APPEAL from the Circuit Court of Madison County; the Hon.
JOSEPH J. BARR, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, General American Transportation Company (GATX), appeals from the judgment entered by the Circuit Court of Madison County on a jury verdict finding it jointly liable with Norfolk and Western Railway Company (N&W) for the wrongful death and personal injury prior to death sustained by plaintiff's intestate Clyde G. Rucker, and awarding damages in the amount of $850,000. On appeal, GATX prays for judgment notwithstanding the verdict, or alternatively a new trial, contending that numerous pretrial and trial evidentiary rulings of the lower court were incorrect; that certain instructions to the jury were improper; and that certain rulings by the trial court concerning the pleadings in this case were improper. GATX has also filed a motion, which we have taken with the case, to limit execution and for credit and reduction upon judgment based upon a certain "loan receipt agreement" entered into after the jury verdict by the plaintiff and N&W.
Plaintiff's intestate, an employee of N & W, suffered fatal injuries while in the course of his employment as a result of an explosion that took place at N & W's switchyard in Decatur, Illinois, on July 19, 1974. Plaintiff's fourth amended complaint charged N & W with violations of the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1970)) and the Safety Appliance Act (45 U.S.C. § 1 et seq. (1970)), and stated causes of action based upon strict liability in tort against GATX and Phillips Petroleum Company (Phillips) as the builder and lessee respectively, of GATX No. 41623, an LP jumbo tank car. In its answer to the plaintiff's complaint, N & W asserted counterclaims against both GATX and Phillips praying for indemnity for all damages resulting from the explosion, including the instant case. Because of other collateral actions and motions by Phillips, the counterclaims of N & W against GATX and Phillips for indemnity were severed from the instant cause by an order of the Illinois Supreme Court and are currently pending in the Circuit Court of Macon County, Illinois.
The N & W operates a railway system throughout several states, and handles and transports railroad freight cars. At its switchyard or classification yard in Decatur, the N & W receives and breaks up trains, and makes up new trains for travel to further destinations. Various rules, known as Interchange Rules, have been developed by the railroad industry, including manufacturers, shippers and government representatives, which require each railroad to accept every railroad car tendered to it under certain published criteria called "Tariffs," if the car meets certain visual safety standards.
GATX is a major builder of railroad freight and tank cars, including those known as jumbo tank cars designated as the 112-114 series. These cars have a capacity of 30,000 to 35,000 pressurized gallons of liquified petroleum gas (LPG), and when fully loaded weigh approximately 260,000 pounds. These tank cars are actually steel cylindrical tanks that ride on wheels, known as trucks, which in turn support coupler systems. The ends of the tank are approximately hemispheric in shape and made of steel approximately 11/16" in thickness.
In 1970, a cooperative project was developed by two railroad trade associations, the Railway Progress Institute (RPI) and the Association of American Railroads (AAR), to study the causes of ruptures and punctures of railroad tank cars. The joint project was commissioned by the Federal Railway Administration (FRA) of the United States Department of Transportation (DOT) and consisted of representatives of railroads, shippers and manufacturers, including GATX. In the course of its study, the RPI-AAR Joint Project gathered records and statistical data from railroads and tank car manufacturers concerning accidents in the railroad environment. In August 1971, the joint project issued its final report to the FRA. Table A-7 of the report, entitled "Loss Caused by Head Punctures, Loaded Non-Insulated Steel Pressure Cars, Class DOT 112 A-W, 114 A-W," consisted of a short description of some 42 accidents involving head punctures of the 112-114 tank car series which had occurred in the railroad environment between 1965 and 1970. Of these 42 head punctures approximately 26 were caused by the head of a tank car being punctured by the coupler of an adjacent car. Two of the proposed solutions to prevent tank car head punctures were the installation of headshields and/or top and bottom shelf couplers in order that one or the other device would prevent the coupler on an adjoining car from rising up and puncturing the head of the tank car. Subsequent to the issuance of the joint project's report, experimental headshields were installed on approximately 100 tank cars.
