                                      2017 IL App (1st) 160933
                                            No. 1-16-0933
                                  Opinion filed September 29, 2017
                                                                                       Fifth Division
______________________________________________________________________________

                                                IN THE
                                 APPELLATE COURT OF ILLINOIS
                                          FIRST DISTRICT
______________________________________________________________________________
MARTIN CASSIDY,                                                 )   Appeal from the
                                                                )   Circuit Court of
          Plaintiff-Appellant,                                  )   Cook County.
                                                                )
     v.                                                         )   No. 07 L 13276
                                                                )
CHINA VITAMINS, LLC, TAIHUA GROUP                               )   Honorable
SHANGHAI TAIWEI TRADING COMPANY                                 )   Kathy M. Flanagan,
LIMITED, and ZHEIJIANG NHU COMPANY LTD.,                        )   Judge, presiding.
                                                                )
          Defendants                                            )
                                                                )
(China Vitamins, LLC, Defendant-Appellee).                      )



          JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
          Justice Hall concurred in the judgment and opinion.
          Justice Rochford specially concurred in part and dissented in part, with opinion.


                                              OPINION

¶1        Plaintiff Martin Cassidy filed this product liability action seeking damages for injuries he

sustained when a flexible bulk container ripped and caused a stacked container to fall on him.

The trial court dismissed the product liability action against defendant China Vitamins, LLC
No. 1-16-0933


(China Vitamins), pursuant to the statutory provision that allows a nonmanufacturing defendant

that identifies the product manufacturer to be dismissed from a strict liability in tort claim.

¶2     Eventually, the trial court entered a default judgment against defendant Taihua Group

Shanghai Taiwei Trading Company Limited (Taihua Group), the manufacturer of the bulk

container. In 2015, plaintiff moved the trial court to reinstate China Vitamins as a defendant, and

the trial court ultimately denied that motion. The trial court also found there was no just reason to

delay enforcement or appeal of that ruling.

¶3     On appeal, plaintiff contends that the law allows reinstatement of a nonmanufacturer

defendant when an action against the manufacturer appears to be unavailing or fruitless. Plaintiff

argues this exception applies in the instant case because the default judgment is not enforceable

in the People’s Republic of China (PRC), which will not recognize judgments entered in

American state courts, and Chinese law does not follow Illinois damages law with respect to the

elements of damages.

¶4     For the reasons that follow, we reverse the judgment of the trial court, which denied

plaintiff’s motion to reinstate defendant China Vitamins and improperly dismissed plaintiff’s

negligent product liability claim against China Vitamins. We remand this cause for further

proceedings.

¶5                                      I. BACKGROUND

¶6     In 2007, plaintiff filed a three count complaint against China Vitamins, alleging it was

liable under theories of strict product liability, negligent product liability, and res ipsa loquitur.

Plaintiff alleged he sustained injuries at work on October 26, 2006, when a flexible bulk




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No. 1-16-0933


container ripped and leaked its contents, thereby becoming unstable among the other stacked

containers and causing one of the stacked containers to fall on him and injure him.

¶7     In its April 2008 answer to the product liability counts, China Vitamins admitted that it

distributed and sold a certain product stored inside the flexible bulk container but denied that it

manufactured either the product or the container. China Vitamins also moved to dismiss the

res ipsa loquitur count of the complaint for failure to state a cause of action because plaintiff did

not allege that China Vitamins had exclusive control over the instrumentality that allegedly

caused his injuries. Furthermore, China Vitamins filed a third-party negligence complaint against

plaintiff’s employer, seeking contribution as an alleged joint tortfeasor. The trial court granted

China Vitamins’ motion to dismiss and struck the res ipsa loquitur count of the complaint

without prejudice pursuant to section 2-615(a) of the Code of Civil Procedure (Code) (735 ILCS

5/2-615(a) (West 2006)) and granted China Vitamins leave to file its third-party complaint.

During discovery, China Vitamins identified Taihua Group as the manufacturer of the flexible

bulk container.

¶8     Plaintiff was granted leave to file his October 2008 nine-count first amended complaint

against defendants China Vitamins, Taihua Group, and Zheijiang Nhu Company Ltd. (Nhu) (the

alleged manufacturer of the vitamins), alleging they were liable under theories of strict product

liability, negligent product liability, and res ipsa loquitur. Plaintiff alleged that the bulk container

was in an unreasonably dangerous condition when it left defendants’ control; defendants’ duty to

exercise reasonable care for plaintiff’s safety included a duty to exercise reasonable care in the

design, manufacture, distribution, or sale of the bulk container; and the subject incident would




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not have occurred if defendants had used reasonable and proper care while the bulk container

was under their control.

¶9     Defendant Nhu initially filed in August 2009 a special and limited appearance and

motion challenging the court’s personal jurisdiction. However, Nhu withdrew that motion in

May 2010 and submitted to the jurisdiction of the court. In July 2010, the trial court entered an

order of default against Nhu for failure to comply with orders regarding representation. The court

struck Nhu’s answer and deemed the allegations of the complaint admitted.

¶ 10   Meanwhile, defendant Taihua Group filed a general appearance in July 2009 and answer

in August 2009, thereby waiving the service of process requirement and submitting itself to the

court’s jurisdiction. In its answer, Taihua Group admitted that it designed, manufactured,

distributed, supplied and/or sold the flexible bulk container but denied any liability. On January

6, 2010, the trial court granted counsel for Taihua Group leave to withdraw as counsel and

ordered Taihua Group to file a supplemental appearance by March 3, 2010. However, no

supplemental appearance was filed.

¶ 11   Meanwhile, defendant China Vitamins’ October 2008 answer denied any liability

concerning the strict product liability and negligent product liability counts. China Vitamins

moved the court to dismiss the res ipsa loquitur count pursuant to sections 2-615(a) and 2-

619(a)(9) of the Code (735 ILCS 5/2-615(a), 2-619(a)(9) (West 2006)), arguing that plaintiff

failed to state a cause of action and China Vitamins did not have exclusive control over the

instrumentality that allegedly caused the injury. On November 20, 2008, the trial court granted

the motion and dismissed and struck only the res ipsa loquitur count against China Vitamins.




