§ 5/2-623 Certificate of merit; product liability
§ 2-623. Certificate of merit; product liability.
(a) In a product liability action, as defined in Section 2-2101, in which the plaintiff seeks damages for harm, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
(1) That the affiant has consulted and reviewed the facts of the case with a qualified expert, as defined in subsection (c), who has completed a written report, after examination of the product or a review of literature pertaining to the product, in accordance with the following requirements:
(A) In an action based on strict liability in tort or implied warranty, the report must:
(i) identify specific defects in the product that have a potential for harm beyond that which would be objectively contemplated by the ordinary user of the product; and
(ii) contain a determination that the product was unreasonably dangerous and in a defective condition when it left the control of the manufacturer.
(B) In any other product liability action, the report must identify the specific act or omission or other fault, as defined in Section 2-1116, on the part of the defendant.
(C) In any product liability action, the report must contain a determination that the defective condition of the product or other fault was a proximate cause of the plaintiff's harm.
(2) That the plaintiff has not previously voluntarily dismissed an action based upon the same or substantially the same acts, omissions, or occurrences and that the affiant was unable to obtain a consultation required by paragraph (1) because either a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations or despite a good faith effort to comply with this Section, the plaintiff was prevented by another person from inspecting or conducting nondestructive testing of the product. If an affidavit is executed pursuant to this paragraph, the affidavit required by paragraph (1) shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with an affidavit required by paragraph (1). No plaintiff shall be afforded the 90-day extension of time provided by this paragraph (2) if he or she has voluntarily dismissed an action for the same harm against the same defendant.
(b) When the defective condition referred to in the written report required under paragraph (1) of subsection (a) is based on a design defect, the affiant shall further state that the qualified expert, as defined in subsection (c), has identified in the written report required under subsection (a) either: (i) a feasible alternative design that existed at the time the product left the manufacturer's control; or (ii) an applicable government or industry standard to which the product did not conform.
(c) A qualified expert, for the purposes of subsections (a) and (b), is someone who possesses scientific, technical, or other specialized knowledge regarding the product at issue or similar products and who is qualified to prepare the report required by subsections (a) and (b).
(d) A copy of the written report required by subsections (a) and (b) shall be attached to the original and all copies of the complaint. The report shall include the name and address of the expert.
(e) The failure to file an affidavit required by subsections (a) and (b) shall be grounds for dismissal under Section 2-619.
(f) Any related allegations concerning healing art malpractice must include an affidavit under Section 2-622.
(g) This amendatory Act of 1995 applies only to causes of action filed on or after its effective date.
VALIDITY
Public Act 89-7, which added this section, has been held unconstitutional in its entirety by the Illinois Supreme Court in the case of Best v. Taylor Machine Works, 1997, 689 N.E.2d 1057, 228 Ill.Dec. 636, 179 Ill.2d 367.