Braun v. Aspide Medical

2020 IL App (1st) 200131
No. 1-20-0131
Filed November 4, 2020
Third Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
JOHNNA BRAUN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
v. )
) No. 19 L 40
ASPIDE MEDICAL and BG MEDICAL, LLC, )
)
Defendants, ) Honorable
) Moira S. Johnson
(BG Medical, LLC, Defendant-Appellant). ) Judge presiding
---------------------------------------------------------------------------------------------------------------------
DAVID CHENEY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
v. )
) No. 19 L 42
ASPIDE MEDICAL and BG MEDICAL, LLC, )
)
Defendants, ) Honorable
) Moira S. Johnson
(BG Medical, LLC, Defendant-Appellant). ) Judge presiding
---------------------------------------------------------------------------------------------------------------------
KATHY VAN RYSWYK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
v. )
) No. 19 L 304
ASPIDE MEDICAL and BG MEDICAL, LLC, )
)
Defendants, ) Honorable
) Moira S. Johnson
No. 1-20-0131

(BG Medical, LLC, Defendant-Appellant). ) Judge presiding
---------------------------------------------------------------------------------------------------------------------
NATSHA STANLEY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
v. )
) No. 19 L 9284
ASPIDE MEDICAL and BG MEDICAL, LLC, )
)
Defendants, ) Honorable
) Moira S. Johnson
(BG Medical, LLC, Defendant-Appellant). ) Judge presiding

JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs Johnna Braun, David Cheney, Kathy Van Ryswyk, and Natasha Stanley

individually sued Aspide Medical (Aspide) and BG Medical, LLC (BG Medical), in the circuit

court of Cook County on claims sounding in product liability after surgical meshes implanted in

their bodies to repair hernias allegedly caused further injury. Believing venue was improper in

Cook County, BG Medical filed a motion to transfer venue to Lake County that the circuit court

denied. BG Medical appeals the court’s denial and argues that, because neither it nor Aspide reside

in Cook County and no part of the transaction from which plaintiffs’ claims arose occurred in Cook

County, venue in Cook County was improper. For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 Defendant Aspide Medical is a French corporation that designs and manufactures

Surgimesh, a synthetic surgical mesh, approved by the Food and Drug Administration for the

treatment of abdominal hernias. Defendant BG Medical, LLC, is an Illinois limited liability

company that operates as the exclusive distributor of Surgimesh in the United States. Between

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August 2015 and January 2018, plaintiffs Johnna Braun, a resident of Arkansas; David Cheney, a

resident of New York; Kathy Van Ryswyk, a resident of Washington; and Natasha Stanley, a

resident of West Virginia, all had Surgimesh implanted in their bodies to repair hernias. After

being implanted with Surgimesh, plaintiffs allegedly suffered further injuries, which necessitated

additional medical procedures.

¶4 Before 2019, several plaintiffs, who are not a part of this appeal, filed individual lawsuits

against Aspide and BG Medical in the circuit court of Cook County after being implanted with

Surgimesh. Those cases were consolidated for discovery and pretrial purposes (Pauley v. Aspide

Medical, No. 18-L-4464 (Cir. Ct. Cook County)).

¶5 In January 2019, Braun, Cheney, and Van Ryswyk individually filed multicount

complaints in the circuit court of Cook County against Aspide and BG Medical. Stanley did the

same in August 2019. The complaints were nearly identical, each comprising four counts against

Aspide and four counts against BG Medical for strict liability, negligence, breach of express

warranty, and breach of implied warranties. The crux of the allegations was that defendants

designed, manufactured, advertised, and sold Surgimesh as a medical product to repair hernias but

that the product was improperly designed and manufactured for its intended purpose, that

defendants failed to adequately warn medical professionals and the public at large of the risks

associated with the product, and that defendants marketed the product as safe despite the associated

risks.

¶6 In response to each complaint, BG Medical filed a motion to transfer venue from Cook

County to Lake County, arguing that venue in Cook County was improper because neither it nor

Aspide resided there and no part of the transaction from which plaintiffs’ claims arose occurred

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there. In support of each motion, BG Medical attached a printout from the Illinois Secretary of

State’s website stating that Aspide was not registered to do business in Illinois.

