Find Legal Information

JUSTICE COUSINS delivered the opinion of the court:

Brian Weedon brought an action at law to recover damages from an injuryallegedly caused by a defective venous access device. Pfizer, Inc., andHorizon Medical Products, Inc., the alleged manufacturers of the device, movedfor summary judgment claiming: (1) that there was no genuine issue of materialfact that the device was defective; and (2) that they did not manufacture thedevice in question. The trial court granted the defendants' motion for summaryjudgment based on the findings that the plaintiff failed to produce evidence ofa defect and all other causes had not been excluded. Weedon appeals claimingthat he produced sufficient circumstantial evidence to create a reasonableinference that the product was defective.

We reverse and remand.

BACKGROUND

Brian Weedon was diagnosed with Hodgkin's disease in May of 1993. He wassuccessfully treated with radiation and chemotherapy. In 1996, Weedon had arelapse of the disease. Dr. Leo Gordon, an oncologist with NorthwesternUniversity Hospital, treated Weedon with chemotherapy. A venous accessservice, commonly known as a "Lifeporte,"(1) was surgically implanted intoWeedon's chest as part of the chemotherapy.

The Lifeporte was implanted in Weedon's chest beneath the skin by Dr.Talamanti, an oncology surgeon at Northwestern University Hospital. There is areservoir through which a nurse or doctor can inject chemotherapy drugs. Theother end of the device traverses the large vein in the neck and enters thelarge chamber of the heart. Weedon received regular chemotherapy injectionsthrough this device from October 1996 until February 1997. Sarah Coveny, anoncology nurse, administered the drugs to Weedon through the venous accessdevice.

After approximately four months of chemotherapy, Weedon began toexperience discomfort and swelling near the device. Dr. Gordon examined Weedonand determined that the device should be removed. Dr. Talamanti was asked byDr. Gordon to explant the device. Dr. Talamanti explanted the device anddiscarded it before any tests could be conducted for extravasation (leakage). The device was never recovered.

After removal of the device, necrosis of the skin, fat and muscle tissuewas detected and continued for a period of time. As a result, Weedon was leftwith a large hole in his chest. Dr. Talamanti referred Weedon to Dr. Dumanian,a plastic surgeon, to perform a skin graft and close the wound because Dr.Talamanti thought it would be a very difficult procedure requiring the skill ofa plastic surgeon. After two plastic surgeries, the wound closure wassuccessful, but Weedon was significantly disfigured.

Dr. Talamanti testified that when he implanted the device, it appeared tofunction normally. He checked the device for extravasation and observed noneprior to and immediately after implanting the device. He testified that theplacement of the device was proper as evidenced by an X ray followingimplantation. Dr. Talamanti testified that there was no evidence that wouldlead him to believe that the device developed a clot or that the device wasmalpositioned. He also did not notice any extravasation when explanting thedevice.

The plaintiff did not produce any witnesses purporting to be experts inthe design or manufacturing of the venous access device. The plaintiff'switnesses also could not point to any specific defect in the device that causedleakage. In addition, the doctors that treated Weedon all testified that hisinjury could have resulted from infection, malpositioning of the device orextravasation. However, each doctor testified that it was more likely thatplaintiff had an extravasation injury than an injury due to infection ormalpositioning of the device.

ANALYSIS

I

Weedon claims that the trial court improperly granted summary judgment infavor of the defendants because he came forward with sufficient circumstantialevidence to create a reasonable inference that the product was defective. Thedefendants claim that Weedon: (1) never pleaded a nonspecific defect claim and,therefore, cannot now proceed with such a claim; (2) has presented no evidencethat tends to negate the other reasonable causes for his injury; and (3) didnot present evidence that the product failed to perform in a manner reasonablyto be expected in light of its nature and intended function.

