In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-4011

K AREN R OBINSON, et al.,
                                                Plaintiffs-Appellants,
                                  v.

M C N EIL C ONSUMER H EALTHCARE, a division of
M C N EIL-PPC, INC.,
                                      Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 07 C 5603—James F. Holderman, Chief Judge.



       A RGUED JUNE 2, 2010—D ECIDED A UGUST 11, 2010




  Before E ASTERBROOK, Chief Judge, and P OSNER and
K ANNE, Circuit Judges.
  P OSNER, Circuit Judge.      Karen Robinson and her
husband (suing for loss of consortium) brought a
products liability suit against McNeil Consumer Health-
care in an Illinois state court. The case was removed to
a federal district court in Illinois under the diversity
jurisdiction. McNeil’s parent, Johnson & Johnson, was
2                                                    No. 09-4011

a defendant in the district court, but the jury found in
its favor and the appellants do not challenge the finding,
so it is out of the case.
   The district judge ruled that Virginia law governed the
substantive issues in the case. That law both rejects strict
liability as a basis for a products liability suit, Harris v. T.I.,
Inc., 

, 609-10 (Va. 1992); Sensenbrenner v.
Rust, Orling & Neale, Architects, Inc., 

, 57 n. 4
(Va. 1988); Lust v. Clark Equipment Co., 

, 439-40
(4th Cir. 1986) (applying Virginia law); compare Restate-
ment (Second) of Torts § 402A (1965), so that a plaintiff
has to prove negligence; and deems contributory negli-
gence a complete defense to a claim of negligence. E.g.,
Litchford v. Hancock, 

, 337 (Va. 1987); Fein
v. Wade, 

, 31-32 (Va. 1950).
  After a six-day trial the jury found that McNeil had
been negligent, and calculated Mrs. Robinson’s compensa-
tory damages at $3.5 million. But the jury also found
that she had been contributorily negligent, and so—
since contributory negligence is a complete defense to
negligence under the law of Virginia—the judge entered
judgment for McNeil. The Robinsons appeal, but since
Mr. Robinson’s claim is derivative from his wife’s, we
needn’t discuss it, and for the sake of simplicity we’ll
pretend that his wife is the only plaintiff.
  McNeil manufactures and sells Children’s Motrin, an
over-the-counter drug (though there’s also a prescrip-
tion version, as we’ll have occasion to note). The active
ingredient is ibuprofen, a non-steroidal anti-inflamma-
tory drug (NSAID), used primarily to alleviate pain and
No. 09-4011                                              3

fever, that is also the active ingredient in Advil. The
“Warnings” section on the label of the bottle of Motrin
that Mrs. Robinson bought for her child begins: “Allergy
alert: Ibuprofen may cause a severe allergic reac-
tion which may include: hives, facial swelling, asthma
(wheezing), shock.” After additional warnings of side
effects the label says: “Stop use and see a doctor if an
allergic reaction occurs.” She read the warnings before
buying the drug.
  In September 2005, four or five months later, she awoke
in the middle of the night with a headache and took two
teaspoonfuls of the Children’s Motrin that she had
bought—the dose suggested for a child six to eight
years old—without reading the warnings (the specifics of
which she had forgotten) on the label. When she awoke
the next morning she noticed a rash on her chest. The
rash worsened throughout the day. That night she woke
up with a fever and took two more teaspoonfuls of the
Motrin, again without reading the warnings. The next
morning she went to see her doctor, who gave her a
dose of Benadryl and prescribed a Medrol pack, both
being drugs for treating allergic reactions. She mentioned
that she had taken Children’s Motrin; he did not react.
  Later that day she noticed that the rash on her chest was
sprouting blisters, and her fever increased. After waking
up late that night she again took two teaspoonfuls of the
Motrin without reading the warnings. The next morning,
with her condition deteriorating rapidly, she went back
to her doctor, who immediately ordered her hospitalized.
She was diagnosed with TEN (toxic epidermal necrolysis),
4                                              No. 09-4011

