IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CYNTHIA MILTON,

DEMITRIOS MAVROGIORGOS-SPENCER 

and AMANDA CALVERT, 

Plaintiffs,

v.

THE BOEING COMPANY, 

Defendant.

Case No. 1:20-cv-03089

Judge Virginia M. Kendall

Magistrate Judge Jeffrey Cole 

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT THE BOEING COMPANY’S 

PARTIAL MOTION TO DISMISS

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TABLE OF CONTENTS

I. Introduction ............................................................................................................................. 1

II. Plaintiffs Admit the Complaint Does Not Plead a Fraud Claim.............................................. 2

III. Plaintiffs’ Res Ipsa Loquitur Claim Fails Because the Aircraft Left Boeing’s Exclusive 

Control Long Before the Flight at Issue. ........................................................................................ 2

IV. Conclusion............................................................................................................................... 7

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TABLE OF AUTHORITIES

Page(s)

Cases

Darrough v. Glendale Heights Comm. Hosp.,

600 N.E.2d 1248 (Ill. App. Ct. 1992) ....................................................................................3, 5

DiIenno v. Libbey Glass Div., Owens-Illinois, Inc.,

668 F. Supp. 373, 379 (D.Del. 1987) (C.D. Ill. Jun. 6, 2017) ...................................................3

Ewer v. Goodyear Tire & Rubber Co.,

480 P.2d 260 (Wash. Ct. App. 1971).....................................................................................3, 6

Harris v. GMC,

34 F. App’x 487 (7th Cir. 2002) ................................................................................................4

Indep. Tr. Corp. v. Stewart Info. Servs. Corp.,

665 F.3d 930 (7th Cir. 2012) .....................................................................................................2

Kruger v. Newkirk,

352 N.E. 2d 436 (Ill. App. Ct. 1976) .........................................................................................5

Loizzo v. St. Francis Hospital,

459 N.E.2d 314 (Ill. App. Ct. 1984) ......................................................................................3, 6

Martino v. Barra,

293 N.E.2d 745 (Ill. App. Ct. 1973) ..........................................................................................5

Moore v. Jewel Tea Co.,

253 N.E.2d 636 (Ill. App. Ct. 1969) ......................................................................................4, 5

Napoli v. Hinsdale Hospital,

572 N.E.2d 995 (Ill. App. Ct. 1991) ..........................................................................................3

Rizzo v. Corning, Inc.,

105 F.3d 338 (7th Cir. 1997) .....................................................................................................4

Schultz v. Hennessy Indus., Inc.,

584 N.E.2d 235 (Ill. App. Ct. 1991) ..........................................................................................5

Silverman v. General Motors Corp.,

425 N.E.2d 1099 (Ill. App. Ct. 1981) ........................................................................................5

Smith v. United States,

860 F.3d 995 (7th Cir. 2017) .....................................................................................................6

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T.K. v. Boys & Girls Clubs of Am.,

2017 WL 2464435 (C.D. Ill. Jun. 6, 2017)................................................................................6

Wuench v. Ford Motor Co.,

432 N.E.2d 969 (Ill. App. Ct. 1982) ..........................................................................................5

Wells v. Nespelem Valley Elec. Cooperative, Inc.,

462 P.2d 855 (Wash Ct. App. 2020)..........................................................................................3

Other Authorities

Del. R. Evid. 304(b).........................................................................................................................4

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I. Introduction

Boeing properly removed this matter and believes both that this Court has subject matter 

jurisdiction over this case and that the Court will therefore deny Plaintiffs’ motion to remand. 

However, Boeing respectfully defers to the Court, in its discretion, on the appropriate timing to 

address Boeing’s partial motion to dismiss.

Whenever the Court reaches Boeing’s motion, Plaintiffs concede they have not sufficiently 

pled a claim for fraud, and so the Court should grant Boeing’s motion as to that claim. As for res 

ipsa loquitur, Plaintiffs acknowledge that in order to plead such a claim, they must allege facts 

describing that the aircraft was within Boeing’s “exclusive control” or under its “management or 

control,” and argue that they have done so by simply alleging that Boeing designed and 

manufactured the aircraft. If this were the law, nearly every case involving a claim of defective 

design or manufacture—that is, almost every product liability claim—could be a res ipsa loquitur 

claim. But this is not the law. Plaintiffs’ argument ignores longstanding and logical authority

holding that a plaintiff cannot establish the requisite “control” where the allegedly defective 

product was long removed from the manufacturing process and under the operative control of a 

third party at the time of the plaintiff’s alleged injury. 