¶7 BG Medical also attached an affidavit from John Huelskamp, its president, wherein he

stated that BG Medical was the exclusive United States distributor of Surgimesh, a medical product

designed and manufactured by Aspide. According to Huelskamp, he and his wife were the sole

members of BG Medical, and both resided in Lake County, Illinois. Huelskamp averred that, in

December 2018, BG Medical moved its only office from Cook County to Deer Park, Illinois,

located in Lake County. In addition, Huelskamp stated that BG Medical’s registered agent was in

Lake County. Huelskamp asserted that BG Medical did not conduct any meaningful business in

Cook County, noting that, in 2018, it sold approximately $4900 worth of Surgimesh to two

hospitals in Cook County. Additionally, Huelskamp stated that BG Medical’s 2018 revenue from

selling Surgimesh in Cook County accounted for 0.05% of its 2018 revenue in Illinois and

0.0007% of its 2018 revenue in the United States. Lastly, Huelskamp stated that, thus far in 2019,

BG Medical had no revenue from selling Surgimesh in Cook County, it did not employ a sales

representative to solicit sales of Surgimesh in Cook County, and it had no sales contracts with any

of the hospitals or surgical centers located in Cook County. While BG Medical filed its motion to

transfer venue, Aspide challenged the circuit court’s personal jurisdiction over it, resulting in

Aspide not being a party to this appeal. According to BG Medical, as of the filing of its opening

brief, Aspide’s motion remains pending in the circuit court.

¶8 By September 2019, Braun, Cheney, Van Ryswyk, and Stanley’s cases had been

consolidated with the several other hernia mesh cases for discovery and pretrial purposes only.

The following month, Braun, Cheney and Van Ryswyk filed a combined response to BG Medical’s

motion to transfer venue, and Stanley filed a separate response. In both motions, plaintiffs argued

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that Surgimesh entered the stream of commerce through BG Medical, which, at the time they had

their surgeries, conducted all of its activities in Cook County. As such, according to plaintiffs, part

of the underlying transaction occurred in Cook County, thus making venue proper there.

¶9 BG Medical replied and maintained that no part of the transaction of any of plaintiffs’

causes of action occurred in Cook County. In support, it attached another affidavit from

Huelskamp, wherein he stated that BG Medical purchased Surgimesh directly from Aspide and

sold the product directly to hospitals and physician offices, not to patients.

¶ 10 Following the parties’ briefings, the circuit court entered a written ruling, initially

observing that venue was proper in a county where (1) any defendant brought in good faith resides

or (2) the transaction or some part thereof from which the plaintiffs’ claims arose occurred. With

regard to the transactional pathway, the court noted that BG Medical was the exclusive distributor

in the United States of Aspide’s Surgimesh product. Relying on information from BG Medical’s

website, the court observed that BG Medical promoted itself as a sales and marketing distribution

partner of Aspide. Highlighting that plaintiffs’ lawsuits sounded in product liability, the court

determined that the location of the accident was not as significant as traditional personal injury

actions. Because plaintiffs’ basis of liability against BG Medical was its marketing and selling of

an allegedly dangerous and defective medical product, which occurred while BG Medical was

based in Cook County, the court concluded that at least part of the transaction from which

plaintiffs’ claims arose occurred in Cook County.

¶ 11 Regarding venue based on BG Medical’s residence, the circuit court’s conclusion was less

clear. The court observed that, at the time the earlier lawsuits against BG Medical and Aspide were

filed—the ones that plaintiffs’ cases were ultimately consolidated with for discovery and pretrial

purposes only—BG Medical had yet to move its office to Lake County and thus was a resident of

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Cook County for venue purposes. As such, the court found that “venue in Cook County is proper.”

Later in its order, the court reiterated that, “[a]t the time the first twelve consolidated actions were

filed, BG Medical had its main office in Cook County” and repeated its finding regarding the

transactional pathway. The court then concluded again that “venue is proper in Cook County” and

ultimately denied BG Medical’s motion to transfer venue.

