Cassidy v. China Vitamins, LLC

2018 IL 122873

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 122873)

MARTIN CASSIDY, Appellant, v. CHINA VITAMINS, LLC, Appellee.

Opinion filed October 18, 2018.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Justices Garman, Burke, Theis, and Neville concurred in the judgment and

opinion.

Chief Justice Karmeier dissented, with opinion, joined by Justice Thomas.

OPINION

¶1 Alleging injuries caused by a defective product that was manufactured in

China, the plaintiff, Martin Cassidy, filed a strict product liability action against

China Vitamins, LLC (China Vitamins), a nonmanufacturer defendant. China

Vitamins was dismissed from the lawsuit, however, after providing Cassidy with

information about the product’s Chinese manufacturer, Taihua Group. A default

judgment of over $9 million was eventually entered against the manufacturer, but

Cassidy’s efforts to collect on the judgment were unsuccessful. Consequently, he

sought to reinstate China Vitamins as a defendant under section 2-621(b)(4) of the

Illinois Code of Civil Procedure (735 ILCS 5/2-621(b)(4) (West 1994)). 1

¶2 After initially reinstating China Vitamins, the trial court vacated that order and

denied Cassidy’s reinstatement motion, finding that he had failed to establish the

statutory requirement “[t]hat the manufacturer is unable to satisfy any judgment as

determined by the court.” In making that finding, the trial court relied on the

standard set forth in Chraca v. U.S. Battery Manufacturing Co., 2014 IL App (1st)

132325, conditioning reinstatement on the plaintiff’s showing that the

manufacturer was bankrupt or no longer in existence. On appeal, a divided

appellate court rejected Chraca’s interpretation of section 2-621(b), instead

requiring evidence that the manufacturer was “judgment-proof” or

“execution-proof.” 2017 IL App (1st) 160933, ¶¶ 33-34.

¶3 This court is now tasked with interpreting section 2-621(b)(4) in light of our

rules of statutory construction and the legislative intent underlying this state’s strict

product liability laws. We affirm the appellate court’s judgment and remand the

cause for further proceedings on Cassidy’s motion to reinstate China Vitamins.

¶4 I. BACKGROUND

¶5 Martin Cassidy was working at the Ridley Feed Ingredients facility in Mendota,

Illinois, in October 2006, when he was severely injured. He filed a three-count

complaint in the circuit court of Cook County against New Jersey-based defendant

China Vitamins, the distributor of an imported flexible bulk container of vitamins

that allegedly broke, causing a stacked bulk container to fall and seriously injure

him. His complaint raised theories of recovery based on strict product liability,

negligence product liability, and res ipsa loquitur. China Vitamins filed an answer

admitting that it distributed and sold the product inside the flexible bulk containers

but denying that it manufactured either that product or the containers. Later, the

1

Section 2-621, as amended by Public Act 89-7 (eff. Mar. 9, 1995), was held unconstitutional in

its entirety and not severable in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Accordingly,

the version of section 2-621 in effect prior to the 1995 amendment applies to this case.

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trial court dismissed Cassidy’s res ipsa loquitur count for failure to state a cause of

action.

¶6 In May 2008, China Vitamins identified the manufacturer of the flexible bulk

containers as Taihua Group Shanghai Taiwei Trading Company Limited, 2

headquartered in China. Cassidy then filed a nine-count amended complaint adding

Taihua Group and Zhejiang Nhu Company, Ltd. (Zhejiang Nhu), the Chinese

manufacturer of the vitamins, as defendants. Taihua Group’s legal counsel filed an

answer admitting it designed, manufactured, distributed, supplied, and/or sold a

flexible bulk container but withdrew from the case in January 2010. The trial court

ordered Taihua Group to obtain new counsel by March 2010. In 2011, China

Vitamins filed a summary judgment motion and sought dismissal of the strict

product liability and negligence product liability counts against it on the grounds

that it was neither the designer nor the manufacturer of the defective container.

Cassidy opposed the motion, and China Vitamins filed a reply.

¶7 The evidence showed that China Vitamins bought vitamins from Chinese

manufacturer Zhejiang Nhu 3 and imported them for sale to third parties, such as

Cassidy’s employer, Ridley Feed Ingredients (Ridley), for use in animal feed and

human dietary and food supplements. Ridley had purchased bulk vitamins from

China Vitamins since 2000. After China Vitamins placed an order in China, totes

weighing approximately one metric ton would be loaded into shipping containers

before being transported to the west coast of the United States, where they would be

transferred to trains bound for the Chicago area. The container at issue here was

part of an order delivered to Ridley’s Mendota facility, where Cassidy was injured.

¶8 In January 2012, the trial court dismissed China Vitamins from the action under

section 2-621(b) of the Illinois Code of Civil Procedure (735 ILCS 5/2-621(b)

(West 1994)), treating its summary judgment motion as a motion to dismiss without

prejudice. After Taihua Group failed to retain new counsel as ordered in 2010, the

trial judge entered a default judgment against it. The cause of action was transferred

2

During the course of this action, this defendant has been referred to by various names:

“Shanghai Taiwei Trading Co., Ltd.”; “Shanghai Taiwei”; “Taihua Group Shanghai Taiwei Trading

Co., Ltd.”; “Taihua Group Shanghai”; and “Taihua.” Throughout this opinion, we will refer to it as

“Taihua Group.”

3

Zhejiang Nhu is not a party to this appeal.

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for prove-up, and Cassidy was awarded a default judgment of over $9.1 million

against Taihua Group in June 2012.

¶9 Cassidy issued a citation to discover assets against Taihua Group that was

quashed for lack of proper foreign service. Between March and October 2013, he

also issued several third-party citations to discover assets for collection of the

default judgment. When those collection efforts failed, Cassidy filed a motion to

reinstate China Vitamins under section 2-621(b). China Vitamins argued that

Cassidy’s motion did not satisfy the statutory reinstatement requirements. The trial

court granted Cassidy’s motion on jurisdictional grounds in September 2015 but

did not address the statutory requirements. China Vitamins filed a motion to

reconsider, again raising Cassidy’s failure to satisfy the requirements in section

2-621(b). The trial court then vacated its prior order and granted China Vitamins’

motion to reconsider, concluding that Cassidy had not met the statutory

reinstatement requirements and making the order final and appealable under

Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). After filing his own

unsuccessful motion to reconsider, Cassidy filed a timely notice of appeal.

¶ 10 A divided appellate court rejected the appellate court’s interpretation of section

2-621(b)(4) in Chraca, 2014 IL App (1st) 132325. That court concluded the

statutory requirement that the manufacturer be “unable to satisfy any judgment” is

met only if the manufacturer is shown to be bankrupt or no longer in existence.

2017 IL App (1st) 160933, ¶ 28. Instead, the appellate majority in this case

interpreted the statutory language to require a showing that the manufacturer is

“judgment-proof” or “execution-proof” before a previously dismissed seller or

distributor could be reinstated as a party. 2017 IL App (1st) 160933, ¶¶ 29-35. The

majority then remanded Cassidy’s cause of action for an initial determination of

whether Taihua Group was indeed unable to satisfy the default judgment entered

against it under the majority’s new interpretation of section 2-621(b)(4). 2017 IL

App (1st) 160933, ¶¶ 38, 41. 4

¶ 11 In a partial dissent, Justice Rochford agreed with Chraca’s interpretation of

section 2-621(b), believing that it properly focused on the manufacturer’s inability

to pay rather than on the plaintiff’s inability to enforce the judgment. The partial

4

The appellate court also unanimously reversed the dismissal of Cassidy’s negligence product

liability claim against China Vitamins, but that ruling is not before this court.

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dissent also noted that the legislature had not adopted a provision, approved in

other states, allowing reinstatement if a plaintiff could not enforce a judgment.

Finally, because Illinois recognizes out-of-state judgments, the dissent argued that

a defendant is not “judgment-proof” as long as it has assets outside the court’s

jurisdiction. Here, the record showed that Taihua Group was still in operation, with

subsidiaries in China and several other countries. Cassidy even admitted on appeal

that, however unlikely, Taihua Group could still choose to pay the damages

“ ‘voluntarily.’ ” 2017 IL App (1st) 160933, ¶ 62 (Rochford, J., concurring in part

and dissenting in part).