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¶ 12    In 2011, China Vitamins moved for summary judgment and requested dismissal of the

strict product liability and negligent product liability counts, on grounds that it was only a

distributor of bulk vitamins manufactured by Nhu; was not involved in the construction, design,

or manufacture of the flexible bulk container at issue; never had possession or control of the

flexible bulk container; had no actual knowledge of the defect; and did not create the defect.

China Vitamins, which is headquartered in Bedminster, New Jersey, imported the vitamins into

the United States for sale to customers. When an order for vitamins was placed, the vitamins

were loaded into containers in China, shipped to the west coast of the United States, and then

sent by rail direct to the customer. A container load usually consisted of “totes,” which each

weighed 1000 kilos or approximately one metric ton. China Vitamins argued it was entitled to

dismissal of both the strict and negligent product liability counts pursuant to section 2-621 of the

Code (735 ILCS 5/2-621 (West Supp. 1995), amended by Pub. Act 89-7 (eff. Mar. 9, 1995)), as a

nonmanufacturer defendant sued in a “product liability action based on any theory or doctrine.” 1

¶ 13    On January 9, 2012, the trial court denied China Vitamins’ motion for summary

judgment and instead dismissed both the strict and negligent product liability counts against


        1
         However, the “any theory or doctrine” language cited by China Vitamins was added to section 2-

621 in 1995 by Public Act 89-7, which was held unconstitutional in its entirety and not severable by our

supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Accordingly, the version of

section 2-621 that was in effect prior to the 1995 amendment is applicable to this case. South Side Trust &

Savings Bank of Peoria v. Mitsubishi Heavy Industries, Ltd., 401 Ill. App. 3d 424, 427 n.2 (2010). This

issue is discussed infra ¶¶ 20-22.




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No. 1-16-0933


China Vitamins without prejudice pursuant to section 2-621(b) of the Code. Also on January 9,

2012, the trial court granted plaintiff’s motion for a default against Taihua Group based on its

failure to retain counsel to file a supplemental appearance. After a prove-up hearing, the trial

court entered on June 14, 2012, a default judgment against Taihua Group for $9,111,322.47.

There was no adjudication of any cause of action against defendant Nhu.

¶ 14   Plaintiff issued citations to discover assets against Taihua Group but those citations were

quashed on May 23, 2013 for lack of proper service against a foreign resident and foreign

business entity. Between August 2013 and May 2015, plaintiff issued third-party citations to

discover assets in pursuit of collection of the default judgment in Illinois, but those citations were

dismissed because the third-parties were not holding assets that belonged to or were due and

owing to Taihua Group.

¶ 15   On July 24, 2015, plaintiff moved to reinstate China Vitamins pursuant to section 2-

621(b)(3) and (4) of the Code, arguing that Taihua Group was outside the personal jurisdiction of

Illinois courts and not subject to or obligated to respond in a state court action under international

law. The trial court initially granted the motion to reinstate China Vitamins but thereafter vacated

that order when it granted China Vitamins’ motion to reconsider. The trial court found that

plaintiff failed to meet the conditions for reinstatement under section 2-621(b) of the Code and

ruled that the order was final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff.

Mar. 8, 2016). Thereafter, the trial court denied plaintiff’s motion to reconsider and again made

Rule 304(a) findings.




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No. 1-16-0933


¶ 16                                       II. ANALYSIS

¶ 17      On appeal, plaintiff argues China Vitamins should be reinstated as a defendant based on

section 2-621(b)(4) of the Code because Taihua Group, the manufacturer defendant, “is unable to

satisfy any judgment as determined by the court.” 735 ILCS 5/2-621(b)(4) (West 1994). Plaintiff

asserts that Taihua Group has not paid the default judgment entered against it, an Illinois state

court judgment is not enforceable in the PRC, and Taihua Group, which submitted to the

jurisdiction of the Illinois state court, refuses to respond to this action, thus limiting plaintiff’s

ability to recover. Plaintiff asserts that he has met the legal requirements to establish that “it

appears” an action against Taihua Group is “unavailable” or will be “fruitless” because sufficient

evidence showed that the PRC does not recognize judgments entered in American state courts

and Chinese law does not follow Illinois damages law with respect to the elements of damages.

Plaintiff argues that the provision allowing a nonmanufacturing defendant to be reinstated

pursuant to section 2-621(b)(4) should include foreign manufacturers beyond the reach of Illinois

courts.

¶ 18      Because a dismissal of a defendant under section 2-621 contemplates the possibility of

further action, the dismissal does not dispose of the rights of the parties and thus is not final or

appealable until the trial court rules on the plaintiff’s motion to vacate the dismissal of his claims

against the previously dismissed defendant and to reinstate those claims. Kellerman v. Crowe,

119 Ill. 2d 111, 115-16 (1987); South Side Trust & Savings Bank of Peoria, 401 Ill. App. 3d at

431. Here, the trial court denied plaintiff’s motion to vacate the dismissal of his claims against

China Vitamins and to reinstate those claims. The trial court also found that there was no just

reason for delaying either enforcement or appeal of this judgment. Accordingly, this court has



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No. 1-16-0933


jurisdiction to review the trial court’s January 2012 order, dismissing plaintiff’s strict and

negligent product liability claims against China Vitamins, and the 2015 orders denying plaintiff’s

motion to reinstate China Vitamins and motion for reconsideration.