A motion for summary judgment should be granted when the pleadings,depositions and affidavits reveal that there is no genuine issue of materialfact and that the moving party is entitled to judgment as a matter of law. Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 31, 605 N.E.2d 557 (1992). Thestandard of review of a trial court's decision granting summary judgment is denovo. Schal Bovis, Inc. v. Casualty Insurance Co., 315 Ill. App. 3d 353, 364,732 N.E.2d 1179 (2000). Summary judgment is a drastic remedy and should beallowed only when the right of a moving party is clear and free from doubt. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119(2000). In considering a motion for summary judgment, all reasonableinferences must be drawn strictly against the moving party and liberally infavor of the opponent. Scardina v. Alexian Brothers Medical Center, 308 Ill.App. 3d 359, 363, 719 N.E.2d 1150 (1999).

Relative to their first contention, the defendants argue that Illinoislaw recognizes two "distinct types of products liability claims." The first isa specific defect claim and the second is a nonspecific defect claim. Thedefendants contend that in a specific defect claim, the plaintiff must allegethat: (1) his injury resulted from a condition of the product; (2) thecondition was unreasonably dangerous; and (3) the condition existed at the timeit left the manufacturer's control. Pluto v. Searle Laboratories, 294 Ill.App. 3d 393, 398, 690 N.E.2d 619 (1997). In a nonspecific defect claim, thedefendants claim that the plaintiff must allege that: (1) he was using theproduct in a normal manner; (2) there was no other reasonable cause for theproduct's failure to perform; and (3) the product failed to perform in a mannerreasonably to be expected in light of its nature and intended function. Doylev. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 376, 618 N.E.2d909 (1993).

The plaintiff's complaint reads in pertinent part:

"2. That on or about October 3, 1996, a 'LifePorte' or 'Infus-a-Port'designed, manufactured, and sold by the defendants was surgicallyimplanted in the Plaintiff's chest.

3. That the Defendants had a duty to design, manufacture and sell saiddevice so that it would be reasonably safe for its intended use.

4. That withstanding [sic] said duty, said device was defective whenit left the control of the Defendants in one or more of the followingrespects:

a. A small leak in the device allowed the infiltration of chemicalsinto the Plaintiff's chest;

b. A failure of the device to operate as designed caused chemicals toinfiltrate into the Plaintiff's chest;

c. A defect in the materials incorporated in said device causedchemicals to infiltrate into the Plaintiff's chest.

5. That a direct proximate result of the leakage of chemicals intothe Plaintiff's chest from said defect, the Plaintiff suffered severe andpermanent personal injury, great pain and suffering, was cause [sic] toincur medical bills, to lose wages, and to be otherwise damaged."

The defendants argue that the complaint does not allege that the plaintiff wasusing the device properly, that there were no other reasonable causes for thedevice's failure and the product failed to perform in a manner reasonably to beexpected in light of its nature and intended function. Therefore, theplaintiff has pleaded a specific defect claim and should not be allowed to goforward on a nonspecific defect theory. We disagree.

In support of his position that this was not a proper case for summaryjudgment, Weedon cites to Tweedy v. Wright Ford Sales, Inc., 64 Ill. 2d 570,357 N.E.2d 449 (1976), and Doyle v. White Metal Rolling & Stamping Corp., 249Ill. App. 3d 370, 618 N.E.2d 909 (1993). In Tweedy, the plaintiff was injuredwhen the brakes on an automobile manufactured and sold by the defendantsfailed. Tweedy, 64 Ill. 2d at 572. The plaintiff offered no expert testimonyconcerning a specific defect in the automobile's brake system. Tweedy, 64 Ill.2d at 572. An insurance company representative and the owner of the parts yardexamined the vehicle and testified that there was no evidence of leakage at thewheels and they heard the cable move when the parking brake was operated. Tweedy, 64 Ill. 2d at 573. An expert from Ford testified that the power"assist" on the automobile was too badly damaged, but tests on the mastercylinder indicated no malfunction whatsoever. Tweedy, 64 Ill. 2d at 573. Thedefendant in Tweedy claimed that the plaintiff failed to prove that theautomobile was defective at the time of the injury and when it left thedefendant's possession. Tweedy, 64 Ill. 2d at 573.