¶ 12 This court allowed China Vitamins’ petition for leave to appeal pursuant to

Illinois Supreme Court Rule 315(a) (eff. Jan. 1, 2015). We also permitted the

Illinois Trial Lawyers Association to file an amicus curiae brief in support of

Cassidy.

¶ 13 II. ANALYSIS

¶ 14 We now examine when a distributor that was previously dismissed as a

defendant in a strict product liability case under section 2-621 of the Illinois Code

of Civil Procedure can be properly reinstated as a party under section 2-621(b)(4).

See 735 ILCS 5/2-621 (West 1994). Section 2-621 sets forth a scheme that allows a

defendant that is not a manufacturer of the allegedly defective product at issue in a

strict liability action to seek dismissal after it accurately certifies the identity of the

product’s manufacturer. If the plaintiff then files a complaint that the manufacturer

is required to answer, the trial court must dismiss the strict tort liability claim

against the certifying nonmanufacturer-defendant, in the absence of certain

limitations not at issue here. 735 ILCS 5/2-621(a), (b) (West 1994). Because the

conditions set forth in section 2-621(b) result in the dismissal of a defendant that is

not the product manufacturer, that section is sometimes deemed the “seller’s

exception.” 2017 IL App (1st) 160933, ¶ 19. Even if the certifying defendant is

dismissed, however, the trial court retains jurisdiction over it, and section 2-621(b)

permits the plaintiff to request the vacatur of the dismissal order and the

reinstatement of that defendant as a party at any time if the plaintiff is able to satisfy

one of five enumerated criteria. 735 ILCS 5/2-621(b)(1)-(5) (West 1994).

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¶ 15 The dispute in this case specifically addresses the application of subsection

2-621(b)(4), requiring the plaintiff to show that “the manufacturer is unable to

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

1994). As a previously dismissed nonmanufacturer resisting reinstatement, China

Vitamins argues Cassidy must show that the manufacturer of the defective flexible

bulk container that caused his injuries is either bankrupt or no longer in existence,

as required in Chraca, 2014 IL App (1st) 132325, ¶ 24. Cassidy, on the other hand,

contends the evidentiary standard for reinstatement should be broader, requiring

only a showing that the manufacturer is either judgment-proof or execution-proof.

See 2017 IL App (1st) 160933, ¶¶ 33-34. Because this dispute requires us to

construe the language of a statute, it presents a question of law, and our standard of

review is de novo. JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d

455, 461 (2010).

¶ 16 The specific language at the core of the parties’ statutory construction

arguments states, in relevant part:

“The plaintiff may at any time subsequent to the dismissal [of a certifying

defendant other than the manufacturer] move to vacate the order of dismissal

and reinstate the certifying defendant ***, provided plaintiff can show one or

more of the following:

***

(4) That the manufacturer is unable to satisfy any judgment as

determined by the court[.]” (Emphasis added.) 735 ILCS 5/2-621(b)(4)

(West 1994).

¶ 17 In construing any statute, the goal of this court is to ascertain and effectuate the

intent of the legislature in enacting the provision. The statutory language, given its

plain and ordinary meaning, is generally the most reliable indicator of that

legislative intent, but a literal reading must fail if it yields absurd, inconvenient, or

unjust results. Bank of New York Mellon v. Laskowski, 2018 IL 121995, ¶ 12. When

reviewing the language in a statute, we must consider the entire provision, keeping

in mind its intended subject matter. Lawler v. University of Chicago Medical

Center, 2017 IL 120745, ¶ 12. Here, that subject matter is strict product liability.

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¶ 18 China Vitamins asserts that the proper focus of subsection (b)(4) is the

manufacturer’s ability to pay a judgment, not the plaintiff’s ability to collect on that

judgment. That interpretation would be viable if the requirement that “the

manufacturer is unable to satisfy any judgment” is read in isolation. When viewed

in light of the remainder of subsection (b) and the legislature’s overarching purpose

in providing relief to injured parties through strict product liability actions,

however, it is not. China Vitamins’ interpretation conflicts with both the express

language of section 2-621(b)(3) and the public policy considerations underlying the

legislature’s decision to create a strict product liability scheme.

¶ 19 As part of that scheme, section 2-621(b)(3) allows a dismissed

nonmanufacturer to be reinstated as a defendant if “the manufacturer no longer

exists, cannot be subject to the jurisdiction of the courts of this State, or, despite due

diligence, the manufacturer is not amenable to service of process.” (Emphasis

added.) 735 ILCS 5/2-621(b)(3) (West 1994). If, as China Vitamins claims, the

phrase “unable to satisfy any judgment” in subsection (b)(4) requires a showing

that the manufacturer is either bankrupt or no longer in existence, then it duplicates

the portion of subsection (b)(3) that expressly premises reinstatement on proof that

“the manufacturer no longer exists” (735 ILCS 5/2-621(b)(3) (West 1994)),

rendering the latter criterion superfluous. Because that result is contrary to our

fundamental rules of statutory construction, we must reject it if another

construction is reasonable. In re Marriage of Goesel, 2017 IL 122046, ¶ 13 (stating

that “each word, clause, and sentence of a statute must be given a reasonable

construction, if possible, and should not be rendered superfluous”).

¶ 20 China Vitamins tries to overcome this glaring defect in its argument by

asserting that the criteria in subsection (b)(3) all relate exclusively to “situations

that arise only at the time that the action is brought against the manufacturer.”

Presumably then, if a manufacturer ceases to exist at any time after a complaint is

filed against it, the dismissed defendant could not be reinstated under subsection

(b)(3). China Vitamins’ view necessarily suggests that subsection (b)(4) was

intended to apply only when a manufacturer ceases to exist after an action was

commenced against it. Unfortunately, however, that interpretation suffers from two

fatal flaws.

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¶ 21 First, the plain language simply does not say what China Vitamins says it does.

Nothing in subsection (b)(3) limits the requirement that the manufacturer no longer

exist to any particular time frame. By limiting the applicable time frame, China

Vitamins is improperly adding a condition to the express statutory language,

contrary to our rules of statutory construction. See In re Estate of Shelton, 2017 IL

121199, ¶ 33. In enacting subsection (b)(3), the legislature carefully enumerated

each relevant prerequisite for reinstatement, expressly including the possibility that

the manufacturer is no longer in existence. In construing subsection (b)(4),

however, China Vitamins would have us conclude that the legislature chose to

merely hint at that very same prerequisite as a hidden meaning within the far more

open-ended phrase “unable to satisfy a judgment.” The validity of that conclusion

is far from apparent when viewed in light of the language actually enacted by the

legislature in subsections (b)(3) and (b)(4).

¶ 22 Second, even if China Vitamins’ construction is correct, it still does not restrict

the conditions for reinstatement that the legislature intended to convey in

subsection (b)(4) to only manufacturers that are bankrupt or no longer exist. The

plain meaning of the language adopted is far broader than that. Our rules of

statutory construction do not permit us to add new limitations to subsection (b)(4)

that the legislature did not specifically enact. Gaffney v. Board of Trustees of the

Orland Fire Protection District, 2012 IL 110012, ¶ 94 (Garman, J., concurring in

part and dissenting in part, joined by Thomas and Karmeier, JJ.). In short, China

Vitamins’ textually unsupported and unnecessarily narrow reading of the statute

fails to comport with our traditional construction rules. Because nothing in the plain

language of section 2-621(b) buttresses China Vitamins’ narrow interpretation, we

decline to adopt that view.

¶ 23 China Vitamins offers yet another statutory construction argument, however. It

points to statutes from other jurisdictions that expressly allow distributors of

defective products to be reinstated as defendants when it is “highly probable that a

claimant would be unable to enforce a judgment.” China Vitamins contends that the

lack of similar language in section 2-621(b)(4) portends our legislature’s intent to

condition reinstatement on the more limited requirement that the manufacturer

must be either bankrupt or nonexistent. Under that view, the appellate court erred

by “rewriting” section 2-621(b)(4) to expand its scope. We disagree.