an especially severe form of SJS (Stevens-Johnson syn-
drome). TEN is a rare but life-threatening disease
that causes severe blistering and consequent sloughing
off of skin over much of the body, together with serious
damage to the mouth, eyes, throat, and esophagus. Jean-
Claude Roujeau, Robert S. Stern & Bruce U. Wintroub,
“Cutaneous Drug Reactions,” Harrison’s Principles of
Internal Medicine 343, 346 (Anthony S. Fauci et al. eds.,
17th ed. 2008); Pierre-Dominique Ghislain & Jean-Claude
Roujeau, “Treatment of Severe Drug Reactions—Stevens-
Johnson Syndrome and Toxic Epidermal Necrolysis,”
www.sjsupport.org/pdf/tsdr.pdf (visited July 21, 2010).
The treatment for the disease is similar to that given
burn victims.
  Mrs. Robinson survived, but sixty percent of her skin
had sloughed off, and she lost the vision in one eye and
has only limited vision in the other, which requires con-
stant medical treatment; she is expected to go blind
eventually. She has required multiple operations on her
throat and esophagus as a result of the damage to
those organs caused by the disease.
   The initial legal question presented by these unhappy
facts is choice of law. Virginia as we said makes con-
tributory negligence a complete defense to liability for
negligence. Today that is distinctly a minority position,
Restatement (Third) of Torts: Apportionment of Liability
§ 7 comment a (2000), contrary to the prediction in Pen-
nsylvania R.R. v. Aspell, 

, 149-50 (1854), that a
rule of law “not likely to be changed in all time to come
[is] that there can be no recovery for an injury caused by
No. 09-4011                                                 5

the mutual default of both parties.” Illinois makes the
victim’s negligence a partial defense under the rubric of
“comparative fault,” which merely reduces the damages
awarded the plaintiff unless the plaintiff’s negligence
exceeds the defendant’s, in which event the plaintiff’s
negligence is a complete defense. 735 ILCS 5/2-1116(c);
Board of Trustees of Community College District No. 508
v. Coopers & Lybrand, 

, 465 (Ill. 2003); Miller
v. Illinois Central R.R., 

, 957 (7th Cir. 2007)
(Illinois law). The jury was not asked to decide whether
Mrs. Robinson’s negligence exceeded McNeil’s, as it
should have been asked if, as the plaintiff argues, the
tort law of Illinois rather than of Virginia governs the case.
  Several states have a connection to the events
giving rise to Mrs. Robinson’s claim and therefore a
potential, though for most of the states an attenuated,
interest in the application of their law. She had bought
the bottle of Children’s Motrin in Georgia but was living
in Virginia when she took the drug and her initial
medical treatment was administered there, after which
she spent a month in the burn unit in a hospital in Balti-
more where she was diagnosed with TEN. She moved
with her husband and child to Illinois the following
year. McNeil is a New Jersey corporation headquartered
in Pennsylvania; we do not know where the drug was
manufactured or the label composed and affixed to the
bottle.
  The applicable conflicts rule is of course that of Illinois,
the forum state, and it uses the common but loose “most
significant relationship” test. Barbara’s Sales, Inc. v. Intel
6                                                   No. 09-4011

Corp., 

, 919-20 (Ill. 2007); Townsend v. Sears,
Roebuck & Co., 

, 898-99 (Ill. 2007). That test
points presumptively to the law of the jurisdiction in
which the tort occurred (that is, the lex loci delicti). 

cited there). This means—because there is no tort
without an injury, e.g., Rozenfeld v. Medical Protective Co.,

, 156 (7th Cir. 1996) (Illinois law); Rice v. Nova
Biomedical Corp., 

, 915-16 (7th Cir. 1994) (same),
and so a tort can’t be said to occur until an injury is
produced—the place where the injury was inflicted.
Kamelgard v. Macura, 

, 341 (7th Cir. 2009)
(Illinois law); cf. Townsend v. Sears, Roebuck & 

,
879 N.E.2d at 905-06; Esser v. McIntyre, 

, 1141 (Ill. 1996); Miller v. Long-Airdox Co., 

, 978 (7th Cir. 1990) (Illinois law); Restatement (Second)
of Conflict of Laws § 146 (1971). That was Virginia. But
because the injury is a continuing one, it is being experi-
enced in Illinois. Indeed, Mrs. Robinson’s condition
has deteriorated since she moved to Illinois and prob-
ably will continue to deteriorate; therefore, the plaintiff
argues, Illinois is the real site of the injury.
   The lingering or worsening of an injury over a con-
siderable period is common in personal injury cases,
rather than an exceptional circumstance that might
justify a departure from the ordinary principles of
choice of law. If you suffer permanent brain damage in
a motorcycle accident in Virginia and later move to
Illinois, your suffering and treatment will continue and
your condition may deteriorate. But to make the con-
tinuation or exacerbation of an injury a basis for
applying Illinois tort law to your case would open vistas
No. 09-4011                                              7