The Tweedy court held that a prima facie case that a product wasdefective and the defect existed when it left the control of the manufactureris made by proof that, in the absence of abnormal use or reasonable secondarycauses, the product failed to perform in the manner reasonably to be expectedin light of its nature and intended function. Tweedy 64 Ill. 2d at 574.

In the Doyle case, the plaintiff filed a products liability actionagainst the manufacturer of a ladder alleging that the ladder was unreasonablydangerous when the ladder collapsed, causing the plaintiff injury. Doyle, 249Ill. App. 3d at 373. The defendant ladder manufacturer claimed that theplaintiff must point to some specific defect in the product. Doyle, 249 Ill.App. 3d at 376. The Doyle court, relying on Tweedy, held that the plaintiffneed not point to a specific defect, but may create an inference that a productwas defective by direct or circumstantial evidence that: (1) there was noabnormal use of the product; (2) there was no reasonable secondary cause of theinjury; and (3) the product failed to perform in the manner reasonably to beexpected in light of its nature and intended function. Doyle, 249 Ill. App. 3dat 377. Although the Doyle court makes reference to a "'Tweedy' count" in thepleadings, we do not read these cases to hold that a plaintiff must pleadanything other than that which is required in a products liability action but,rather, that plaintiff may establish a nonspecific defect claim bycircumstantial evidence. Doyle, 249 Ill. App. 3d at 377.

Here, Weedon's position is that he pleaded the necessary elements of aproducts liability claim: (1) the product was defective; (2) the defect existedwhen it left the manufacturer's control; and (3) the product was unreasonablydangerous. The depositions and other circumstantial evidence that he producedcreated the inference that there was no abnormal use, no reasonable secondarycause existed and the product failed to perform as reasonably expected in lightof its nature and intended function.

Accordingly, we find that the plaintiff's products liability action wasproperly pled.

II

The plaintiff asserts that summary judgment was not proper in the instantcase because he presented evidence that tends to negate the other reasonablecauses for his injury. The defendants first suggest the possibility that aninfection of the device was the cause of Weedon's injuries. Relative to theissue of infection, Dr. Talamanti testified at deposition as follows:

"Q. Now, in this case you reached the conclusion at the time of theexplant of Mr. Weedon's device that he exhibited the signs and symptomsof infection?

A. Correct.

Q. What was the basis for your conclusion?

A. I don't remember what his systemic signs were, but his local signswere that his Port-A-Cath had become tender, he had localized swellingand edema at the site. And if I remember correctly, there was someredness associated at the site.

Q. Did the fact that you concluded that there was an infection aroundthe port, around the venous access device in Mr. Weedon, mean to you thatthere was a defect in the device?

A. No.

Q. Now when devices are infected, is it possible that one of theconsequences is skin necrosis?

A. That would have to be a particularly virulent type of skininfection. We are using the word infection as a diagnosis for anindication for an operation. The indication for the operation in thispatient was localized inflamation. An infection is a diagnosis that'susually established after the operation, and if the cultures are takenand organisms are seen on the stain. The indications for this operationwere localized inflamation. The diagnosis is different and not alwaysthe same as the indications ***.

* * *

Q. *** What are the signs and symptoms of extravasation?

A. They are localized signs of inflamation. The inflamation isusually more intense and it may be temporally related to the injection ofchemotherapy agents.

Q. What are the possible causes of extravasation around a venousaccess device like the Life-Port device?

A. Basically there is only two that I know of, and that's malfunctionof the Port-A-Cath device or a mal-position of the needle during theinfusion of chemotherapy.

* * *

Q. And what kind of tests would a pathologist do?

A. They would look for blood clots. They might culture the tip. Ifyou tell them that you were concerned about the flow or extravasation,they would do a dye study.

