HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/POOLE.ASC

Text File | 1993-01-14 | 27KB | 521 lines

/* This case is reported in 698 F.Supp. 1367 (N.D. Ill. 1988).
This case finds that a number of standard suits for products
liability for defective blood products are insufficient. However,
the Court does permit further pleading of an "infliction of
emotional distress" theory to a hemophiliac who was given
clotting factors contaminated with HIV. */

Peggy POOLE, etc., et al., Plaintiffs,

v.

ALPHA THERAPEUTIC CORPORATION, etc., et al., Defendants.

United States District Court, N.D. Illinois, E.D.

April 13, 1988.

MEMORANDUM AND ORDER



MORAN, District Judge.

Defendants move to dismiss five counts of plaintiffs' eight-count
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.  These counts are as follows: counts III and VI state
claims for relief based on strict products liability; counts II
and V seek punitive damages, II under the Illinois Survival Act
and V under the Illinois Wrongful Death Act; and count VIII
asserts a claim on behalf of Peggy  Poole for negligent
infliction of emotional distress.  Defendants also move for
sanctions under Fed.R.Civ.P. 11.  Since plaintiffs have failed to
state a claim in all five counts defendants' motion to dismiss is
granted and we impose sanctions for plaintiffs' inclusion of
count V.



FACTS [footnote 1]

From 1975 until 1987 Stephen Poole, a hemophiliac, purchased and
injected into his body an antihemophilic factor, generically
referred to as factor VII I. The antihemophilic factor was
manufactured, processed, marketed, distributed and sold by
defendants.  As a result of defendants' failure to perform
screening and heat-treating tests, and their failure to warn dece
dent of the product's risks, Stephen Poole contracted Acquired
Immune Deficiency Syndrome ("AIDS"). Poole was diagnosed in March
1986 and died on July 10, 1987.

Originally, Stephen and Peggy Poole filed a complaint in the
Circuit Court of Cook County against Alpha Therapeutic
Corporation ("Alpha"), Armour Pharmaceutical Company ("Armour")
and Miles Laboratories ("Miles").  Defendants removed the case to
federal court on diversity grounds in October 1986.  Following re
moval, Travenol Laboratories ("Travenol"), a nondiverse party,
was joined as a defendant.  This court held that joinder of
Travenol did not defeat subject matter jurisdiction. Poole v.
Alpha Therapeutic Corp., No. 86 C 7623, slip op. (N.D.Ill. July
22, 1987) [available on WESTLAW, 1987 WL 15176].  After Stephen
Poole died, Peggy Poole amended the complaint to continue the
action as administrator of her husband's estate.



DISCUSSION

I.   Strict Liability (Counts III, VI) [1]  Plaintiffs have
asserted two tort claims based on strict liability. Defendants
contend that the Illinois Blood Liability Act, [footnote 2]
Ill.Rev.Stat. ch. 111 1/2, para. 5101, et seq. (1985),  bars
these  claims.   We  agree. Paragraph 5102 of the Act bars any
strict liability claim involving the processing or distributing
of blood derivatives and products, and provides that [t]he
procuring,  furnishing,  donating, processing, distributing or
using human whole blood, plasma, blood products, blood
derivatives and products, corneas, bones, or organs or other
human tissue for the purpose of injecting, transfusing or
transplanting any of them in the human body is declared for
purposes of liability in tort or contract to be the rendition of
a service by every person, firm or  corporation  participating
therein, whether or not any remuneration is paid therefor, and is
declared not to be a sale of any such items and no warranties of
any kind or description nor strict tort liability shall be
applicable thereto, except as provided in Section 3.

(Emphasis added) (footnote omitted).

Section 3 of para. 5103 provides that [e]very person, firm or
corporation involved in the rendition of any of the services
described ... warrants to the person, firm or corporation
receiving the service and to the ultimate recipient that he has
exercised due care and followed professional standards of care in
providing the service according to the current state of the
medical arts, and in the case of a service involving blood or
blood derivatives that he has rendered such service in accordance
with "The Blood Labeling Act," effective October 1, 1972.

(Footnotes omitted.)