of forum shopping. Severely injured persons would
move to the state whose law was most favorable to their
tort claim and argue that that state had the “most signifi-
cant relationship” to the injury because the plaintiff’s
aggregate suffering and perhaps expense of medical
treatment would be greatest there. To avoid this incen-
tive to forum shop, the initial place of the injury is
properly deemed the place in which the injury occurred.
  This was clearest when lex loci delicti was the rule gov-
erning choice of law in tort cases. See Restatement (First)
of Conflict of Laws § 377 (1934). Under the “most
significant relationship” test, which demoted lex loci
delicti to a presumption, a party can argue for applying
the law of the state in which the greatest costs of the
injury were incurred. But normally the argument should
fail because of the encouragement that accepting it
would give to forum shopping. See Reich v. Purcell, 

, 730 (Cal. 1967) (Traynor, C.J.) (“if the choice
of law were made to turn on events happening after
the accident, forum shopping would be encouraged”); but
see Fisher v. Professional Compounding Centers of America,
Inc., 

, 1015 (D. Nev. 2004) (Nevada
law). A person who was severely handicapped for life as
a result of a tort could choose among 50 states’ tort laws.
Concern with forum shopping animates the parallel
rule that makes venue proper in the jurisdiction in
which the plaintiff’s claim accrues, which is usually the
initial place of the injury. Quaid v. Baxter Healthcare
Corp., 

, 1243-45 (Ill. App. 2009); Green v.
North Arundel Hospital Ass’n, Inc., 

, 229 n. 8
(Md. App. 1999).
8                                                 No. 09-4011

  There is, however, a potential ambiguity in the con-
cept of “injury.” Suppose Mrs. Robinson’s symptoms
had first appeared after she left Virginia. It is common
for a disease to have a latency period, which is to say
an interval between the infection or other trauma and
when the first symptoms appear, and maybe in such a
case the place where they first appear should, by analogy
to the discovery rule in statutes of limitations, see, e.g.,
Ross v. Johns-Manville Corp., 

, 827-28 (3d Cir.
1985); Wilson v. Johns-Manville Sales Corp., 

, 115-
17 (D.C. Cir. 1982), be deemed the place of injury. Illinois’s
intermediate appellate court so held in Mllar-Mintz v.
Abbott Laboratories, 

, 282 (Ill. App. 1994); cf.
Montgomery v. Wyeth, 

, 459-61 (6th Cir. 2009)
(Tennessee law), but we have expressed doubt that the
Supreme Court of Illinois would agree. Pittway Corp. v.
Lockheed Aircraft Corp., 

, 527-28 n. 5 (7th Cir.
1981) (Illinois law). It is true that the latency period of
most diseases is too short, even if the victim realizes he
has the disease before any symptoms appear, to prompt
him to move to the state whose law would be most fa-
vorable to his claim. But there are important excep-
tions, as for asbestosis and DES, and in such cases the
spur to forum shopping would be great if the law of the
state of the first symptoms would govern. In any event
the present case is not one of latency; Mrs. Robinson had
symptoms of TEN before she left Virginia.
  So we think Virginia law does govern this case, and
dooms her appeal because there was, as we shall see,
at least some evidence of contributory negligence. But
No. 09-4011                                                9

applying Illinois rather than Virginia tort law would not
change the outcome of the appeal.
   Exactly what it means to say that a plaintiff’s contribu-
tory negligence did (or did not) exceed the defendant’s,
a determination required by Illinois’s comparative-
fault rule, is unclear. 4 Fowler V. Harper, Fleming James,
Jr. & Oscar S. Gray, Harper, James and Gray on Torts § 22.16,
pp. 471, 475-76 (3d ed. 2007). But Davis v. United States,

, 429 (7th Cir. 1983) (Illinois law), suggests
that it means that “though both parties to the accident,
injurer and victim, could have avoided the accident at
reasonable cost—for otherwise both would not have
been negligent and the need to compare their negligence
would not arise—one of them could have avoided the
accident at a lower cost than the other, and he should
bear a larger share of the burden of having failed to do
so.” See also Wassell v. Adams, 