Q. But it's correct that in this case you don't recall ordering that?

A. No, because we took the device out, the concern for me wasn'textravasation, it was inflammation. The diagnosis of extravasation wasentertained when the patient continued to have persistent signs of skininfections, skin necrosis, then it wasn't any longer--and the cultureswere negative, then it no longer became a simple case of an infectedPort-A-Cath, the whole issue of extravasation and skin necrosis andchemotherapy was raised, and by that time the cultures had come backnegative and the catheter had been discarded, so temporally it wasn'tsomething that was an imperative at the time we removed the catheter.* * *

Q. Did you and Dr. Dumanian ever discuss what you thought the finaldiagnosis was on Brian Weedon?

A. We did.

Q. [A]nd what was that discussion about?

A. I thought the cultures were negative, there was never any pus inthe wounds--I mean the signs of infection you look for besides theclinical signs of inflammation, redness, tenderness, swelling, fever, thepatient didn't have any of these things. *** Then we looked for theetiology of those symptoms, his cultures were negative, he had no pus inthe wound, we couldn't find any signs of infection, then when hecontinued to show signs of skin inflammation and possible necrosis, thenI think the one thing we cannot miss, we cannot make the error ofomission by failing to recognize the fact that the etiology of hisinflammation might have been extravasation.

Q. Now, you say the etiology might have been extravasation. Did youever reach a conclusion yourself with any kind of certainty about whetherthe cause of the need to explant the device was infection orextravasation?

A. I reached a subjective impression that it was extravasation becausethe cultures were negative and there was no pus in the wound, and hedidn't get better until we debrided the skin. So I have to assume thatit was extravasation, but I never have any--there is no test that I cantell you to confirm that it was extravasation other than it was anongoing necrotizing process in his wound, and we never cultured outanything from his wound.

Q. Did you and Dr. Dumanian ever discuss the possible causes of theassumed extravasation?

A. No, I don't think I ever discussed that. I just said I think I hehas extravasation, whether it came from mal-positioning of the needle,infusion in the wrong spot or a malfunction in the catheter, I don'tthink we discussed it. We just discussed the indications; like I said,this thing is not getting better it is getting worse. I can't find signsof infection."

When Dr. Talamanti was examined during deposition by the plaintiff's counsel hetestified as follows:

"Q. Do you have an opinion based upon a reasonable degree of medicalcertainty whether it is more probably true than not true that Mr. Weedonhad an extravasation injury than an infection?

A. I think it is more probably true that he had an extravasationinjury than an infection.

Q. In this case, did you ever find any evidence that the Port-A-Cathwas clotted?

A. No, not that I recall.

* * *

Q. Would it be fair to say that the testing you did would not rule outthe possibility that the device may have leaked?

A. Correct."

Dr. Gordon was Weedon's oncologist. He testified at deposition as follows:

"Q. All right. Now you mentioned in your answer if this is a case ofextravasation. What's your best judgment today about what happened toBrian Weedon and what his diagnosis was?

A. My best guess is it was most likely extravasation rather thaninfection. I couldn't be a hundred percent sure because both could giveyou the sort of tissue destruction that he had. It's more typical Ithink with extravasation, but it's possible that it could have beeninfection. We didn't--there isn't a good way to prove, I'm afraid, oneor the other.

Q. So?

A. Removal of the device is the treatment for both. My guess is, if Ihad to guess though, I would say extravasation over infection.

Q. Why would you reach that conclusion?

A. Well, because at least I don't recall seeing that there was any pusor obvious infection from the cite of the catheter. I don't recall thathe was having high fevers, which is one of the things you might see withinfection, but maybe a little less likely with extravasation.

* * *

Q. So can you tell me all of the facts that would lead you to guessthat Brian suffered from extravasation versus infection? I ask thatbecause the medical records don't reach that conclusion.

A. Right, I mean I think it's uncertain. I'm just sayingretrospectively likely what I think happened. The reason I think it'smore extravasation than infection is the extent of the tissue injury inthe absence of any obvious pus described or high fevers. I guess thatwould be the--that would lead me--if I had to choose one versus theother, but again, I could not be certain between the two. It could havebeen infection.

[Deponent's attorney]: Just for the record, when you state it's not inthe records that way, I just want to refresh the Doctor's recollection onone note because I think that is what you stated in the record.

[The witness]: Should I read this?