The Blood Liability statute was enacted in response to the
Illinois Supreme Court's decision in Cunningham v. MacNeal
Memorial Hospital, 47 Ill.2d 443, 457, 266 N.E.2d 897, 904
(1970).  Glass, 32 Ill. App.3d at 238, 336 N.E.2d at 497. In
Cunningham, 47 Ill.2d at 457, 266 N.E.2d at 904, a hospital that
provided blood contaminated with hepatitis was held strictly
liable. Thereafter, the legislature enunciated the policy behind
the Blood Liability Act in para. 5101 [footnote 3] which
expresses a preference for encouraging scientific research and
development by describing as "services," rather than "sales," the
products of those engaging in such scientific activities, and by
barring liability where there is no fault.

The Illinois legislature, in rejecting strict liability claims,
determined that society's interest in ensuring an adequate blood
supply outweighs a plaintiff's interest in bringing such a claim.
The fact that almost all states have enacted blood shield
statutes insulating blood service providers from strict liability
claims demonstrates the nationwide acceptance of such policies.
Comment, Hospital and Blood Bank Liability to Patients Who
Contract AIDS Through Blood Transfusions, 23 San Diego L.Rev.
875, 882 n. 36 (1986).  While the statutes often vary in
language, courts interpreting them have uniformly held that they
bar claims of strict liability. See Coffee v. Cutter Biological,
809 F.2d 191,193 (2d Cir. 1987); Doe v. Cutter Laboratories, CA2-
87-0113, slip op. at 4, - F.Supp.-, (N.D.Texas, Feb. 5, 1988);
Jones v. Miles Laboratories, No. C 8613, slip op. at 4, - F.Supp.
-  (N.D.Ga., Dec. 28, 1987); McKee v. Miles Laboratories, 675
F.Supp. 1060, 1063 (E.D.Ky., 1987); Hyland Laboratories v.
Superior Court of California, 175 Cal.App.3d 509, 516-17, 220
Cal.Rptr. 590, 594 (6th Dist.1985).  Even in those states where
blood shield statutes have not been implemented, courts have been
unwilling to subject providers of blood to strict liability
claims.  E.g., Kozup v. Georgetown University, 663 F.Supp. 1048,
1059 (D.D.C.1987).

In Clark v. Alpha Therapeutic Corp., No. 87-5230, slip op.
(S.D.Ill., Oct. 27, 1987), the court was confronted with a case
similar to this one.  There the plaintiff, a hemophiliac, used an
antihemophilic factor manufactured by the defendant and
subsequently contracted AIDS. The Clark court held that under the
Illinois Blood Liability Act, the blood derivatives are
"specifically exempt from any claims of strict liability."

Clark, slip op. at 2-3.  While the court barred plaintiff's
strict liability claims, plaintiff was allowed to proceed on his
claim that defendant negligently failed to warn him of the
possibility of contracting AIDS. Id. at 6.

As in Clark, here plaintiffs' decedent acquired AIDS by using a
blood derivative or product and it is immaterial, under the Act,
that defendants are commercial sellers and distributors of blood.
See Ill.Rev.Stat. ch. 111 1/2,  5102 (1985).  Further, the Act
is designed "to define the nature of all transactions relating to
procuring, furnishing, donating, processing, distributing or
using human blood and blood derivatives and products ..." Id.,
ch. 111 1/2.  The broad scope of the Act indicates that it
includes strict liability claims based on a producer's failure to
warn since the warnings attached to a blood product relate to the
distribution or furnishing of that product.  Thus, while count I
states a viable negligence claim against defendants for their
failure to warn, the Act prohibits plaintiffs from sustaining a
strict liability count on this basis.

[2]  Plaintiffs also argue that defendants are strictly liable
since their failure to warn made factor VIII unreasonably
dangerous. We disagree. Illinois law adheres to the strict
liability scheme set forth in Section 402A of the Restatement
(Second) of Torts.  Kirk, 117 Ill.2d at 516, 111 Ill. Dec. at
948, 513 N.E.2d at 391.  Section 402A provides that strict
liability will be imposed where one sells a product which is "in
a defective condition unreasonably dangerous" to the ultimate
user.  Id.  While the absence of warnings accompanying a product
can result in the product being deemed  "unreasonably  dangerous"
for strict liability purposes, Kirk, 117 Ill.2d at 517, 111
Ill.Dec. at 949, 513 N.E.2d at 392, plaintiffs may not benefit
from such a characterization of factor VIII unless decedent was
"a person entitled to the protections afforded by the concepts of
strict-tort-liability actions against manufacturers."  Winnett v.
Winnett, 57 Ill.2d 7,10, 310 N.E.2d 1, 3 (1974). Since the
Illinois Blood Liability Act prohibits all strict liability
claims against distributors and sellers of blood products,
decedent was not afforded the protection of the concept of strict
liability against defendants, and the failure-to-warn claim
cannot serve as an independent basis for strict liability
recovery. The Act limits legal liability to negligence and
willful misconduct, and we dismiss counts III and VI with
prejudice.



