Byrne v. SCM Corp.
| Citation | 131 Ill.Dec. 421,182 Ill.App.3d 523,538 N.E.2d 796 |
| Decision Date | 04 May 1989 |
| Docket Number | No. 4-88-0572,4-88-0572 |
| Parties | , 131 Ill.Dec. 421, Prod.Liab.Rep. (CCH) P 12,170 Theodore BYRNE and Diane Byrne, Plaintiffs-Appellees, v. SCM CORPORATION and Glidden Coating & Resins, a division of SCM Corporation, Defendants-Third Party Plaintiffs-Appellants (Construction Service & Supply, Inc., Defendant-Third Party Plaintiff; Carle Foundation Hospital, Third Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Nancy G. Lischer, of counsel), for SCM Corp., et al.
Phebus, Tummelson, Bryan & Knox, Urbana (Hurshal C. Tummelson, Joseph W. Phebus, of counsel), for Theodore & Diane Byrne.
Craig J. Causeman, Thomas, Mamer & Haughey, Champaign, for Carle Foundation Hosp.
This action was brought in the circuit court of Champaign County by plaintiffs Theodore and Diane Byrne against defendants SCM Corporation and Glidden Coating and Resins, a division of SCM, and Construction Service and Supply, Inc., the manufacturer and distributor of an epoxy paint, to recover damages for injuries sustained when Ted used defendants' product as part of his job as a painter for the Carle Foundation Hospital (Carle). Plaintiffs originally filed a complaint alleging several counts in negligence, strict liability, and wilful and wanton misconduct, but dismissed all but the strict liability counts prior to trial. The defendants filed a third-party action for contribution against Carle.
On the first day of trial, the plaintiffs received leave to amend their complaint to include violations of a State statute and a Federal regulation. Defendants objected to the timeliness of the late amendment, which raised a new theory on the first day of trial. The defendants' motion to strike these portions of the amended complaint was denied. The plaintiffs conceded at the close of evidence that the Federal regulation did not apply to their claim and this allegation was stricken on the defendants' motion. The trial court instructed the jury as to the State statute which requires a manufacturer who sells toxic substances in turn to supply to the purchaser a material safety data sheet within 30 days of the receipt. Ill.Rev.Stat.1987, ch. 48, par. 1411.
The third-party complaint was set out in six counts. Counts I, II, and III were contribution claims by Construction Service and Supply, Inc., and, since the distributor is not a party to this appeal, there are no issues raised as to these counts. Count IV is the manufacturer's claim for contribution against Carle based upon allegations of the employer's negligence. Count V is based on allegations of the employer's misuse of the product and count VI is premised upon allegations of the employer's assumption of risk.
On October 2, 1987, Carle filed a motion to dismiss this second-amended third-party complaint. After hearing arguments of counsel, the court entered a written order on October 5, 1987, dismissing with prejudice counts II, III, V, and VI of the second-amended third-party complaint and striking subparagraph 10(c) of the remaining counts. On October 5, 1987, Carle filed an answer to the remainder of the third-party complaint.
However, on October 8, 1987, Carle filed a motion for summary judgment with voluminous "1. The Court adopts the argument advanced by the Third-Party Defendant that the seven subparagraphs of Third-Party Plaintiff's Second Amended Complaint allege only two theories of recovery founded upon the issues of ventilation and respiration.
[131 Ill.Dec. 425] exhibits. On October 14, 1987, defendants filed a notice of filing discovery depositions in opposition of third-party defendants' motion for summary judgment, listing the discovery depositions of Charles Woolridge and Richard Peters, two of Ted's fellow[182 Ill.App.3d 530] employees. The defendants also attempted to tender portions of the depositions of James Glaze and Susan Johnston, two of plaintiffs' experts, at the hearing on the motion, which occurred after the trial had begun. After hearing arguments of counsel, the trial court made the following findings, which the court subsequently expressed in a written order filed October 28, 1987:
2. The Court grants the Motion by Third-Party Defendant to strike the tender by Third-Party Plaintiff of the deposition excerpts of James Glaze and Susan Johnston as untimely.
3. The Court finds that Third-Party Plaintiff failed to adduce any evidence in opposition to the Motion for Summary Judgment to support the contention that the Third-Party Defendant knew or should have known that any or different respiration was necessary under the circumstances of this case. The Court, therefore, grants the Motion for Summary Judgment as to each Count of the Second Amended Third-Party Complaint, as more particularly set forth in Paragraph 10, subparagraphs (e)-(h).
