Bandura v. Orkin Exterminating Co., Inc.

Decision Date12 December 1988
Docket NumberNo. 87-2352,87-2352
Citation865 F.2d 816
PartiesThomas M. BANDURA and Mary Ann Bandura, Individually and as Parents and Next Friends of Laura L. Bandura and Brittain Bandura, Minors, Plaintiffs-Appellees, v. ORKIN EXTERMINATING CO., INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Mark S. Grotefeld, Grotefeld & Assoc., Chtd., Chicago, Ill., for defendant-appellant.

Michael D. Block, Block Krockey Cernugel & Cowgill, P.C., Joliett, Ill., for plaintiffs-appellees.

Before WOOD and COFFEY, Circuit Judges, and GRANT, Senior District Judge. *

COFFEY, Circuit Judge.

Defendant-appellant Orkin Exterminating Company appeals a jury verdict awarding $625,000 in damages for personal injuries and property damage suffered by plaintiffs-appellees Thomas and Mary Ann Bandura. In response to special interrogatories submitted by the Banduras, the jury specifically found that Orkin had violated the Illinois Consumer Fraud and Deceptive Practices Act, Ill.Rev.Stat. ch. 121 1/2, p 261 et seq. Based on this special finding, the United States District Court for the Northern District of Illinois, the Honorable Brian Barnett Duff, presiding, assessed Orkin $90,036.66 in costs and $208,333.33 in attorneys' fees. We affirm.

I.

In early December, 1981, Mary Ann Bandura contacted Orkin Exterminating Company's office in Shorewood, Illinois, concerning a bug she had observed in her home in Coal City, Illinois, that she suspected might be a termite. John Pearce, an Orkin representative, inspected the Bandura home on December 12. Upon completion of his inspection, Pearce showed Thomas Bandura a board he had found in the crawl space upon which a small, white bug was resting. Pearce identified the bug as a termite and informed Mr. Bandura that there was no damage to his home, but also stated that his house was located in a termite infested area. Pearce then provided Mr. Bandura with a sales brochure entitled "Termites Strike More American Homes than Fire." The Banduras contend that based upon this information they hired Orkin to treat their home against the infestation of termites. On December 21 Orkin treated the Banduras' home with Orkil, Orkin's form of termiticide containing the chemicals chlordane and heptachlor.

Immediately after the termiticide application, the Banduras noticed a strong odor in their home that had not been present prior to the application. The Banduras telephoned Orkin to complain of the strong chemical odor and were assured that it would dissipate within one to seven days. However, the odor did not dissipate within this time period. Indeed, the odor continued to persist in some parts of the house at the time this action was filed in November 1983.

While this odor continued to persist in the Bandura home, Mrs. Bandura noticed some unusual physical symptoms including fatigue, numbness, tingling in the extremities and face, and headaches. In July 1982, she saw her gynecologist and reported melancholic behavior changes, chest pains and tingling of the legs. In November 1982, Mrs. Bandura saw another doctor and complained of much of the above and additionally, an unusual hoarseness. Mrs. Bandura's physical condition declined markedly in the first half of February 1983 and as a result of this, her doctor admitted Mrs. Bandura to the hospital on February 14, 1983. Hospital tests revealed various problems which are consistent with chlordane poisoning, although her doctors made no specific diagnosis at this time. Mrs. Bandura's condition improved during this hospital stay, and after five days she was released from hospital confinement. After spending a day at home, Mrs. Bandura suffered a relapse. She reentered the hospital and stayed for eleven more days, some of which she spent in the intensive care unit. None of the physicians attending Mrs. Bandura had been made aware of the termiticide treatments to her home and hence, the possible link between the chlordane contained in the termiticide and Mrs. Bandura's various afflictions. It was only in April 1983 that the Banduras became aware, through a segment on the television program "Sixty Minutes," of the health hazards of chlordane.