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¶ 24 While the presence of express language allowing reinstatement of a dismissed

defendant when a judgment is unlikely to be enforceable would certainly be

probative, and perhaps even determinative, of our legislature’s intent, the absence

of that language correlates similarly. As shown by the widely contrasting degree of

detail specified in sections 2-621(b)(3) and 2-621(b)(4), the legislature was well

aware of how to state the relevant conditions for reinstatement both narrowly, as it

did in subsection (b)(3), and more broadly, as it did in subsection (b)(4). Rather

than providing a list of precise conditions in subsection (b)(4), however, the

legislature chose instead to enact a set of much more open-ended criteria. Compare

735 ILCS 5/2-621(b)(3) (West 1994) (providing for reinstatement when “the

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

this State, or, despite due diligence, the manufacturer is not amenable to service of

process”), with 735 ILCS 5/2-621(b)(4) (West 1994) (providing for reinstatement

when “the manufacturer is unable to satisfy any judgment as determined by the

court”). We decline to speculate, as China Vitamins does, that the absence of

verbiage permitting reinstatement when the successful enforcement of a judgment

is not “highly probable” is determinative of some unexpressed legislative intent.

Instead, we honor the legislature’s decision to outline broad general reinstatement

conditions in subsection (b)(4) as evidence of its underlying intent. Contrary to

China Vitamins’ claim, by adhering to the legislature’s distinctive linguistic

choices in subsections (b)(3) and (b)(4), the appellate court did not improperly

rewrite the statute in an act “tantamount to legislation by litigation.” Because we

must review the express limitations in the relevant provisions as written, we remain

unpersuaded by China Vitamins’ final statutory construction argument.

¶ 25 To further ground our construction of section 2-621(b), we also consider the

fundamental public policies underlying our legislature’s enactment of Illinois’s

strict product liability laws. 1010 Lake Shore Ass’n v. Deutsche Bank National

Trust Co., 2015 IL 118372, ¶ 37 (“We presume that several statutes relating to the

same subject are governed by a single spirit and policy and that the legislature

intended the statutes to be consistent and harmonious.”); see also Lawler, 2017 IL

120745, ¶ 12 (our review of statutory language must consider the relevant subject

matter); Board of Education of Springfield School District No. 186 v. Attorney

General, 2017 IL 120343, ¶¶ 25, 62 (noting that in construing legislative intent the

court may rely on “not only the language of the statute but also the purpose and

necessity for the law, the evils sought to be remedied, and the goals to be achieved”

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and that the court’s statutory review was consistent with public policy). “[A]t the

heart of strict liability law” is “the policy of preventing future harm.” Calles v.

Scripto-Tokai Corp., 224 Ill. 2d 247, 263 (2007) (citing 1 David G. Owen, M.

Stuart Madden & Mary J. Davis, Madden & Owens on Product Liability § 8:3, at

447 (3d ed. 2000)). As we explained in Trans States Airlines v. Pratt & Whitney

Canada, Inc., 177 Ill. 2d 21 (1997):

“The purpose of strict liability in tort is to place the loss caused by defective

products on those who create the risks and reap the profits by placing such

products in the stream of commerce. Liberty Mutual Insurance Co. v. Williams

Machine & Tool Co., 62 Ill. 2d 77, 82 (1975). The rationale underlying this

liability is threefold: (1) the public interest in human life and safety demands

broad protection against the sale of defective products; (2) the manufacturer

solicits and invites the use of his products by representing that they are safe and

suitable for use; and (3) the losses caused by defectively dangerous products

should be borne by those who have created the risks and reaped the profits by

placing the products into commerce.” (Emphasis added.) Trans States Airlines,

177 Ill. 2d at 37-38 (citing Suvada v. White Motor Co., 32 Ill. 2d 612, 619

(1965), and 14 Ill. Jur. Personal Injury and Torts § 33:1 (1994)).

¶ 26 All manufacturers, wholesalers, and retailers in the chain of distribution play an

“ ‘integral role in the overall producing and marketing’ ” of the defective product,

uniquely justifying the imposition of strict liability even if they do not have a hand

in its development or manufacture. Crowe v. Public Building Comm’n of Chicago,

74 Ill. 2d 10, 13 (1978) (quoting Dunham v. Vaughan & Bushnell Manufacturing

Co., 42 Ill. 2d 339, 344 (1969)). As we explained in Crowe:

“A seller who does not create a defect, but who puts the defective product into

circulation, is still responsible in strict liability to an injured user. Because the

ultimate loss will ordinarily be borne, through indemnification, by the party

that created the defect, the public policy concern is really who, between the

injured user and the seller, should bear the initial loss. The seller is in a

position to prevent a defective product from entering the stream of commerce.

The seller may either adopt inspection procedures or influence the

manufacturer to enhance the safety of a product. Moreover, the seller is

generally better able to bear and distribute any loss resulting from injury

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caused by a defective product. See Restatement (Second) of Torts sec. 402A,

comment c (1965).” (Emphases added.) Crowe, 74 Ill. 2d at 13-14.

¶ 27 Other authorities have advanced similar policy justifications for imposing

liability on any of the entities in a defective product’s chain of distribution,

regardless of their actual involvement in the production of the injurious defect.

Vandermark v. Ford Motor Co., 391 P.2d 168, 171-72 (Cal. 1964) (en banc);

Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 901 (Cal. 1963) (en banc);

Liberty Mutual, 62 Ill. 2d at 82; Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943,

948 (Mo. Ct. App. 1970); Brandenburger v. Toyota Motor Sales, USA, Inc., 513

P.2d 268, 273 (Mont. 1973); Santor v. A&M Karagheusian, Inc., 207 A.2d 305,

312 (N.J. 1965); Restatement (Second) of Torts § 402A cmt. c (1965). Indeed, in

the context of strict product liability, each of the defendants in the product’s chain

of distribution may be held jointly and severally liable, regardless of its actual

culpability in causing the injury. Frazer v. A.F. Munsterman, Inc., 123 Ill. 2d 245,

265 (1988). To ameliorate the potential harshness of requiring a nonmanufacturer

who lacks a direct hand in creating a defect to mount a strict liability defense, our

legislature has chosen to enact the “seller’s exception” at issue here.

¶ 28 Nothing about that drafting decision, however, diminishes the import of the

fundamental policy interests underlying this state’s strict product liability laws. The

resounding drumbeat of those policies remains the same: to provide full

compensation to plaintiffs injured due to defective or unsafe products whenever

possible based on differences in the parties’ degree of culpability. This court has

consistently recognized those policy rationales: compared to the culpability of

injured plaintiffs, entities in the chain of manufacture and distribution necessarily

bear more responsibility, and inherently possess far superior ability and incentive,

to prevent the initial creation of defective products and, later, to avert their progress

through the stream of commerce. Calles, 224 Ill. 2d at 263 (“[A]t the heart of strict

liability law” is “the policy of preventing future harm.”); Trans States Airlines, 177

Ill. 2d at 37-38 (“The purpose of strict liability *** is to place the loss *** on those

who create the risks and reap the profits ***.” (citing Liberty Mutual, 62 Ill. 2d at

82)); Crowe, 74 Ill. 2d at 13-14 (“the public policy concern is really who, between

the injured user and the seller, should bear the initial loss. The seller is in a position

to prevent a defective product from entering the stream of commerce. ***

Moreover, the seller is generally better able to bear and distribute any loss ***. See

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Restatement (Second) of Torts sec. 402A, comment c (1965).”). Given the purpose

underlying our strict product liability laws, it is more than reasonable to conclude

that the legislature did not intend the phrase “unable to satisfy any judgment” in

subsection (b)(4) to undermine an injured plaintiff’s ability to obtain a full recovery

by cutting off access to other viable sources unless the product’s manufacturer is

bankrupt or no longer in existence. Bankruptcy and business failure are conditions

that are entirely outside the control of the injured plaintiff, and the policy

considerations underlying this state’s strict tort liability laws do not support such a

cramped interpretation of the intentionally broad language in subsection (b)(4).

¶ 29 For the same reasons, we conclude that China Vitamins’ reliance on the

interpretation of section 2-621(b) posited in Chraca, 2014 IL App (1st) 132325, is

misplaced. In that factually similar case, the plaintiff’s shoulder and neck were

injured when the strap he was using to unload a shipment of golf cart batteries,

weighing about 63 pounds each, broke. Initially, he filed a strict product liability

claim against the battery distributor, U.S. Battery. Chraca, 2014 IL App (1st)

132325, ¶ 2. It, in turn, identified the Chinese company that manufactured the strap.