¶ 12 Thereafter, BG Medical successfully petitioned this court for leave to appeal pursuant to

Illinois Supreme Court Rule 306(a)(4) (eff. Oct. 1, 2019).

¶ 13 II. ANALYSIS

¶ 14 On appeal, BG Medical contends that the circuit court improperly denied its motion to

transfer venue from Cook County to Lake County where neither it nor Aspide were residents of

Cook County under the venue rules and no part of the transaction out of which plaintiffs’ causes

of action arose occurred in Cook County.

¶ 15 A. Venue Generally

¶ 16 “Proper venue is an important statutory privilege” (Bucklew v. G.D. Searle & Co., 138 Ill.

2d 282, 288 (1990)), and the defendant is entitled to have a lawsuit proceed in a proper venue so

long as it timely raises an objection. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 154 (2005).

Section 2-101 of the Code of Civil Procedure (Code) (735 ILCS 5/2-101 (West 2018)) provides

the general venue rule in Illinois:

“Except as otherwise provided in this Act, every action must be commenced (1) in

the county of residence of any defendant who is joined in good faith and with

probable cause for the purpose of obtaining a judgment against him or her and not

solely for the purpose of fixing venue in that county, or (2) in the county in which

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No. 1-20-0131

the transaction or some part thereof occurred out of which the cause of action

arose.”

When a defendant files a motion to transfer venue, it has the burden to prove that the venue in

which the plaintiff brought the action was improper. Corral, 217 Ill. 2d at 155. In doing so, the

defendant must provide specific facts, not mere conclusions, demonstrating a clear right to transfer

venue. Id. “ ‘Any doubts arising from the inadequacy of the record will be resolved against the

defendant.’ ” Id. (quoting Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 285 (1987)).

¶ 17 When ruling on a motion to transfer venue, the circuit court is faced with both a question

of law and fact. Id. at 153-54. The court must make certain factual findings and then determine the

legal effect of those findings. Id. at 154. Given the court must determine the legal effect of certain

factual findings, we employ a bifurcated standard of review. Id. We review the court’s factual

findings with deference and may only reverse those findings if they are against the manifest weight

of the evidence. Id. However, we review the court’s ultimate legal determination de novo. Id.

¶ 18 Under section 2-101 of the Code (735 ILCS 5/2-101 (West 2018)), there are two pathways

to proper venue: (1) the residency pathway and (2) the transactional pathway. An exception exists

if all the defendants are nonresidents of Illinois, in which case an action may be commenced in

any county in Illinois. Id. However, BG Medical is indisputably an Illinois resident, meaning venue

was proper in Cook County only if it or Aspide were residents of Cook County or if part of the

transaction from which plaintiffs’ claims arose occurred in Cook County.

¶ 19 B. Residency Pathway

¶ 20 Initially, we note that plaintiffs do not assert that Cook County was a proper venue under

the residency pathway. However, given the ambiguity of the circuit court’s order denying BG

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Medical’s motion to transfer venue and whether it found venue was proper in Cook County based

on BG Medical’s residence there previously, we will address the residency pathway.

¶ 21 The residence of a defendant is determined when the plaintiff initiates a lawsuit, “not at the

time of service of process or at the time of the accrual of the cause of action.” Wilson v. Central

Illinois Public Service Co., 165 Ill. App. 3d 533, 537 (1988). Section 2-102 of the Code (735 ILCS

5/2-102 (West 2018)) defines the residence of various business forms for venue purposes. In

relevant part, a private Illinois corporation or a foreign corporation authorized to do business in

Illinois “is a resident of any county in which it has its registered office or other office or is doing

business”; a partnership “is a resident of any county in which any partner resides or in which the

partnership has an office or is doing business”; and a voluntary unincorporated association “is a

resident of any county in which the association has an office or, if on due inquiry no office can be

found, in which any officer of the association resides.” Id. Additionally, a foreign corporation that

is not authorized to transact business in Illinois is considered a nonresident of Illinois. Id. § 2-

102(a). As such, because Aspide is a French corporation and not authorized to conduct business in

Illinois, it is not considered a resident of any county in Illinois. Thus, whether Cook County was a

proper venue based on the residency pathway hinges on BG Medical’s status.