The tank car in question, GATX No. 41623, was manufactured by GATX in September 1971 and was leased to Phillips in that year for transportation of LPG. In July 1974, Phillips loaded GATX No. 41623 with LPG in Tuscola, Illinois, to be shipped with four other Phillips jumbo tank cars to the Phillip's plant in East St. Louis, Illinois. On July 19, 1974, the switch crew on duty at the N & W classification yard in Decatur received a cut of cars containing GATX No. 41623 and the other four jumbo tank cars. Prior to switching the tank cars onto track 11, the switching crew had switched an empty boxcar, NW No. 49203, onto that track. Sometime later, the crew switched the five tank cars onto track 11 with the lead car being GATX No. 41623.
From the evidence adduced at trial, it appears that the five car cut of tank cars was released and allowed to roll onto track 11 at approximately 5 a.m. on July 19, 1974. The tank cars rolled some 2700 feet in an easterly direction on track 11 resulting in the eastern most coupler of GATX No. 41623 impacting with the western coupler of the standing boxcar, NW No. 49203. The resulting impact apparently caused the boxcar's western coupler to rise up and penetrate the easterly head of GATX No. 41623, thereby permitting the escape of LPG into the switchyard. A few minutes later, the then vaporized LPG found an ignition source and exploded in several bursts causing widespread property damage, personal injuries and seven deaths, including that of plaintiff's decedent. Subsequent to the accident, the DOT issued an order, effective August 30, 1974, requiring that all DOT 112A and 114A tank cars be equipped with headshields (49 C.F.R. § 179.100-23).
As stated earlier, plaintiff's fourth amended complaint with respect to GATX and Phillips sounded in strict liability in tort charging them with placing a defective product into the stream of commerce. Specifically, each was charged with the knowledge that the tank car was to be used for LPG transportation; that each knew the hazardous characteristics of LPG; and that the tank car was not reasonably safe for its intended use of transporting LPG by rail. From the beginning of the case, GATX and Phillips sought to develop and introduce evidence that GATX No. 41623 met all industrial and Federal standards and specifications for its design and manufacture. Motions challenging the pleadings, objections at the time depositions were taken, and arguments at every pretrial conference repeatedly involved the question of whether compliance with industrial and Federal standards and specifications was admissible on behalf of the defendants, GATX and Phillips. In March 1976, plaintiff filed a motion in limine that was vigorously argued by both sides. The plaintiff's motion was allowed in its entirety and resulted in GATX and Phillips being precluded, inter alia, from introducing any evidence of compliance with certain industrial and Federal standards and specifications; from mentioning in any manner the state of the art of manufacturing the tank car in question; and from mentioning in any manner that the plans and specifications for series No. 112 and No. 114 tank cars, including GATX No. 41623, had to be approved by the AAR and/or the DOT.
Immediately before the jury was selected, N & W filed a "Limited Admission of Liability" admitting liability under the Safety Appliance Act counts of plaintiff's complaint stating that it was not to be construed as an admission of factual responsibility nor an admission that such violation was the proximate cause of the occurrence. Plaintiff thereupon dismissed her claims against N & W under the FELA theory of liability. GATX's motions to continue, sever and dismiss in view of N & W's admission of liability were denied. Trial proceeded against GATX and Phillips on the strict liability in tort theory, and against N & W on the issue of damages only. During virtually every witness' testimony offers of proof were made by GATX, out of the presence of the jury, as to AAR standards. At various times during the lengthy trial, motions were made to the trial court to set aside or modify its ruling on the plaintiff's motion in limine because of a claimed waiver by virtue of evidence introduced by plaintiff. All of these motions were denied by the trial court and, consequently, no evidence of any of the matters outlined above in the plaintiff's motion in limine was presented to the jury by the defendants.
At the close of plaintiff's case Phillips' motion for a directed verdict was granted, basically upon the theory that a lessee of a tank car cannot be liable under the theory of strict liability in tort. On July 2, 1976, the jury returned its verdict in favor of the plaintiff and against GATX and N & W in the amount of $850,000. Subsequent to the denial of GATX's post-trial motion, negotiations commenced between the plaintiff and N & W relative to a possible loan agreement. Apparently the subject was first broached on or about October 15, 1976, during the period in which the defendants could file their notice of appeal. The loan receipt agreement was executed on October 22, 1976, copies of which were served upon all courts> involved and all interested parties. The plaintiff received $700,000 from N & W under the agreement and has agreed to pursue all available means to collect the proceeds of the $850,000 judgment from GATX. Consequently, only GATX appeals from the judgment below.