¶ 19    The elements of a strict liability claim based on a product defect are (1) a condition of the

product as a result of manufacturing or design, (2) that made the product unreasonably

dangerous, (3) that existed at the time the product left the defendant’s control, and (4) an injury

to the plaintiff, (5) that was proximately caused by the condition. Mikolajczyk v. Ford Motor Co.,

231 Ill. 2d 516, 543 (2008). Under Illinois law, all entities in the chain of distribution for an

allegedly defective product are subject to strict liability in tort, and the imposition of liability on

them is justified based on their position in the marketing process, which enables them to exert

pressure on the manufacturer to enhance the safety of the product. Hammond v. North American

Asbestos Corp., 97 Ill. 2d 195, 206 (1983). However, Illinois law recognizes a “seller’s

exception” to product liability actions that are based on strict liability. This exception in section

2-621(b) of the Code provides that nonmanufacturer defendants may be dismissed from a strict

product liability action under certain circumstances. 735 ILCS 5/2-621(b) (West 1994). The

purpose of this exception is to allow defendants, whose sole basis of liability is their role as a

member of the distributive chain of an allegedly defective product, to extract themselves from a

strict product liability action at an early stage, before they incur the expense of fully litigating the

dispute, and to defer liability upstream to the ultimate wrongdoer, the manufacturer. Kellerman,

119 Ill. 2d at 113; Murphy v. Mancari’s Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 775

(2008). The seller’s exception, however, is subject to section 2-621(b)’s reinstatement

mechanism, whereby a plaintiff may be allowed to reinstate a previously dismissed



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nonmanufacturer defendant if the plaintiff’s action cannot reach the manufacturer or the

manufacturer would not be able to satisfy a judgment or settlement. 735 ILCS 5/2-621(b) (West

1994); Kellerman, 119 Ill. 2d at 114. “Section 2-621 thus ensures that the burden of loss due to a

defective or dangerous product remains on those who placed the product in the stream of

commerce.” Thomas v. Unique Food Equipment, Inc., 182 Ill. App. 3d 278, 282 (1989).

¶ 20   Prior to 1995, this exception applied only to actions in strict product liability; if a plaintiff

proceeded against a nonmanufacturer defendant under a negligence theory, that defendant was

not entitled to dismissal under section 2-621. See Link v. Venture Stores, Inc., 286 Ill. App. 3d

977, 978 (1997) (plaintiff had a vested right in her negligence cause of action against the

defendant store for selling an alleged defectively designed car seat where the cause of action

accrued and was filed before the statute was amended to provide for the dismissal of such

nonmanufacturer defendants). Specifically, the pre-1995 version of section 2-621 provided for

dismissal of claims against nonmanufacturing defendants in “any product liability action based in

whole or in part on the doctrine of strict liability in tort.” 735 ILCS 5/2-621(a) (West 1994).

¶ 21   In 1995, the legislature enacted Public Act 89-7, the so-called Tort Reform Act, which,

inter alia, amended section 2-621 to provide that nonmanufacturer defendants in product liability

actions who were sued under “any theory or doctrine” could be dismissed if they fulfilled certain

requisite criteria. 735 ILCS 5/2-621 (West Supp. 1995) (amended by Pub. Act 89-7 (eff. March

9, 1995)). However, in 1997, our supreme court in Best, 179 Ill. 2d at 467, held that Public Act

89-7 was void in its entirety because certain core provisions of the act were contrary to the

Illinois constitution and were not severable from the remaining provisions of the act. If an act is

unconstitutional in its entirety, the state of the law is as if the act had never been enacted, and the



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law in force is the law as it was before the adoption of the unconstitutional amendment. In re

G.O., 191 Ill. 2d 37, 43 (2000); People v. Gersch, 135 Ill. 2d 384, 390 (1990). Our legislature has

not reenacted the amendment to section 2-621 in the two decades since Best was decided.

Accordingly, the pre-1995 version of section 2-621 is applicable to this case. South Side Trust &

Savings Bank of Peoria, 401 Ill. App. 3d at 427 n.2.

¶ 22   The pre-1995 version of section 2-621 provides that a nonmanufacturer defendant,

usually a distributor or retailer, in a strict product liability action may be dismissed from the

action if it certifies the correct identity of the manufacturer of the product that allegedly caused

the injury. 735 ILCS 5/2-621 (West 1994). As soon as the plaintiff has filed against the product

manufacturer and the manufacturer has answered or otherwise pleaded, the court must dismiss

the strict liability claim against the certifying defendant, unless the plaintiff shows the defendant

(1) exercised some significant control over the design and manufacture of the product or

instructed or warned the manufacturer relative to the alleged defect in the product, (2) had actual

knowledge of the defect in the product, or (3) created the defect. 735 ILCS 5/2-621(b), (c) (West

1994); South Side Trust & Savings Bank of Peoria, 401 Ill. App. 3d at 431.

¶ 23   At any time subsequent to the dismissal, the plaintiff may move to vacate the order of

dismissal and reinstate the certifying defendant, provided the plaintiff can show one or more of

the following: (1) the applicable period of the statute of limitations or statute of repose bars the

assertion of a strict liability in tort cause of action against the manufacturer; (2) the identity of

the manufacturer given to the plaintiff by the certifying defendant was incorrect; (3) the

manufacturer no longer exists, cannot be subject to the jurisdiction of the Illinois courts, or,

despite due diligence, is not amenable to service of process; (4) “the manufacturer is unable to



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satisfy any judgment as determined by the court;” or (5) “the court determines that the

manufacturer would be unable to satisfy a reasonable settlement or other agreement with the

plaintiff.” 735 ILCS 5/2-621(b)(1) to (b)(5) (West 1994).

¶ 24   On appeal, plaintiff argues that China Vitamins should be reinstated pursuant to section

2-621(b)(4) because he has sufficiently shown that the manufacturer Taihua Group “is unable to

satisfy any judgment as determined by the court.” 735 ILCS 5/2-621(b)(4) (West 1994).

According to plaintiff, our supreme court in Kellerman adopted for section 2-621(b)(4) an

“appears unavailing or fruitless standard” to assess whether the manufacturer is unable to satisfy

any judgment. Plaintiff contends he has met this standard because his documented unsuccessful

efforts to enforce his over $9 million default judgment against Taihua Group establishes that he

has no reasonable expectation that Taihua Group will ever remit the ordered damages and Taihua

Group is insulated from his collection efforts because the Chinese government is unwilling to

recognize or enforce American state court judgments against Chinese entities.

