Fernandez v. Motorola Solutions, Inc.

2024 IL App (1st) 220884

• Court: Appellate Court of Illinois
• Decided: February 29, 2024
• Docket: 1-22-0884
• Status: Published

Opinion

2024 IL App (1st) 220884 Nos. 1-22-0884 & 1-22-0892 (consolidated) Opinion filed: February 29, 2024

FIRST DISTRICT FOURTH DIVISION

No. 1-22-0884

MEG YUKKI FERNANDEZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 19 L 10156 ) MOTOROLA SOLUTIONS, INC., ) Honorable ) Irwin J. Solganick, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________ No. 1-22-0892

JONATHAN JOHNSON, a Disabled Person by ) Appeal from the His Co-Guardians, Norman Johnson and ) Circuit Court of Janice Ella Johnson; NORMAN ) Cook County JOHNSON; and JANICE ELLA JOHNSON, ) ) Plaintiffs-Appellants, ) ) No. 10 L 7695 v. ) ) MOTOROLA SOLUTIONS, INC., ) Honorable ) Irwin J. Solganick, Defendant-Appellee. ) Judge, presiding.

PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Hoffman and Ocasio concurred in the judgment and the opinion.

OPINION

¶1 Plaintiffs Meg Yukki Fernandez (Fernandez) and Jonathan Johnson (Johnson) were born

with severe birth defects that allegedly were caused prior to their conception, when their fathers

were exposed to reproductively toxic chemicals and gas while employed at a semiconductor Nos. 1-22-0884 & 1-22-0892 (consolidated)

manufacturing facility in Texas owned by defendant, Motorola Solutions, Inc. (Motorola). The

chemical exposure allegedly genetically changed the fathers’ sperm, resulting in their future

offspring’s birth defects. Plaintiffs brought separate actions in the circuit court of Cook County

against Motorola for negligence and willful and wanton misconduct. Fernandez’s complaint was

brought individually; Johnson’s complaint was brought by and through his parents. In both cases,

the circuit court granted summary judgment for Motorola, finding that it did not owe plaintiffs a

duty under Texas law. The court also denied plaintiffs leave to amend their respective complaints

to allege punitive damages. In this consolidated appeal, we reverse the orders granting summary

judgment to Motorola on both complaints for negligence and willful and wanton misconduct and

denying them leave to amend. We remand for further proceedings.

¶2 Johnson’s parents additionally sought recovery for parental loss of child consortium. The

circuit court granted summary judgment for Motorola. We affirm because parental loss of child

consortium is not recognized under the applicable Texas law.

¶3 First, we address Fernandez’s appeal. Then we will consider Johnson’s appeal.

¶4 I. Fernandez

¶5 By way of background, Motorola is headquartered in Illinois and has semiconductor

manufacturing plants in Arizona as well as a facility in Austin, Texas. Semiconductors are the

basic materials needed to make integrated circuits, which are wafers made of silicon on which

thousands or millions of tiny transistors, capacitors, and diodes are fabricated (manufactured). An

integrated circuit is the fundamental building block of all modern electronic devices.

¶6 The manufacturing process of an integrated circuit largely takes place in so-called “clean

rooms,” which are controlled environments designed to prevent airborne contaminants from

contacting semiconductor components during the manufacturing process. In the manufacturing -2- Nos. 1-22-0884 & 1-22-0892 (consolidated)

process, a thin film layer that will form the wiring, transistors, and other components is deposited

on the wafer. The thin film is coated with photoresist, a type of light-sensitive protective coating.

During the photolithography process, the circuit design is projected and transferred onto the wafer

with ultraviolet light. The wafer then goes through an etching process whereby any unnecessary

materials are removed so that only the desired circuit patterns remain on its exterior. There are two

types of etching: dry etching and wet etching. Dry etching uses plasmas or etchant gases to remove

the unwanted wafer layers. Wet etching uses liquid chemicals to remove the unwanted wafer

layers.

¶7 From December 1994 to 1998, Fernandez’s father, Armando, worked at Motorola’s Texas

facility as a specialist in the etching process, during which he was exposed to various chemicals

and gas that allegedly affected his sperm, resulting in Fernandez’s later birth defects. Armando’s

wife became pregnant with Fernandez in March 1995, approximately four months after Armando

began his employment with Motorola. Fernandez was born with a cleft lip and palate, three of her

fingers on her left hand were fused together, two of the fingers on her right hand did not fully

mature, and multiple toes on her right and left feet did not fully mature and are missing toenails.

Fernandez has had at least 10 surgeries to treat her various birth defects.

¶8 Fernandez’s lawsuit is one of several separate personal injury cases filed in the circuit court

of Cook County against Motorola, relating to severe birth defects in children of former Motorola

employees who were exposed to toxic chemicals in the workplace. Eventually all the plaintiffs

filed a combined fourth amended complaint against Motorola, which pleaded counts for

negligence, willful and wanton misconduct, strict liability, breach of an assumed duty, and parental

loss of child consortium.

-3- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶9 In February 2016, Motorola brought motions to dismiss pursuant to section 2-615 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)) against two of the plaintiffs,

Sarina Finzer and Jeremy Hardison. Finzer’s birth defects allegedly were caused by her father’s

exposure to toxic chemicals in Motorola’s semiconductor manufacturing facility in Arizona;

Hardison’s birth defects allegedly were caused by his father’s exposure to toxic chemicals in

Motorola’s semiconductor manufacturing facility in Texas. The circuit court determined that

Arizona and Texas law applied, respectively, to the substantive issues in Finzer’s and Hardison’s

cases and that Illinois law governed the procedural issues.