, 854 (7th Cir.
1989) (also Illinois law). Mrs. Robinson appears to
have been the party who could have avoided the
injury at lower cost, assuming for the moment that her
developing TEN was caused by the Motrin. For the
evidence of McNeil’s negligence in selling Children’s
Motrin, with or without a prescription and with or with-
out additional warnings, was slight.
  Ibuprofen is an immensely popular drug for relief of
pain and fever. Although the plaintiff contends that it’s
unreasonably dangerous, or defective in design, either
contention implying (if accepted) that the drug should
be taken off the market, at the oral argument of the ap-
peal her lawyer said “we’re not saying take it off the
10                                                No. 09-4011

market . . . we’re not saying it should be banned.” So
maybe the plaintiff just wants it sold by prescription only.
But this would increase the drug’s cost (because of the
prescribing physician’s fee and the time required by the
patient to obtain and fill the prescription) and thus
reduce its availability.
  And how dangerous is ibuprofen, anyway? Adverse
reactions (which include both allergic reactions and other
side effects) to painkilling drugs are common, see N.
Franklin Adkinson, Jr., “Drug Allergy,” Allergy: Principles
& Practice 1212, 1216 (Elliott Middleton, Jr., et al. eds., 5th
ed. 1998); Fred E. Karch & Louis Lasagna, “Adverse
Drug Reactions: A Critical Review,” 234 JAMA 1236, 1236-
37 (1975); Roujeau et 

; Donald D.
Stevenson & Ronald A. Simon, “Sensitivity to Aspirin
and Nonsteroidal Antiinflammatory Drugs,” in 

. Ibuprofen does not appear to carry a
risk of serious allergic reactions or other serious side
effects that is greater than is created by drugs that might
be substituted for it. Compare “Ibuprofen—Adverse
Reactions,” www.merck.com/mmpe/lexicomp/ibuprofen.
html#NF1185, to “Naproxen—Adverse Reactions,” www.
merck.com/mmpe/lexicomp/naproxen.html#N143371, and
to “Aspirin—Adverse Reactions,” www.merck.com/mmpe/
lexicomp/aspirin.html#N36183; see also Daniel H. Solo-
man, MD, MPH, “Nonselective NSAIDs: Overview of
Adverse Effects,” www.uptodate.com/online/content/topic.
do?topicKey=treatme/7262; “ACPA Consumer Guide
to Pain Medication & Treatment,” www.theacpa.org/
documents/ACPA%20Consumer%20Guide%
202010%20010410.pdf (all visited July 29, 2010). There is
No. 09-4011                                            11

also no evidence that if the risk from ibuprofen is
greater, it is not offset by the drug’s therapeutic prop-
erties. Should aspirin be salable by prescription only?
How about peanuts?
  The prevalence of TEN from all causes is estimated to
be only between .4 and 1.2 cases per million users of the
drug, and what fraction of that slight probability is due
to ibuprofen is unknown and may be zero. For while
it is true that SJS/TEN is primarily and perhaps ex-
clusively caused by allergic reactions to drugs, there is
considerable doubt, expressed by the defendant’s expert
witness, Dr. Maja Mockenhaupt, one of the world’s
leading authorities on the disease, that ibuprofen is one
of them. There is unquestionably an association between
SJS/TEN and ibuprofen because headache and fever,
which are symptoms of the diseases, are commonly
treated with drugs containing ibuprofen. But in such
cases the causation runs from SJS/TEN to ibuprofen
rather than vice versa. When a drug is claimed to cause
the very symptoms for which it is a designated treat-
ment, determining the direction of causation is difficult
at best.
  Dr. Mockenhaupt was confident that, if there is a
causal connection, still one dose could not cause the
disease. That statement was important to the defense
of contributory negligence because a reasonable jury
could not have found Mrs. Robinson negligent in taking
the first dose. It was the middle of the night and she had
a headache and she was taking just the child’s dose.
Furthermore, because headache is one of the earliest
12                                               No. 09-4011