¶ 22 Notably absent from section 2-102 of the Code (id. § 2-102) is a definition of the residence

of a limited liability company, which is the organizational form of BG Medical. There are no

decisions from Illinois stating what residency definitions apply to a limited liability company for

venue purposes. See Keith H. Beyler, Illinois Venue Reform: Not Tort Reform Rants, 43 Loy. U.

Chi. L.J. 757, 772 (2012) (finding “it is undecided in Illinois which venue rules apply to limited

liability companies” though asserting that the residency rules of voluntary unincorporated

associations would likely apply). Assuming arguendo that a limited liability company would be

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treated as a voluntary unincorporated association for venue purposes, BG Medical would not be

considered a resident of Cook County at the time plaintiffs filed their lawsuits. Based on the

affidavit of John Huelskamp, BG Medical’s president, which is proper supporting evidence for a

motion to transfer venue (see 735 ILCS 5/2-104(c) (West 2018)), BG Medical moved its sole office

from Cook County to Lake County in December 2018, and he and his wife, the only two members

of BG Medical, lived in Lake County. It is undisputed that Braun, Cheney, Van Ryswyk, and

Stanley filed their lawsuits in 2019, meaning when they did so, BG Medical had no office in Cook

County and its members did not reside there. Thus, if a limited liability company were treated as

a voluntary unincorporated association for venue purposes, the inquiry of BG Medical’s residency

would be over. See id. § 2-102(c) (providing that a voluntary unincorporated association “is a

resident of any county in which the association has an office or, if on due inquiry no office can be

found, in which any officer of the association resides”).

¶ 23 But it is possible that a limited liability company would not be treated as a voluntary

unincorporated association for venue purposes. See, e.g., Ex Parte Miller, Hamilton, Snider &

Odom, LLC, 942 So. 2d 334, 336-37 (Ala. 2006) (where “no Alabama venue statute mentions

limited liability companies” and the defendant law firm, a limited liability company, had been

treated as a partnership for federal tax purposes for several years, the Alabama Supreme Court

held that the law firm would be treated as a partnership for venue purposes, not as a corporation

or unincorporated association). If a limited liability company were treated as a corporation or

partnership for venue purposes, a further inquiry beyond where BG Medical had its office and

where Huelskamp and his wife resided at the time plaintiffs filed their lawsuits would be necessary

because the residency definitions of a private corporation and partnership allow for residency in a

county where the company is “doing business.” 735 ILCS 5/2-102(a), (b) (West 2018).

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¶ 24 A company is “doing business” for venue purposes in a county where it is “conducting its

usual and customary business” such that its activities are of “ ‘such a nature so as to localize the

business and make it an operation within the district.’ ” Baltimore & Ohio R.R. Co. v. Mosele, 67

Ill. 2d 321, 329-30 (1977) (quoting Remington Rand, Inc. v. Knapp-Monarch Co., 139 F. Supp.

613, 617 (E.D. Pa. 1956)). In other words, we must analyze the nature and extent of the business

activities of the company in the county in question. Bucklew, 138 Ill. 2d at 291, 293. The mere fact

that a company solicits business in a county, sells goods or service in a county, engages in

promotional activities in a county, or buys large quantities of a product in a county are insufficient

to prove that the company is doing business there. See id. at 292-94; Gardner v. International

Harvester Co., 113 Ill. 2d 535, 540-42 (1986).