After the plaintiff added that manufacturer as a defendant in an amended complaint,

the trial court granted Chraca’s motion for a default judgment against it. The

domestic distributor of the strap complied with the requirements of section 2-621

and was dismissed from the lawsuit, over the plaintiff’s objection. Two weeks later,

the plaintiff unsuccessfully attempted to reinstate the distributor under section

2-621(b). The trial court concluded that, while it might be “difficult” for Chraca to

enforce his default judgment against the Chinese manufacturer, that was not one of

the statutory reinstatement criteria. Chraca, 2014 IL App (1st) 132325, ¶¶ 8-12,

15-16.

¶ 30 Chraca appealed, and the appellate court held that he had not established that

the Chinese manufacturer was “unable to satisfy any judgment” under section

2-621(b)(4) because he failed to show that the company was bankrupt or

nonexistent. Chraca, 2014 IL App (1st) 132325, ¶ 24. To the contrary, the court

found that the evidence suggested the manufacturer was an ongoing concern. In its

analysis, the appellate court relied on Harleysville Lake States Insurance Co. v.

Hilton Trading Corp., No. 12 C 8135, 2013 WL 3864244, at *3 (N. D. Ill. July 23,

2013), Finke v. Hunter’s View, Ltd., 596 F. Supp. 2d 1254, 1271 (D. Minn. 2009),

and Malone v. Schapun, Inc., 965 S.W. 2d 177, 182 (Mo. Ct. App. 1998). Although

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the plaintiff submitted a joint affidavit from two Chinese attorneys stating that

Chinese courts were unwilling to “ ‘recognize or enforce a judgment obtained in an

American state court,’ ” that evidence was insufficient under the court’s

interpretation of section 2-621(b)(4). Chraca, 2014 IL App (1st) 132325, ¶ 25.

¶ 31 In the instant case, the appellate court rejected Chraca’s “bankrupt or

nonexistent” standard as “flawed” and “not persuasive” because that decision had

misconstrued the three cases it cited in support: Harleysville, Finke, and Malone.

2017 IL App (1st) 160933, ¶ 29. As the appellate court explained, those cases

“actually considered the effect a manufacturer’s judgment-proof status would have

on the plaintiff’s total recovery.” 2017 IL App (1st) 160933, ¶ 30. Because we are

reviewing the viability of the Chraca standard de novo, we, too, must examine the

applicability of those three cases.

¶ 32 In Harleysville, 2013 WL 3864244, the federal district court addressed a

nonmanufacturer’s request to be dismissed as a defendant in a strict product

liability action under section 2-621’s seller’s exception. Tellingly, that case did not

involve a plaintiff’s attempt to reinstate a previously dismissed nonmanufacturer

under section 2-621(b)(4). In fact, its only connection to the reinstatement

requirements at issue here was the plaintiffs’ citation to Rosenthal v. Werner Co.,

No. 06 C 2873, 2009 WL 995489 (N.D. Ill. Apr. 13, 2009).

¶ 33 In Rosenthal, “the defendant sought dismissal on the basis of language in the

Seller’s Exception that permits an injured party to proceed against a seller where

the manufacturer appears to be judgment-proof” under subsections (b)(3) and

(b)(4). Harleysville, 2013 WL 386244, at *3 (citing Rosenthal, 2009 WL 995489,

at *6-7). Prior to concluding that the facts were not sufficiently developed to allow

the retailer’s dismissal, the district court in Rosenthal prematurely appears to have

considered the application of the reinstatement conditions in subsections (b)(3) or

(b)(4) because it misconstrued their relationship to the preceding portion of section

2-621(b) that allowed certifying nonmanufacturers to be dismissed from the case.

Exemplifying its legal misunderstanding, the district court concluded that it could

not apply either section 2-621(b)(3) or (b)(4) because the manufacturer’s pending

bankruptcy proceeding made it “too early to know whether these exceptions to

dismissal might apply.” (Emphasis added.) Rosenthal, 2009 WL 995489, at *6.

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¶ 34 This court has never, however, deemed subsections (b)(3) and (b)(4) to be

“exceptions to dismissal” of a certifying nonmanufacturer under section 2-621. The

Rosenthal court misconstrued the statute, creating an interplay between distinct

portions of section 2-621(b) that simply does not exist. Section 2-621(b) contains

only one “exception to dismissal”: once a strict product liability complaint has been

filed against a manufacturer who is required to answer, “the court shall order the

dismissal of a strict liability in tort claim against the certifying defendant ***,

provided the certifying defendant *** [is] not within the categories set forth in

subsection (c).” (Emphasis added.) 735 ILCS 5/2-621(b) (West 1994). Due to its

misinterpretation of the statute, the Rosenthal court’s discussion of the

reinstatement criteria in subsections (b)(3) and (4) was premature and unsupported

by any authority.

¶ 35 Nonetheless, the federal district court in Harleysville erroneously relied on

Rosenthal’s analysis of the section 2-621(b) reinstatement provisions that

characterized subsections (b)(3) and (b)(4) as exceptions to dismissal. Harleysville,

2013 WL 3864244, at *3. That error severely undercuts the persuasiveness of the

analysis in Harleysville as well as Chraca’s reliance on that case in adopting the

“bankrupt or nonexistent” standard for the reinstatement of a nonmanufacturer.

Chraca, 2014 IL App (1st) 132325, ¶ 24 (citing Harleysville as an “[a]uthority

indicat[ing] that in a section 2-621 proceeding, a company is deemed ‘unable to

satisfy any judgment’ when it is bankrupt or nonexistent”). To the extent that

Harleysville provides this court with any guidance, however, its reliance on

Rosenthal expressly recognizes that section 2-621(b)(4) permits reinstatement if

the manufacturer “appears to be judgment-proof,” supporting the interpretation

advanced by Cassidy and the appellate court in this case. (Emphasis added.)

Harleysville, 2013 WL 3864244, at *3.

¶ 36 Next, we examine the Chraca court’s reliance on Finke for its “bankrupt or

nonexistent” standard. Chraca, 2014 IL App (1st) 132325, ¶ 24. In Finke, the

federal district court explained that in Minnesota a nonmanufacturer is generally

not subject to strict product liability unless the plaintiff can show “ ‘that the

manufacturer is unable to satisfy any judgment as determined by the court,’ ” a

standard identical to that in section 2-621(b)(4)’s reinstatement provision. Finke,

596 F. Supp. 2d at 1270 (quoting Minn. Stat. § 544.41(2)(d) (2004)). Cf. 735 ILCS

5/2-621(b)(4) (West 1994) (requiring a showing “[t]hat the manufacturer is unable

- 14 ­

to satisfy any judgment as determined by the court”). As in Illinois, the Minnesota

statute “ ‘tempers the harsh effect of strict liability as it applies to passive sellers,

while ensuring that a person injured by a defective product can recover from a

viable source.’ ” Finke, 596 F. Supp. 2d at 1270 (quoting In re Shigellosis

Litigation, 647 N.W.2d 1, 6 (Minn. Ct. App. 2002)). Similar to Harleysville and

Rosenthal, the initial dismissal of a Minnesota nonmanufacturer is premised on

whether “ ‘the plaintiff’s action cannot reach a manufacturer or the manufacturer is

insolvent.’ ” Finke, 596 F. Supp. 2d at 1270 (quoting In re Shigellosis Litigation,

647 N.W.2d at 7). In Illinois, however, the initial dismissal standard is different; the

dismissal of a nonmanufacturer under section 2-621 is not dependent on the

availability of damages from the manufacturer. That condition is relevant only in

the context of a plaintiff’s reinstatement action. This distinction alone necessarily

limits Finke’s applicability here for the reasons cited in our discussion of

Harleysville and Rosenthal.

¶ 37 Finally, Malone, 965 S.W.2d at 182, also relied on in Chraca, is readily

distinguishable on both its facts and law. In Malone, an allegedly defective rubber

tarp strap broke while in use, seriously injuring the plaintiff’s eye, face, and hand

and causing him to lose vision in his left eye. In relevant part, the plaintiff and his

wife filed a strict product liability action against the manufacturer, supplier, and

retailer of the strap. Later, they entered into a partial settlement with the disputed

supplier and manufacturer that released them both in exchange for partial payment

of their claims, leaving only the retailer to defend the lawsuit. When the retailer

sought dismissal of the only strict liability claims raised under Missouri’s version

of the seller’s exception statute, 5 the trial court granted the motion, prompting the

plaintiffs’ appeal. Malone, 965 S.W.2d at 179-80.