[Deponents' attorney]: Yeah.

[The witness]: I again told him that I believe that most likely thisrepresented a slow leak in the Port-A-Cath which resulted inextravasation, but infection certainly was a possible explanation forthis, so I guess I felt the same way then."

Dr. Gordon also gave the following testimony regarding a letter that he wroteto Weedon's attorney:

"Q. Take a look at Exhibit Number 1. Do you recognize that document?

A. Yes.

Q. What is it?

A. That's a letter to Mr. Baird from me indicating that--should I readit or just--indicating that I thought there was an extravasation injurythat was caused by an undetected defect in the Port-A-Cath that allowedAriamycin to infiltrate into the chest.

Q. You wrote Deposition Exhibit Number 1?

A. Yes.

Q. And that's your signature on Exhibit Number 1?

A. Correct.

Q. What exactly did you mean when you wrote about a, quote, defect inthe Port-A-Cath, unquote?

A. My intent was to refer to the inherent risk that I alluded toearlier that exists with any implanted venous access device. Thatincludes infection or extravasation. So I was referring to the inherentrisk. It would be difficult for me to postulate what that was or howthat was caused. It is outside my realm of training, but I was referringto and understood the inherent risk of an intravenous access device.

Q. Is it correct then that in writing the letter you were notreferring to a defect in manufacture of the device?

A. Correct.

Q. And is it correct that you have no knowledge of a shortcoming inthe manufacture of the Strato Lifeport device?

A. Correct.

Q. Is it also correct that in writing Deposition Exhibit Number 1 thatyou were not commenting on any defect in the design of the device of thedevice implanted in Mr. Weedon?

A. Correct. I had no basis to assess the design really.

Q. Is it correct then that you have no basis for concluding that therewas a defect in the design of the Strato Lifeport device?

A. Correct. My use of the word was to refer to the inherent risk ofthese devices in general.

Q. Is it correct then that you don't know of a defect specific to theStrato Lifeport device that was implanted in Mr. Weedon."

Dr. Dumanian gave the following testimony relative to the cause of Weedon'sinjury:

"Q. [A]nd what was the nature of that surgery if you could describeit?

A. The patient had a necrotic open wound ***. ***. He hadapproximately a three to four centimeter opening in his chest, and deepto [sic] that there was necrotic fat. By palpitation, one could feel thatthis necrotic process was not confined right to the incision but felt tobe fairly substantial in terms of its size. And I do remember talking toMr. Weedon that I don't know how far out I have to go to take out allthis dead fat. But I do remember talking to him that it's at least fromhere to here, and all that tissue would need to be removed to start thehealing process.

* * *

Q. Were there any complications connected with the surgery?

A. No.

Q. Now, we're referring to an IV--well, at some point in your notesthere's a reference to an IV infiltration injury.

A. Yes.

Q. Can you explain what that is, please?

A. Yes. When chemotherapy agents somehow end up in the subcutaneoustissues the high concentration of chemotherapy agents can kill the cells.The cell take up the IV agent, the chemotherapy agent kills the cells,the cells lyse releasing the agent back into the local tissue for thenext level of cells to take up the chemotherapy. And so you have aslowly spreading necrotic wound.

Q. How if at all is an extravasation different from an IV infiltrationinjury in your mind?

* * *

A. I would use those terms synonymously.

Q. How, if at all, is an infection different from an IV infiltrationinjury in your mind?

A. They are very different. Infections have bacteria invading thelocal tissue causing a tissue response of pain, swelling, redness andsystemic changes. An IV infiltration injury could cause some of thosethings but they would look to a trained eye very different. The wound ofMr. Weedon had been open for a while, and while there may have beenbacteria on it, it did not seem to me to be an infected wound. When Itreated him, if I thought he had an infected wound I would have treatedit much differently than the wound I saw. An infected wound, typicallyone tries to get wound control opening up planes, relieving pus, takingout any dead tissue, but not trying to close the wound at that time. Soby my actions I felt it was one way and not another way.