¶ 10 The circuit court dismissed with prejudice all of Finzer’s and Hardison’s claims in the

fourth amended complaint; the claims of the remaining plaintiffs remained intact. On appeal, we

reversed the dismissal of Finzer’s and Hardison’s claims for negligence and willful and wanton

misconduct under Arizona and Texas law and Finzer’s parents’ claim for parental loss of child

consortium under Arizona law, finding that the respective plaintiffs had adequately pleaded a duty,

a breach thereof, and proximate cause. Ledeaux v. Motorola, Inc., 2018 IL App (1st) 161345,

¶¶ 53-54 (hereinafter Ledeaux I, to distinguish it from a more recent case with the same caption,

Ledeaux v. Motorola Solutions, Inc., 2024 IL App (1st) 220886). We affirmed dismissal of

Hardison’s parents’ claim for parental loss of child consortium under Texas law because such a

claim is not a valid cause of action in Texas. Id. ¶ 54.

¶ 11 On remand, the circuit court ordered that each individual plaintiff’s claim in the fourth

amended complaint, with the exception of Jonathan Johnson and Marcus Ledeaux, be

administratively dismissed and refiled with new case numbers.

-4- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 12 On September 13, 2019, Fernandez individually refiled her two-count complaint alleging

that her birth defects were proximately caused by Motorola’s negligence and willful and wanton

misconduct in knowingly exposing Armando to reproductively toxic chemicals and gas.

¶ 13 Fernandez alleged that Motorola acted negligently by failing to take reasonable measures

to protect Armando from exposure to the toxic chemicals and gas, including providing him with

adequate personal protective equipment; failing to warn Armando about the dangers that the toxic

chemicals and gas posed to his reproductive health, including the potential for birth defects and

miscarriages; and failing to design, approve, and/or implement proper industrial hygiene policies

and/or adequate exhaust, ventilation, and air circulation systems.

¶ 14 Fernandez further alleged that Motorola acted willfully and wantonly by concealing from

Armando his level of exposure to the toxic chemicals and gas, misrepresenting that the exposure

posed no adverse health consequences to his future offspring, and purposely obtaining inaccurate

and misrepresentative data falsely showing that Armando’s exposure to the toxic chemicals and

gas was not unsafe to himself or to his future offspring.

¶ 15 The parties engaged in extensive discovery. We proceed to set forth the relevant evidence

obtained during the discovery process.

¶ 16 Armando testified during his deposition about his job duties as a specialist in the etching

process at Motorola’s semiconductor manufacturing plant in Texas, in the months before

Fernandez was conceived. Armando worked 12-hour shifts from Thursday through Saturday,

coming in at midnight and leaving at noon. Armando loaded and unloaded tools involved in both

dry etching and wet etching and performed quality checks on the wafers. He wiped down the tools

with isopropyl alcohol and changed out chemicals in the hydrofluoric acid bath used during the

wet etching process. He delivered wafers to other areas in the plant, including to the -5- Nos. 1-22-0884 & 1-22-0892 (consolidated)

photolithography bay, where the circuit design was transferred to the wafer, and to the diffusion

bay, where the wafer’s electrical conductivity was modified. He went to the photolithography bay

10 to 50 times per shift and to the diffusion bay 10 to 20 times per shift. There were distinct

“chemical smells” throughout the manufacturing facility, including in the etching and

photolithography bays.

¶ 17 The only safety advice given to him by Motorola was to keep the hydrofluoric acid away

from his skin and to call the nurse if any of it touched him. When working in the semiconductor

manufacturing plant, Armando wore a hood, surgical mask, smock, boots, and latex gloves.

¶ 18 James Stewart, plaintiff’s environmental health engineering expert, provided a report on

the various chemicals Armando would have been exposed to while working as a specialist in the

etching process and while dropping off wafers in the diffusion and photolithography bays. Such

chemicals include carbon tetrachloride, hydrofluoric acid, nitric acid, arsenic, N-Methyl-2-

Pyrrolidone (NMP), Hexamethyl Disilazane (HMDS), and propylene glycol methyl ether acetate

(PGMEA). Armando also was exposed to arsine gas.

¶ 19 Stewart discussed the history of notifications to Motorola regarding reproductive hazards

posed by chemicals used in the manufacturing of semiconductors. In 1981, Motorola received

notification from DuPont regarding the reproductive toxicity of certain glycol ethers. In response,

Motorola noted the need to “reinforce” exhaust ventilation and protective clothing requirements.

Also in 1981, material safety data sheets received from manufacturers of photoresist warned of

birth defects caused by glycol ethers on male and female animals. In 1982, Kodak sent Motorola

a warning that glycol ethers have teratogenic effects (i.e., the ability to disturb the growth and

development of an embryo or fetus). It recommended that Motorola reduce exposures and inform

-6- Nos. 1-22-0884 & 1-22-0892 (consolidated)

employees of the warning. The Semiconductor Industry Association (SIA) issued an additional

warning in 1982 advising the industry to “evaluate, assess, and control glycol ether exposures.”

¶ 20 To protect its workers from chemical exposure, Motorola provided them with latex gloves

and other protective equipment, monitored their chemical exposures to ensure they did not exceed

threshold limit values (TLVs) established by the American Conference of Governmental Industrial

Hygienists or the permissible exposure limits (PELs) established by the Occupational Safety and

Health Administration (OSHA), developed maternity notification forms to inform their physicians

about their chemical exposures, offered access to material safety data sheets informing them about

the chemicals to which they were being exposed, cofounded the SIA and participated in a worker

task force to further limit its workers’ chemical exposures, and hired an occupational medicine

physician.

¶ 21 In 1983, Mike May, a certified industrial hygienist working for Motorola, announced the

“Glycol Ether Monitoring Project,” the purpose of which was to assess exposures to glycol ethers.

This announcement was made about one year and seven months after the warning letter from

DuPont. In 1994, Motorola formally eliminated glycol ethers from its semiconductor

manufacturing.

