dissenting:
"Little Jack Horner Sat in the corner,
Eating a Christmas pie;
He put in his thumb,
And he took out a plum,
And said, 'What a good boy am I!’ ”
Plaintiff sought damages against defendants, Howmedica and its sales representative, for injuries caused by the premature failure of the artificial knee manufactured by Howmedica. Defendants argued that provisions of the United States Food, Drug, and Cosmetic Act of 1938 (21 U.S.C. § 301 et seq. (1970)) preempted plaintiff’s State-law tort claim. The majority determined, and I concur, that defendants waived their preemption argument by failing to raise it in the trial court.
I disagree, however, with the court’s affirmance of the damage award. In truth, the damages awarded to plaintiff by the trial court are grossly excessive and should be reduced.
Plaintiff, then age 45, injured his knee at work in 1983. After other treatment options failed, plaintiff decided to undergo total knee replacement. In 1985, Howmedica’s artificial knee was implanted and plaintiff’s doctor related his hope that it would last 8 to 12 years. About three years later, however, plaintiff’s Howmedica knee failed and it was successfully replaced with another Howmedica artificial knee. Plaintiff then brought a products liability suit against Howmedica and a negligence suit against Howmedica’s sales representative. After a bench trial, plaintiff was awarded damages of $1,686,988.70.
To award such an excessive sum, the trial court either forgot or did not care that plaintiff’s knee was not injured by defendants’ device, but had been damaged years earlier in a work-related injury. The only valid complaint against defendants is that the artificial knee wore out sooner than the parties had hoped.
In closing argument, plaintiff argued that a proper damage award was $1.6 to 1.8 million, apportioned as: $200,000 for past and future medical expenses; $400,000 for past and future lost wages; $500,000 to $600,000 for pain and suffering; and $500,000 to $600,000 for disability and disfigurement. Since the trial court awarded almost $1.69 million, an amount in the range suggested by plaintiff, it may be assumed that the individual awards were broken down as plaintiff suggested.
PAIN AND SUFFERING
The trial court awarded plaintiff over $500,000 for pain and suffering. Since defendant’s device did not cause plaintiff’s original knee injury, plaintiff is entitled to pain and suffering damages only for affliction caused by the premature failure of defendant’s device. At the time of trial, plaintiff’s knee revision was doing fine and he was on no prescription pain medication. In addition, he had not seen the doctor in the 18 months prior to trial, other than during a routine yearly check-up. Such evidence does not support a damage award in excess of half a million dollars for pain and suffering.
DISABILITY AND DISFIGUREMENT
Plaintiff received more than $500,000 for disability and disfigurement. As stated above, plaintiff is entitled to damages only for the disability and disfigurement that resulted from the premature failure of defendant’s device.
After plaintiff’s initial knee injury at work, he was disabled from many activities. Once his knee was replaced by the Howmedica knee, plaintiff was able to be more active, but was still restricted from heavy lifting. At that time, plaintiff’s doctor rated him as having a 50% disability for purposes of worker’s compensation.
Following failure of the Howmedica knee and the necessary revision surgery, plaintiff suffered from various disabilities, including limitations on boating, golf, and gardening. However, plaintiff is not entitled to damages for these restrictions because they existed prior to the implantation of the Howmedica knee and were not caused by its premature failure. Indeed, plaintiff’s doctor testified that plaintiff was better off after surgery than if he had never had knee replacement surgery.
Once again, this court refuses to rein in the riverboat gambling atmosphere that characterizes the Illinois tort system. See Lee v. Chicago Transit Authority (1992), 152 Ill. 2d 432, 480 (Heiple, J., dissenting) ("While the courts could order remittitur in an appropriate case such as [this], they have shown no willingness to do so”).
Justice demands that plaintiff’s damages should be subject to a substantial remittitur. Accordingly, I respectfully dissent.