Q. And the way you felt it was that--let me start again. What you felthad occurred was an IV infiltration injury and not an infection.

A. At the time that I saw him and I was treating him, I did not thinkthat this was an infected wound. It may have been a colonized wound, butnot an infected wound.

* * *

Q. Great. Can you tell us what this is, please?

A. This is my operative report. Dr. Talamanti had treated theinfection by taking out the quote infected Port-A-Cath. But the factthat the wound did not resolve in a way that a normal infection wouldmakes one think, three weeks later I have the benefit of watching thehistory of the patient, because he didn't resolve it must be somethingelse. So what that refers to, there was a--there was apparent infection. I'm referring to Dr. Talamanti's treatment of that wound.

Q. Okay, and when you say that there was a question of IV infiltrationinjury, was there a question in your mind as of March 6, 1997, whetherMr. Weedon's injury was caused by an IV infiltration?

A. When I say question, I refer to the fact that I don't know exactlywhat happened. I have to make a guess. And so I'm saying IVinfiltration, but I don't know specifically. I haven't talked--the onlyway I know there's an IV infiltration is if I know from the person who isdelivering the medicine, 'I put in the medicine, all of a sudden the areagot swollen and red and the patient told me there was pain.' That's theonly way I would know personally that an IV infiltration had occurred.

Q. Okay. And I take it you did not know one way or another whether anIV infiltration injury had occurred as of March 6, 1997?

A. That's correct. And I still don't know exactly what caused thiswound. All I can do is say there was a wound, there was redness and painon the skin. Dr. Talamanti diagnosed an infection. The way to treat aninfection is to take out the foreign body. The foreign body was removed,the wound did not get better, and so, therefore, I have to, with usingwhat information I have, come up with a different diagnosis.

Q. Is it true today as well that you cannot and have not given anyopinion as to what caused Mr. Weedon's injuries?

A. That's not exactly correct. I believe that it was an IVinfiltration injury.

Q. Okay.

A. I believe it was an IV infiltration. Do I have proof it was IVinfiltration? I'll never have proof, but it acted like an IVinfiltration injury.

Q. Let me ask you slightly different question. Do you have or haveyou ever given an opinion as to what caused the IV infiltration?

A. Never.

Q. Do you have a basis, any basis whatsoever, scientific or otherwise,for giving an opinion as to what caused the IV infiltration that youbelieve occurred with respect to Mr. Weedon?

A. I have no opinion or idea how this happened.

Q. Okay. Have you ever told Mr. Weedon that you were not able toprovide him with an opinion as to how the IV infiltration occurred?

A. Yes. I've actually said that to Mr. Weedon.

Q. Do you recall under what circumstances you did so?

A. No. But I do remember talking to him about "You had an IVinfiltration injury. How it happened, I don't know."

The defendants also argue that the plaintiff was unable to rule outmedical mistakes as a possible cause for the extravasation of chemotherapy intoWeedon's chest. Relative to that issue, Dr. Gordon testified as follows:

"Q. The fact that everything seemed to have been done right from amedical point of view is one of the things that suggests that there musthave been a leak in the catheter itself?

A. Correct. Everything was done, as far as I could see, right from atechnical point of view from looking--from talking to Sarah and fromlooking at her notes. It seemed perfectly done.

* * *

Q. Sure. By process of elimination we can eliminate medical care as apotential cause of extravasation?

A. I believe so.

Q. Which would leave the condition of the catheter itself?

[Defendants' attorney]: Objection, foundation.

[Plaintiff's attorney]: Correct?

[The witness]: Correct.

* * *

[Defendants' attorney]: You mentioned there were other potentialcauses of extravasation?

A. One potential cause is simply not having the needle in the device. The reason I don't believe this happened is you can't infuse--you can'tinfuse anything if that happened, and so I don't know how that couldhappen. If you're infusing something into a dead end and not into thecatheter you wont be able to infuse. It's sort of a self-protectivemeasure of the catheter. You can't infuse if you're not in the rightplace.