¶ 22 Stewart criticized Motorola for taking more than one year to eliminate glycol ethers from

the manufacturing process. He further criticized Motorola for failing to adequately train Armando

and provide him with the necessary personal protective equipment for the tasks he was required to

perform. Stewart was especially critical of the latex gloves provided to Armando, which were not

effective protection against the chemicals used in Motorola’s semiconductor manufacturing plant.

Stewart concluded that “[w]orkplace conditions present at the Motorola facility resulted in a

hazardous and unsafe workplace.” -7- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 23 Fernandez filed a report from Dr. Robert Harrison, an occupational health physician.

Harrison cited a statement from IBM in 1982 that set forth the best practices in the semiconductor

industry for ensuring its workers’ reproductive health from chemical toxicants. Motorola departed

from these standard industry practices by failing to carefully investigate each of its chemicals so

as to understand their potential reproductive hazards, failing to replace them to the extent

technologically feasible, and failing to provide adequate safeguards such as ventilation controls

and proper personal protective equipment and to fully advise workers of the nature of all potential

reproductive risks.

¶ 24 Harrison was critical of Motorola’s claims that its employees’ chemical exposures were

not greater than the PELs and TLVs. Harrison stated that PELs and TLVs do not completely and

adequately protect workers and their offspring from reproductive harm. This is in part because

chemicals with PELs and TLVs are not used in clean rooms in isolation but instead are used in

conjunction with other chemicals that together cause genetic damage to workers’ future offspring.

Also, “[r]eproductive and other latent outcomes are usually not the basis for setting exposure

limits.”

¶ 25 Harrison concluded that Motorola’s “facilities and work practices were improper and did

not meet the appropriate standard of care within the industry or within the occupational medicine

community. Motorola did not provide a safe place to work or the measures to protect the Employee

Parents from harm to their future offspring.”

¶ 26 Harrison subsequently issued a supplemental report, in which he concluded that Armando’s

exposures to carbon tetrachloride, PGMEA, HMDS, and isopropyl alcohol were sufficient to pose

a risk of reproductive harm to Fernandez. Motorola failed to warn or adequately train Armando

-8- Nos. 1-22-0884 & 1-22-0892 (consolidated)

about the reproductive dangers associated with the chemicals to which he was exposed. Motorola

also did not provide Armando with sufficient protective gear.

¶ 27 Harrison was deposed, and he testified consistently with his reports. Harrison stated that

there were scientific studies as early as the 1970s and 1980s showing that paternal exposure to

organic solvents caused birth defects in future offspring. Harrison specifically cited a publication

from OSHA in 1979, a study performed by Dr. Wharton in 1982, and a paper published in the

Journal of the American Medical Association (JAMA) in 1985. According to Harrison, the

majority of the peer-reviewed scientific literature as of 1991 found a causal connection between a

father’s exposure to toxic substances and the subsequent birth defects in his offspring.

¶ 28 Motorola confronted Harrison with a 1989 scientific study authored by A.D. McDonald

and J.C. McDonald, who were members of a nonprofit scientific research organization in Quebec.

The McDonald study examined the correlation between a father’s employment in various

occupations and pregnancy outcome. Pertinent here, the authors examined whether workers in the

manufacturing sector who were involved in the fabricating, inspecting, assembling, installing, and

repairing of electronic equipment had a higher incidence of offspring born with birth defects. The

authors concluded that there was no correlation between the fathers’ occupation in the

manufacturing sector and “any adverse effect on their progeny.” Harrison was critical of the

McDonald study.

¶ 29 Fernandez filed a “joint causation report” (joint report) prepared by four medical experts

with different specialties: Dr. Cynthia Bearer (neonatology), Dr. Donald Mattison (obstetrics-

gynecology), Dr. Richard Finnell (genetics), and Dr. Robert Cabrera (genetics). The joint report

addressed causation in the multiple personal injury cases against Motorola pending in the circuit

court of Cook County. -9- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 30 The joint report discussed a 1992 study from the SIA and a 1993 study from IBM

identifying reproductive toxins commonly used during the semiconductor manufacturing process.

In pertinent part, the SIA study identified nitric acid, hydrofluoric acid, HMDS, and PGMEA as

reproductive toxins; the IBM study identified arsenic, arsine gas, hydrofluoric acid, HMDS, and

isopropyl alcohol. Harrison testified that the SIA and IBM studies were well known within the

semiconductor industry “long before their results were announced.”

¶ 31 The joint report also discussed a 2008 report authored by Ching-Chun Lin and his

colleagues at the Institute of Occupational Medicine and Industrial Hygiene (Lin report), which

looked at lethal birth defects in the offspring of male semiconductor workers from 1980 to 1994.

The Lin report concluded that the children of male semiconductor workers were at increased risk

of birth defects, congenital heart anomalies, and death due to their fathers’ exposure to chemicals

associated with reproductive toxicity, including ethylene glycol ethers and hydrofluoric acid. The

Lin report posited that, when such chemicals were absorbed into the seminal fluid, intercourse

during pregnancy could lead to maternal systemic absorption of the chemicals and eventual birth

defects in the developing fetus.

¶ 32 The joint report cited other epidemiological studies showing that paternal exposure to

organic solvents in the semiconductor industry (such as carbon tetrachloride, NMP, and PGMEA)

is associated with birth defects. These associations “are due to a direct effect on gametic DNA, i.e.

the DNA inside sperm, but, an indirect effect is also possible in humans, as toxicants are also

transmitted to the mother from contaminated clothing or via seminal fluid.” Also, arsenic, an

endocrine-disrupting chemical used in the semiconductor industry, “can produce damage to

offspring, indirectly through genetic or epigenetic changes in sperm.”

-10- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 33 The joint report concluded that the workplace exposure to toxic chemicals and substances

in Motorola’s semiconductor manufacturing facilities has “the capacity to cause the adverse

reproductive outcomes experienced by the offspring Plaintiffs. Moreover, the exposures in

question were plainly sufficient to cause these injuries.”