II.  Negligent Infliction of Emotional Distress (Count VIII)

[3]  Peggy Poole alleges that in the course of ordinary marital
relations, and as a result of her husband's  contracting AIDS,
she has been "directly exposed to the AIDS virus, thereby
inflicting upon her tremendous and excruciating emotional anguish
from the fear of contracting the AIDS virus" (count VIII,  14).
While "the boundaries of emotional distress law in Illinois are
not clearly mapped," McAdams v. Eli Lilly & Co., 638 F.Supp.
1173, 1175 (N.D.Ill. 1986), Illinois courts have consistently
refused to allow recovery for mental or emotional distress in the
absence of a physical injury or illness, and the complaint
alleges none.

Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 55556, 75
Ill.Dec. 211, 215, 457 N.E.2d 1, 5 (1983), instructs us to apply
"the zone-of-physical-danger rule" in determining whether
plaintiff states a viable claim for negligent infliction of
emotional distress.  In Rickey, an eight-year-old boy riding on
an escalator with his five-year-old brother watched as his
brother's clothing became entangled in the escalator, choking him
and leaving him comatose.  Their mother brought an action in her
eight-year-old's behalf for negligent infliction of emotional
distress.  At the time Illinois courts applied the impact rule,
which denied recovery for negligently caused emotional distress
suffered by the direct victim or by a bystander, "unless it was
accompanied by a contemporaneous physical injury to or impact on
the plaintiff." Rickey, 98 Ill.2d at 550, 75 Ill.Dec. at 212, 457
N.E.2d at 2. Instead of applying the impact rule, the Rickey
court held that [a] bystander who is in a zone of physical danger
and who, because of defendant's negligence, has reasonable fear
for his own safety is given a right of action for physical injury
or illness resulting from emotional distress.  This rule does not
require that the bystander suffer a physical impact or injury at
the time of the negligent act, but it does require that he must
have been in such proximity to the accident in which the direct
victim was physically injured that there was a high risk to him
of physical impact.  The by-stander, as stated, must show
physical injury or illness as a result of the emotional distress
caused by the defendant's negligence.

Rickey, 98 Ill.2d at 555, 75 Ill.Dec. at 215, 457 N.E.2d at 5.
Thus the court substituted the impact rule with its own zone-of-
physical-danger test.

In cases that followed Rickey, courts divided as to whether the
zone-of-danger standard applied to all claims for negligent
infliction of emotional distress or only in "bystander"
situations. Compare Lewis v. Westinghouse Electric Corp., 139
Ill.App. 3d 634, 637-38, 94 Ill.Dec. 194, 196, 487 N.E.2d
1071,1073 (1st Dist.1985) (Rickey not limited to "bystanders")
with McAdams, 638 F.Supp. at 1178 (zone-of-danger rule applies
only in bystander cases).

The Illinois Supreme Court ended the controversy in Siemieniec v.
Lutheran General Hospital, 117 Ill.2d 230,111 Ill.Dec. 302, 512
N.E.2d 691(1987). In Siemieniec, parents of a child born with
hemophilia sought damages for emotional distress based on their
claim that they would have aborted the child had the defendants
given accurate genetic counseling. The court rejected the claim
because the parents failed to allege that the situation caused
them danger and physical injury or illness. Siemieniec, 117
Ill.2d at 261, 111 Ill.Dec. at 318, 512 N.E.2d at 707.  In its
discussion of Rickey, the Siemieniec court never referred to the
zone-of-physical-danger rule as an exception, nor did the court
limit Rickey to bystander cases. The court treated the Rickey
rule as the standard for claims of negligent infliction of
emotional distress and we do so here. [footnote 4]

While plaintiff has alleged facts sufficient to arguably place
her in the zone of danger and to constitute a reasonable fear for
her safety, plaintiff has failed to allege a physical injury or
illness resulting from emotional distress. Defendant's motion to
dismiss count VIII is therefore granted with leave to amend.