symptoms of the disease and Mrs. Robinson had both
headache and rash before she took the second dose of
Motrin, and because, according to Mockenhaupt, the
disease is usually latent for four days to four weeks
after the patient first develops it, the fact that Mrs. Robin-
son exhibited symptoms within a day of taking the first
dose of Motrin, and the further fact that she had
taken ibuprofen in other forms for years without an
allergic reaction, convinced Dr. Mockenhaupt that
Mrs. Robinson had developed TEN before she took the
first dose.
  It might seem that the danger of developing TEN from
taking ibuprofen (if there is such a danger) would be
reduced if it were a prescription drug. Although there
don’t appear to be any factors that predispose a person to
have such a reaction to ibuprofen—factors that a doctor
might elicit from a patient in deciding whether to write
a prescription—the warning accompanying a prescrip-
tion drug, because it is addressed to the prescribing
doctor, can be more detailed than a warning for an over-
the-counter drug, which is read only by the consumer.
And indeed the FDA requires that the package insert
for prescription ibuprofen drugs warn of the risk (slight
as it is—maybe even nonexistent) that taking such a
drug might cause SJS/TEN.
  But if Children’s Motrin were a prescription drug,
Mrs. Robinson’s doctor would have prescribed it for her
child because there is nothing to suggest that the
child had some condition that might make a prescribing
physician worry that the child might develop SJS/TEN
No. 09-4011                                             13

from taking the drug. If it were prescribed, this would
tend to allay rather than heighten any fears that
Mrs. Robinson might have about taking the drug herself
(in fact she had no fears). And anyway the warning
about SJS/TEN, being directed to the physician and thus
written in technical language, would mean nothing to
her. A row in the 1996 package insert for prescription
Children’s Motrin (which contains the same amount of
ibuprofen as the over-the-counter version), headed “skin
and appendages,” states that there is a 3 to 9 percent
probability of developing a rash from taking the drug;
that the incidence of toxic epidermal necrosis (TEN) in
persons taking it is unknown but is less than 1 percent;
and that there may be a causal relation between the
drug and the disease. Letter from Willie D. Pagsuyuin,
Director, Regulatory Affairs, McNeil Consumer Products
Company, to Susan Raigrodski, Division of Anti-Inflamma-
tory, Analgesic and Ophthalmologic Drug Products (HFD-
550) 12-13 (Apr. 16, 1996); see also “Children’s Motrin
Ingredients,” www.motrin.com/page.jhtml?id=/motrin/
products/1_2_1.inc&sec=ingredients (visited July 29, 2010).
(The current insert states that it’s unknown whether there
is any causal relation between the drug and TEN.
“Motrin,” www.pfizer.com/files/products/uspi_motrin.pdf
(visited July 28, 2010).) What would Mrs. Robinson
have learned from reading such a warning?
  The decision whether to permit a drug to be sold over
the counter rather than just by prescription is for the
FDA to make. U.S. Food and Drug Administration,
“Nonprescription Drug Products: What We Do,”
ww w.fda.gov/AboutFD A /C en tersO ffices/C D E R/
14                                               No. 09-4011

ucm106342.htm (visited July 21, 2010); “Drug Applica-
tions for Over-the-Counter Drugs,” www.fda.gov/Drugs/
DevelopmentApprovalProcess/HowDrugsareDeveloped
andApproved/ApprovalA pplications/Over-the-
CounterDrugs/default.htm (visited July 21, 2010); Dan R.
Harlow, “The FDA’s OTC Drug Review: The Develop-
ment and an Analysis of Some Aspects of the Procedure,”
32 Food Drug Cosmetic L.J. 248, 250-53 (1977); see also
Weinberger v. Bentex Pharmaceuticals, Inc., 

, 650-
51, 653-54 (1973). The agency bases its decision on whether
the drug is safe and effective for use without a doctor’s
permission, 21 C.F.R. § 310.200(b); and it has decided not
to require that drugs containing ibuprofen be sold by
prescription only.
  Granted, that doesn’t bar a court from holding that state
law requires warnings on the label of an over-the-counter
drug beyond what the FDA has required. Wyeth v. Levine,

, 1198 (2009); Mason v. SmithKline Beecham
Corp., 

, 390-91, 394-95 (7th Cir. 2010); Demahy
v. Actavis, Inc., 

, 433 (5th Cir. 2010). The
plaintiff argues that the label on the bottle of Children’s
Motrin should have added “rash” to the other allergic
reactions warned against and should have mentioned
SJS/TEN as one of the possible allergic reactions and
(since virtually no consumer who was not a physician
would have heard of the disease) recited its horrific
consequences. But then the label would have had to
describe as well every other serious disease that might,
however infrequently, be caused, or even just arguably
caused (for it is unclear whether ibuprofen can cause
SJS/TEN), by ibuprofen. And it would have to recite the
No. 09-4011                                              15

symptoms of the disease if it was rare. The resulting
information overload would make label warnings worth-
less to consumers. See Troy A. Paredes, “Information
Overload and its Consequences for Securities Regulation,”
81 Wash. U. L.Q. 417, 440-43 (2003); Howard Latin, “ ‘Good’
Warnings, Bad Products, and Cognitive Limitations,” 41
UCLA L. Rev. 1193, 1211-15 (1994); cf. Richard Craswell,
“Taking Information Seriously: Misrepresentation and
Nondisclosure in Contract Law and Elsewhere,” 