¶ 25   Plaintiff raises an issue of statutory interpretation, which this court reviews de novo. JP

Morgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010). We disagree with

plaintiff’s assertion that Kellerman, 119 Ill. 2d at 116-17, construed section 2-621(b)(4) to

require a plaintiff to show that it “appears” an action against the manufacturer would be

“unavailing,” “unavailable,” or “fruitless.” The Kellerman court did not construe the language of

section 2-621. Rather, Kellerman addressed only whether a section 2-621 dismissal was a final

and appealable order. The language in Kellerman quoted by plaintiff here was merely part of the

Kellerman court’s passing reference to, and summary of, all of the five subsections of section 2-

621(b). See Chraca v. U.S. Battery Manufacturing Co., 2014 IL App (1st) 132325, ¶ 22.



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¶ 26   Our primary objective in construing a statute is to ascertain and give effect to the intent of

the legislature. MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009).

The plain language of a statute is the most reliable indication of legislative intent. DeLuna v.

Burciaga, 223 Ill. 2d 49, 59 (2006). “[W]hen the language of the statute is clear, it must be

applied as written without resort to aids or tools of interpretation.” Id. The statute should be read

as a whole and construed “so that no term is rendered superfluous or meaningless.” In re

Marriage of Kates, 198 Ill. 2d 156, 163 (2001). “Words and phrases should not be viewed in

isolation but should be considered in light of other relevant provisions of the statute.” Bettis v.

Marsaglia, 2014 IL 117050, ¶ 13. We do not depart from the plain language of a statute by

reading into it exceptions, limitations, or conditions that conflict with the legislative intent.

Harrisonville Telephone Co. v. Illinois Commerce Comm’n, 212 Ill. 2d 237, 251 (2004). When

the meaning of an “enactment is unclear from the statutory language itself, the court may look

beyond the language employed and consider the purpose behind the law and the evils the law

was designed to remedy.” Bettis, 2014 IL 117050, ¶ 13.

¶ 27   This court previously addressed the meaning of section 2-621(b)(4) in Chraca, 2014 IL

App (1st) 132325, where the consumer plaintiff, who had obtained a default judgment against a

manufacturer-defendant located in China, moved to reinstate his product liability claim against

the previously dismissed distributor defendant after the plaintiff was unable to collect on the

default judgment. Specifically, the plaintiff argued that the Chinese manufacturer was “thumbing

its nose at this Illinois court” by “ignoring this action.” (Internal quotation marks omitted.) Id.

¶ 10. Plaintiff’s counsel had engaged in collection proceedings and submitted affidavits averring

that there was no reasonable expectation of ever collecting the default judgment against the



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Chinese manufacturer because, even though the manufacturer had been served in accordance

with The Hague Convention, it was not possible to register a United States judgment in China,

since there was no arrangement for the reciprocal enforcement of judgments between the United

States and China. Id. Also, counsel averred that the plaintiff would have to start a new tort action

in China and any amount of damages that might be awarded would be significantly less than that

in the United States. Id.

¶ 28   This court in Chraca concluded that the plaintiff had not met his burden under section 2-

621(b)(4) to show that the manufacturer defendant was unable to satisfy any judgment because

“[a]uthority indicates that in a section 2-621 proceeding, a company is deemed ‘unable to satisfy

any judgment’ when it is bankrupt or nonexistent.” Id. ¶ 24. Specifically, Chraca found that the

plaintiff failed to present any information about the financial viability of the manufacturer, which

seemed to be an ongoing business because the plaintiff’s Chinese translator purported to have

reached the manufacturer’s owner on a mobile telephone. Id. ¶ 25.

¶ 29   We find that the Chraca court’s analysis was flawed and its conclusion is not persuasive.

The three cases Chraca cited to support its conclusion were not limited to the issue of a

manufacturer’s bankruptcy or nonexistence. Rather, the rationale of the cited cases focused on

whether the manufacturer was judgment-proof and ensuring that the plaintiff’s total recovery

would not be prejudiced by the dismissal of a nonmanufacturer defendant. See Harleysville Lake

States Insurance Co. v. Hilton Trading Corp., No. 12 C 8135, 2013 WL 3864244, at *3 (N.D. Ill.

July 23, 2013) (because there was no suggestion that the manufacturer was either insolvent under

section 2-621(b)(3) or otherwise judgment-proof under section 2-621(b)(4), the retailer was

entitled to be dismissed under the seller’s exception); Finke v. Hunter’s View, Ltd., 596 F. Supp.



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2d 1254, 1271 (D. Minn. 2009) (the retailer of the defective product was not entitled to dismissal

under the seller’s exception statute because the manufacturer had filed for Chapter 7 bankruptcy

and the retailer failed to support its claim that the manufacturer’s liability insurance policy would

satisfy a judgment against the manufacturer); Malone v. Schapun, Inc., 965 S.W.2d 177, 182

(Mo. Ct. App. 1997) (after the plaintiffs had settled with the manufacturer and distributor for a

partial payment of the plaintiffs’ claims, the mere seller was not entitled to dismissal because the

statute required that there had to be another defendant properly before the court from whom total

recovery may be had).

¶ 30   Chraca misconstrued the import of the holdings of Harleysville, Finke, and Malone to

support Chraca’s finding that “unable to satisfy any judgment” must mean bankrupt or

nonexistent. To the contrary, Harleysville, Finke, and Malone actually considered the effect a

manufacturer’s judgment-proof status would have on the plaintiff’s total recovery. Nothing in

section 2-621(b)(4) limits its application to only bankrupt or nonexistent manufacturers.

Moreover, assigning Chraca’s narrow meaning of bankrupt and nonexistent to section 2-

621(b)(4) renders some of the language of          section 2-621(b)(3), i.e., “no longer exists,”

superfluous.735 ILCS 5/2-621(b)(3) (West 1994). Accordingly, we do not follow Chraca’s

analysis or holding concerning section 2-621(b)(4).