¶ 38 On appeal, the plaintiffs again relied on Missouri’s seller exception, a statute

that differs significantly from its Illinois counterpart. Under the Missouri statute,

the seller could be dismissed from a strict product liability claim “ ‘if another

defendant, including the manufacturer, is properly before the court and from whom

total recovery may be had for plaintiff’s claim.’ ” Malone, 965 S.W.2d at 181

(quoting Mo. Rev. Stat. § 537.762 (1994)). As in Harleysville and Finke, the

essence of the latter criterion is found in Illinois’s reinstatement statute, not its

5

The statute is described as an “innocent seller statute” in Missouri. Malone, 965 S.W.2d at 181.

- 15 ­

provision for a nonmanufacturer’s initial dismissal. Because statutory construction

lies at the heart of this case, this substantive linguistic difference alone severely

undercuts Malone’s applicability. Ultimately, however, Malone was decided due to

the effect of the plaintiffs’ settlement agreement voluntarily dismissing the

manufacturer and supplier, unique facts that are not present either here or in

Chraca. For those reasons, Malone also fails to provide any support for Chraca’s

“bankruptcy or nonexistence” standard.

¶ 39 The only “authorities” Chraca cites for deeming the section 2-621(b)(4)

criterion that a manufacturer be “unable to satisfy any judgment” synonymous with

its bankruptcy or nonexistence are Harleysville, Finke, and Malone. After carefully

reviewing those three cases, we agree with the appellate court that Chraca’s

reliance on them was misplaced. In enacting the statutes in those foreign decisions,

the legislatures expressly intended a different interplay between that standard and

the dismissal of a nonmanufacturer than did the Illinois legislature. For that reason,

those cases are unpersuasive and offer little guidance. We decline to adopt the

reasoning in Chraca and overrule that decision. Instead, we adhere to our

previously stated analysis of the proper construction of section 2-621.

¶ 40 We hold that reinstatement under section 2-621(b)(4) of a nonmanufacturer

such as China Vitamins is not solely contingent on the manufacturer being

bankrupt or nonexistent. If an injured strict product liability plaintiff can establish

other circumstances that effectively bar recovery of the full measure of judgment

damages awarded, a nonmanufacturer in the chain of distribution may be reinstated

as a defendant under section 2-621(b)(4). That result harmonizes the plain language

of section 2-621(b), when read in its entirety, the legislature’s intent, and the public

policies underlying the enactment of our strict product liability laws to create a

cohesive and consistent statutory scheme.

¶ 41 This holding alone is not dispositive of Cassidy’s reinstatement request,

however, and he argues that we should decide, as a matter of law, whether he has

met his statutory burden and then remand the cause with instructions allowing him

to amend his complaint to reinstate China Vitamins as a defendant. In support, he

cites his efforts to collect on the default judgment shown in the appellate record.

¶ 42 After parsing the record, we conclude that it is far from dispositive. As the party

seeking reinstatement, Cassidy bears the burden of showing that the relevant

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criteria have been met. 735 ILCS 5/2-621(b) (West 1994) (“The plaintiff may at

any time subsequent to the dismissal move to vacate *** and reinstate the certifying

defendant ***, provided plaintiff can show one or more of the following[.]”

(Emphasis added.)). Our review of the appellate record reveals that, from March

through October 2013, Cassidy issued citations to discover assets to Taihua Group

and a number of third parties, including HSBC Bank, in an attempt to identify

assets that could be used to satisfy the judgment. Most of those attempts were either

quashed or ultimately dismissed without revealing any of the manufacturer’s

assets. The fate of the remaining citations, however, is not clear. And, although

Cassidy’s motion to reinstate China Vitamins uses the “attached exhibit D” to

support his claim that he “has made exhaustive attempts to collect the judgment

entered against [the manufacturer] and has been unable to do so,” that attachment

fails to appear anywhere in the record. After piecing together information from

other parts of the record, it appears that “exhibit D” is the affidavit of Douglas

Giese, an attorney Cassidy hired to pursue collection. That affidavit is not in the

record, precluding our review of its contents to determine, as a matter of law, if, or

how, it supports Cassidy’s claim that his collection efforts have been “exhaustive.”

¶ 43 While it may indeed be true that Cassidy’s efforts have not led him to recover

even “a single dollar,” that does not, under the record before us, “lead[ ] to the

inescapable conclusion” that Taihua Group has “no assets with which to satisfy the

judgment against it,” as Cassidy claims. The record includes screenshots indicating

that Taihua Group maintains a functioning website. Its website boasts that the

manufacturer “has its own brand and sales network covering Asia-Pacific, Europe

and North America. 60% of its products are sold and delivered directly to

multinational chemical and food companies.” Taihua Group also touts “its own

brand and global sales and logistics network cover[ing] Asia Pacific, Middle East,

Europe and North America,” noting that exports comprised 70% of its sales and

that it was “superior business partners for many global famous food, chemical

enterprises and distributors of North America.” Both these claims strongly suggest

the manufacturer has close continuing ties with Europe and North America. In

addition, a world map on the website reveals that Taihua Group had a domestic

sales office in the state of Georgia and foreign sales offices in Lille, France, and

Munich, Germany, with a “central warehouse” in Cologne, Germany. The “Key

Account Manager” for its European sales is listed as Mrs. Martina Upphoff, and her

- 17 ­

contact information includes an office in Munich, Germany. 6 China Vitamins also

points to Taihua Group’s LinkedIn page and the pages of a number of workers

claiming to be employed there to argue that the manufacturer is indeed an ongoing

business. Based on the totality of the information in the record before us, it appears

that several viable avenues for Cassidy’s collection efforts may remain untapped.

¶ 44 Nonetheless, we, like the appellate court, cannot properly assess whether

Cassidy’s collection efforts have been sufficient to show that the manufacturer is

“unable to satisfy any judgment,” as required by the statute. The focus of the trial

court proceedings was on whether the court had personal jurisdiction over Taihua

Group and whether Cassidy had met the Chraca standard by showing the

manufacturer was bankrupt or no longer in existence.

¶ 45 In its original September 21, 2015, oral ruling granting Cassidy’s motion to

reinstate, the trial court improperly focused on whether it had jurisdiction over the

reinstatement action and failed to consider the statutory requirements in section

2-621. 7 China Vitamins pointed out those errors in its motion to reconsider the

reinstatement order, and the trial court corrected them, vacating its original

reinstatement order. After starting its analysis anew, the court denied Cassidy’s

motion to reinstate on December 14, 2015, and dismissed China Vitamins from the

case. Cassidy then filed a motion to reconsider the reinstatement denial, basing his

request on his continued reliance on the trial court’s alleged lack of personal

jurisdiction over Taihua Group and adding the argument that reinstatement was

proper under sections 2-621(b)(3) and 2-621(b)(4). Later, Cassidy faxed to

opposing counsel a one-page amended motion to reconsider. In it, he requested an

evidentiary hearing where he would show that Taihua Group “cannot be subject to

the jurisdiction of the courts of this State” and “is unable to satisfy any judgment in

this matter.” The trial court never addressed the amended motion and instead struck

it because Cassidy never actually filed it with the court. His request for an

evidentiary hearing also remained unsupported by any showing of newly

discovered evidence.

6

The website indicates that office is in “Munchen,” a German spelling of “Munich.”

7

The record on appeal contains no transcripts addressing any hearings on the reinstatement

issue. The substance of those proceedings was necessarily gleaned, when possible, from the parties’

filings and the trial court’s orders.

- 18 ­

¶ 46 The trial court ultimately rejected Cassidy’s initial motion for reconsideration

of the order denying China Vitamins’ reinstatement. Its memorandum opinion once

again rejected the claim that the court lacked jurisdiction over Taihua Group and

concluded that “the Taihua Group is a functioning and operational company and

there is no evidence before the Court that it is unable to satisfy the judgment.” The

court noted “the problem here is the Plaintiff’s inability to collect the judgment,

which is not an enumerated basis upon which to reinstate a certifying defendant.”