1 GATX's first contention is two-fold: (1) that the State of Illinois is prohibited by the commerce clause of the United States Constitution from imposing tank car design specifications that conflict with or augment federally prescribed design specifications; and (2) that the Federal design specifications which existed prior to the Decatur accident prohibited manufacturers from placing into service a tank car equipped with headshields as advocated by the plaintiff. The plaintiff initially urges that this argument has been waived by GATX because of its failure to cite as error the denial of its various offers of proof on these issues by the trial court. In this regard, we agree with GATX that the argument was sufficiently preserved by its assertion in its brief that the lower court erred in granting plaintiff's motion in limine, a good portion of which dealt with the above-stated issues.
2 GATX urges that Congress, through the exercise of its powers under the commerce clause, has preempted the field of railroad safety in general. On this point the evidence supports GATX's claim that the tank car in question was manufactured in conformance with federally prescribed design standards and specifications. GATX cites as authority for its preemption argument the National Railroad Safety and Hazardous Materials Transportation Control Act (45 U.S.C. § 431 et seq. (1970)) wherein in relevant part it provides:
"The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. * * * A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce." (45 U.S.C. § 434 (1970).)
Relying in part on Donelon v. New Orleans Terminal Co., 474 F.2d 1108 (5th Cir. 1973), GATX urges that the jury verdict in favor of the plaintiff constitutes impermissible interference by the State with the above-stated section that mandates national uniformity in the area of railroad safety. We believe that GATX misconstrues Donelon, a case which involved an action by Louisiana parish officials for review of an FRA report finding that a railroad's roadbeds and tracks in the parish met Federal standards. The court in Donelon held that individual officials of the parish were without authority to require a railroad to meet any safety standards beyond those provided for in the Act. We believe the court's decision was correct; however, we do not interpret it, nor the applicable section of the Act, to extend so far as to prohibit actions brought by injured persons against railroads or equipment manufacturers based upon the theory of strict liability in tort.
It is the plaintiff's position that her action for damages against GATX on a defective design products liability theory, and the resulting jury verdict in her favor, cannot be construed as an alteration of Federal tank car specifications nor a State mandate to GATX or any other manufacturer to equip tank cars with headshields. The plaintiff asserts that the jury verdict in no way affects or conflicts with existing Federal regulations, but rather is merely a finding by the jury that the tank car in question without headshields is unreasonably dangerous.
In support of her contention, plaintiff cites Raymond v. Riegel Textile Corp., 484 F.2d 1025 (1st Cir. 1973), which involved a products liability action brought by the plaintiff pursuant to New Hampshire law. The suit was against a materials manufacturer for personal injuries to a minor child who was severely burned when her nightgown burst into flames. The manufacturer maintained that the material in question met the standards provided in the Federal Flammable Fabrics Act (15 U.S.C. § 1191 et seq. (1970)) and pointed out to the court that the Act provided for Federal preemption of material flammability standards (15 U.S.C. § 1203 (1970)). The Raymond court noted that the Act made no provision for private relief for those harmed in accidents involving flammable fabrics, and further noted that the legislative history of the Act indicated a congressional intent to increase the protection of consumers. Reasoning that the evident solicitude of Congress for the plight of burn victims must necessarily be taken into consideration when interpreting the supremacy clause of the United States Constitution, the court held that application of New Hampshire's common law strict liability standard in tort actions involving injuries from burning clothing was not incompatible with the provisions of the Act (484 F.2d 1025, 1027).
3 We are persuaded by the reasoning of the Raymond court and are unable to find any authority to support GATX's contention that an individual's action for personal injuries based upon a defective design products liability theory runs contrary to Federal statutes dealing with railroad safety. We are of the opinion that Federal preemption in the field of railroad safety extends only as far as to prevent conflicting State and local safety standards, and does not represent Federal encroachment into well-defined and well-established common law products liability theories that exist to insure redress to those who have suffered injuries.
