Kemner v. Monsanto Co.

• Citation: 217 Ill.App.3d 188,160 Ill.Dec. 192,576 N.E.2d 1146
• Decision Date: 22 July 1991
• Docket Number: No. 5-88-0420,No. 80-L-970,P,80-L-970,5-88-0420
• Parties: , 160 Ill.Dec. 192 Frances E. KEMNER et al., and all other cases consolidated with Causelaintiffs-Appellees, v. MONSANTO COMPANY, Defendant-Appellant (Bruce D. Ryder, Appellant, and St. Clair County, Illinois, Appellee).
• Court: United States Appellate Court of Illinois

Page 1146

576 N.E.2d 1146

217 Ill.App.3d 188, 160 Ill.Dec. 192

Frances E. KEMNER et al., and all other cases consolidated with Cause No. 80-L-970, Plaintiffs-Appellees, v. MONSANTO COMPANY, Defendant-Appellant (Bruce D. Ryder Appellant, and St. Clair County, Illinois, Appellee).

No. 5-88-0420.

Appellate Court of Illinois Fifth District.

July 22, 1991.

Coburn, Croft & Putzell, Kenneth R. Heineman, Bruce D. Ryder, Dudley W. Von Holt, St. Louis, Mo., James C. Craven, P.C., Springfield, Coffield, Ungaretti, Harris & Slavin, J. Timothy Eaton, Chicago, for Monsanto Co. and Bruce D. Ryder.

John Baricevic, State's Atty., St. Clair Co., Belleville, for St. clair co.

Rex Carr, Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, East St. Louis, Jerome W. Seigfried, Seigfreid, Runge, Leonatti & Pohlmeyer, Mexico, Mo., for plaintiffs-appellees, Frances E. Kemner, et al., and all other cases consolidated with Cause No. 80-L-970.

Justice LEWIS delivered the opinion of the court:

This case involves an appeal by Monsanto Company from an adverse verdict in favor of 65 plaintiffs in the circuit court of St. Clair County.

An action was brought in the circuit court of St. Clair County, Illinois, by 65 plaintiffs against five defendants: Monsanto Company ("Monsanto"), Norfolk & Western Railway Company ("Norfolk"), G.A.T.X. Corporation ("GATX"), General American Transportation Corporation ("General American"), and Dresser Industries, Inc. ("Dresser"). Plaintiffs' 20 original complaints were consolidated for trial. Prior to trial, certain third-party claims against third-party defendant Willamette-Western Corporation were severed from the case. Certain counterclaims against Monsanto and Norfolk were also severed. These third-party claims and counterclaims remain pending in the circuit court. Prior to verdict, all defendants other than Monsanto settled with the plaintiffs.

Plaintiffs' consolidated cases were tried against defendant Monsanto only. Plaintiffs' second amended complaints, which were filed after the close of evidence, were in two counts, alleging in count I a strict liability theory and in count II a wilful and wanton conduct theory. The jury returned a verdict in favor of Monsanto on count I, pertaining to the claim that the product was unreasonably dangerous, and in favor of plaintiffs on count II, awarding no damages for any noneconomic losses, $1 to each of 63 plaintiffs for economic losses, $14,500 each to the other two plaintiffs for property damages losses, and $16,250,000 in a joint punitive damage verdict.

A judgment was entered on the verdicts on October 22, 1987. On November 10, 1987, the court entered a judgment against Monsanto in favor of St. Clair County for extraordinary costs in the amount of $84,294.26. Also at the close of the evidence, but before the jury was instructed, the court fined Monsanto and its counsel Bruce D. Ryder $10,000 and $1,000 respectively, pursuant to section 2-611 of the Code of Civil Procedure. Ill.Rev.Stat.1987, ch. 110, par. 2-611.

Monsanto filed a post-trial motion raising issues pertaining to the October 22, 1987, verdicts on count II, the November 10, 1987, judgment on extraordinary costs and the court's August 27, 1987, order on sanctions. Plaintiffs filed a post-trial motion requesting relief only as to the October 22, 1987, nonpunitive damage verdicts on count II. Both post-trial motions were denied. A finding that there was no just reason for delaying enforcement or appeal was made pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), in view of the remaining severed counterclaims and third-party claims. Monsanto appeals from the judgment on the verdicts on count II, the judgment on extraordinary costs, and the order on sanctions.

This case arose out of a train derailment and subsequent chemical spill that occurred at Sturgeon, Missouri, on January 10, 1979. The evidence revealed that the defendant sent from its plant in Sauget, Illinois, a shipment by tank car of OCP-crude which contained small quantities of a dioxin called 2, 3, 7, 8, TCDD. The dioxin was formed as a part of the manufacturing process. The train derailed, and a gash on the bottom of the tank car caused some 19,000 gallons of OCP-crude to spill onto the tracks where the train came to rest. There seems to be no question that there was some quantity of dioxin in the OCP-crude and that Monsanto either knew or should have known of this fact. It was also revealed in the evidence that it was some days later before the clean-up crews were notified of the possibility of dioxin in the spill.