The court also rejected Cassidy’s reliance on Chraca. Although the court applied

Chraca’s requirement that the plaintiff seeking reinstatement must prove that the

defendant manufacturer is bankrupt or nonexistent, it concluded that the submitted

evidence did not support the entry of those findings.

¶ 47 Because of both the paucity of relevant evidence in the record and this court’s

repudiation of the “bankrupt or nonexistent” standard from Chraca that was the

focal point of the parties and the trial judge, we remand this cause to the circuit

court for consideration of the sufficiency of the evidence concerning Cassidy’s

efforts to collect the default judgment. We decline Cassidy’s suggestion to detail

the specific evidentiary showing necessary at this time. As shown by even the

limited record in this case, the myriad combinations of evidence that could suffice

to provide a statutory showing “[t]hat the manufacturer is unable to satisfy any

judgment as determined by the court” dissuades us from attempting to parse the

specific evidentiary showing required in a particular case. See 735 ILCS

5/2-621(b)(4) (West 1994). As the express language enacted by the legislature

states, we leave the requisite showing to be “determined by the court” in each

individual case. The precise formula needed to satisfy the plaintiff’s evidentiary

reinstatement burden is best adduced by the trial court.

¶ 48 III. CONCLUSION

¶ 49 For the reasons stated, we reject the “bankrupt or nonexistent” standard for

reinstatement under section 2-621(b)(4) promulgated in Chraca and overrule that

decision. Instead, we read the statute to permit the trial court to rely on a broader

range of factors to determine if a particular manufacturer is “unable to satisfy” the

judgment against it. We affirm the judgment of the appellate court and remand the

cause to the trial court for its determination of whether the manufacturer Taihua

- 19 ­

Group “is unable to satisfy a judgment as determined by the court,” as mandated by

section 2-621(b)(4).

¶ 50 Appellate court judgment affirmed.

¶ 51 Circuit court judgment reversed.

¶ 52 Cause remanded.

¶ 53 CHIEF JUSTICE KARMEIER, dissenting:

¶ 54 As the majority notes, this court is called on to determine the meaning of

section 2-621(b)(4) of the Code of Civil Procedure (735 ILCS 5/2-621(b)(4) (West

1994)), which permits a dismissed nonmanufacturer defendant to be reinstated in a

strict liability claim on plaintiff’s showing that “the manufacturer is unable to

satisfy any judgment as determined by the court.”

¶ 55 Under the terms of the statute, the circuit court must dismiss a

nonmanufacturing defendant “once the plaintiff has filed a complaint against the

manufacturer” and after the manufacturer has answered or has been required to

answer or otherwise plead. 735 ILCS 5/2-621(b) (West 1994). Therefore, filing a

complaint against the manufacturer and requiring the manufacturer to respond is a

prerequisite to dismissal under section 2-621. Section 2-621(b) permits

reinstatement of a dismissed nonmanufacturer defendant when the plaintiff shows

one or more of the following situations:

“(1) That the applicable period of statute of limitation or statute of repose

bars the assertion of a strict liability in tort cause of action against the

manufacturer or manufacturers of the product allegedly causing the injury,

death or damage; or

(2) That the identity of the manufacturer given to the plaintiff by the

certifying defendant or defendants was incorrect. Once the correct identity of

the manufacturer has been given by the certifying defendant or defendants the

court shall again dismiss the certifying defendant or defendants; or

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(3) That the manufacturer no longer exists, cannot be subject to the

jurisdiction of the courts of this State, or, despite due diligence, the

manufacturer is not amenable to service of process; or

(4) That the manufacturer is unable to satisfy any judgment as determined

by the court; or

(5) That the court determines that the manufacturer would be unable to

satisfy a reasonable settlement or other agreement with plaintiff.” 735 ILCS

5/2-621(b) (West 1994).

¶ 56 Here, it is undisputed that, after certifying Taihua Group, a manufacturer based

in China, as the manufacturer of the defective flexible bulk container at issue,

China Vitamins was properly dismissed from the case. What is at dispute is

whether plaintiff satisfied his burden of proving that the order dismissing China

Vitamins should be vacated and China Vitamins be reinstated in the litigation

pursuant to section 2-621(b)(4).

¶ 57 The majority holds that the circuit court can vacate the dismissal of a

nonmanufacturer defendant under section 2-621(b)(4) upon plaintiff establishing

“circumstances that effectively bar recovery of the full measure of judgment

damages awarded.” Supra ¶ 40. What the majority is actually saying is that section

2-621(b)(4) means that a nonmanufacturer defendant can be reinstated when the

plaintiff is unable to enforce a judgment, not whether the manufacturer has the

ability to satisfy the judgment. For the following reasons, I cannot join the majority

opinion.

¶ 58 This case can be resolved on the basis of plain statutory language and

well-established legal presumptions when analyzed properly. The primary

objective of statutory interpretation is to ascertain and give effect to the legislative

intent. People v. Hardman, 2017 IL 121453, ¶ 19. This inquiry must always begin

with the plain and ordinary language of the statute, which is the surest and most

reliable indicator of legislative intent. People v. Goossens, 2015 IL 118347, ¶ 9. If

the language of a statute is clear and unambiguous, we will apply it as written,

without resort to other aids of statutory construction. In re Jarquan B., 2017 IL

121483 ¶ 22. Accordingly, this court’s analysis should begin by considering the

- 21 ­

plain meaning of the phrase “the manufacturer is unable to satisfy any judgment” as

written in section 2-621(b)(4).

¶ 59 Although the majority accurately recites basic statutory interpretation rules, the

majority fails to apply the rules properly. Nowhere does the majority focus on the

meaning of the words in section 2-621(b)(4). Instead of analyzing the plain

meaning of the statute in accordance with our prescribed rules, the majority tries to

overcome this glaring defect in its analysis by jumping to reasons why it disagrees

with China Vitamins’ statutory interpretation, concluding that the opposite result

must be the correct interpretation. See, e.g., supra ¶ 22 (the majority

finds—without providing its own analysis—that the plain meaning of section

2-621(b)(4) “is far broader” than China Vitamins’ interpretation).

¶ 60 In conducting its statutory interpretation analysis, the majority skips over the

first fundamental step that words must be given their “ordinary and popularly

understood meaning,” absent a definition in the statute indicating legislative intent.

In re Ryan B., 212 Ill. 2d 226, 232 (2004). Under the proper analysis, because there

is no definition in the statute regarding the phrase “unable to satisfy,” we therefore

look to the dictionary meanings of these words. Id.; People v. Ward, 215 Ill. 2d 317,

325 (2005). The majority overlooked this crucial step likely because the dictionary

definitions contradict the majority’s plain language analysis. 8

¶ 61 Merriam-Webster’s Dictionary defines “unable” as “not able: INCAPABLE.”

Merriam-Webster’s Collegiate Dictionary 1359 (11th ed. 2006). While the word

“able” is defined as “having sufficient power, skill, or resources to accomplish an

object” (Merriam-Webster’s Collegiate Dictionary 3 (11th ed. 2006)), Black’s Law

Dictionary defines “satisfaction” as “[t]he fulfillment of an obligation; esp., the

payment in full of a debt.” Black’s Law Dictionary 1460 (9th ed. 2009); see also

Merriam-Webster’s Collegiate Dictionary 1104 (11th ed. 2006) (defining “satisfy”

as “to meet a financial obligation”). Giving the statutory terms—“unable,” “able,”

and “satisfy”—their plain meanings, it is clear section 2-621(b)(4) permits

reinstatement of a dismissed nonmanufacturer defendant when the manufacturer is

not able or is incapable of payment in full of its debt under the judgment. As such,

the plain language of the statute dictates that the ultimate determination for

8

In fact, the majority cites no authority, case law, dictionaries, secondary sources, or the

legislative history of the provision to support its interpretation.

- 22 ­

reinstating a dismissed nonmanufacturer defendant is dependent on whether the

manufacturer is incapable of fulfilling its obligation under a judgment entered by

the court. That judgment here is a default judgment entered against Taihua Group

for over $9 million. Therefore, the proper analysis turns to whether Taihua Group is

unable to fulfill its debt obligation in full.