¶ 25 Rather, to determine whether a company is doing business in a particular county, we

generally analyze the proportion of the company’s overall business occurring in that county as

well as any other relevant factors that may be unique to the business. See Bucklew,138 Ill. 2d at

293; Reynolds v. GMAC Financial Services, 344 Ill. App. 3d 843, 848 (2003). For instance, in

Stambaugh v. International Harvester Co., 102 Ill. 2d 250, 259 (1984), our supreme court found

that, where a business’s sales in a county amounted to 0.05% of its overall sales, that was an

insufficient amount of business to be considered conducting its usual and customary business in

that county. Similarly, in Bucklew, 138 Ill. 2d at 292-93, our supreme court found that, where a

business’s sales in a county amounted to between 0.12 and 0.13% of its overall sales, that was an

insufficient amount of business to be considered conducting its usual and customary business in

that county.

¶ 26 In this case, based on Huelskamp’s affidavit, BG Medical’s revenue from selling

Surgimesh in Cook County accounted for 0.05% of its 2018 revenue in Illinois and 0.0007% of its

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2018 revenue in the United States. In 2019, BG Medical had no revenue from sales of Surgimesh

in Cook County and did not employ a sales representative to solicit sales of Surgimesh in Cook

County. Though BG Medical’s sales of Surgimesh in Cook County were undoubtedly

inconsequential to its overall business, nothing in Huelskamp’s affidavit indicated that its business

was solely limited to the sale of Surgimesh. While BG Medical is the exclusive United States

distributor of Surgimesh, that did not necessarily preclude BG Medical from selling other medical

products. For all we know, BG Medical could have sold other medical products in Cook County

and done so pervasively. BG Medical, as the defendant, had the burden to prove that venue in

Cook County was improper and must do so by providing specific facts, not mere conclusions.

Corral, 217 Ill. 2d at 155. Any doubts from the record must be resolved against BG Medical. Id.

¶ 27 Although Huelskamp’s affidavit stated that “BG Medical does not conduct any meaningful

business in Cook County,” his affidavit failed to provide any specific facts about whether BG

Medical’s business was limited to just the sale of Surgimesh or if it had other ventures, which

would have provided the full scope of its business activities in Cook County. Because of this

inadequacy of proof, we could find that BG Medical failed to meet its burden in proving that venue

in Cook County was improper. However, to do so, we would first need to conclude that a limited

liability company should be treated as a private corporation or partnership, rather than a voluntary

unincorporated association, for venue purposes. But because the second pathway to proper

venue—the transactional pathway—provides a second, and independent, basis of establishing

venue in Cook County and because the circuit court correctly found that part of the transaction

from which plaintiffs’ claims arose occurred in Cook County, we need not resolve this open

question about how to treat a limited liability company for purposes of venue residency rules.

¶ 28 C. Transactional Pathway

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¶ 29 Under the transactional pathway, an action must be commenced “in the county in which

the transaction or some part thereof occurred out of which the cause of action arose.” 735 ILCS

5/2-101 (West 2018). The phrase should be interpreted broadly and liberally. Tipton v. Estate of

Cusick, 273 Ill. App. 3d 226, 228 (1995).

¶ 30 In determining whether venue was proper under the transactional pathway in this case, we

find Rensing v. Merck & Co., 367 Ill. App. 3d 1046 (2006), instructive. In that case, a plaintiff

filed a class action complaint in St. Clair County sounding in fraud against a drug manufacturer

for marketing and selling the drug Vioxx as safe and effective for people with hypertension despite

allegedly being aware that clinical trials associated hypertension-related adverse health effects

with Vioxx. Id. at 1046. At issue on appeal was whether the circuit court properly denied the

defendant’s motion to transfer venue to Cook County. Id. at 1047. In resolving this issue, the

appellate court stated that the two factors it would examine were the nature of the cause of action

and the place where the cause of action sprang into existence. Id. at 1050. The court further

remarked that, in cases involving consumer fraud, the action “springs into existence where the

alleged acts concerning the fraud took place.” Id. “This is the place where the product is

manufactured and/or the place where the decisions regarding any advertising, promotion, and/or

nondisclosure take place,” not where any plaintiffs purchased the product. Id. Ultimately, because

the defendant’s advertising, promotion, and nondisclosure did not occur in St. Clair County and

the plaintiffs only purchased Vioxx there, the appellate court reversed the circuit court’s ruling and

found venue was improper in St. Clair County. Id. at 1051.