¶ 34 Fernandez filed a supplemental report from Bearer, Mattison, Finnell, and Cabrera noting

Stewart’s findings regarding Armando’s exposures to, among other toxic substances, carbon

tetrachloride, hydrofluoric acid, NMP, PGMEA, HMDS, and arsine gas. The supplemental report

concluded that Armando’s “substantial occupational exposures to geotoxic and reproductively

toxic chemicals at Motorola without adequate protections caused” Fernandez’s birth defects. The

supplemental report ruled out any theoretical alternative explanations for Fernandez’s injuries.

¶ 35 Asanga Weerakoon, who held engineering and management positions at Motorola, testified

in his deposition that, by 1982, Motorola knew of studies indicating that arsenic and arsine gas

could affect both the male and female reproductive systems.

¶ 36 Mike May, the certified industrial hygienist who worked for Motorola, testified that, as

early as 1982, Motorola was aware of studies indicating that carbon tetrachloride had “paternal

reproductive effects.” May further testified that Motorola had a duty to provide a safe workplace

for its employees and their unborn children to the best of its ability.

¶ 37 Following discovery, Motorola moved for summary judgment on Fernandez’s complaint.

The circuit court granted the motion, finding that Motorola owed Fernandez no duty of care under

Texas law and therefore that her negligence and willful and wanton counts fail. In light of its grant

of summary judgment in favor of Motorola on the willful and wanton count, the circuit court also

denied Fernandez’s motion to amend the complaint to allege punitive damages. Fernandez appeals.

-11- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 38 Initially, Fernandez argues that, under the law of the case doctrine and stare decisis, our

holding in Ledeaux I, 2018 IL App (1st) 161345, regarding the existence of a duty on the part of

Motorola was binding on the circuit court. The law of the case doctrine prohibits reconsideration

of issues that have been decided in a prior appeal in the same case. In re Christopher K., 217 Ill.

2d 348, 365 (2005). The purpose of the law of the case doctrine is to protect settled expectations

of the parties, ensure uniformity of decisions, maintain consistency during the course of a single

case, effectuate proper administration of justice, bring litigation to an end, and maintain the

prestige of the courts. Norris v. National Union Fire Insurance Co. of Pittsburgh, 368 Ill. App. 3d

576, 581 (2006). The doctrine of stare decisis requires a court to follow the decisions of higher

courts on the issue before it. O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421,

440 (2008).

¶ 39 Ledeaux I did not involve the same issue in the same case as here, and therefore neither the

law of the case doctrine nor stare decisis applies. Ledeaux I involved the combined fourth amended

complaint filed against Motorola by multiple plaintiffs seeking recovery for their birth defects.

Ledeaux I, 2018 IL App (1st) 161345, ¶ 11. Marcus Ledeaux and his parents were listed first in

the case caption, but their claims were not before this court on appeal. Instead, the appeal involved

review of the circuit court’s order dismissing only Hardison’s and Finzer’s claims under section

2-615 of the Code. Id. ¶¶ 10-12. We reversed the dismissal of their negligence and willful and

wanton conduct claims and remanded. In so holding, we took all their well-pleaded allegations as

true, as required when deciding a section 2-615 motion (id. ¶ 14), and found that each claim

sufficiently alleged a duty owed to them by Motorola. Id. ¶¶ 39, 49.

¶ 40 By contrast, the instant case involved the disposition of Fernandez’s claims against

Motorola for negligence and willful and wanton misconduct, not Hardison’s and Finzer’s claims. -12- Nos. 1-22-0884 & 1-22-0892 (consolidated)

The instant case also involved the resolution of Motorola’s summary judgment motion, which

unlike the section 2-615 motion at issue in Ledeaux I, did not require the circuit court to take all

well-pleaded allegations in Fernandez’s complaint as true. Rather, the circuit court was required

to look at the evidentiary record outside the complaint and determine whether there were any

genuine issues of material fact and whether Motorola owed Fernandez a duty as a matter of law.

See 735 ILCS 5/2-1005(c) (West 2020). As the parties, procedural posture, and issues in Ledeaux I

were dissimilar to the instant case and Ledeaux I did not involve the rendering of a decision as to

whether Motorola was entitled to summary judgment against Fernandez’s claims, neither the law

of the case doctrine nor stare decisis applies.

¶ 41 We proceed to address the merits of Fernandez’s appeal. First, Fernandez argues that the

circuit court erred by granting summary judgment for Motorola on her negligence claim. The

parties agree that Illinois law governs the procedural issues in this case, such as the applicable

standard for when summary judgment may be granted. In Illinois, summary judgment is

appropriate when the pleadings, depositions, admissions, and affidavits on file, viewed in the light

most favorable to the nonmoving party, reveal that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law. Northbrook Bank & Trust Co. v.

2120 Division LLC, 2015 IL App (1st) 133426, ¶ 38. Review is de novo. Id.

¶ 42 The parties also agree that we are to apply Texas law to the substantive issues (such as

whether the circuit court erred in finding that Motorola owed Fernandez no duty of care). In Texas,

the elements of a common-law negligence claim are a legal duty owed by the defendant to the

plaintiff, the defendant’s breach of that duty, and damages proximately caused by the breach.

Elephant Insurance Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022). The existence of a duty is a

-13- Nos. 1-22-0884 & 1-22-0892 (consolidated)

question of law for the court to decide. Greater Houston Transportation Co. v. Phillips, 801

S.W.2d 523, 525 (Tex. 1990).

¶ 43 To determine whether a duty exists under Texas law, the court considers the risk,

foreseeability, and likelihood of injury weighed against the social utility of defendant’s conduct,

whether defendant had superior knowledge of the risk, the magnitude of the burden of guarding

against the injury, and the consequences of placing the burden on defendant. Elephant Insurance

Co., 644 S.W.3d at 145. The foreseeability of the risk is the foremost consideration. Phillips, 801

S.W.2d at 525. Foreseeability means that a person of ordinary intelligence should have anticipated

the dangers that his negligent act created for others. Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460

(Tex. App. 2007).