Within the context of its preemption argument, GATX also asserts that because the evidence showed that GATX No. 41623 was built in compliance with federally prescribed specifications, the lower court erred in submitting the case to the jury on common law principles in violation of the commerce and supremacy clauses of the United States Constitution. GATX contends that to construe the regulations as permitting a manufacturer to modify or add to the specifications prescribed by the Federal Government ignores the clear intention of the Federal Government to permit no discretion by a manufacturer in the building of railroad tank cars. In essence, GATX urges that the Federal Government, having prescribed design specifications for the subject tank car, thereby bound GATX and other manufacturers to follow them without any modification whatsoever.
As we have earlier noted, the Federal regulations prescribing tank car design specifications require that DOT 112A and 114A tank cars built after August 30, 1974, be equipped with headshields (49 C.F.R. § 179.100-23). We also note that these regulations require a manufacturer to certify a tank car, and all equipment appurtenant thereto, as meeting all specifications before it is placed into service (49 C.F.R. § 179.5(a)). GATX maintains that these sections connote that a design feature which is not provided for in the regulations, as was true of headshields prior to August 30, 1974, is thereby expressly prohibited. We disagree and find that the evidence adduced at trial, and the offers of proof of GATX which were denied, belie this assertion.
4 Rolf Mowatt-Larssen, Director of the Office of Standards and Procedures of the DOT, testified, by means of an evidence deposition, that prior to the DOT order in July 1974 requiring headshields, tank car manufacturers could have installed them without DOT permission inasmuch as DOT regulations did not prohibit headshields. This was confirmed by Earl Phillips, project director of the RPI-AAR joint project and vice-president of engineering and development of Union Tank Car Company, who testified in an offer of proof by GATX that all changes in or additions to tank car design specifications were to be submitted to the AAR tank car committee for approval, and that construction could not begin until the proposed design had been approved as evidenced by issuance by the AAR of a certificate of construction. Phillips stated that this procedure was followed by several tank car manufacturers in 1973 before they applied headshields designated as the RPI-AAR design to approximately 100 tank cars. Phillips further testified in the offer of proof that prior to July 1974 GATX had submitted proposed headshield designs to the AAR which were subsequently rejected because of lack of testing and lack of proper specification development for its design and application. While we agree that the required AAR approval procedure for modification of existing tank car design specifications made it more difficult for tank car companies to apply headshields prior to August 30, 1974, we find no merit in GATX's argument that it was absolutely prohibited from doing so prior to that date by the then existing Federal regulations prescribing tank car design specifications.
GATX next contends that the lower court erred in granting plaintiff's motion in limine which thereby precluded it from introducing evidence that the tank car in question complied with Federal and industrial standards and specifications, or from showing that at the time the tank car was manufactured application of a headshield was technologically and economically unfeasible. GATX urges that such evidence, which it refers to as evidence of the "state of the art," is admissible in strict liability for misdesign litigation to show that a product is not unreasonably dangerous. Moreover, GATX asserts that the trial court was under the misconception that the admission of evidence of a manufacturer's compliance with any "standard" is limited to cases sounding in negligence. It is GATX's position that a strict liability in tort case involving product design is akin to an action in negligence in which evidence concerning compliance with statutes, regulations, standards, testing procedures and the state of the art is admissible. In the alternative, GATX submits that inasmuch as the plaintiff "opened the door" by introducing evidence of Federal design specifications, it also should have been permitted to do so as a matter of fundamental fairness. Thus, GATX argues that the lower court's allowance of plaintiff's motion effectively choked off its principal defense and was prejudicial error. We disagree.
In a case, such as the instant cause, tried on a strict liability theory, the focus is not on the manufacturer's conduct, but rather on the product itself. The manufacturer may be held liable regardless of the degree of care he has exercised in the preparation and sale of the product. The fundamental difference between the strict liability and negligence products liability theories was stated in Kossifos v. Louden Machinery Co., 22 Ill. App.2d 587, 591, 317 N.E.2d 749, 752 (1st Dist. 1974):
"Confusion is ever-present, of course, because of the fact that the condition of the product will always have been ultimately caused by the conduct, whether by commission or omission, of someone. But this interrelationship between the condition of the product and the conduct of the person must not be permitted to blur the basic distinction between the type of tort being alleged. Where the product is in an unreasonably defective condition, the conduct of the person who caused it to be in that condition may or may not have been negligent; whether that conduct was or was not negligent is irrelevant to strict product liability, because the liability is predicated solely on the condition of the product."