¶ 31   When determining the plain and ordinary meaning of words, a court may look to the

dictionary if, as here, a word or phrase is undefined in the statute. Murphy, 381 Ill. App. 3d at

774. The adjective “able” is defined as “having sufficient power, skill, or resources to

accomplish an object,” and “susceptible to action or treatment.” Merriam-Webster’s Collegiate

Dictionary 3 (10th ed. 1998). “Unable” is defined as “not able,” “incapable,” such as (a)



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“unqualified, incompetent”; (b) “impotent, helpless.” https://www.merriam-webster.com. (last

visited Aug. 17, 2017).

¶ 32    “Satisfy” is defined as “1 a : to carry out the terms of (as a contract) : DISCHARGE b : to

meet a financial obligation to 2 : to make reparation to (an injured party) : INDEMNIFY 3 a : to

make happy : PLEASE b : to gratify to the full : APPEASE.” Merriam-Webster’s Collegiate

Dictionary 1038 (10th ed. 1998). The noun “satisfaction” is defined as the “fulfillment of an

obligation; esp., the payment in full of a debt.” Black’s Law Dictionary 1343 (7th ed. 1999). The

phrase “satisfaction of judgment” means “1. The complete discharge of obligations under a

judgment. 2. The document filed and entered on the record indicating that a judgment has been

paid.” Id.

¶ 33    Also, we note that the phrase “unable to satisfy a judgment” is synonymous with the

terms “judgment-proof” and “execution-proof.” See id. at 849 (defining “judgment-proof” as

“unable to satisfy a judgment for money damages because the person has no property, does not

own enough property within the court’s jurisdiction to satisfy the judgment, or claims the benefit

of statutorily exempt property. — Also termed execution-proof.”). Terms of art abound in the

law, and the entire phrase “unable to satisfy any judgment” is a term of art that means judgment-

proof, execution-proof. Rather than construing that entire phrase, it seems that Chraca’s analysis

focused on the word “unable.” Similarly, here, the trial court and defendant China Vitamins

focused on the word “unable” to conclude that reinstatement of China Vitamins was not

warranted because Taihua Group seemed unwilling rather than unable to pay the judgment.

¶ 34    Nothing in section 2-621(b)(4) suggests that we should not give the phrase “unable to

satisfy any judgment” its ordinary meaning of judgment-proof. See also, Ungaro v. Rosalco,



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Inc., 948 F. Supp. 783, 785 (N.D. Ill. 1996) (refusing to apply the section 2-621(b)(4) or (5)

“exception pertaining to judgment-proof manufacturers” because the plaintiff failed to show that

the manufacturer “is unable to satisfy any judgment imposed by this court”). 2 Thus, in order to

reinstate a previously dismissed nonmanufacturer defendant, the plaintiff, in addition to showing

that the manufacturer is insolvent or bankrupt, may also show that the manufacturer has no

property or does not own enough property within the court’s jurisdiction to satisfy the judgment.

We do not hold that section 2-621(b)(4) applies when a plaintiff merely has trouble collecting a

judgment; there can be a significant difference between situations involving a plaintiff

experiencing some difficulty in collecting a judgment and a defendant being judgment-proof.

The court’s focus is not on plaintiff’s mere inability to collect or enforce the judgment but,

rather, whether plaintiff, based on the plain language of the statute, has met his burden to show

that Taihua Group is judgment-proof.

¶ 35    Even if section 2-621(b)(4) was deemed ambiguous, our construction of the statute is

consistent with its purpose to ensure that the burden of loss due to defective or dangerous

products is not borne by the consumer but instead remains on the manufacturer, distributor and

retail defendants who placed the product in the stream of commerce. See Hammond, 97 Ill. 2d at

206; Thomas, 182 Ill. App. 3d at 282. We find no support in the Illinois common law or statutes

concerning strict product liability for the notion that the legislature intended for injured

consumers to bear unreasonable costs to chase after foreign manufacturers who do not own


        2
            Ungaro was issued one year before Best, 179 Ill. 2d 367, and thus Ungaro’s holding that the

seller’s exception of section 2-621 applies to negligence product liability claims has been superseded. See

supra ¶ 12n.1, ¶¶ 20-22.


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sufficient property within the court’s jurisdiction to satisfy a judgment while reachable

downstream liability distributor defendants, who profited from the sale of the defective product,

could have contracted with the manufacturer for insurance coverage, and could seek

indemnification from the manufacturer, simply sit and watch from the sidelines.

¶ 36   According to the plainly-worded statute, plaintiff has the burden to show that Taihua

Group is unable to satisfy the over $9 million default judgment because Taihua Group either

lacks the power, skill, or resources to do so; has no property; or does not own enough property

within the court’s jurisdiction to satisfy the judgment. A plaintiff must put on competent

evidence to show under section 2-621 that the previously dismissed nonmanufacturer defendant

should be reinstated in the case. See Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d 185,

191 (1990). Where, as here, a trial court rules on the plaintiff’s motion to reinstate the

nonmanufacturer defendant without hearing any testimony and based solely on documentary

evidence, a de novo standard of review is appropriate. Rosenthal-Collins Group, L.P. v. Reiff,

321 Ill. App. 3d 683, 687 (2001).

¶ 37   Because section 2-621(b)(4) includes judgment-proof manufacturers, the issues about

whether Taihua Group is a viable enterprise in China and that country’s alleged policy to

disregard judgments rendered in American state courts are not dispositive of the issue of China

Vitamin’s reinstatement. According to the record, Taihua Group submitted to the jurisdiction of

the trial court but then dropped out of the proceedings and has not paid the judgment rendered

against it. The record also contains evidence of plaintiff’s efforts to discover assets to satisfy any

portion of the default judgment against Taihua Group. Specifically, the record before the trial

court documented plaintiff’s retention of Querrey & Harrow, Ltd. after the entry of the default



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judgment to identify assets to collect the default judgment against Taihua Group, the entry of

citations to discover assets against Taihua Group and multiple third parties, the various motions

to quash presented by the third parties, and a conditional judgment entered against a third party

that was subsequently vacated by the trial court. See May Department Stores Co. v. Teamsters

Union Local No. 743, 64 Ill. 2d 153, 159 (1976) (a court may take judicial notice of court filings

and other matters of public record when the accuracy of those documents reasonably cannot be

questioned). Furthermore, plaintiff summarized in his motion to reinstate China Vitamins the

history of his unsuccessful attempts to collect the default judgment.