¶ 44 The Texas Supreme Court uses a two-prong test for foreseeability: (1) that the injury be of

such a general character as reasonably might have been anticipated and (2) that the injured party

should be so situated with relation to the wrongful act that injury to him or one similarly situated

reasonably might have been foreseen. Id. (citing Mellon Mortgage Co. v. Holder, 5 S.W.3d 654,

655 (Tex. 1999) (plurality opinion)). “ ‘Stated more broadly, we determine both the foreseeability

of the general danger and the foreseeability that a particular plaintiff—or one similarly situated—

would be harmed by that danger.’ ” Id.

¶ 45 The circuit court found as a matter of Texas law that Fernandez failed to meet the

foreseeability element of her negligence claim. For the reasons that follow, we find that the

evidence of record raises a question of material fact as to whether Fernandez’s birth defects were

the reasonably foreseeable consequence of Motorola’s alleged negligence. This question of

material fact cannot be determined as a matter of law but must be resolved by the trier of fact in

order to determine whether a duty existed. -14- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 46 As we discussed earlier in this opinion, Fernandez’s environmental health engineering

expert James Stewart reported that, while Armando worked in Motorola’s semiconductor

manufacturing plant in Texas, he was exposed to carbon tetrachloride, hydrofluoric acid, nitric

acid, arsenic, arsine gas, isopropyl alcohol, NMP, HMDS, and PGMEA. All of these chemicals

and gas were identified in the joint report (and the epidemiological studies cited therein), the Lin

report, and in the SIA and IBM studies as being reproductively toxic, i.e., as having the potential

to cause birth defects in future offspring. Harrison, May, and Weerakoon’s testimony indicated

that Motorola was aware of these studies and/or their findings and also was aware of other studies

showing that a father’s exposure to such reproductively toxic chemicals caused birth defects in his

future offspring.

¶ 47 Fernandez argues that, given Motorola’s awareness of studies linking birth defects with

paternal exposure to toxic chemicals, it reasonably could have foreseen her birth defects resulting

from Armando’s exposures here.

¶ 48 Motorola points to some contrary evidence conflicting with the joint report, the Lin report,

and the IBM and SIA studies and calling into question the foreseeability of Fernandez’s birth

defects. Specifically, Motorola cites the McDonald study, which found “no convincing evidence”

linking paternal employment in the manufacturing sector, including inspecting, fabricating, and

repairing electrical equipment (such as wafers), with subsequent birth defects in future offspring.

Harrison testified to his awareness of the McDonald study but opined that it represented a minority

view in conflict with the majority of peer-reviewed literature that found that paternal exposure to

the type of toxins utilized in the manufacture of semiconductors was linked to offspring’s

subsequent birth defects.

-15- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 49 Given this conflict in the scientific evidence, there is a question of material fact regarding

whether paternal exposure to reproductive toxins utilized in the manufacture of semiconductors

causes birth defects and, thus, whether Motorola reasonably could have foreseen Fernandez’s birth

defects resulting from Armando’s workplace exposures to the toxic chemicals and gas at issue

here. This question of material fact must be resolved by the trier of fact prior to any finding as to

the existence of a duty under Texas law.

¶ 50 Next, we consider Fernandez’s argument that Motorola owed her a duty of care under the

Restatement (Second) of Torts § 324A (1965), which was adopted by the Texas Supreme Court in

Torrington Co. v. Stutzman, 46 S.W.3d 829, 837-38 (Tex. 2000). Section 324A states:

“One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of a third person or his

things, is subject to liability to the third person for physical harm resulting from his failure

to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm[.]”

Restatement (Second) of Torts, § 324A (1965).

¶ 51 Fernandez argues that, by developing a reproductive health policy, Motorola undertook a

duty to render services to its employees, including her father Armando, necessary for the protection

of their future offspring. According to Fernandez’s experts, though, Motorola’s attempts at such a

reproductive health policy were incomplete, confusing, and ineffective. Fernandez argues that

Motorola’s failure to exercise reasonable care in formulating the reproductive health policy

actually increased the risk of harm to her by giving Armando a false sense of safety that encouraged

him to continue to expose himself to the toxic chemicals and gas that ultimately caused her birth

-16- Nos. 1-22-0884 & 1-22-0892 (consolidated)

defects. As such, Fernandez contends that Motorola is subject to liability to her under section

324A.

¶ 52 Motorola’s duty under section 324A is contingent on a finding that its allegedly negligent

reproductive health policy led to Armando’s exposure to toxic chemicals and gas that increased

the risk that Fernandez would suffer birth defects. As already noted, though, the scientific evidence

in this case is conflicting as to whether paternal exposure to toxic chemicals during the

manufacturing of semiconductors causes future offspring to be born with birth defects. Such

conflicting scientific evidence raises a genuine issue of material fact as to whether Motorola’s

allegedly negligent reproductive health policy actually increased Fernandez’s risk of birth defects

so as to subject it to liability under section 324A.

¶ 53 Motorola further argues that the additional factors in the duty analysis under Texas law

(the risk and likelihood of injury weighed against the social utility of Motorola’s conduct, the

magnitude of guarding against the injury, and the consequences of placing the burden on Motorola)

all support the circuit court’s finding that Motorola owed Fernandez no duty here. To the contrary,

the conflicting scientific evidence cited above raises questions of material fact as to the risk and

likelihood that Armando’s exposure to the toxic chemicals and gas at issue here would cause

Fernandez’s subsequent birth defects.

¶ 54 There are also questions of material fact as to the cost and feasibility of Harrison’s proposed

recommendations as to how Motorola should guard against injuries to its workers’ children who

have not yet even been conceived. Such recommendations include investigating the chemical

substances used at Motorola and substituting less hazardous material when possible, providing

proper personal protective equipment and sufficient ventilation, training its workers about the

reproductive risks associated with the chemicals used in the manufacture of semiconductors, and -17- Nos. 1-22-0884 & 1-22-0892 (consolidated)

providing its workers with alternative jobs that would lessen their exposures to the toxic chemicals.

