USA – ILLINOIS Trends and Developments Contributed by: David A. Warnick, Johnson & Bell Ltd
registering is its most exposed feature. Defendants should preserve those objections, but they should not structure their litigation on the expectation that a court will set the statute aside. The statute also forces a deliberate decision that did not previously require much thought, namely whether to register in Illinois at all. Registration now carries a jurisdictional cost that it did not formerly impose. A company should weigh that cost against the commer - cial benefits of registration rather than treating regis - tration as a routine administrative step. Declining to do business in Illinois would be a difficult decision, particularly as other states may enact similar laws and leave few alternatives. Punitive Damages Are Recoverable in Wrongful Death and Survival Claims Damages have moved in the same direction. In 2023, Illinois removed its longstanding bar on the recovery of punitive damages in wrongful death and survival actions. The nature of wrongful death and survival claims lends itself to highly subjective non-economic damages awards. Allowing punitive damages in these cases creates real financial exposure for defendants. However, these damages are not available as of right. A plaintiff cannot plead them in the initial com - plaint and must instead seek leave to add the claim by motion, and courts are directed to evaluate such requests carefully given the financial exposure they present. The Statute of Repose Limits Long-Tail Exposure Under Illinois law, the statute of repose is governed by Section 13-213 of the Code of Civil Procedure (735 ILCS 5/13-213), which establishes an outer time limit within which a product liability action based on strict liability in tort must be commenced. Such an action must be filed within the earlier of: • 12 years from the date of the first sale, lease, or delivery of possession of the product by a seller; or • ten years from the date of the first sale, lease, or delivery of possession of the product to its initial user, consumer, or other non-seller.
If one of these repose periods expires before the action is brought, the claim is barred against all such sellers. What Manufacturers and Distributors Should Anticipate For any company in the chain of distribution, the takeaway is that effective risk management must shift earlier in time. The emphasis should move away from courtroom defences that are becoming less reli - able and towards the contractual, insurance, regis - tration, and design-record decisions that are made long before any claim is filed. The AI bills are likely to return in some form even if the current versions stall. Companies that embed AI into their products should not wait for enactment. They should treat the behaviour of those systems as a product-safety mat - ter now. Additionally, as more retail consumers pur - chase goods online, the marketplace bill responds to a durable problem in cross-border commerce that will not resolve itself. Even in the absence of passage, the existing exceptions to the innocent-seller dismissal and the federal regulatory posture point in the same direction. The companies best positioned will be those that read the pending bills and the enacted statutes together as a consistent signal about where Illinois product liability is heading. They will adjust their supply con - tracts, insurance coverage, registration decisions, and product-safety documentation now, while doing so is still a matter of planning rather than litigation.
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