The distinction in the theories of products liability was also recognized by our supreme court in Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970), which involved an action brought against a hospital by a patient who had contracted serum hepatitis from defective blood supplied by the hospital. The court held that the hospital could be held liable even though the state of medical science was such that there was no testing method by which the existence of serum hepatitis virus could be detected in whole blood. In so deciding the court reasoned that:
"To allow a defense to strict liability on the ground that there is no way, either practical or theoretical, for a defendant to ascertain the existence of impurities in his product would be to emasculate the doctrine and in a very real sense would signal a return to a negligence theory." (47 Ill.2d 443, 453, 266 N.E.2d 897, 902.)
In addition, the court concluded that the state of the art "is of absolutely no moment." 47 Ill.2d 443, 455, 266 N.E.2d 897, 903. See also Kerns v. Engelke, 54 Ill. App.3d 323, 369 N.E.2d 1284 (5th Dist. 1977), appeal allowed ___ Ill.2d ___; Stanfield v. Medalist Industries, Inc., 34 Ill. App.3d 635, 340 N.E.2d 276 (2d Dist. 1975); Matthews v. Stewart Warner Corp., 20 Ill. App.3d 470, 314 N.E.2d 683 (1st Dist. 1974).
5 GATX seeks to distinguish the rejection in Cunningham of "state of the art" as a defense in strict products liability cases, arguing that the court in Cunningham was not confronted with a case involving product design, but rather a contaminated product. We fail to see any practical distinction between the two types of cases. The thrust of the decision in Cunningham was the rejection of a defense that was only indicative of a defendant's conduct and exercise of care in the manufacturing process, rather than the required focus on the condition of the product itself. We believe the reasoning of Cunningham is especially applicable in the instant cause inasmuch as there did exist, at the time of the Decatur accident, the necessary technology for the design of headshields and the AAR approval procedure for their installation on tank cars. Therefore, a "state of the art" defense based on GATX's compliance with federally mandated tank car design specifications would have been irrelevant.
6 We also find no merit in GATX's assertion that by the allowance of plaintiff's motion in limine it was precluded from showing that application of a headshield to the tank car in question at the time it was constructed was unfeasible. The plaintiff interjected into the case the issue of feasibility of alternate design through the testimony of her expert witness, Rolf Mowatt-Larssen, who testified, by means of an evidence deposition, that in his opinion it was feasible from an economic, practical and technological viewpoint to install headshields in September 1971, at which time GATX No. 41623 was built. GATX's expert witness, Earl Phillips, when questioned whether it was feasible, under the same standards, for GATX to have installed headshields on its tank cars in September 1971, and in the years 1972 to 1974, opined that it was not. In addition, Albert Price, GATX chief engineer, testified that in his opinion it was not feasible in 1971 for tank car manufacturers to install headshields. Hence, while the jury did not choose to agree with these views, it is apparent from the record that GATX was not prevented from introducing evidence regarding the feasibility of the installation of headshields prior to July 1974.