Fernandez asserts that the recommended changes would come at “no great cost,” while Motorola

counters that the magnitude and consequences of guarding against reproductive injuries to its

employees’ unborn (and not yet even conceived) offspring could result in the alteration of the

manufacturing process, causing thousands of job losses and slowing down the speed and quality

of production. Neither party has cited any evidence in support of their respective arguments as to

the cost of remediating chemical exposures, and thus questions of material fact remain as to the

magnitude and consequences of placing the remediation burden on Motorola.

¶ 55 An additional consideration in the duty analysis under Texas law is whether Motorola had

superior knowledge of the risk that Armando’s exposure to the toxic chemicals and gas at issue

here could result in Fernandez’s subsequent birth defects. Given the conflicting scientific evidence

regarding the link between paternal exposure to toxic chemicals during the manufacturing of

semiconductors and the subsequent conception and birth of a child with birth defects, a genuine

issue of material fact exists regarding the state of Motorola’s knowledge of the reproductive risks

associated with Armando’s exposures.

¶ 56 Motorola argues that under Texas law there can be no duty owed for injury-causing conduct

that occurred prior to conception, as such a duty would be “expansive” and “unworkable,”

potentially subjecting it to liability for damages that will not be suffered until many years in the

future. We addressed this same issue in Ledeaux I, 1 and we agree with its holding that fundamental

tort law in Texas “does not prohibit imposing liability on a tortfeasor for conduct that causes an

Although we are not bound to follow Ledeaux I under the doctrines of stare decisis and law of the 1

case, we may consider the analysis contained therein for its persuasive value. -18- Nos. 1-22-0884 & 1-22-0892 (consolidated)

injury regardless of whether that conduct occurred pre-conception and the resulting injury

manifested after the child’s conception and birth.” Ledeaux I, 2018 IL App (1st) 161345, ¶ 38. “To

preclude a cause of action for negligence based solely on the fact that the negligence occurred

before plaintiffs’ conception would leave a party with no recourse for injuries caused by another,”

which is contrary to Texas law. Id. ¶ 39.

¶ 57 Motorola argues, though, that we should affirm the summary judgment order in its favor

because the Texas workers’ compensation statute (Tex. Lab. Code Ann. §§ 401.001 to 419.027

(West 2022)) provides the exclusive remedy for a work-related injury sustained by an employee.

See id. § 408.001(a). Motorola acknowledges that Fernandez was not one of its employees, but it

argues that, according to her complaint, she would not have suffered the birth defects in the absence

of Armando’s workplace exposure to the toxic chemicals and gas, which affected his testes and

sperm and constituted a workplace injury covered under the Texas workers’ compensation statute.

See id. § 401.011 (defining “ ‘Injury’ ” as “damage or harm to the physical structure of the body

and a disease or infection naturally resulting from the damage or harm.”). As such, Motorola

contends that Fernandez’s negligence claims are derivative of Armando’s workplace injury and

can only be brought under the Texas workers’ compensation statute. See Aguirre v. Vasquez, 225

S.W.3d 744, 753 (Tex. App. 2007) (holding that actions based on injuries derivative of an

employee’s workplace injury cannot be pursued outside the workers’ compensation system).

¶ 58 We addressed this same issue in Ledeaux I, where we noted that under Texas law the type

of derivative claims that must be brought under the Texas workers’ compensation statute are those

where the plaintiff was not physically injured herself but suffered emotional or economic harm

due to the physical injury to the employee, e.g., claims for loss of consortium or wrongful death.

Ledeaux I, 2018 IL App (1st) 161345, ¶ 20 (citing Rodriguez v. Naylor Industries, Inc., 763 S.W.2d -19- Nos. 1-22-0884 & 1-22-0892 (consolidated)

411, 412 (Tex. 1989)). In the instant case, Fernandez seeks recovery for her own injuries (the

severe birth defects suffered by her) separate and apart from any workplace injury to Armando.

As such, the exclusive remedy provision of the Texas workers’ compensation statute does not

apply here.

¶ 59 Motorola next argues that we should affirm the summary judgment order in its favor

because none of Fernandez’s experts specifically opined that her birth defects were proximately

caused by Armando’s workplace exposures to toxic chemicals and gas. To the contrary, the

supplemental report prepared by Bearer, Mattison, Finnell, and Cabrera specifically found that

Fernandez’s particular birth defects were proximately caused by Armando’s workplace exposure

to the toxic chemicals and gas at issue here. As discussed earlier in this opinion, there was a

contrary study from McDonald calling into question whether a father’s exposure to toxic chemicals

and gases during the manufacturing of semiconductors can cause his future offspring to suffer birth

defects. Such a conflict in the evidence raises a question of material fact that must be resolved by

the trier of fact.

¶ 60 Accordingly, we reverse the order granting summary judgment for Motorola on

Fernandez’s negligence count and remand for further proceedings.

¶ 61 Next, we address the grant of summary judgment for Motorola on Fernandez’s willful and

wanton conduct count. In Texas, willful and wanton misconduct is recognized as a form of

aggravated or gross negligence. Id. ¶ 48 (citing BP Oil Pipeline Co. v. Plains Pipeline, L.P., 472

S.W.3d 296, 312 (Tex. App. 2015)). To prove aggravated or gross negligence, i.e., willful and

wanton misconduct, plaintiff must establish the elements of negligence (duty, breach, and

proximate cause) along with facts establishing that the negligent conduct created an extreme risk

of harm to others and that the defendant knew of the extreme risk but proceeded anyway. Id. ¶ 49 -20- Nos. 1-22-0884 & 1-22-0892 (consolidated)

(citing Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008),

and Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778, 784-86 (Tex. 2001)).