“Control” is a required element of a res ipsa loquitur claim in order to ensure that the 

possibility of intervening causes has been eliminated, and that responsibility has been properly 

assigned exclusively to the appropriate defendant. Indeed, the authorities relied on by Plaintiffs 

confirm that res ipsa loquitur does not apply when the period of time between the manufacture of 

the product and the alleged injury allows for a change in conditions or intervening acts that could 

reasonably have caused the injury-causing event. Here, it is uncontested that Boeing manufactured 

and delivered the aircraft to a third party 20 years before the flight in question, which was itself 

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flown not by Boeing but by a third-party airline. Plaintiffs’ conclusory claim of control is therefore 

legally inadequate to plead a res ipsa loquitur claim. 

Plaintiffs’ fraud and res ipsa loquitur claims should therefore be dismissed.

II. Plaintiffs Admit the Complaint Does Not Plead a Fraud Claim. 

Plaintiffs do not contest Boeing’s arguments that the Complaint fails to sufficiently plead 

a fraud claim. See Mem. at 4–9.

1 Rather, they “acknowledge that it will be necessary for them to 

amend their complaint to state their fraud claim with greater particularity.” Opp. at 4. The parties 

are therefore in agreement that the Court should grant Boeing’s motion with respect to Plaintiffs’ 

fraud claim. While Plaintiffs argue that dismissal of their fraud claim should be made without 

prejudice, id, “it is well settled that a district court may refuse leave to amend where amendment 

would be futile.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir. 2012). 

Here, the Complaint as pled gives no indication that Plaintiffs will be able to cure the several 

deficiencies of their fraud claim. Nonetheless, because Plaintiffs have not previously amended, 

and recognizing that dismissal without prejudice would be commonplace in this circumstance, 

Boeing’s motion did not expressly argue for dismissal with prejudice.

III. Plaintiffs’ Res Ipsa Loquitur Claim Fails Because the Aircraft Left Boeing’s Exclusive 

Control Long Before the Flight at Issue. 

Plaintiffs do not dispute that they allegedly suffered injury while aboard an aircraft owned 

and operated by Delta Air Lines, not Boeing. Mem. at 2. Plaintiffs also do not dispute that Boeing 

assembled and delivered the aircraft in 1998, some 20 years before the February 2018 flight in 

question. Id. Plaintiffs, moreover, do not allege that in the intervening two decades, the aircraft 

sat unused in its original condition until the flight at issue here. Nevertheless, they argue the 

 

1 For purposes of this brief, Plaintiffs’ response to Boeing’s motion to dismiss is cited as “Opp.” and Boeing’s 

memorandum in support of its motion to dismiss is cited as “Mem.”

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aircraft was under Boeing’s “exclusive control” because Boeing designed and manufactured it, 

and that nothing more than this black-letter element of every product liability claim is required to 

plead “exclusive control” for purposes of the res ipsa loquitur doctrine. Opp. at 5–9. Plaintiffs 

misstate the law. 

It is not enough that a defendant manufacturer had exclusive control over the instrument 

alleged to have caused the injury at the time of the alleged negligence—characterized by Plaintiffs

to mean the time of manufacture. Plaintiffs’ argument ignores that “[t]he reason for the exclusive 

control requirement is that it must appear that the negligence of which the doctrine warrants an 

inference is probably that of defendant and not of another.” Loizzo v. St. Francis Hosp., 459 

N.E.2d 314, 317 (Ill. App. Ct. 1984). Therefore, to invoke res ipsa loquitur, the plaintiff must 

“eliminate the possibility that the accident was caused by someone other than” the defendant, id. 

at 318, and “[w]here there are differing possible causes of an accident . . . res ipsa loquitur will 

not be applicable.” Napoli v. Hinsdale Hosp., 572 N.E.2d 995, 998–99 (Ill. App. Ct. 1991).