After observing the "Sixty Minutes" program on chlordane, the Banduras immediately telephoned Orkin and requested that they install "temp vents" in their house. Although Orkin installed the vents, the odor persisted. The Banduras continued to complain to Orkin, but Orkin merely reassured them that the odor would soon dissipate. Approximately five months later in the fall of 1983, the Banduras contacted the Illinois Department of Public Health. The Department assigned Pest Control Inspector Wilder to examine and investigate the application of the termiticide in the Banduras' home. Upon completion, he discovered the presence of chlordane in their heating system. Wilder also concluded that Orkin had applied the termiticide above rather than below ground level, thus violating both acceptable industry practice and the termiticide's label instructions. Orkin branch manager Snopeck admitted to Wilder that if Orkin had properly applied the termiticide below ground level, there would not have been chlordane fumes present in the Banduras' forced air heating system. Wilder then sought to interview Roger Hanson, the Orkin employee who applied the termiticide in the Banduras' residence. Snopeck informed Wilder that Hanson was no longer with Orkin and that they were unable to supply any further information about him, when in fact, Hanson was still in Orkin's employ but working out of another branch office. Based upon Wilder's inspection, findings and recommendations, the Banduras' entire forced air heating system was shut down, and replaced by electric base board heat. This change improved the problem somewhat as it eliminated the chemical odor in certain areas of the home, but the smell still persisted in other areas of the Banduras' residence.

On November 2, 1983, the Banduras commenced this action for personal injuries and property damage against Orkin on theories of negligence, breach of warranty, and products liability. 1 The Banduras later amended their complaint to include counts based on the Illinois Consumer Fraud and Deceptive Practices Act ("ICFDPA"), supra, and requests for punitive damages, attorneys' fees, and litigation costs thereunder. Orkin removed the action pursuant to 28 U.S.C. Sec. 1441 to the United States District Court for the Northern District of Illinois based on diversity of citizenship, 28 U.S.C. Sec. 1332.

A jury trial commenced on April 21, 1986. At the close of the evidence, the trial judge granted Orkin's motions for directed verdict on the breach of warranty and punitive damage issues, but denied the motion with respect to the counts based on the ICFDPA. On May 6, 1986, the jury returned a general verdict in favor of Mary Ann Bandura in the amount of $550,000 and Thomas Bandura in the amount of $75,000. In response to the special interrogatories, the jury specifically found that Orkin had violated the ICFDPA. Based on this finding the Banduras petitioned the court for an award of $208,333.33 in attorneys' fees and $90,036.66 in costs under section 10a of the ICFDPA, Ill.Rev.Stat. ch. 121 1/2, p 270a, which the court eventually granted. On May 15, 1986, Orkin filed a motion for judgment notwithstanding the verdict or in the alternative for new trial alleging that the Banduras had failed to prove both that their illnesses resulted from exposure to the chemicals in Orkin's termiticide and that Orkin had violated the ICFDPA in persuading the Banduras to purchase the termiticide treatment. The district court denied Orkin's motion, 664 F.Supp. 1218, and Orkin appealed.

Orkin advances three arguments on appeal in support of its contention that the jury's verdict in favor of the Banduras must be set aside and the trial judge's rulings must be overturned. First, Orkin contends that the trial judge erred in denying its motions for directed verdict and judgment notwithstanding the verdict on the consumer fraud claims because of the absence of clear and convincing evidence that the Orkin salesman misrepresented any statement of fact. Next, Orkin claims that the jury's verdict was against the manifest weight of the evidence concerning the negligence claims because there was insufficient evidence to support a finding that the termiticide was improperly or unreasonably applied. Finally, Orkin alleges that the jury's verdict was against the manifest weight of the evidence concerning the products liability claims because there was insufficient evidence to support a finding that the termiticide was unreasonably dangerous.

II.

In considering Orkin's claim that the trial judge improperly denied its motions for directed verdict and judgment notwithstanding the verdict on the Banduras' consumer fraud claims, we note that the standard under which we review the denial of such motions is the same as that applied by the trial court, assuming that the trial court applied the correct standard. Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981). A motion for directed verdict raises only a question of law; thus, our review is de novo. See North v. Madison Area Association for Retarded Citizens, 844 F.2d 401, 403 (7th Cir.1988); Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir.1988). Because the district court's jurisdiction was based on diversity of citizenship, our standard of review is that of the law of the forum state, Illinois in this case. Eggert v. Weisz, 839 F.2d 1261, 1263 (7th Cir.1988); Davlan v. Otis Elevator Co., 816 F.2d 287, 289 (7th Cir.1987). The trial court properly determined that under Illinois law, "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so...

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