7, 8 In its final argument on this issue, GATX, citing Walker v. Trico Manufacturing Co., 487 F.2d 595 (7th Cir. 1973), urges that inasmuch as the plaintiff introduced evidence of Federal design specifications, it also should have been permitted to do so as a matter of fundamental fairness. We disagree and believe that GATX's reliance on Walker is misplaced. We note from the record that the only evidence of Federal design specifications introduced by the plaintiff was in reference to a DOT regulation issued after the Decatur accident, the admission of which GATX does not cite as error. Plaintiff's expert testified that it was feasible in 1971 to equip a tank car with a headshield as mandated by the Federal regulation which went into effect on August 30, 1974. This evidence, relating to post-occurrence design specification changes, is relevant to the question of feasible design alternatives available to GATX and was properly admitted for that purpose. (Cunningham v. Yazoo Manufacturing Co., 39 Ill. App.3d 498, 350 N.E.2d 514 (3d Dist. 1976); Biehler v. White Metal Rolling & Stamping Corp., 30 Ill. App.3d 435, 333 N.E.2d 716 (3d Dist. 1975); Scott v. Dreis & Krump Manufacturing Co., 26 Ill. App.3d 971, 326 N.E.2d 74 (1st Dist. 1975); Sutkowski v. Universal Marion Corp., 5 Ill. App.3d 313, 281 N.E.2d 749 (3d Dist. 1972).) In Walker, a plaintiff's expert witness testified that the defendant's competitors in the blowmold machine manufacturing industry placed a safety shield over the machine's activating switch. The defendant's experts countered by testifying that it was not the industry practice to do so. The court, while recognizing that "`state of the art' has no relevance to the defense of an action sounding in strict products liability," found no error in the admission of defendant's rebuttal evidence, reasoning that the plaintiff, through the testimony of his expert, had opened the door. (487 F.2d 595, 600.) It is obvious that the cases are inapposite; the plaintiff's introduction of post-occurrence standards in the instant cause cannot be said to have "opened the door" so as to have allowed GATX to introduce evidence of its compliance with Federal regulations and standards at the time the tank car in question was manufactured.
GATX next complains that the introduction into evidence of Table A-7, entitled "Loss caused by Head Punctures, Loaded Non-Insulated Steel Pressure Cars, Class DOT 112A-W, 114A-W," a portion of the report of the RPI-AAR joint project, was improper. GATX urges two grounds as error: (1) that the table was erroneously admitted into evidence as a public document under that exception to the hearsay rule; and (2) that there was no showing by the plaintiff that the list of tank car accidents contained in the table were in any way similar to the Decatur accident.
Prior to trial in this cause, the plaintiff took an evidentiary deposition of its expert witness, Rolf Mowatt-Larssen, Director of the Office of Standards and Procedures of the DOT. During the course of this deposition the witness read, over GATX's objection, a portion of the report prepared in 1971 by the RPI-AAR joint project. As earlier mentioned, the joint project was commissioned by the FRA to study the causes of ruptures and punctures of tank cars that had been involved in railroad accidents, and to find a practical means to reduce a tank car's vulnerability to such occurrences. In the course of its study, the joint project gathered various statistics and data from the DOT, the AAR Bureau of Explosives, and from numerous railroads and tank car companies in the United States and Canada. That portion of the report complained of by GATX, Table A-7, contained statistics concerning head punctures to tank cars in the 112-114 series, the type of tank car involved in the accident in question, in the railroad accident environment between 1965 and 1970.
At trial, Earl Phillips, director of the RPI-AAR joint project, testified on behalf of the plaintiff regarding Table A-7. Phillips related that the accident data and statistics contained therein had been assembled under his supervision and control from authoritative sources and relied upon by the joint project in its study of the problem. GATX objected to the introduction of Table A-7 into evidence on the grounds that the statistics contained therein concerning prior tank car accidents were not similar to the Decatur accident. No objection was made by GATX on the grounds of hearsay. As part of its case, GATX recalled Phillips as its own witness and questioned him in reference to Table A-7, as it had earlier on cross-examination. Subsequent to Phillips' testimony for the plaintiff, Mowatt-Larssen's evidence deposition, with Table A-7 a part thereof, was read into the record. Larssen stated that he was the party responsible for the contract with the RPI-AAR joint project which culminated in the report, containing Table A-7, submitted to the FRA in August 1971. He further stated that the report of the joint project was a part of the public records, and that the statistics and data contained therein were relied upon by his office, the FRA, and himself.
GATX contends that the admission into evidence of Mowatt-Larssen and Phillips' testimony regarding Table A-7 on the basis that it was a public document under that exception to the hearsay rule was error because insufficient foundation was laid upon which the court could so find. GATX cites pages in Mowatt-Larssen's evidence deposition, which numbered over 300 pages, as substantiation of its objections on these grounds to Mowatt-Larssen's testimony. GATX did not enter this objection at trial when the evidence deposition was read into the record, nor did it raise the objection during Phillips' testimony. Plaintiff responds that there was sufficient foundation laid for the introduction of the evidence complained of. Moreover, plaintiff argues that the pertinent paragraphs in GATX's post-trial motion which related to the allegedly improper evidence did not sufficiently or particularly specify the ...