¶ 38   Nothing in the plain language of section 2-621(b)(4) requires a plaintiff to exhaust all

possible means of collection of a judgment before a previously dismissed nonmanufacturer

defendant may be reinstated. Rather, the plain language of the statute provides for reinstatement

if “the manufacturer is unable to satisfy any judgment as determined by the court.” (Emphasis

added.) 735 ILCS 5/2-621(b)(4) (West 1994). Civil judgments are not self-executing, and tort

claimants often must undertake postjudgment litigation to collect their judgments. We believe

the determination of whether a plaintiff has expended sufficient effort to show that a

manufacturer is judgment-proof may be best addressed first by the circuit court, which often will

have direct knowledge of the plaintiff’s efforts. Here, the parties and the trial court analyzed the

section 2-621(b)(4) reinstatement issue within the confines of Chraca’s holding that a plaintiff

must show that the manufacturer defendant was either bankrupt or nonexistent. Because we

reject that holding by Chraca, and because the trial court denied plaintiff’s motion to reinstate

China Vitamins based on the lack of any evidence that Taihua Group was bankrupt or no longer




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No. 1-16-0933


existed, we reverse the trial court’s denial of plaintiff’s motion and remand the cause to the trial

court for further proceedings consistent with this opinion.

¶ 39   Finally, we also reverse the trial court’s order that dismissed plaintiff’s negligent product

liability claim against China Vitamins. As discussed above, the version of section 2-621 that is

presently in effect permits a seller’s exception dismissal only for a claim of strict product

liability. Negligent product liability claims are not strict liability claims and therefore are not

subject to dismissal under section 2-621. Link, 286 Ill. App. 3d at 978.

¶ 40                                   III. CONCLUSION

¶ 41   For the foregoing reasons, we conclude that the trial court erroneously denied plaintiff’s

motion to reinstate the action against China Vitamins based on the lack of any evidence showing

that Taihua Group was bankrupt or no longer existed. We remand this cause to the trial court for

further proceedings to determine whether Taihua Group is unable to satisfy any judgment within

the meaning of section 2-621(b)(4). Also, we conclude that the trial court erroneously dismissed

plaintiff’s negligent product liability claim against China Vitamins under a void version of the

statute. Accordingly, we reverse the judgment of the trial court and remand this cause for further

proceedings.

¶ 42   Reversed and remanded.

¶ 43   JUSTICE ROCHFORD, concurring in part and dissenting in part.

¶ 44   I concur in the majority’s decision to vacate the dismissal of plaintiff’s negligence-based

product liability claim against China Vitamins, for the reasons discussed supra ¶ 21-39. I also

concur with the majority’s conclusion that the decision in Kellerman v. Crowe, 119 Ill. 2d 111,

115-16 (1987), does not provide the relevant standard applicable to this matter, for the reasons


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discussed supra ¶¶ 24-25. However, for the reasons that follow, I respectfully dissent from the

majority’s decision to remand this matter for further proceedings on plaintiff’s motion to

reinstate China Vitamins as a defendant with respect to plaintiff’s strict product liability claim.

¶ 45   On appeal, plaintiff argues that his strict product liability action against China Vitamins

should be reinstated pursuant to section 2-621(b)(4) of the Code of Civil Procedure, which

allows for such reinstatement where “the manufacturer is unable to satisfy any judgment as

determined by the court.” 735 ILCS 5/2-621(b)(4) (West 2014). A plaintiff bears the burden of

establishing that a statutory basis exists for the reinstatement of a dismissed defendant. Cherry v.

Siemans Medical Systems, Inc., 206 Ill. App. 3d 1055, 1064 (1990).

¶ 46   In seeking reinstatement under section 2-621(b)(4), plaintiff specifically argued that he

“made exhaustive attempts to collect the [default] judgment [against Taihua Group],” that he has

been unable to do so, and that such efforts “will continue to be unavailing.” Thus, plaintiff

sought reinstatement under this section primarily on the basis of his difficulty in enforcing the

judgment.

¶ 47   In finding that this matter should be remanded to allow plaintiff to satisfy his burden of

establishing that a statutory basis exists for the reinstatement of China Vitamins, the majority

first interprets section 2-621(b)(4) to allow for reinstatement where a manufacturer is “judgment-

proof.” Supra ¶ 34. However, the majority provides three different, partially overlapping

definitions of what that means. See supra ¶ 33 (noting that judgment-proof is defined as “unable

to satisfy a judgment for money damages because the person has no property, does not own

enough property within the court’s jurisdiction to satisfy the judgment, or claims the benefit of

statutorily exempt property.”); supra ¶ 34 (to establish that a manufacturer is judgment-proof,



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“the plaintiff, in addition to showing that the manufacturer is insolvent or bankrupt, may also

show that the manufacturer has no property or does not own enough property within the court’s

jurisdiction to satisfy the judgment.”); supra ¶ 36 (finding that a plaintiff has the burden to show

that manufacturer “lacks the power, skill, or resources to [satisfy a judgment against it], has no

property; or does not own enough property within the court’s jurisdiction to satisfy the

judgment.”). Then, stating that its “focus is not on plaintiff’s mere inability to collect or enforce

the judgment,” the majority nevertheless suggests that—on remand—plaintiff may establish that

Taihua Group was “judgment-proof” by presenting competent evidence concerning his

unsuccessful efforts to collect any portion of the default judgment against Taihua Group. Supra

¶¶ 34-37.

¶ 48   However, in light of the plain statutory language, it is my belief that it is improper to

focus on plaintiff’s inability to enforce the default judgment rather than Taihua Group’s inability

to satisfy that judgment.