2

As explained in the cases cited by Plaintiffs, an intervening possession of the allegedly 

defective product or other acts or conditions “that could reasonably have caused the event resulting 

in the injury,” renders res ipsa loquitur inapplicable. Darrough v. Glendale Heights Comm. Hosp., 

600 N.E.2d 1248, 1253 (Ill. App. Ct. 1992) (selectively quoted by Plaintiffs, see Opp. at 7); Ewer 

v. Goodyear Tire & Rubber Co., 480 P.2d 260, 265 (Wash. Ct. App. 1971) (Opp. at 7) (the 

“exclusive control” element is satisfied “[even if] the defendant’s control is not exclusive at the 

time of the accident, provided plaintiff proves that the condition of the product had not been 

 

2 See Wells v. Nespelem Valley Elec. Cooperative, Inc., 462 P.3d 855, 860 (Wash. Ct. App. 2020) (“The issue of 

exclusive control serves to narrow the defendant as the source of a plaintiff’s injuries, as opposed to some other 

party.”); DiIenno v. Libbey Glass Div., Owens-Illinois, Inc., 668 F. Supp. 373, 379 (D. Del. 1987) (for res ipsa loquitur 

to apply, the likelihood of other causes must be “so reduced that the greater probability of negligence lies at 

the...[defendant’s] door”) (internal citations omitted). 

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changed after it left defendant’s control”). See also Rizzo v. Corning, Inc., 105 F.3d 338, 340 (7th 

Cir. 1997) (a plaintiff seeking to invoke res ipsa loquitur doctrine must show that he or she did not 

misuse the product and that no “secondary cause” is responsible for the product’s failure); Moore 

v. Jewel Tea Co., 253 N.E.2d 636, 648 (Ill. App. Ct. 1969) (“It is sufficient if the instrument has 

been in the control of the defendant at a time prior to the injury and there is no rational ground 

upon which to impute negligence to another with respect to the instrumentality after it left the 

defendant’s control.”).

3

 

Here, Plaintiffs do not—and cannot—allege there was no change in the aircraft’s condition 

in the twenty years following its delivery; nor do they allege any basis for eliminating the 

possibility that it was used or maintained by third-parties in a way that caused Plaintiffs’ alleged 

injuries. Indeed, the only allegations pertaining to the aircraft and flight at issue here are that the 

aircraft was designed and manufactured by Boeing and that (20 years later) “a contaminated air 

event occurred.” Compl., Dkt. 1-1, ¶¶ 17–21. In fact, they admit that Delta actually owned and 

operated the aircraft (and thus by extension was responsible for its maintenance) at the time of the 

alleged event. The extremely long period of time between when the aircraft left Boeing’s control 

(1998) and the time of the alleged injury (2018) renders Plaintiffs’ “exclusive control” allegation

legally inadequate as a basis for res ipsa loquitur. See Harris v. GMC, 34 F. App’x 487, 490 (7th 

Cir. 2002) (explaining that Illinois law “does not recognize [the applicability of the res ipsa 

loquitur doctrine] in product liability cases where the product has been out of the manufacturer’s 

control for a significant amount of time”).

 

3 Plaintiffs contend that Boeing’s “exclusive control” argument fails in the event Delaware law applies because 

Delaware does not require “exclusivity,” but rather only the defendant’s “management or control” of the alleged 

defective product. See Opp. at 6 n.1 and 7 (quoting Del. R. Evid. 304(b)). That would not change the analysis here. 

The Complaint does not plead any facts describing that Boeing had “management or control” over the aircraft at the 

time of the alleged incident in February 2018 nor at any time since 1998. 

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For example, in Wuench v. Ford Motor Co., the plaintiffs used and possessed the allegedly 

defective automobile “for almost four months” before the injury-causing event. 432 N.E.2d 969, 

971 (Ill. App. Ct. 1982). On that basis, the appellate court affirmed the dismissal at the pleading 

stage of their res ipsa loquitur claims, because “the intervening possession of the automobile 

presents plausible explanations for the accident other than the negligence of defendants.” Id. See 

also Schultz v. Hennessy Indus., Inc., 584 N.E.2d 235, 244 (Ill. App. Ct. 1991) (affirming dismissal 

of res ipsa loquitur claim because the plaintiff had owned the injury-causing instrumentality “for 

a period of several months and has used it on more than one occasion prior to the date of the 

accident,” and so the “inference of negligence” was “destroy[ed]”); Silverman v. Gen. Motors 

Corp., 425 N.E.2d 1099, 1104 (Ill. App. Ct. 1981) (rejecting application of the res ipsa loquitur 

doctrine where the injury-causing instrument left the exclusive control of the manufacturerdefendant 51 days prior to the injury and during which time others worked on the engine 

compartment).