III. Punitive Damages (Counts II, V)

[4]  We now consider whether the Illinois Survival Act,
Ill.Rev.Stat. ch. 110'/2,  27-6 (1985), and the Illinois Wrongful
Death Act, Ill.Rev.Stat. ch. 70,  2 (1985), preclude plaintiffs
from seeking punitive damages for defendants' willful and wanton
misconduct. [footnote 5] Plaintiffs do not address the claim for
punitive damages under the Wrongful Death Act in their
memorandum, which indicates that no basis for the claim exists.
Indeed, it is well settled that, under Illinois law, punitive
damages are not recoverable under this Act.  In re Johns-Manville
Asbestos Cases, 511 F.Supp. 1235, 1240 (N.D.Ill. 1981) (applying
Illinois law); Winter v. Schneider Tank Lines, Inc., 107
Ill.App.3d 767, 771-72, 63 Ill.Dec. 531, 535, 438 N.E.2d 462, 466
(1982); Gardner v. Geraghty, 98 Ill.App.3d 10, 14, 53 Ill.Dec.
517, 520, 423 N.E.2d 1321, 1324 (1981). Therefore, count V is
dismissed.

[5]  We confine further discussion to count II-plaintiffs'
Survival Act claim. Plaintiffs concede that punitive damages are
generally not allowed under the Survival Act but they claim that
the two exceptions to the general rule apply here.  Defendants
disagree, asserting that neither the equitable considerations
exception nor the statutory exception applies and thus plaintiffs
are precluded from collecting punitive damages. We agree with
defendants and dismiss count II.

The Illinois Supreme Court in Mattyasovszky v. West Towns Bus
Co., 61 Ill.2d 31, 330 N.E.2d 509 (1975), held that punitive
damages were not recoverable under the Illinois Survival Act or
for a common law action for wrongful death. The court indicated
that in some instances, such as where no other remedy exists,
strong equitable considerations might require punitive relief.
Mattyasovszky, 61 Ill.2d at 37, 330 N.E.2d at 512. Since the
death in that case gave rise to statutory actions, the court
refused to invoke the equitable considerations exception.  Id.
Contrary to plaintiffs' suggestion, strong equitable
considerations are lacking here as plaintiffs' negligence claims
provide sufficient avenues for relief.

[6]  Plaintiffs also assert that the statutory exception,
analyzed in National Bank of Bloomington v. Norfolk & Western
Railway Co., 73 Ill.2d 160,171-77, 23 Ill. Dec. 48, 52-55, 383
N.E.2d 919, 923-26 (1978), applies here.  In National Bank, the
plaintiff sought recovery under the Public Utilities Act which
expressly provided for such relief.  73 Ill.2d at 173, 23
Ill.Dec. at 53, 383 N.E.2d at 924. In allowing recovery the court
described Mattyasovszky as a case based on a common law claim and
observed that the Survival Act itself was neutral as to whether
punitive damages could be recovered.  Since the court found that
the Survival Act served as "merely the vehicle by which the cause
of action, created by the Public Utilities Act, survives the
death of the injured person," and the Public Utilities Act
specifically allowed awards of punitive damages, the court held
that such damages were appropriate.  73 Ill.2d at 174, 23
Ill.Dec. at 53, 383 N.E.2d at 924.