¶ 62 Here, the circuit court granted summary judgment for Motorola on Fernandez’s willful and

wanton conduct count on the basis that it owed no duty toward her as a matter of law. We already

have found that questions of material fact exist regarding the foreseeability of Fernandez’s birth

defects, which must be resolved prior to determining whether Motorola owed her a duty of care.

Given these questions of material fact regarding the existence of Motorola’s duty toward

Fernandez, we reverse the grant of summary judgment for Motorola on Fernandez’s willful and

wanton conduct count and remand for further proceedings.

¶ 63 Finally, we address the circuit court’s order denying Fernandez leave to amend her

complaint to add a claim for punitive damages. In Texas, exemplary (punitive) damages may be

awarded where the claimant proves gross negligence (willful and wanton misconduct). See Tex.

Civ. Prac. & Rem. Code Ann. § 41.001 (West 2022) (defining “ ‘[e]xemplary damages’ ” as

including punitive damages); id. § 41.003 (providing that exemplary damages may be awarded

upon a clear and convincing showing of gross negligence). The circuit court here determined that,

because it granted summary judgment in favor of Motorola on the willful and wanton conduct

count, Fernandez had no basis for an assertion of punitive damages. As we are reversing the order

granting summary judgment for Motorola on the willful and wanton conduct count and remanding

for further proceedings, the court’s stated basis for denying Fernandez leave to amend her

complaint to add a claim for punitive damages no longer exists. Accordingly, we reverse the order

denying Fernandez leave to amend her complaint and remand for reconsideration thereof.

¶ 64 II. Johnson

-21- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 65 Johnson was born on May 3, 1994, with Apert syndrome, a genetic disorder causing severe

craniofacial deformities, intellectual disability (first-grade comprehension level), bilateral fusion

of fingers and toes, and severe speech impediment. Johnson has undergone more than 90 surgeries

including craniofacial procedures and orthopedic procedures on both hands and feet. Johnson filed

a complaint alleging that his Apert syndrome resulted from Motorola’s negligence and willful and

wanton misconduct in exposing his father, Norman, to reproductively toxic chemicals in the

workplace.

¶ 66 During discovery, Norman testified that he worked at Motorola’s Texas facility from 1986

to November 1993 in the advanced product research and development department, where new

processes and products for manufacturing semiconductors were developed. Norman was a section

manager responsible for overseeing the photolithography and etch bays, where he was exposed to

various chemicals and solvents, including hydrofluoric and sulfuric acids and acetone and

isopropyl alcohol. Norman also spent time in the ion implantation bay. Ion implantation is a doping

method used in semiconductors that introduces impurities into a semiconductor wafer, enabling

conductivity. Norman did not remember receiving any formal safety training while at Motorola,

nor did he remember anyone at Motorola warning him that his exposures to the chemicals in the

etch, photolithography, and ion implantation bays could lead to birth defects in his future offspring.

¶ 67 In 1993, Norman’s wife, Janice, lived in Arizona while he worked in Texas. Norman

visited Janice on the weekends. During one of those weekend visits in August 1993, they conceived

Johnson, who was born in May 1994 with Apert syndrome. Norman had no knowledge of any

prior birth defects in his or Janice’s extended family.

¶ 68 Stewart, the environmental health engineering expert, filed a report stating that Norman

would have been exposed to the following chemicals and solvents while working as a section -22- Nos. 1-22-0884 & 1-22-0892 (consolidated)

manager in the photolithography, etch, and ion implantation bays: HMDS, NMP, acetone,

PGMEA, carbon tetrachloride, hydrofluoric acid, isopropyl alcohol, arsenic, and glycol ethers. The

joint report and the IBM and SIA studies identified all these chemicals and solvents as being

reproductively toxic.

¶ 69 Harrison, the occupational health physician, filed a report stating that all these chemicals

exerted synergistic and/or additive adverse reproductive effects on Norman, sufficient to pose a

risk of reproductive harm to Johnson. Harrison opined that Motorola failed to adequately warn

Norman about the reproductive risks posed by his chemical exposures and did not provide him

with adequate protective gear.

¶ 70 Bearer, Mattison, Finnell, and Cabrera filed a supplemental report stating that Apert

syndrome is paternal in origin and caused by a de novo mutation in the father’s sperm, leading to

a variant in the child’s FGFR2 gene. They concluded that Norman’s occupational exposures to

reproductive toxins caused the de novo mutation in his sperm and were a “substantial factor and

proximate cause” of Johnson being born with Apert syndrome. The supplemental report ruled out

any alternative explanation for Johnson’s birth defects.

¶ 71 Following discovery, Motorola moved for summary judgment on Johnson’s complaint

based on lack of duty. The circuit court found that Texas law governed the substantive issues,

while Illinois law governed the procedural issues. The court granted the summary judgment motion

and denied Johnson’s motion to amend the complaint to allege punitive damages. Johnson appeals.

¶ 72 First, Johnson argues that the circuit court erred by finding that the substantive law of Texas

applies to his case; he takes no issue with the court’s ruling that Illinois law controls all procedural

issues.

-23- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 73 Illinois follows the Restatement (Second) of Conflict of Laws in making choice-of-law

decisions. Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 60-61 (2007). Section 146 of the

Restatement (Second) of Conflict of Laws states that “[i]n an action for a personal injury, the local

law of the state where the injury occurred determines the rights and liabilities of the parties,” unless

another state has a “more significant relationship” to the occurrence and the parties, in which event

the local law of the other state will be applied. Restatement (Second) of Conflict of Laws § 146

(1971). In determining which state has a more significant relationship, we consider four factors:

the place where the injury occurred; the place where the injury-causing conduct occurred; the

domicil, residence, nationality, place of incorporation, and place of business of the parties; and the

place where the relationship between the parties is centered. Id. § 145(2). The circuit court’s

choice-of-law determination is reviewed de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d

147, 153 (2007).