.
Rev. 565, 583-85 (2006); Mark Geistfeld, “Inadequate
Product Warnings and Causation,” 30 U. Mich. J.L. Reform
309, 322 (1997). So forbidding the sale of ibuprofen over
the counter would be very costly—probably more costly
than letting consumers, having been warned by the label
of possible allergic reactions, decide to stop taking the
drug when symptoms that might have been caused
by it appear. See Kelso v. Bayer Corp., 

, 642-43
(7th Cir. 2005).
  The FDA directed McNeil (after the accident, however)
to add “skin reddening, rash, and blisters” to the
warnings on the label for Children’s Motrin. But though
later requested to do so, the agency decided not to
require mention of SJS/TEN (or SJS/TEN plus its horrible
symptoms), believing with reason that the addition
would confuse rather than enlighten. In a letter from
Steven K. Galson, Director, FDA Center for Drug Evalu-
ation and Research, to Roger E. Salisbury, No. 2005P-
0072/CP1 (June 22, 2006), the FDA stated: “We believe
that the overall benefit versus risk profile for ibuprofen
products remains very favorable when they are used
according to the labeled instructions. It is in the interest
16                                               No. 09-4011

of the public health to maintain in the pediatric OTC
market a range of therapeutic options for the short-term
relief of pain. Further . . . other available OTC drugs for
short-term relief of pain and fever can also be associated
with serious, potentially life-threatening adverse events
in certain settings and patient populations.” See also W.
Page Keeton et al., Prosser & Keeton on the Law of Torts § 96,
pp. 685, 687 (5th ed. 1984).
  And would the word “rash” on the label have dissuaded
Mrs. Robinson from taking the drug? She testified and
we accept that if the label, which she read when she
bought the drug, had been really scary—had it men-
tioned SJS/TEN as a possible allergic reaction and listed
all the dreadful symptoms of TEN in particular—she
would not have bought it. But it is implausible that if
instead of saying “Allergy alert: Ibuprofen may cause a
severe allergic reaction which may include: hives, facial
swelling, asthma (wheezing), shock,” it had said “Allergy
alert: Ibuprofen may cause a severe allergic reaction
which may include: hives, rash, facial swelling, asthma
(wheezing), shock,” she would not have bought it. If
facial swelling, asthma, and shock are not sufficient
deterrents, rash is not likely to be (or skin reddening
or blisters, but the plaintiff’s particular concern is the
absence of the word “rash” from the list of allergy symp-
toms). Anyway she didn’t read or remember the
warnings before taking the Motrin, so it wouldn’t matter
what the label had said unless it had contained truly
terrifying warnings that the state of medical knowledge
would not have justified.
No. 09-4011                                                17

  Her doctor may have lulled her into thinking that
Motrin couldn’t have been the source of her symptoms
because he didn’t react to her telling him that she was
taking the drug. She told him she’d taken it and he
thought that her symptoms were caused by an allergy,
yet he merely gave her drugs to combat the allergic
reaction; he didn’t tell her to stop taking Motrin even
though allergic reactions to NSAIDs are well known by
the medical profession. See Roujeau et 

;
Stevenson & 

; Larkin v. Pfizer, Inc., 

, 759-60 (Ky. 2004); see generally Jones v.
Detroit Medical Center, No. 288710, 

(Mich. App. May 20, 2010) (per curiam).
  Yet she didn’t sue him for malpractice, and she doesn’t
argue that it was reasonable for her (and therefore not
contributorily negligent) to rely on the doctor’s failure
to warn her that Motrin might be the cause of her symp-
toms. See DiLeo v. Nugent, 

, 1133 (Md. App.
1991); Angelo v. Diamontoni, 

, 1281-82 (Pa.
Super. 2005). Even if she had argued this, all she could
have gotten from the jury would have been a finding
that she was not negligent to take the third dose of
Motrin. A determination that she had been negligent in
taking the second dose would have stood (we said that
her taking the first dose was not negligent), and under
Virginia’s rule of contributory negligence would have
barred her claim.
  She argues, contrary to Dr. Mockenhaupt’s testimony,
that the first dose caused her to develop SJS/TEN, and if
this is right then any carelessness in taking the second
18                                                 No. 09-4011

and third doses at worst aggravated the condition, just as
if she’d delayed visiting the doctor. And then she would
face a defense not of contributory negligence but only of
failure to avoid avoidable consequences, which is the
tort counterpart to the better-known contract doctrine
of mitigation of damages. (Virginia uses the latter term
for tort cases as well, Monahan v. Obici Medical Manage-
ment Services, Inc., 

, 336 (Va. 2006).) Such a
failure reduces but does not preclude a damages award.