National Bank and subsequent cases indicate that plaintiffs may
not recover punitive damages under the Survival Act unless their
claims are brought pursuant to a comprehensive regulatory statute
or scheme which expressly provides for such damages. See In re
Air Crash Disaster Near Chicago, 644 F.2d 594, 6054)6 (7th Cir.
1981), cert. denied sub nom., Lin v. American Airlines, Inc., 454
U.S. 878,102 S.Ct. 358, 70 L.Ed.2d 187 (1981); Ballweg v. City of
Springfield, 114 Ill.2d 107, 117,102 Ill. Dec. 360, 364, 499
N.E.2d 1373,1377 (1986); Duncavage v. Allen, 147 Ill.App.3d 88,
1024)3, 100 Ill.Dec. 455, 463-64, 497 N.E.2d 433, 441-42 (1st
Dist.1986); Froud v. Celotex Corp., 98 Ill.2d 324, 333-34, 74
Ill.Dec. 629, 633-34, 456 N.E.2d 131, 13536 (1983). Plaintiffs
contend that the Illinois Blood Labeling  Act,  Ill.Rev.Stat.
ch.  111 1/2,  620-21, et seq. (1985), the Illinois Blood
Liability Act and the Illinois Food, Drug and Cosmetic Act,
Ill.Rev.Stat. ch. 56 1/2 para. 501, et seq. (1985), apply either
separately or as a whole to constitute a regulatory scheme which
would bring plaintiffs within the statutory exception.  However,
plaintiff has not alleged a violation of any of these statutes
and, in fact, plaintiff concedes that the Blood Labeling Act does
not apply.  Even if plaintiff asserted a statutory violation
under the Blood Liability Act, the Act does not expressly
authorize punitive damage awards and imposition of such damages
appears inconsistent with the Act's purpose of limiting
liability. Finally, plaintiffs' reliance on the Illinois Food,
Drug and Cosmetic Act is misplaced. The Act does not expressly
allow the imposition of punitive damages nor does it provide
plaintiffs with a cause of action.  Since neither the equitable
nor statutory exceptions apply here, plaintiffs are not entitled
to punitive damages and count II is dismissed.



IV.  Sanctions Under Rule 11

[7]  Defendants [footnote 6] have requested sanctions pursuant to
Rule 11 for plaintiffs' inclusion of strict liability and
punitive damage claims under the Survival and Wrongful Death
Acts.

Rule 11 provides in relevant part that every pleading shall be
signed by the attorney and that this signature constitutes a
certificate ... that the signer has read the ... paper; that to
the best of [his] knowledge, information and belief formed after
reasonable inquiry it is well grounded in fact and is warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not
interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation.

The primary purpose of Rule 11 is to deter unnecessary and
frivolous filings that burden the judicial system and litigants
who have legitimate disputes. See Szabo Food Service, Inc. v.
Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.1987), cert.
dismissed, - U.S.-,108 S.Ct. 1101, 99 L.Ed.2d 229 (1988). To
increase its effectiveness in meeting these goals, Rule 11 was
amended in 1983 to adopt an objective standard of "reasonableness
under the circumstances." Rodgers v. Lincoln Towing Service, 771
F.2d 194, 205 (7th Cir.1985) (citing Fed.R. Civ.P. 11 advisory
committee's note).  Under the rule as amended, attorneys have an
affirmative duty to conduct a reasonable inquiry into both the
facts of the case and the  applicable law before  filing.  See
Thornton, 787 F.2d at 1153.  See also Stewart v. RCA Corp., 790
F.2d 624, 633 (7th Cir.1986) ("Rule 11 requires lawyers to think
first and file later, on pain of personal liability").  Rule 11
is not meant to penalize attorneys for making a misstep in
unsettled areas of the law or to stifle attempts to expand it.
However, where the filing has no basis in law the attorney is
subject to sanctions. See Thornton, 787 F.2d at 1153; Szabo, 823
F.2d at 1080 (sanctions appropriate where legal basis of
complaint is "whacky").

[8]  Applying these standards, we conclude that sanctions are not
warranted in this case for counts 11,111 and VI.  Plaintiffs'
strict liability claims involve questions which were first
addressed in Illinois while this motion was pending. In October
1987, a court in the Southern District of Illinois precluded a
hemophiliac from suing in strict  liability  for  contracting
AIDS through a blood transfusion.  Clark, slip op. at 2-3.  This
hardly constitutes well-settled law.  Federal district courts
across the country have in the past year just begun to explore
this issue.  Applying the objective standard, plaintiff has made
a good faith argument that the Blood Liability Act does not
preclude claims premised on a failure to warn. Although we find
the argument unpersuasive, we do not think that sanctions are
appropriate.

[9]  Plaintiffs' claim for punitive damages pursuant to the
Illinois Survival Act properly noted the general rule that
punitive damages are not recoverable under the Act, but contended
that this case fits the exception to this rule.  Specifically,
plaintiffs sought to expand the statutory exception by arguing
that several statutes, applied either independently or as a
whole, constituted a regulatory scheme that would allow the
imposition of punitive damages. While we hold that the statutory
exception does not apply, we refuse to penalize the plaintiffs
for attempting to expand this exception.