¶ 62 Unfortunately, plaintiff provides little information about Taihua Group’s

financial viability, and the record is underdeveloped at this point about whether

Taihua Group is unable to discharge its obligation. Rather, in seeking reinstatement

under section 2-621(b)(4), plaintiff 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.” Those “exhaustive” efforts

included issuing a citation to discover assets against Taihua Group, which the

circuit court quashed on May 23, 2013, for lack of proper service on a foreign

resident and foreign business entity. Between March 27, 2013, and October 16,

2013, the plaintiff also issued third-party citations to discover assets in pursuit of

collection of the judgment only in Illinois, without success. Plaintiff, however,

never sought to enforce the judgment elsewhere outside of Illinois. Instead,

plaintiff sought reinstatement under section 2-621(b)(4) primarily on the basis of

his difficulty in enforcing the judgment in Illinois.

¶ 63 Before this court, plaintiff does not assert that Taihua Group is financially

unable to pay the judgment imposed by the circuit court. In fact, as noted by the

majority, the record tells a different story. The record shows that Taihua Group

owns assets outside of China and has ongoing operations in the United States,

France, and Germany. These facts refute any initial claim that the

manufacturer-defendant is unable to satisfy any judgment.

¶ 64 There is nothing unreasonable about a judgment creditor, like plaintiff, having

to enforce a judgment in another jurisdiction. No civil judgment is

self-executing—even in a personal injury case.

¶ 65 Under article IV, section 1, of the United States Constitution (U.S. Const., art.

IV, § 1), states have a constitutional obligation to give full faith and credit to the

decisions rendered by sister states. But, as the majority notes, plaintiff has

presented no evidence that his judgment would be unenforceable outside Illinois.

Supra ¶¶ 45-47. Thus, plaintiff’s difficultly in enforcing the judgment elsewhere in

- 23 ­

the United States is of no concern. Furthermore, China Vitamins provided evidence

that Taihua Group has ongoing commercial operations through various subsidiaries

in China and other countries. This included sales and warehouse facilities in

Germany and France. As China Vitamins correctly notes, despite any difficulties

plaintiff may have collecting his judgment in China, if it comes to that, plaintiff has

other viable opportunities inside and outside of the United States to satisfy the

default judgment. 9

¶ 66 These mechanisms reflect that it is a normal part of the litigation process to

enforce Illinois judgments outside of this state. As such, all viable legal avenues

should be explored prior to reinstating a nonmanufacturer defendant. Until plaintiff

provides evidence that Taihua Group has no ability to meet its obligation, plaintiff

cannot reinstate a dismissed nonmanufacturer defendant pursuant to section

2-621(b)(4). Accordingly, the circuit court was correct to deny plaintiff’s motion.

¶ 67 Although one might initially find this interpretation of the statute unfair to

plaintiff because it requires him to determine the financial viability of a

manufacturer prior to seeking reinstatement of a nonmanufacturer defendant, I note

that this interpretation does not indefinitely bar plaintiff from recovery in this case.

That is so because nothing in the statute would prevent plaintiff from bringing

another, similar motion if plaintiff can provide relevant evidence regarding Taihua

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

1994) (“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.)). Accordingly, I would affirm the trial court’s order, finding that

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

¶ 68 I take further issue with the majority’s expansive interpretation of section

2-621(b)(4) and its focus on plaintiff’s inability to enforce the default judgment

rather than the manufacturer’s inability to satisfy that judgment.

9

German law, for instance, contains specific provisions for the enforcement of foreign

judgments like the one at issue here. See Zivilprozessordnung [ZPO] [Code of Civil Procedure]

§§ 328, 722, 723, translation at https://www.gesetze-im-internet.de/englisch_zpo/englisch_

zpo.html (Ger.) [https://perma.cc/KK87-6P9N].

- 24 ­

¶ 69 Contrary to the unambiguous language of the statute, the majority interprets

section 2-621(b)(4) to mean that a court can vacate the dismissal of a

nonmanufacturer seller upon a plaintiff establishing “circumstances that effectively

bar recovery of the full measure of judgment damages awarded.” Supra ¶ 40. The

majority remands the cause to the circuit court “for consideration of the sufficiency

of the evidence concerning [plaintiff’s] efforts to collect the default judgment.”

Supra ¶ 47. In other words, the majority remands the matter to allow plaintiff to

show his inability to enforce the default judgment. However, nothing in the statute

refers to a plaintiff’s ability to enforce a judgment. But that is precisely what the

majority’s holding promotes in contravention of the fundamental rule of statutory

construction that “this court cannot read into the statute additional elements not

intended by the legislature.” In re Andrew B., 237 Ill. 2d 340, 352, (2010). The

majority’s interpretation rewrites section 2-621(b)(4) to include “unable to

enforce” language under the guise of statutory construction and would be

tantamount to judicial legislation. Accordingly, I agree with Justice Rochford’s

partial dissent that what is evident from that plain language is that the proper focus

should be on the manufacturer’s inability to satisfy a judgment. 2017 IL App (1st)

160933, ¶ 48 (Rochford, J., concurring in part and dissenting in part). Section

2-621(b)(4) plainly allows vacating the dismissal of the nonmanufacturer based on

the manufacturer’s ability to satisfy the judgment, and not whether the plaintiff can

enforce the judgment.

¶ 70 The majority also fails to explain what “circumstances” a plaintiff must

establish when demonstrating to the circuit court that it has been effectively barred

from recovery. Supra ¶ 40. The majority explicitly refrains from providing any

guidance to the courts or parties regarding its ambiguous holding. Supra ¶ 47.

Rather, the majority reads into section 2-621(b)(4) additional, unlisted factors that

could be considered when determining whether to reinstate a nonmanufacturer

defendant. Supra ¶¶ 47-49. As a result, the majority broadens the language of

section 2-621(b)(4) to include any type of evidence showing that the plaintiff

cannot enforce the judgment. This broad interpretation will not only create

evidentiary conflicts among the circuit courts and appellate districts, it again goes

against a plain reading of the statute, which focuses on the ability of the

manufacturer to fulfill its obligation of a debt under any judgment. Future plaintiffs

are left wondering how much (or little) effort is necessary to convince a circuit

judge to reinstate a nonmanufacturer defendant. As for dismissed nonmanufacturer

- 25 ­

defendants, they must now extensively challenge and prove whether the plaintiff

performed his or her due diligence on enforcing or collecting the judgment in order

to remain dismissed from litigation.

¶ 71 Moreover, the majority’s focus on the plaintiff’s difficulty to enforce the

judgment is not only absent from the plain language of the statute, it improperly

shifts the burden to a nonmanufacturer defendant to prove the financial viability of

the manufacturer defendant. When considering whether to reinstate a dismissed

nonmanufacturer defendant, the plaintiff bears the burden of establishing that a

statutory basis exists for the reinstatement of a dismissed defendant. 735 ILCS

5/2-621(b)(4) (West 1994) (“The plaintiff may at any time subsequent to the

dismissal move to vacate *** and reinstate the certifying defendant ***, provided

plaintiff can show one or more of the following[.]” (Emphasis added.)); Cherry v.

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

on the plaintiff to make this showing [for reinstatement], which presumably may be

rebutted by the certifying defendant.”). The majority opinion turns the statutory

burden of proof upside down. Under the majority’s holding, nonmanufacturer

defendants will shoulder the heavy burden of proving that the manufacturer of a

defective product can satisfy a judgment entered against it. In essence, all a plaintiff

must do is file a section 2-621(b)(4) motion under the pretext of showing some

difficulty or “other circumstances” in enforcing the judgment. It would then be

upon the nonmanufacturer defendant to disprove plaintiff’s assertion and prove

there are no set of circumstances preventing the plaintiff from enforcing or

collecting the judgment against the manufacturer. Supra ¶ 40. Nonmanufacturer

defendants should not have the burden of proving whether the plaintiff can enforce

or collect on a judgment. The statute clearly states that this evidentiary burden rests

on the plaintiff.

¶ 72 The majority’s burden shifting is not only contrary to the statute’s explicit

language, it is contrary to the underlying policy of section 2-621 of dismissing

nonmanufacturer defendants.