In Darrough, by contrast, which Plaintiffs cite, the injury-causing instrument was out of 

the physical control of the defendant for a “short period of time,” apparently a matter of minutes. 

600 N.E.2d at 1253. The court there was thus easily able to exclude the possibility of a change in 

conditions or an intervening act. See id. Similarly, in Kruger v. Newkirk, 

which Plaintiffs also cite, the court specifically referred to the “short period of use” of the 

injury-causing instrument by the plaintiffs after it left the control of the defendant as one of the 

reasons why the doctrine could apply. 352 N.E.2d 436, 440 (Ill. App. Ct. 1976) (citing Moore, 

253 N.E.2d at 648, in which the court applied res ipsa loquitur when the defendant “relinquished 

control [of the injury-causing product] approximately 10 months prior to the accident,” but there 

was no use of the product until the injury-causing event, and Martino v. Barra, 293 N.E.2d 745, 

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749 (Ill. App. Ct. 1973), in which the injury occurred 15 days after faulty repair work was 

performed and the doctrine of res ipsa loquitur was applied).4 

Plaintiffs have not alleged any facts that render relevant or applicable the cases they cite

involving a short period of time between physical control of the product by the defendant and the 

alleged injury. More to the point, they do not cite a single case applying res ipsa loquitur on facts 

such as those present here where the product in question left the manufacturer’s control two 

decades before the accident and was under the control and operation of a third party during the 

intervening period and at the time of the accident. The Complaint does not (and logically cannot) 

allege, for example, that the plane sat unused in storage in the 20 years following manufacture and 

delivery, or that in 20 years of use it was never subject to maintenance so as to plausibly “eliminate 

the possibility” that Plaintiffs’ alleged injury resulted exclusively from alleged conduct by Boeing.

Loizzo, 459 N.E.2d at 318. Far from it, Plaintiffs plead nothing other than a conclusory statement 

that Boeing maintained “exclusive control,” which does not satisfy their pleading burden. See T.K. 

v. Boys & Girls Clubs of Am., 2017 WL 2464435, *6 (C.D. Ill. Jun. 6, 2017) (plaintiff’s conclusory 

allegation that the injury-causing instrumentality was “under the exclusive control” of the 

defendant was not sufficient to plead res ipsa loquitur where the complaint also alleged another 

party had control).

 

4 Plaintiffs’ other authorities are distinguishable on the same basis. In Ewer, the injury was caused by a tire that left 

the manufacturer’s control about one year prior to the accident, and, during that year, the tire sat in a distributor’s 

warehouse without interference until the day it was installed on the plaintiff’s truck and caused the injury. 480 P.2d at 

264–65. Smith v. United States, 860 F.3d 995 (7th Cir. 2017), did not involve a claim against a product manufacturer. 

Instead, the court applied res ipsa loquitur to hold the government liable for injuries sustained by an inmate because 

of a broken stool. Id. at 1000. The court held that the stool remained in the government’s exclusive control when the 

inmate was temporarily left alone, on the stool, with his attorney and no government representatives were present. Id. 

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IV. Conclusion

Plaintiffs have pled a standard products liability case and nothing more. Their allegations 

fall far short of the requirements for pleading fraud or res ipsa loquitur, and those claims should 

be dismissed.

Dated: June 25, 2020 Respectfully submitted,

 By: /s/ Dan K. Webb

Perkins Coie LLP

V.L. Woolston

Todd W. Rosencrans

(pro hac vice applications forthcoming)

1201 Third Avenue, Suite 4900

Seattle, WA 98101

T. (206) 359-8000

VWoolston@perkinscoie.com

TRosencrans@perkinscoie.com

Winston & Strawn LLP

Dan K. Webb

Christopher B. Essig

Joseph L. Motto

35 W. Wacker Dr. 

Chicago, IL 60601

T. (312) 558-5600

F. (312) 558-5700

DWebb@winston.com

CEssig@winston.com

JMotto@winston.com

Sandra A. Edwards 

(pro hac vice application forthcoming)

101 California Street 

San Francisco, CA 94111

T. (415) 591-1000

F. (415) 591-1400

SEdwards@winston.com

Attorneys for The Boeing Company

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CERTIFICATE OF SERVICE 

I hereby certify that on June 25, 2020, I caused a true and correct copy of the foregoing to 

be filed via CM-ECF, and thereby served on all parties of record.

/s/ Joseph L. Motto

 Joseph L. Motto

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