Sawyer v. Comerci, 

, 754 (Va. 2002);
Lawrence v. Wirth, 

, 317-18 (Va. 1983); Barron
v. Ford Motor Co. of Canada Ltd., 

, 199 (7th Cir.
1992); Ellerman Lines, Ltd. v. S.S. President Harding, 

, 289-90 (2d Cir. 1961) (Friendly, J.).
   But this argument has been forfeited because the
plaintiff did not propose jury instructions that would
have asked the jury to determine whether she had
merely failed to avoid avoidable consequences, rather
than having been contributorily negligent. In any event,
the argument would have been unlikely to persuade the
jury. There was conflicting testimony on whether the
first dose by itself caused her to develop TEN. While
testifying that ibuprofen does not cause SJS/TEN, Dr.
Mockenhaupt was emphatic that in any event the first
dose would not have done so. The jury must have disbe-
lieved the first assertion because it found McNeil to have
been negligent, implying that the ibuprofen in Motrin
caused the plaintiff’s TEN. (“ ‘Proof of negligence in the
air . . . will not do,’ ” Palsgraf v. Long Island R.R., 

, 99 (N.Y. 1928)—that is, an injury is required even for
prima facie liability, since as we said earlier there is no tort
No. 09-4011                                             19

without an injury.) But the jury’s further finding that the
plaintiff was contributorily negligent implies that it
believed Mockenhaupt’s second assertion (that the first
dose had not caused the plaintiff’s TEN), as it was en-
titled to do for she is, as we said, one of the world’s
leading experts on SJS/TEN, as none of the plaintiff’s
experts was. The two assertions were not inconsistent.
There is no inconsistency in testifying that a dog cannot
walk on its hind legs but that if that’s wrong and it can,
still it can’t (unless perhaps its name is Faith, see
“Faith the Dog’s Official Website,” www.faiththedog.info
(visited July 29, 2010)) walk on its hind legs for an hour
at a time. A dog can walk on its hind legs, with some
training; and a witness who denies this might be
thought less credible, in testifying that a dog can’t walk
on its hind legs for an hour at a time, than if she’d known
that a dog can walk on its hind legs. But such a tension
is for a jury to weigh.
  To summarize, there was enough evidence that the
plaintiff was contributorily negligent to bar her
claim under Virginia law, and enough evidence that
her contributory negligence exceeded the defendant’s
negligence to bar her claim even if Illinois rather than
Virginia law applied. But the plaintiff makes the
further argument that in closing argument McNeil’s
lawyer made a “judicial admission” that the plaintiff
had not been contributorily negligent. What the lawyer
said was: “We are, of course, not blaming Karen Robin-
son for her own injuries. We never have. We never will.”
What he meant—for he was speaking to laypersons—was
that McNeil was not contending that Mrs. Robinson had
been justly punished for being careless. The suffering
20                                             No. 09-4011

she has experienced from SJS/TEN has been dispropor-
tionate to her failure to exercise due care in consuming
McNeil’s product. It would be monstrous to suggest
otherwise, and McNeil’s lawyer didn’t want to leave
the jury with the impression that he was trying to
insinuate such a thought—an impression that the plain-
tiff’s lawyer had sought to create by stating that “they
[the defendants] blame her for being misled.”
  A judicial admission is a statement, normally in a
pleading, that negates a factual claim that the party
making the statement might have made or considered
making. Were the plaintiff’s conception of judicial admis-
sions accepted, statements made by lawyers in opening
and closing arguments, in making objections, at side
bars, and in questioning witnesses would be treated as
pleadings and searched for remarks that might be con-
strued as admissions though neither intended nor under-
stood as such. Trials would be turned into minefields. That
is why “in order to qualify as judicial admissions, an
attorney’s statements must be deliberate, clear and unam-
biguous.” MacDonald v. General Motors Corp., 