[10]  Regarding count V, however, we find sanctions appropriate.
In this count plaintiff sought to recover punitive damages for
defendants' willful and wanton misconduct pursuant to the
Illinois Wrongful Death Act. We interpret plaintiffs' failure to
respond to defendants' motion to dismiss as an indication that
count V was not warranted in the first place.  As discussed
earlier, Illinois case law clearly establishes that punitive
damages are not recoverable for actions maintained under the
Wrongful Death Act.  Sanctions are appropriate where, as here, a
reasonable inquiry into the law would have instructed plaintiffs'
attorney not to file this claim.



CONCLUSION

Defendants' motion to dismiss counts II, III, V and VI is granted
with prejudice and count VIII is dismissed with leave to amend.
Sanction requests will be granted only with respect to count V of
the complaint.



FOOTNOTES:

1.   For purposes of this motion we regard plain-tiffs' well-
pleaded allegations as true.  See Hishon v. King & Spalding, 467
U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Kirk v.
Michael Reese Hospital, 117 Ill.2d 507, 514, Ill Ill.Dec. 944,
948, 513 N.E.2d 387, 390 (1987), cert. denied, - U.S. -, 108
S.Ct. 1077, 99 L.Ed.2d 236 (1988).

2.   The Illinois Blood Liability Act has been upheld as
constitutional in a series of Illinois cases. E.g., Glass v.
Ingalis, 32 111.App.3d 237, 241, 336 N.E.2d 495, 499 (1st
Dist.1975); Bingham v. Lutheran General & Deaconess Hospitals, 34
Ill.App.3d 562, 56465, 340 N.E.2d 220, 222 (1st Dist.1975).

3.   Paragraph 5101 provides:

The availability of scientific knowledge, skills and materials
for the purpose of injecting, transfusing or transplanting human
whole blood, plasma, blood products, blood derivatives and
products, corneas, bones, or organs or other human tissue is
important to the health and welfare of the people of this State.
The imposition of legal liability without fault upon the persons
and organizations engaged in such scientific procedures inhibjts
the exercise of sound medical judgment and restricts the
availability of important scientific knowledge, skills and
materials. It is therelore the public policy of this State to
promote the health and welfare of the people by limiting the
legal liability arising out of such scientific procedures to
instances of negligence or willful msconduct.

(Emphasis added.)

4.   In arguing that Rickey should not apply. plaintiff relies on
Wetherill v. University of Chicago, 565 F.Supp. 1553
(N.D.Ill.1983).  In Wetherill two plaintiffs alleged that they
were injured by exposure in utero to diethylstilbestrol ("DES").
Plaintiffs' claims were based on battery, negligence and strict
liability. While neither of the Wetherill plaintiffs suffered
from cancer or precancerous conditions, plaintiffs believed that
their prenatal exposure to DES increased the likelihood of
contracting cancer.  In seeking damages for fear that they might
develop cancer, plaintiffs intended to introduce evidence showing
the causal connection between DES and cancer.  Defendant objected
to the use of this evidence on the ground that the feared future
injury must be reasonably certain to develop from a present
injury to be admissible in court.  Wetherill, 565 F.Supp. at
1559.  The court disagreed stating that Illinois law did not
require a present injury but "only a causal link between the fear
of future injury and the physical impact (as distinct from
injury) of defendant's tortious conduct."  Wetherill, 565 F.Supp.
at 1560.  The court held that the physical impact requirement was
met by the prenatal exposure to DES.  Wetherill, 565 F.Supp. at
1560. The apparent divergence from Rickey may have occurred
because both opinions were decided on the same day and the
Wetherill court did not yet have the new standard before it.

5.   While counts II and V do not seek only punitive damages.
since they mirror identically counts I and IV -except that they
pray for punitive damages- we will dismiss them if we find
plaintiffs are not entitled to recover punitive damages on these
claims.

6.   While not all defendants have moved for sanctions, and some
move by joining the briefs of the others, we award sanctions for
plaintiffs' inclusion of count V to all defendants. See Rule 11
(court may impose sanctions where appropriate "upon motion or
upon its own initiative"); Thornton v. Wahl, 787 F.2d 1151,
1153(7th Cir.) (same), cert. denied, 479 U.S. 851,107 S.Ct. 181,
93 L.Ed.2d 116 (1986).