Q. What are other potential causes of extravasation?

A. I think those are it. Either some leakage or not having theneedle--."

The plaintiff is not required to prove his claim at the summary judgmentstage, but must present some facts to support his claim. See Stewart v. B.F.Goodrich Co., 153 Ill. App. 3d 1078, 1081, 506 N.E.2d 783 (1987). Based uponour review of the record in the case sub judice, we cannot say that the rightsof the defendants are clear and free from doubt. See Jones, 191 Ill. 2d at291. Thus, we hold that trial court erred in granting defendants' motion forsummary judgment.

III

The defendants also argue that the plaintiff did not demonstrate that thedevice failed to perform in a manner reasonably expected in light of its natureand intended function. In the instant case, the venous access device wasimplanted in Weedon's chest for approximately four months with the expectationof delivering chemotherapy to the parts of Weedon's body that were affected bythe Hodgkin's disease. The plaintiff alleges the following in his complaint:

"a. A small leak in the device allowed the infiltration of chemicalsinto the Plaintiff's chest;

b. A failure of the device to operate as designed caused chemicals toinfiltrate into the Plaintiff's chest;

c. A defect in the materials incorporated in [the] device causedchemicals to infiltrate into the Plaintiff's chest.

5. That a direct proximate result of the leakage of chemicals intothe Plaintiff's chest from [the] defect, the Plaintiff suffered severeand permanent personal injury, great pain and suffering *** ."

Although there was no witness produced by the plaintiff to testify as anexpert regarding any specific defect in the venous access device, Sarah Coveny,the oncology nurse who administered the chemotherapy, testified that she used aspecially designed "Port-A-Cath needle" and that she did not remember havingany problems with Weedon's chemotherapy injections. Dr. Talamonti testifiedthat he inspected the device prior to and immediately after implantation andtestified that there was no indication of any defects. Although Dr. Dumanian,the plastic surgeon, did not see the Port-A-Cath through which the chemotherapywas given, he testified to the difference between an infection and an IVinfiltration injury and, although he did not know exactly what happened, hetestified that Weedon had an infiltration injury. The defendants' expert, Mr.James Hagar, testified that a venous access device should not leak absentexternal forces, such as a medical mistake or use of an improper needle.

After reviewing the record in the instant case, we cannot say that noissue of material fact exists. Here, the evidence must be weighed by thefinder of fact in order to determine whether the device failed to perform in amanner reasonably to be expected. Thus, summary judgment is precluded. Stewart, 153 Ill. App. 3d at 1081; see also Tweedy, 64 Ill. 2d at 574(explaining that an automobile driven 7,500 miles and inspected prior topurchase, inspected again 6,000 miles later and subjected to no abnormal useprior to total brake failure failed to perform in a manner reasonably to beexpected).

IV

Alternatively, defendants contend that the summary judgment may beaffirmed on the ground that plaintiff sued the wrong defendant where: (1)defendants raised this issue in a separate summary judgment motion; (2) theundisputed evidence shows that neither of the defendants designed, manufacturedor produced plaintiff's Lifeport device; and (3) the plaintiff sought to suethe actual manufacturer of the device only after defendants filed their summaryjudgment motion, despite having had express notice of his error more than 16months beforehand. However, the trial court did not reach the merits of themotion alleging that the defendants did not manufacture of the device at issue.

The defendants correctly point out that this court may affirm summaryjudgment on this ground or on any other basis in the record, regardless ofwhether the trial court relied on that ground or whether its reasoning wascorrect. Engelland v. Clean Harbors Environmental Services, Inc., 319 Ill.App. 3d 1059, 1062 747 N.E.2d 8 (2001). However, we decline to affirm thetrial court's grant of summary judgment in this case on an issue that the trialcourt did not reach.

For the foregoing reasons, the judgment of the circuit court is reversedand remanded for further proceedings.

Reversed and remanded.

COHEN, P.J., and TULLY, J., concur.

1. Throughout the record and the parties' briefs, the terms "Port-A-Cath,""Lifeporte" and "Infus-A-Port" are used interchangeably by the witnesses andparties.