,
340 (6th Cir. 1997); see also Best v. District of Columbia,

, 415-17 (1934); Oscanyan v. Arms Co., 

, 263-64 (1880); McCaskill v. SCI Management Corp.,

, 680 (7th Cir. 2002); Butynski v. Springfield
Terminal R.R., 

, 277-78 (1st Cir. 2010). That
standard has not been satisfied in this case.
  The plaintiff complains finally of the district court’s
refusal to allow an amendment to the final pretrial order
that would have added a claim, under Virginia law, of
breach of implied warranty. In their proposed final
No. 09-4011                                             21

pretrial order, the parties had agreed that the plaintiff
would not be pursuing such a claim even though it was
in the complaint. Between then and the filing of the
final pretrial order the district court decided that
Virginia law would apply rather than Illinois law, and
Virginia law as we know does not recognize strict
liability as a ground for products liability. The plaintiff
moved promptly to amend the final pretrial order to
reinstate the warranty claim, but with trial scheduled to
begin in just a few days the judge refused to allow the
amendment.
  The plaintiff’s lawyer says he had every reason to think
that Illinois law would apply and that’s why he dropped
the warranty claim. But there was no reason to think
that—indeed it was unlikely that Illinois law would
apply, as we have explained, or that McNeil would fail
to argue for applying Virginia law, which was more
favorable to it than Illinois law. McNeil had already
proposed jury instructions based on Virginia law, for
example an instruction—the key instruction in the
case—that contributory negligence if proved would be
a complete defense to the plaintiff’s negligence claim.
  So the plaintiff dropped the ball; and if the fault was,
as undoubtedly it was, her lawyer’s, she may have a
remedy against him. But given the proximity of trial, the
judge was within his authority in holding the lawyer to
his waiver of the breach of warranty claim—and for
the further reason that such a claim was unlikely to
succeed, except possibly in confusing the jury. It can’t be
argued seriously that McNeil implicitly warranted that
22                                                 No. 09-4011

Children’s Motrin will not cause SJS/TEN. That would
imply that the company had a duty to guarantee against
every conceivable adverse consequence of taking the
drug, however remote, esoteric, or even conjectural; and
that is not the law. Featherall v. Firestone Tire & Rubber Co.,

, 366-67 (Va. 1979); Adelman-Tremblay v.
Jewel Cos., 

, 521-22 (7th Cir. 1988); Keeton et al.,
supra, § 96, p. 687. The FDA decided not to require such
a warning because it would confuse rather than inform;
and a court cannot order a drug company to place on a
label a warning if there is “clear evidence” that the FDA
would not approve it. Wyeth v. Levine, 

,
1198 (2009); Lofton v. McNeil Consumer & Specialty Phar-
maceuticals, 

, 678 (N.D. Tex. 2010). The
“clear evidence” in this case is the agency’s refusal to
require a reference to SJS/TEN on the label of over-the-
counter drugs containing ibuprofen, when it had been
asked to do so in the submission to which the agency
was responding. And it would be odd to think that
McNeil had a legal duty to guarantee against a risk that
the FDA thought not worth warning against.
   Even if the plaintiff had been permitted to try to estab-
lish a breach of implied warranty, and had succeeded in
making a prima facie case, she would have been unlikely
to prevail at trial. Although there is no defense of con-
tributory negligence, as such, to breach of implied war-
ranty, the consumer’s conduct is not irrelevant to the
seller’s liability. Law often describes the same things
by different names. We gave an example earlier— “mitiga-
tion of damages” in a contract case and “avoidable con-
sequences” in a tort case. Even when a defendant’s
No. 09-4011                                                23

liability is strict, as in implied warranty and strict
products liability cases, a plaintiff who fails to avoid a
danger that is either open, in the sense of visible, or
obvious (“open and obvious” is the conventional name
of this defense), or who misuses the product, is barred
from relief. Wood v. Bass Pro Shops, Inc., 

, 103
(Va. 1995); Harris-Teeter, Inc. v. Burroughs, 

, 802-03 (Va. 1991); Mesman v. Crane Pro Services, 

, 358-59 (7th Cir. 2008); Freeman v. Case Corp., 

, 1014 (4th Cir. 1997) (Virginia law). Both are
apt descriptions (the first more so) of the plaintiff’s
conduct in continuing to dose herself with Motrin
after experiencing an allergic reaction that began shortly
after she took the first dose.
                                                  A FFIRMED.




                            8-11-10