The plaintiffs in this case are 65 individuals who were residents of Sturgeon at the time of the spill or who spent time in Sturgeon for various reasons after the spill. Plaintiffs alleged that they suffered personal injuries as a result of exposure to the dioxins contained in the spilled chemicals and that Monsanto was liable for such injuries under theories of strict products liability and wilful and wanton conduct. The jury returned its verdict after hearing evidence for 3 1/2 years and deliberating for eight weeks. It found for Monsanto on the strict products liability count but for plaintiffs on the wilful and wanton conduct count as heretofore set forth.

It would be counterproductive to discuss the evidence in this case with the exception of that relevant to the specific issues addressed in this opinion. The plaintiffs' case-in-chief lasted some 17 months and the defendant took 24 months to present its defense. The trial began with jury selection on February 6, 1984, and lasted until the jury returned its verdict on October 22, 1987. The transcript of the proceedings totals 91,555 pages along with some 6,333 exhibits. We will not address any evidence relating to the issues of causation and personal injury damages. The majority of the evidence at trial related to those issues, but since the jury determined that no personal injury occurred, and no appeal was taken thereon, there is no need to address those subjects.

The defendant, Monsanto, filed a 2,700-page post-trial motion but was required by the court to file an abbreviated motion not to exceed 200 pages. This was not error as all issues have been fully covered and addressed on appeal. Although the defendant-appellant's brief contains many issues and subissues listed in its points and authorities, the brief does set forth the issues on appeal in broader fashion. We will address only those issues that this court feels are necessary to dispose of this appeal. The issues presented by the defendant are:

1. Whether the evidence introduced at trial so overwhelmingly favors Monsanto that the trial court erred in not entering a judgment notwithstanding the verdicts as to count II of plaintiffs' second amended complaints.

2. Whether the misconduct of plaintiffs' counsel during closing argument improperly inflamed the jury to award punitive damages based on passion and prejudice.

3. Whether the trial court erred in not instructing the jury on the law of corporate complicity.

4. Whether plaintiffs' failure to prove any injury or actual damages proximately caused by Monsanto's alleged wilful and wanton conduct requires a judgment notwithstanding the verdicts as to count II of plaintiffs' second amended complaints.

5. Whether the award of punitive damages in this case violates Illinois public policy and the eighth and fourteenth amendments of the United States Constitution and article I, section 2, of the Illinois Constitution.

6. Whether Monsanto is entitled to a new trial or remittitur based on the excessiveness of the award of punitive damages.

7. Whether the trial court erred in admitting certain irrelevant and inflammatory evidence.

8. Whether plaintiffs' attorney's improper trial tactics prejudiced Monsanto.

9. Whether the trial court committed reversible error in refusing to conduct a voir dire concerning the jury's exposure to the complete trial transcript and extensive publicity that was prejudicial to Monsanto.

10. Whether Monsanto was deprived of its fundamental right to a fair trial due to the court's conduct of the trial.

11. Whether the trial court erred in imposing sanctions against Monsanto and its counsel pursuant to section 2-611 of [217 Ill.App.3d 196] the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-611.)

12. Whether the trial court's rulings and procedures denied Monsanto a fair trial under the due process clause of the United States Constitution.

13. Whether the trial court erred in ordering Monsanto's original post-trial motion to stand as a brief in support of a court-ordered amended post-trial motion which was restricted in length.

14. Whether the trial court erred in excluding the testimony of Dr. Renate Kimbrough.

15. Whether the cumulative effect of the trial court's erroneous rulings deprived Monsanto of a fair trial.

16. Whether plaintiffs' case included claims preempted by Federal law.

17. Whether Monsanto is entitled to a setoff of amounts paid to plaintiffs by its settling codefendants.

18. Whether the trial court erred in assessing extraordinary costs against Monsanto in favor of St. Clair County.

19. Whether the trial court erred in denying Monsanto's motion to dismiss on the basis of forum non conveniens.

The common-law record, the trial transcripts, exhibits, trial briefs, post-trial motions, and trial rulings are monumental in size and length. However, the succinct way the attorneys for both appellant and appellees handled the appeal in their briefs and arguments have been of great assistance to this court, and all attorneys involved are to be complimented on their presentation. Dealing with the great volume of the record by counsel has been, to say the least, an overwhelming task.

Although there are a great number of issues that could be addressed, the case at bar deals basically with the propriety of the punitive or exemplary damage award in the sum of $16,250,000...