of implied warranty, the consumer’s conduct is not irrelevant to the

seller’s liability. Law often describes the same things

by different names. We gave an example earlier— “mitigation of damages” in a contract case and “avoidable consequences” in a tort case. Even when a defendant’s
No. 09-4011 23

liability is strict, as in implied warranty and strict

products liability cases, a plaintiff who fails to avoid a

danger that is either open, in the sense of visible, or

obvious (“open and obvious” is the conventional name

of this defense), or who misuses the product, is barred

from relief. Wood v. Bass Pro Shops, Inc., 462 S.E.2d 101, 103

(Va. 1995); Harris-Teeter, Inc. v. Burroughs, 399 S.E.2d

801, 802-03 (Va. 1991); Mesman v. Crane Pro Services, 512

F.3d 352, 358-59 (7th Cir. 2008); Freeman v. Case Corp., 118

F.3d 1011, 1014 (4th Cir. 1997) (Virginia law). Both are

apt descriptions (the first more so) of the plaintiff’s

conduct in continuing to dose herself with Motrin

after experiencing an allergic reaction that began shortly

after she took the first dose.

AFFIRMED.

8-11-10