4. The Court grants the Motion for Summary Judgment as to each Count of the Second Amended Third-Party Complaint, as more particularly set forth at Paragraph 10, subparagraph (d), but only as said subparagraph relates to respiration.
5. The Court finds after consideration of the opposition to Motion for Summary Judgment that there is a genuine issue as to a material fact on the issue of ventilation, and accordingly, the Motion for Summary Judgment directed to Paragraph 10, subparagraphs (a), (b) and the portion of subparagraph (d) referencing 'ventilation,' is, therefore, denied."
The trial court stated that in making the ruling, the court considered only the filings made by defendants in opposition to the motion for summary judgment, neither of whom were experts.
The facts brought out at trial follow. Ted is a 36-year-old painter who had been employed at Carle for a period of approximately five years prior to October 15, 1984. He is married to Diane and they have three children. His earnings at Carle during 1983 were $23,000 to $25,000. Prior to October 15, 1984, Ted was a healthy man. He worked every day and participated in athletics, including baseball and bowling. He played basketball with his children. The family had a boat and a camper, and they did a lot of camping and boating.
On October 15 and 16, 1984, Ted was painting the pathology lab using Glid-Guard epoxy paint, manufactured by defendants SCM Corporation and Glidden Coating and Resins, a division of SCM (Glidden Coating), and ultimately sold by the defendants' supplier, Construction Service and Supply, Inc., to Carle.
The epoxy paint which the plaintiff used came in two separate containers and the two components were then mixed. Under the name of the product, the label for component A advised that the breathing of vapors might be harmful, and directed the user to the cautions on the side. It stated:
The word "warning" was in enlarged letters. On the side panel, the label warned:
VAPOR HARMFUL
CONTAINS METHYL ETHYL
KETONE AND TOLUENE
Keep away from heat, sparks and open flame. Avoid prolonged contact with Use Only With
[131 Ill.Dec. 426] skin and breathing of vapor or spray mist. In case of skin contact wash thoroughly with soap and water. Eye contact flush immediately with water for at least 15 minutes. Get medical attention.
Good Ventilation.
KEEP OUT OF THE
REACH OF CHILDREN"
(Emphasis in original.)
The statement "Use Only With Good Ventilation" was the only printing which was in italics. The directions on the component A can stated:
The component B can also contained warnings. Like the first can, there was a warning underneath the product name which advised:
Again, the word "warning" was in larger letters than the other paint. It also had another warning under the product label which stated:
The side panel provided:
"WARNING! FLAMMABLE!
VAPOR HARMFUL CONTAINS
METHYL ETHYL KETONE
AND GLYCOL ETHERS
Keep away from heat, sparks and open flame. Avoid prolonged contact with the skin and breathing of vapor or spray mist. In case of skin contact wash thoroughly with soap and water. Eye contact flush immediately with water for at least 15 minutes. Get medical attention.
USE ONLY WITH
GOOD VENTILATION
KEEP OUT OF THE
REACH OF CHILDREN"
The directions specifically referred the user to the other label for directions on the product's use.
The labels were seen by Richard Peters, the plaintiff's fellow painter. The labels were not obscured and could be read.
Three expert witnesses, Gilbert Elenbogen, James Glaze, and Susan Johnston, were called to testify by plaintiff. Elenbogen has a Master's degree in Chemistry, and a Master's degree in Environmental Engineering, and is presently a research chemist with the Metropolitan Sanitary District of Chicago. He is familiar with epoxy paints and material safety data sheets used in determining the protection, if any, required for the use of a manufacturer's product. He had reviewed the Glid-Guard epoxy paint labels and the material safety data sheets, and in his opinion, it was not reasonably safe to use this paint outdoors without...
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...discussions of the Rule’s “ Daubert ” and “ gatekeeping ” functions are contained in §11.500 and §11.600. 19 Byrne v. SCM Corp. , 131 Ill. Dec. 421, 538 N.E.2d 796, 182 Ill.App.3d 523 (Ill. App. 4 Dist. 1989). The weight to be accorded an expert’s testimony should be viewed in light of his ......
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...discussions of the Rule’s “ Daubert ” and “ gatekeeping ” functions are contained in §11.500 and §11.600. 20 Byrne v. SCM Corp. , 131 Ill. Dec. 421, 538 N.E.2d 796, 182 Ill.App.3d 523 (Ill. App. 4 Dist. 1989). The weight to be accorded an expert’s testimony should be viewed in light of his ......
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Questions Calling for a Conclusion
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