¶ 74 Johnson argues that his injuries here did not occur until he was born with Apert syndrome

in Arizona and, thus, that the circuit court should have applied Arizona substantive law to his

claims. However, Johnson ignores the other factors in the choice-of-law analysis, all of which

support the circuit court’s application of Texas substantive law.

¶ 75 Specifically, we must consider “where the conduct causing the injury occurred.”

Restatement (Second) of Conflict of Laws § 145(2) (1971). The injury-causing conduct allegedly

occurred in Texas, when Norman was exposed to various reproductively toxic chemicals while

working as a section manager in Motorola’s semiconductor manufacturing plant located in Austin.

Norman’s exposure allegedly led to a mutation in his sperm, which subsequently caused Johnson

to be born with Apert syndrome.

-24- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 76 We also must consider the place of business of the parties. Id. The pertinent place of

business was in Texas, where at the time of his chemical exposures, Norman worked in Motorola’s

semiconductor manufacturing plant located in Austin.

¶ 77 Finally, we consider where the relationship of the parties is centered. Id. The relationship

was centered in Texas, the site of Norman’s employment with Motorola and the locus of his

chemical exposures.

¶ 78 Section 145 of the Restatement provides that “[t]hese contacts are to be evaluated

according to their relative importance with respect to the particular issue.” Id. § 145. Here, the

particular issue is whether Motorola reasonably could have foreseen Johnson’s injuries resulting

from Norman’s exposure to reproductively toxic chemicals at the semiconductor facility in Texas.

Resolution of this issue requires consideration of the specific chemicals Norman was exposed to,

whether they were of a type that causes genetic damage to sperm resulting in birth defects (Apert

syndrome) in future offspring, Motorola’s knowledge thereof, the steps Motorola took to prevent

or lessen those exposures, and any warnings or protective equipment provided to Norman. All

these considerations require the trier of fact to look primarily to where the injury-causing conduct

occurred in order to determine Norman’s type of exposure and Motorola’s knowledge thereof, as

well as any preventive measures taken. The injury-causing conduct occurred in the Texas

semiconductor facility; therefore, on the facts of this case, Texas has the most significant

relationship to the occurrence and the parties. We determine that the balance of the relevant choice-

of-law factors favors the application of Texas substantive law to Johnson’s claims.

¶ 79 We turn to the merits of Johnson’s appeal.

¶ 80 The parties rehash the same arguments we addressed earlier in this opinion in the

Fernandez appeal regarding law of the case, stare decisis, the exclusive remedy provided by the -25- Nos. 1-22-0884 & 1-22-0892 (consolidated)

Texas workers’ compensation statute, and the feasibility of allowing recovery for preconception

torts. In accordance with our analysis in the Fernandez appeal, we reject Johnson’s arguments that

the law of the case and stare decisis require us to follow the reasoning of Ledeaux I in its duty

analysis, where that case involved different parties and a different procedural posture than the one

here. We reject Motorola’s argument that Johnson’s claims may only be redressed under the Texas

workers’ compensation statute, where he is seeking recovery for his own injuries and not those of

his father. We find that Texas law allows for the recovery of damages for preconception torts,

where those torts have been proven by competent evidence.

¶ 81 Also, for the reasons discussed earlier in this opinion, we reverse the grant of summary

judgment for Motorola on Johnson’s claims of negligence and willful and wanton misconduct and

the denial of his motion to add a claim for punitive damages. The conflict in the scientific evidence

regarding whether paternal exposure to reproductive toxins causes birth defects (such as Apert

syndrome) and, thus, whether Johnson’s birth defects were reasonably foreseeable by Motorola,

raises questions of material fact that must be resolved by the trier of fact prior to any finding as to

the existence of a duty, proximate cause, and punitive damages. The trier of fact also must resolve

questions of material fact regarding the magnitude of guarding against Johnson’s injury here and

the consequences of placing that burden on Motorola.

¶ 82 We affirm the order granting summary judgment on Johnson’s parents’ claim for parental

loss of child consortium, as such a claim is not recognized under Texas law. See Ledeaux I, 2018

IL App (1st) 161345, ¶ 51 (citing Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003)).

¶ 83 III. Conclusion

-26- Nos. 1-22-0884 & 1-22-0892 (consolidated)

¶ 84 In case number 1-22-0884, we reverse the order granting summary judgment for Motorola

on Fernandez’s negligence and willful and wanton conduct counts and denying her leave to amend

her complaint to add a claim for punitive damages and remand for further proceedings.

¶ 85 In case number 1-22-0892, we reverse the order granting summary judgment for Motorola

on Johnson’s negligence and willful and wanton conduct counts and denying him leave to amend

the complaint to add a claim for punitive damages and remand for further proceedings. We affirm

the grant of summary judgment in favor of Motorola on Johnson’s parents’ claim for parental loss

of child consortium.

¶ 86 No. 1-22-0884, Reversed and remanded.

¶ 87 No. 1-22-0892, Affirmed in part, reversed in part, and remanded.

-27- Nos. 1-22-0884 & 1-22-0892 (consolidated)

Fernandez v. Motorola Solutions, Inc., 2024 IL App (1st) 220884

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos, 19-L- 10156, 10-L-7695; the Hon. Irwin J. Solganick, Judge, presiding.

Attorneys Michael J. Lubeck and Kevin J. Conway, of Cooney & Conway, for of Chicago, and Michael T. Reagan, of Ottawa, for appellant. Appellant:

Attorneys J. Hayes Ryan and Todd M. Murphy, of Gordon Rees Scully for Mansukhani, and Karen Kies DeGrand, Scott L. Howie, Laura Appellee: Coffey Ieremia, and Katie B. Trucco, of Donohue Brown Mathewson & Smyth LLC, both of Chicago, for appellee.

-28-