¶ 73 Much of the majority’s opinion emphasizes the general public policy behind

strict product liability. Supra ¶¶ 25-28. That policy, however, is not at issue in this

case. Rather, we are concerned with the “seller’s exception” of section 2-621,

which permits a nonmanufacturer defendant sued for strict product liability to be

- 26 ­

dismissed if certain requirements are met. 735 ILCS 5/2-621(b) (West 1994).

Moreover, I find that the majority’s sole reliance on the general policy notions of

strict liability is essentially meaningless in this situation because “ ‘[v]ague notions

of a statute’s “basic purpose” are . . . inadequate to overcome the words of its text

regarding the specific issue under consideration.’ ” (Emphasis omitted.) Montanile

v. Board of Trustees of National Elevator Industry Health Benefit Plan, 577 U.S.

___, ___, 136 S. Ct. 651, 661 (2016) (quoting Mertens v. Hewitt Associates, 508

U.S. 248, 261 (1993)); People v. Laubscher, 183 Ill. 2d 330, 337 (1998) (“Where an

enactment is clear and unambiguous, this court is not at liberty to read into it

exceptions, limitations, or conditions that the legislature did not express; nor should

this court search for any subtle or not readily apparent intention of the

legislature.”). Therefore, regardless of how compelling the majority views the

general policy arguments, such analysis is insufficient to contradict the plain

language of the statute, which concerns policy reasons regarding the “seller’s

exception” to strict product liability. Universal Health Services, Inc. v. United

States ex rel. Escobar, 579 U.S. ___, ___, 136 S. Ct. 1989, 2002 (2016) (“policy

arguments cannot supersede *** clear statutory text”).

¶ 74 Contrary to the majority’s reliance on general policy notions on strict product

liability, the Restatement (Third) of Torts explains that imposing strict liability on

nonmanufacturers does not advance the general policies of strict liability because,

often, nonmanufacturers are not in a good position to feasibly adopt safer products.

Restatement (Third) of Torts: Product Liability § 2, cmt. o (1998); see also M.

Stuart Madden, Selected Federal Tort Reform and Restatement Proposals Through

the Lenses of Corrective Justice and Efficiency, 32 Ga. L. Rev. 1017, 1085-86

(1998) (“It has, however, never been successfully explained what marginal

improvement in safety is gained when compared to the safety levels that follow

from a manufacturer’s already existing incentives to avoid liability costs associated

with suits against it directly, as practically all modern products liability suits

proceed.”); John G. Culhane, Real and Imagined Effects of Statutes Restricting the

Liability of Nonmanufacturing Sellers of Defective Products, 95 Dick. L. Rev. 287,

293-94 (1991) (the argument that sellers can exert pressure on those manufacturers

to create safer products is based “on several questionable assumptions,” including

that “nonmanufacturing sellers have sufficient knowledge to exert the desired

pressure” and “nonmanufacturing sellers have sufficient market power and choice

to make their decisions count”). Generally, seller exception statutes have been

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enacted to save a nonmanufacturer’s resources in protecting itself when the

nonmanufacturer did not, itself, render the product defective or was not in a

position to prevent the defect. Restatement (Third) of Torts: Product Liability § 1,

cmt. e, at 9 (1998) (“The legislation is premised on the belief that bringing

nonmanufacturing sellers or distributors into products liability litigation generates

wasteful legal costs. Although liability in most cases is ultimately passed on to the

manufacturer who is responsible for creating the product defect, nonmanufacturing

sellers or distributors must devote resources to protect their interests. In most

situations, therefore, immunizing nonmanufacturers from strict liability saves those

resources without jeopardizing the plaintiff’s interests.”).

¶ 75 In Illinois, section 2-621 was enacted so that innocent nonmanufacturers can

defer liability upstream to the ultimate wrongdoer and avoid wasteful litigation

costs. Brobbey v. Enterprise Leasing Co. of Chicago, 404 Ill. App. 3d 420, 428-29

(2010); Murphy v. Mancari’s Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 775

(2008); Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d 185, 193 (1990);

Cherry, 206 Ill. App. 3d at 1060-61; Sims v. Teepak, Inc., 143 Ill. App. 3d 865, 868

(1986).

¶ 76 A review of the legislative history of section 2-621 reveals that the legislature

intended to provide stronger protections for nonmanufacturer defendants in cases

of strict product liability. During the Illinois Senate’s third reading of House Bill

2658, which culminated in the “seller’s exception,” Senator Moore stated that this

provision “merely provides that a non-manufacturer shall not be liable in products

liability actions based upon the doctrine of strict liability in tort if the manufacturer

is available for action.” 81st Ill. Gen. Assem., Senate Proceedings, June 27, 1979, at

139 (statements of Senator Moore). Before the Illinois House of Representatives,

Representative Bradley, the bill sponsor, explained that the policy of the statute

attempts “to remove some of the liability to people who are not directly involved in

the manufacture of that product that causes the damage or the injury or the death.”

81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 214 (statements of

Representative Bradley). Representative Bradley further clarified that the “seller’s

exception” of section 2-621 was enacted to alleviate the unjust result of applying

strict liability to every entity in the distributive chain when a nonmanufacturer did

not create the defective product and therefore would be ill-equipped to defend a

product that it did not design. 81st Ill. Gen. Assem., House Proceedings, May 25,

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1979, at 212 (statements of Representative Bradley). These statements illustrate

that the legislature was focused on protecting innocent nonmanufacturer

defendants by providing only limited, not broad, circumstances when a strict

liability claim may be reinstated against them.

¶ 77 Turning from the general policy reasons for the “seller exception,” floor

transcripts further support a plain reading that the ultimate determination for

reinstating a dismissed nonmanufacturer defendant is dependent on whether the

manufacturer is incapable of fulfilling its obligation under a judgment entered by

an Illinois court. When explaining that a plaintiff may at any time move to vacate

the order of dismissal and reinstate the nonmanufacturer, Representative Bradley

specifically mentioned the situation of when the manufacturer does “not have

enough insurance coverage to take care of the amount of judgment.” 81st Ill. Gen.

Assem., House Proceedings, May 25, 1979, at 213 (statements of Representative

Bradley). Representative Bradley later noted that an innocent distributor,

wholesaler, and retailer would be liable “if [the manufacturer has] gone bankrupt.”

81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 214 (statements of

Representative Bradley). Throughout the legislative process, the entirety of the

floor debates regarding reinstatement concerned only whether the manufacturer

was subject to this court’s jurisdiction or was financially able to satisfy the

judgment. Notably absent from the legislative history are any statements implying

that reinstatement should occur based on a plaintiff’s inability to enforce the

judgment against the manufacturer in Illinois or elsewhere. As such, the legislative

history is consistent with the plain meaning of section 2-621(b)(4).

¶ 78 In addition, since the purpose of section 2-621 was to counter the harsh

consequences of general strict liability law on innocent nonmanufacturers, the

majority’s heavy reliance on the general policies behind strict product liability in its

interpretation of section 2-621(b)(4) is unwarranted and misleading. By focusing

on the general policies underlying strict product liability to support its

interpretation of the “seller’s exception,” the majority negates the specific policies

behind the enactment of section 2-621. Instead, China Vitamins should be given the

policy protections underlying the “seller’s exception” where, according to the

record, it was never involved in the production or design of the defective product at

issue but, rather, the defective product was only used to transport China Vitamins’

goods. The majority ignores the fact that the legislature carefully balanced strict

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product liability policies with the fairness of imposing liability on the ultimate

wrongdoer. The majority’s interpretation disrupts this careful balance by allowing

a plaintiff to obtain a judgment against an equally innocent party although

questions remain unanswered on whether the ultimate wrongdoer has the ability to

pay for plaintiff’s injuries.

¶ 79 In sum, I find that the meaning of the phrase, “the manufacturer is unable to

satisfy any judgment as determined by the court” under section 2-621(b)(4) is clear:

Is the manufacturer incapable of fulfilling its debt obligation pursuant to a

judgment entered by the court? If a plaintiff can prove that the manufacturer is

financially unable to fulfill its debt obligation as determined by the court,

reinstatement may be warranted under section 2-621(b)(4). Accordingly, in this

case, until plaintiff makes such a showing, China Vitamins should remain a

dismissed nonmanufacturer defendant.

¶ 80 JUSTICE THOMAS joins in this dissent.

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