¶ 31 However, BG Medical argues that the two-factor framework of Rensing, which it alleges

the circuit court utilized in denying its motion to transfer venue, contravenes the framework set

forth by our supreme court in Williams v. Illinois State Scholarship Comm’n, 139 Ill. 2d 24 (1990).

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In Williams, plaintiffs filed a class action to prevent an Illinois state agency from filing collections

actions on their defaulted and delinquent student loans in Cook County. Id. at 28. In determining

whether venue would be proper in Cook County for the agency to file their collections actions, our

supreme court discussed the transactional pathway for venue and highlighted how the operative

phrase “transaction or some part thereof” had been defined previously. Id. at 68-69.

¶ 32 The court noted one definition was “the place where ‘any significant negotiations were

carried on between the parties, where an agreement was signed, the place where it was, or was

supposed to be performed, or where matters occurred that plaintiff has the burden of proving.’ ”

Id. at 68 (quoting People ex rel. Carpentier v. Lange, 8 Ill. 2d 437, 441 (1956)). The court observed

other definitions as “the place where dealings between the parties themselves occurred while they

were in an adversarial position [citations] or where an event or act which alters the legal relation

of the parties took place.” Id. at 69 (citing Christopher v. West, 345 Ill. App. 515, 528 (1952);

Winn v. Vogel, 345 Ill. App. 425, 431-32 (1952); La Ham v. Sterling Canning Co., 321 Ill. App.

32, 44 (1943)). Ultimately, our supreme court found that venue would not be proper in Cook

County because there was no evidence that there was any personal or direct dealings between the

plaintiffs and the state agency in Cook County and because the acts that altered the legal

relationship of the parties, i.e., signing for the loans, did not occur in Cook County. Id. at 69-70.

As such, “none of the integral parts of these transaction occurred in Cook County.” Id. at 70.

¶ 33 According to BG Medical, the circuit court ignored the two-factor framework in

Williams—(1) where any personal and direct dealings occurred between the parties and (2) where

the acts that altered the legal relationship of the parties occurred—and instead used the alternate

framework from Rensing that considered the nature of the cause of action and where the cause of

action sprang into existence. We disagree that the Williams framework is meaningfully different

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from the framework stated in Rensing. Notably, in Lake County Riverboat L.P. v. Illinois Gaming

Board, 313 Ill. App. 3d 943, 952 (2000), this court asserted that, in determining venue under the

transactional pathway, the two factors that must be analyzed were the nature of the cause of action

and the place where the cause of action sprang into existence. The court then stated “[t]his is

generally the place where the parties’ direct dealings occurred while in an adversarial position or

where events occurred that altered the parties’ legal relationship.” Id. at 953 (citing Williams, 139

Ill. 2d at 69). In other words, the only difference between the frameworks of Williams and Rensing

is semantics. Each variation of the essentially same framework has its place based on the specifics

of the case, such as in Williams, which at its core was a contracts case involving students who were

delinquent or had defaulted on their student loans, or in Rensing, which at its core was a fraud

case. Consequently, the framework from Rensing does not contravene Williams, as they are two

sides of the same coin, and the Rensing framework may be properly used to determine whether

venue is proper under the transactional pathway. In fact, it has been used in several other cases

beyond Rensing and Lake County Riverboat. See, e.g., Terada v. Eli Lilly & Co., 2015 IL App

(5th) 140170, ¶ 23; Board of Education of Nippersink School District 2 v. Koch, 2012 IL App (2d)

120132, ¶ 13; Boxdorfer v. DaimlerChrysler Corp., 339 Ill. App. 3d 335, 344 (2003).

¶ 34 Although in Rensing the case involved a consumer fraud cause of action, we find such a

cause of action similar to the causes of action raised by plaintiffs against BG Medical in this case.

We therefore will examine the nature of the cause of action and the place where the cause of action

sprang into existence to determine if venue was proper in Cook County under the transactional

pathway. In doing so, any element, and the facts supporting it, that the plaintiff must prove to

sustain his or her cause of action may be used to establish venue. Kaiser v. Doll-Pollard, 398 Ill.