¶ 49   As the majority correctly notes, plaintiff’s arguments require this court to interpret the

language of section 2-614(b)(4) de novo, to give effect to the legislative intent evidenced by the

plain language of that section and, in doing so, not depart from the plain language by reading

into it exceptions, limitations, or conditions that conflict with the clearly expressed legislative

intent. Supra ¶¶ 25-26. The plain language of section 2-621(b)(4) provides that the dismissal of a

nonmanufacturing defendant may be vacated, and the strict liability action against it reinstated

only where the court determines “the manufacturer is unable to satisfy the judgment." 735 ILCS

5/2-621(b)(4) (West 2014). “When a court is called upon to determine whether a statutory term

has a plain and ordinary meaning, it is appropriate to consult a dictionary.” Board of Education



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No. 1-16-0933


of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 41. As

the definitions provided by the majority itself indicate (supra ¶¶ 31-32), dictionary definitions of

the words contained in the phrase “the manufacturer is unable to satisfy the judgment” indicate

that it has the following plain and ordinary meaning: the manufacturer is not able or is incapable

of completely discharging its financial obligations under the judgment.

¶ 50   What is also evident from that plain language is that the proper focus should be on the

manufacturer’s inability to satisfy a judgment. There is no language in section 2-621(b)(4) stating

that a dismissal may be vacated where the court determines a plaintiff cannot enforce a

judgment, and no language that reinstatement may occur merely when the court determines that

the manufacturer has insufficient or no assets within the court’s specific jurisdiction—while

possessing assets elsewhere. As such, there is nothing in the plain language of the statute to

support the contention that plaintiff’s difficulties in enforcing the default judgment in China or

elsewhere rendered Taihua Group unable to satisfy that judgment. And, without reading

conditions into the statutory text, there is no language indicating that section 2-621(b)(4) is

concerned with manufacturers that are “judgment-proof,” as defined in three separate ways by

the majority.

¶ 51   This court’s decision in Chraca v. U.S. Battery Manufacturing Co., 2014 IL App (1st)

132325, supports this reading of section 2-621(b)(4).

¶ 52   In Chraca, the plaintiff was injured while unpacking a shipment of golf cart batteries sent

by the defendant U.S. Battery Manufacturing Company (U.S. Battery) to the plaintiff’s

employer. Id. ¶ 2. The plaintiff suffered injuries as he was carrying individual batteries with a

strap that broke. Id. The plaintiff brought a strict liability action against the manufacturer of the



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No. 1-16-0933


strap and U.S. Battery. Id. U.S. Battery was dismissed as a defendant under section 2-621(b)

after showing it did not participate in the manufacture and design of the strap and had no

knowledge of, nor responsibility for, any defect in the strap. Id. ¶ 8. U.S. Battery identified the

manufacturer, Yuhuan County Litian Metal Products Co. Ltd., an entity located in China. Id. The

plaintiff filed an amended complaint which added the manufacturer as a defendant and served the

manufacturer pursuant to the Hague Convention. Id. ¶ 9. The plaintiff obtained a default

judgment against the manufacturer-defendant. Id. ¶ 1. Subsequently, the plaintiff moved to

reinstate his product liability claim against U.S. Battery arguing that it was unable to collect the

default judgment. Id. ¶ 12. In support of the motion, the plaintiff submitted affidavits from

lawyers in China averring that there was no reasonable expectation of ever collecting the default

judgment in that a United States judgment could not be registered and the plaintiff would have to

bring a new tort action in China where the potential award of damages would be significantly

less than that in the United States. Id. ¶ 13.

¶ 53    In construing section 2-621(b)(4) in Chraca, this court noted that “[a]uthority indicates

that in a section 2–621 proceeding, a company is deemed ‘unable to satisfy any judgment’ when

it is bankrupt or nonexistent.” Id. ¶24 (collecting cases). We then concluded that plaintiff’s

inability to enforce a judgment was not a basis for reinstatement, stating:

        “Chraca's attorney misconstrued the statutory language when he asked [another attorney]

        how Chraca could demonstrate to the Illinois trial court that there is ‘no reasonable

        expectation of ever collecting a judgment against the Chinese [manufacturing] company.’

        [The] response and the joint affidavit of the two Chinese attorneys about their local

        court's unwillingness to ‘recognize or enforce a judgment obtained in an American state



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        court’ do not indicate that Yuhuan was declared bankrupt or is no longer operating and

        thus is ‘unable to satisfy any judgment’ as that phrase is used in the statute at issue.” Id.

        ¶ 25 (citing 735 ILCS 5/2-621(b)(4) (West 2010)).

¶ 54    Thus, in interpreting the phrase “unable to satisfy any judgment,” the Chraca court

properly distinguished between a defendant manufacturer’s inability to satisfy a judgment and a

plaintiff’s inability to enforce a judgement. I see no reason to depart from the Chraca court’s

interpretation, as it reflects the plain language of the statute.

¶ 55    Nevertheless, both plaintiff and the majority take issue with Chraca’s limitation of the

application of section 2-621(b)(4) to only those situations where a manufacturing defendant is

bankrupt or nonexistent, in part because the authority cited by the Chraca court did not focus

simply on insolvency or nonexistence, but rather on the fact that defendant manufacturers were

“judgment-proof.” Supra ¶¶ 29-30. While those two situations may not represent the only

circumstances where a manufacturer is unable to satisfy a judgment, I find that—at the very

least—our prior decision correctly interpreted the plain statutory language to focus on the

defendant’s inability to satisfy a judgment rather than a plaintiff’s inability to enforce a

judgement.

¶ 56    Moreover, while the majority contends that the phrase “unable to satisfy any judgment”

contained in section 2-621(b)(4) represents a legal “term of art” meaning “judgment-proof,” I

note that our supreme court has only recognized that “if a term has a settled legal meaning, the

courts will normally infer that the legislature intended to incorporate the established meaning.”

People v. Smith, 236 Ill. 2d 162, 167 (2010). However, the majority cannot say the terms of that

statute have the settled legal meaning of “judgment-proof” after it both rejects the interpretation



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of section 2-621(b)(4) previously offered by the Chraca court and after its own analysis provides

three separate definitions of the language of the statute, which the majority arrived at by

combining and extrapolating from several dictionary definitions.