App. 3d 652, 656 (2010).

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¶ 35 As noted, plaintiffs each brought four causes of action against BG Medical, including for

strict liability and negligence. In a strict liability claim, one element the plaintiff must prove is that

the product was unreasonably dangerous. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 543

(2008). And a product may be unreasonably dangerous because of a party’s failure to adequately

warn of the product’s risks. Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 206

(1983). In a negligence claim, one element the plaintiff must prove is that the defendant breached

its duty of care. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 270 (2007). And, under certain

circumstances, the defendant’s failure to warn of a product’s risks may “constitute a breach of duty

upon which an action for negligence might be predicated.” Lewis v. Lead Industries Ass’n, 342 Ill.

App. 3d 95, 100 (2003). Indeed, in support of plaintiffs’ causes of action for strict liability and

negligence against BG Medical, they alleged that BG Medical failed to adequately warn medical

professionals and the public at large to the risks of Surgimesh and alleged that BG Medical

marketed the product as safe despite the many adverse consequences associated with its

implantation.

¶ 36 There is no dispute that, at the time plaintiffs were implanted with Surgimesh, BG Medical

was based in Cook County. And, as the circuit court found, relying on BG Medical’s own website,

a proper source of judicial notice (see Innovative Garage Door Co. v. High Ranking Domains,

LLC, 2012 IL App (2d) 120117, ¶ 4 n.1), BG Medical was a sales and marketing distribution

partner of Aspide. Notably, in Huelskamp’s affidavit, while he averred that BG Medical did not

design or manufacture Surgimesh, there was no similar averment to marketing Surgimesh. Taken

together, at the time plaintiffs were implanted with Surgimesh, BG Medical formulated its

marketing efforts of Surgimesh while its sole office was in Cook County. Given that the allegations

in plaintiffs’ complaints concerned, in part, the failure to transparently market and promote

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Surgimesh and that there is nothing demonstrating that those advertising decisions did not originate

from BG Medical’s sole office in Cook County, some part of the transaction out of which

plaintiffs’ causes of action arose occurred in Cook County. See Rensing, 367 Ill. App. 3d at 1050

(in cases where plaintiffs have alleged defendants’ failure to disclose material facts regarding

products, the action “springs into existence” “where the product is manufactured and/or the place

where the decisions regarding any advertising, promotion, and/or nondisclosure take place”).

¶ 37 Still, BG Medical argues that we should view the present case like a personal injury case.

Relying on Kaiser, 398 Ill. App. 3d 652, Jackson v. Reid, 363 Ill. App. 3d 271 (2006), and Peterson

v. Monsanto Co., 157 Ill. App. 3d 508 (1987), BG Medical asserts that, in personal injury actions,

the place of the transaction for venue purposes is where the injury occurs. Although the present

case undoubtedly involves all the plaintiffs suffering personal injuries, this case involves more

than just injuries. As mentioned, several of the principal allegations that plaintiffs will have to

prove involve misrepresentations and omissions by BG Medical in its marketing and promotion of

Surgimesh, making these cases similar to fraud cases for determining where the transaction or

some part thereof occurred. Consequently, the circuit court properly found venue was proper in

Cook County and correctly denied BG Medical’s motion to transfer venue to Lake County

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 40 Affirmed.

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No. 1-20-0131

Cite as: Braun v. Aspide Medical, 2020 IL App (1st) 200131

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 19-L-40,
19-L-42, 19-L-304, 19-L-9284; the Hon. Moira S. Johnson,
Judge, presiding.

Attorneys Jeffrey M. Schieber and Paul J. Coogan, of Taft Stettinius &
for Hollister LLP, of Chicago, for appellant.
Appellant:

Attorneys Allen N. Schwartz and Jennifer K. Scifo, of Kravolec, Jambois
for & Schwartz, of Chicago, and Robert L. Salim and Lisa Causley-
Appellee: Streete, of Salim-Beasley, LLC, of Natchitoches, Louisiana, for
appellees.

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