¶ 57   That said, there may be valid policy reasons for allowing the reinstatement of a dismissed

defendant in the chain of distribution when a plaintiff has failed to overcome significant burdens

in the collection of a judgment. However, this court is not free to read exceptions, limitations, or

conditions into a statute, even for laudable reasons. Bettis v. Marsaglia, 2014 IL 117050, ¶ 13.

Indeed, this court has previously declined to place glosses upon or provide exceptions to the

plain language of section 2-621(b). See Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d

185, 193 (1990); Cherry, 206 Ill. App. 3d at 1064. In contrast, here the majority improperly

grafts its own definition of “judgement-proof” onto the plain language of section 2-621(b)(4).

¶ 58   Moreover, if the legislature had in fact desired to include a plaintiff’s inability to enforce

a judgment as a statutory basis for reinstatement, it could easily have done so. The provisions of

section 2-621 are one example of legislation enacted in many states “that, to some extent,

immunizes nonmanufacturing sellers or distributors from strict liability.” Restatement (Third) of

Torts: Products Liability § 1 cmt. e (1998). These statutes “are loosely patterned after the Model

Uniform Product Liability Act” (Model Act). Malone v. Schapun, Inc., 965 S.W.2d 177, 181

(Mo. Ct. App. 1997) (citing Frank J. Cavico, Jr., The Strict Tort Liability of Retailers,

Wholesalers, and Distributors of Defective Products, 12 Nova. L. Rev. 213, 240-41 (1987)).

¶ 59   Notably, the Model Act includes provisions that a product seller will be held liable to the

same extent as a manufacturer in a strict product liability action both where: (1) the manufacturer

is insolvent such that it is “unable to pay its debts, and (2) “[t]he court determines that it is highly



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probable that a claimant would be unable to enforce a judgment.” 44 Fed. Reg. 62714, at 62726

(1979). Our legislature chose not to include an “unable to enforce” provision in section 2-

621(b)(4), thus exhibiting an intent that the inability to enforce a judgment was not a

consideration in the mechanisms of section 2-621(b)(4). Legislatures in other states have

similarly expressed their legislative intent, electing to provide a “seller’s exception” under

different circumstances than those included in the Model Act. See Wash. Rev. Code Ann.

§ 7.72.040(2)(b) (incorporating the Model Act’s “highly probable” language); Minn. Stat. Ann.

§ 544.41 (2)(4) (utilizing language identical to section 2-621(b)(4)). 3

¶ 60     Further, and contrary to the majority’s interpretation, section 2-621(b)(4) does not

specifically include language providing for reinstatement where a manufacturer has either no

assets or insufficient assets within the court’s jurisdiction to satisfy a judgment. Perhaps this is

because Illinois is one of many states that recognize foreign judgments and provide a mechanism

for enforcement of such foreign judgments. See 735 ILCS 5/12-650 et seq. (West 2014)

(Uniform Enforcement of Foreign Judgments Act); 735 ILCS 5/12-661 et seq. (West 2014)

(Uniform Foreign-Country Money Judgments Recognition Act). As such, a defendant is

generally not considered judgment-proof simply because assets are located outside the

jurisdiction of the court. I therefore have concerns about making an overbroad generalization that




         3
             Notably, the Minnesota language—identical to our own—appears to have only been applied

where the manufacturer is insolvent. See Tabish v. Target Corp., Civ. No. 07-2303 RHK/JSM, 2007 WL

1862095, at *2 (D. Minn. June 26, 2007); Marcon v. Kmart Corp., 573 N.W.2d 728, 731 (Minn. Ct. App.

1998).


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a defendant is unable to satisfy a judgment simply because it has either no assets or insufficient

assets within the court’s specific jurisdiction.

¶ 61   Furthermore, I note that in response to the plaintiff’s effort to reinstate, China Vitamins

provided evidence that Taihua Group was an ongoing commercial concern operating thorough

various subsidiaries in China and many other countries. This included sales and warehouse

facilities in Germany. Of note, and despite any difficulties plaintiff may have collecting its

judgment in China, German law contains specific provisions for the enforcement of foreign

judgments. See Zivilprozessordnung (ZPO) (German Code of Civil Procedure) §§ 328, 722, 723.

While the majority contends that plaintiff should not be forced to “chase after foreign

manufacturers” before reinstating a nonmanufacturer defendant (supra ¶ 35), the process of

enforcing judgments in other jurisdictions is not outside the norm. Rather, as the above discussed

mechanisms reflect, it is a normal part the litigation process. Indeed, even the majority itself

recognizes: “Civil judgments are not self-executing, and tort claimants often must undertake

postjudgment litigation to collect their judgments.” Supra ¶ 38.

¶ 62   Finally, I note that even if the statutory definition and policy considerations proffered by

the majority are to be accepted, it would not necessarily follow that the dismissal of plaintiff’s

strict product liability claim against China Vitamins should be vacated. To the extent that we

look to Taihua Group’s power, skill and resources to pay the default judgement, I note that

plaintiff himself acknowledges on appeal that Taihua Group “could voluntarily pay the damages

assessed against it.” And, to the extent that the majority seeks to ensure that section 2-621

succeeds in its objective to place the burden of loss on those who placed the product in the

stream of commerce (supra ¶ 19), plaintiff has taken no efforts to finalize the default entered



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against defendant Nhu, another defendant involved in the supply chain at issue here, or to

attempt to collect damages from that remaining defendant.

¶ 63   For all the above the reasons, I respectfully dissent from the majority’s decision to

remand for further proceedings on plaintiff’s motion to reinstate China Vitamins as a defendant

with respect to the strict product liability claim. Plaintiff’s motion failed to demonstrate that

Taihua Group was unable to satisfy the judgment against it, when that phrase is given its plain

and ordinary meaning. That said, nothing in the statute would prevent plaintiff from bringing

another, similar motion below should it have additional, relevant evidence regarding Taihua

Group’s inability to satisfy the judgment. See 735 ILCS 5/2-621(b) (West 2014) (“The plaintiff

may at any time subsequent to the dismissal move to vacate the order of dismissal and reinstate

the certifying defendant or defendants.” (Emphasis added.)).




                                             - 28 -
